: Employment Judge Le GrysMs. L. Millin (instructed by counsel) for claimantMrs. H. Winstone (instructed by counsel) for respondentDate 19 December 2025
JUDGMENT
The Claimant’s claim is dismissed. The Tribunal does not have jurisdiction to hear the claim because it was presented outside the statutory limitation period, and it was reasonably practicable for the claim to be presented in time. JUDGMENT having been sent to the parties on 25 July 2022 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The Claimant, Mrs Jacqueline Cross, was employed by the Respondent, NHS Somerset Clinical Commissioning Group, from 6 January 2014 until 23 April 2021, when her employment was terminated by reason of her resignation. In a claim form dated 10 November 2021 she brings a claim for unfair dismissal and argues that her resignation should be taken to be a constructive dismissal.[2]Section 111(2) of the Employment Rights Act 1996 (“ERA”) establishes time limits for the presentation of a complaint of unfair dismissal. It is not in dispute that on this occasion the complaint was not presented within three months of the effective date of termination. The Claimant argues, however, that it was not reasonably practicable for the claim to be presented in time, as she had made a genuine mistake as to the time limits. She further argues that, once she became aware of the true time limit, the claim was presented within a reasonable further period.[3]The Respondent contested the claim. They argued that it was reasonably practicable for the matter to have been presented in time and the Tribunal therefore has no jurisdiction to hear the claim.[4]The Claimant appeared before the Tribunal represented by Ms. L. Millin of counsel, and gave sworn evidence. The Respondent was represented by Mrs. H. Winstone of counsel. I considered the evidence in a 112 page bundle of documents provided by the Respondent, and a 17 page bundle (including a skeleton argument) provided by the Claimant. I additionally considered a separate 4 page skeleton argument of the Respondent. Issues for the Tribunal to Decide[5]It is agreed that the claim was not presented within three months of the effective date of termination (allowing for early conciliation). It was also apparent that, once the Claimant states that she became aware of the correct time limit, the claim was issued promptly thereafter. The sole issue for the Tribunal, therefore, was whether it was reasonably practicable for the claim to be presented in time.
The Facts
[6]The Claimant was employed by the Respondent as a nurse, initially at band 5 and later at band 6. In 2015 a vacancy arose at band 8, which the Claimant was encouraged to apply for; for a number of reasons she decided against this. Another individual was instead appointed to the role in 2016 but did not remain in post. The Claimant alleges that she was then bullied to take on this lead role. She ultimately agreed to do so on a trial basis, but in the intervening time her band 6 role disappeared from the structure and so there was no possibility of a return.[7]The Claimant found the work to be extremely difficult. She makes a number of complaints about the way in which she says she was treated during this time which formed part of her claim of unfair dismissal. It is sufficient for these purposes to note that she was absent from work for reasons related to stress between May 2019 and August 2019, and again after June 2020.[8]By January 2021 the Claimant had instructed solicitors. On 18 January 2021 the solicitors emailed one of the Claimant’s managers to raise a number of concerns. This email concluded by stating that the way in which the Claimant was being treated by the Respondent “only adds to my client’s evidence in respect of any subsequent claim for constructive unfair dismissal and/or whistleblowing detriment” (page 42 of the main bundle).[9]On 24 January 2021 the Claimant emailed the same manager, giving 3 months notice of resignation. The email set out allegations of poor treatment by the Respondent, and stated that the Claimant believed “that there has been a fundamental breach of the trust and confidence in the employment relationship and, as such, I have been left with no other option but to resign”. The email further stated that the Claimant anticipated submitting a formal grievance in due course, and requested details of the person to whom this should be sent (page 44). It was not, however, suggested that the Claimant was seeking re-instatement as an outcome of this grievance.[10]A number of emails were exchanged between the Claimant and Respondent in early 2021 before a grievance meeting was held on 7 May 2021. The Claimant was supported in this meeting by a union representative. At the end the parties discussed the next steps, and the notes show that the representative made reference to “being mindful of the ET deadline”, and that the Claimant “has the legal option of going to ET after ACAS and to preserve the deadline, is required to submit a claim to ACAS within 3 months of the end of employment” (pages 67-68).[11]Following the further exchange of emails about the grievance, on 8 July 2021 the Claimant emailed the Respondent and stated that given the timelines that have been indicated, I felt I had no other option but to reach out to initiate ACAS pre-claim conciliation, in order to preserve my rights to bring a Tribunal Claim in due course, should that be necessary” (pages 69- 70).[12]The early conciliation certificate shows that ACAS was notified on 8 July 2021, with the certificate then issued on 19 August 2021.[13]The Claimant received the outcome of her grievance by way of a letter dated 5 November 2021. Following receipt of this she states that she made contact with ACAS again. In an email of 9 November 2021 (page 41) she notes that it “has been a few months since I had a call with you/ACAS” and requests further advice. She says that she then spoke with someone who explained that the ACAS certificate was valid for one month. She accepted when cross examined that she had had no contact with ACAS between July and November.[14]The Claimant then issued proceedings on 10 November 2021.[15]In her written statement the Claimant stated that she had originally contacted solicitors for advice, but her case was then dealt with by her professional union, the Royal College of Nursing, where it was handled by three different representatives. She believed that they were aware of the deadlines for submission of her claim. She stated that she was stressed and anxious, and disappointed because she believed that the Respondent was not acknowledging the care issues she had raised. She accepted under cross examination that she had worded her resignation letter with the benefit of legal advice. She stated that she was aware of the date “1 day within 3 months”, but highlighted that the legal issues were new to her. It was her belief that, once ACAS had been notified within 3 months, her case was “safe in the system”. The Claimant accepted that her union had specialist employment lawyers but couldn’t remember whether the people she had spoken to had said that they were part of the employment team.
Relevant Law
[16]Section 111(2) Employment Rights Act 1996 states: (2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal—(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[17]Section 111(2A) ERA 1996 confirms that provisions relating to the extension of time limits to facilitate conciliation before institution of proceedings apply for the purposes of subsection (2)(a).[18]It is agreed that the effective date of termination in this case was 23 April 2021. Contact was made with ACAS on 8 July 2021, and an ACAS certificate was issued on 19 August 2021. It is agreed that the time limit for the presentation of the case was therefore 18 September 2021. As this was a Saturday the Respondent argued that the claim should in fact have been lodged on 17 September 2021 (referring to the case of Miah v Axis Security Services Ltd UKEAT/0290/17/LA), but it was agreed that this was somewhat academic in the context of the specific issues of this case.[19]The claim was dated 10 November 2021, and was therefore presented around 7 ½ weeks after the relevant time limit. It is therefore agreed that the claim could not succeed under s.111(2)(a).[20]Where a claimant argues that it was not reasonably practicable to present the claim within the time limit, three general rules apply:a. s.111(2)(b) ERA should be given a “liberal construction in favour of the employee” (Dedman v British Building and Engineering Appliances Ltd 1974 ICR 53, CA);b. What is reasonably practicable is a question of fact and therefore a matter for the Tribunal to decide (Wall’s Meat Co Ltd. v Khan 1979 ICR 52, CA);c. The onus of proving that presentation in time was not reasonably practicable rests of the claimant (Porter v Bandridge Ltd 1978 ICR 943, CA).[21]In Palmer and anor v Southend-on-Sea Borough Council 1984 ICR 372, CA, the Court of Appeal concluded that “reasonably practicable” does not mean “reasonable”, but nor does it mean “physically possible”. It instead means something like “reasonably feasible”. In Asda Stores Ltd v Kauser EAT 0165/07 Lady Smith stated “the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done”.[22]A claimant’s complete ignorance of his or her right to claim may make it not reasonably practicable to present a claim in itself, but the claimant’s ignorance must itself by reasonable. In Dedman Lord Scarman commented that the Tribunal must ask further questions: “what were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived?”. In Porter, the Court of Appeal ruled that the correct test is not whether the claimant knew of his rights but whether he ought to have known of them.[23]Where the claimant is generally aware of his rights, ignorance of the time limit will rarely be acceptable as a reason for delay. In Trevelyans (Birmingham) Ltd. v Norton 1991 ICR 488, EAT Mr Justice Wood said that, when a claimant knows of his rights, they are under an obligation to seek information and advice about how to enforce that right.[24]In Marks and Spencer plc v Williams-Ryan 2005 ICR 1293, CA the Court of Appeal set out a number of principles:a. s.111(2) should be given a liberal interpretation in favour of the employee;b. Regard should be had to what, if anything, the employee knew about the right to complain to a Tribunal and the time limit for doing so;c. Regard should be had to what knowledge the employee should have had, had they acted reasonably in the circumstances. Knowledge of the right to make a claim does not, as a matter of law, mean that ignorance of the time limits will never be reasonable. It merely makes it more difficult for the employee to prove that their ignorance was reasonable;d. If the Claimant’s solicitor fairs to meet the deadline, the Claimant will not be able to argue that the claim was not submitted in time.
Discussion and Conclusions
[25]Having heard from the Claimant I accept that she held a genuine belief that notifying ACAS of her claim was sufficient. She gave credible evidence as to her mistake and her actions at the conclusion of the grievance process, which included contacting ACAS at that point and the prompt submission of the ET1, support the suggestion that she had been waiting for this process to conclude.[26]The Claimant stated that she was under considerable stress at the time and genuinely did not realise that she had to do anything further. Under cross examination, however, she accepted that there was no medical evidence to suggest that this made her unable to present the claim, and further accept that she has had the assistance of her Union throughout.[27]I therefore turn to whether the mistake was reasonable. While mindful of the need to give s.111(2) a liberal interpretation in favour of the employee, I am not satisfied that it was. The Claimant had the benefit of legal advice at an early stage and drafted her resignation letter in contemplation of proceedings. She had the assistance of her Union throughout. Both legal and Union representatives can reasonably be expected to know about the time limits and advise the Claimant accordingly. While the fact of the misunderstanding is clear, the Claimant does not provide any reasons as to why the error was made, which appears to have been entirely her own; she does not suggest, for example, that it was a result of being misled by either her representatives or the Respondent. Furthermore, references to time limits can be seen in the emails and notes from the time, and so there is no question that the Claimant knew that these were an issue. She sought ACAS conciliation within these time limits, demonstrating an awareness that the process needed to be followed notwithstanding the fact that the internal grievance procedure had yet to conclude.[28]The case can therefore be distinguished from circumstances where a Claimant is completely ignorant of their rights to bring a claim in the Employment Tribunal. Furthermore, I note that the Claimant was not seeking re-instatement as an outcome of her internal grievance process; this case can therefore also be distinguished from one where an individual is perhaps trying to see first if they can resolve matters internally and without needing to go to the lengths of a legal process. Proceedings were in mind from the time of the resignation and so it was reasonable to expect that these matters would be confirmed.[29]Given this early contemplation of a claim, as well as the fact that the Claimant has been assisted by representatives, was aware that certain procedural steps needed to be taken, and was aware that these steps applied regardless of whether the internal grievance process had concluded, it would have been possible for the Claimant to ascertain the correct facts within the relevant time limit and reasonable to expect this to be done. While I accept that these matters can be confusing, those intending to bring a claim can be expected to undertake due diligence in checking matters such as deadlines, particularly when they are already aware that these form a crucial part of the process. I accept the submission of the Respondent in this regard that the information was available, had it been checked.[30]Taking all of this into account I am satisfied that it was reasonably practicable for the Claimant to bring her Claim within the specified period. As such, the claim is out of time and cannot proceed.
Analysis
[31]Moreover, I observe that the clarification which the respondent says was needed could have been sought at any time after the claim was issued, but apart from referring in the Response toa lack of particularity in the claim (paragraph 15), the respondent has not sought an order that the claimant provide further information before the hearing before EJ Burns. Strike Out-A Fair Trial is No Longer Possible[32]I turn then to consider the argument that the respondent can no longer have a fair trial. The respondent asserts that the claimant’s employer no longer exists and its function has been transferred to the NHS Somerset Integrated Care Board, that the ICB could not identify relevant witnesses because the claim had not been properly particularised and that where witnesses have been contacted many of them have expressed concern that they would no longer be able to recall specific incidents with the passage of time.[33]The first witness statement of Ms Black repeats those points and gives details of certain potential witnesses and their whereabouts.[34]The second witness statement of Ms Black was written after the further information had been provided, from which it is clear that the vast majority of the allegations are against Ms Rigby. By then Ms Black had contacted 8 of 14 Ms Rigby who had stated that she would be able to attend the employment tribunal to give evidence but she had no records or detail and so would only be able to provide a limited response. She stated that she was not aware of the matters now being complained about by Mrs Cross.[35]Ms Black makes no reference to any searches for documents or contemporaneous emails by the respondent and does not state whether there has been a loss of any such evidence.[36]I was told by Mrs Winstone that the respondent has searched for documents relating to the claimant’s grievance and has obtained a limited number of those but not searched more widely because it did not know what the allegations were. I do not entirely accept that submission. Since 16 May 2025 the respondent has known, in substance, what the claimant’s allegations were, even though some further particularisation was needed.[37]The further information provided by the claimant, was sufficiently clear to enable the respondent make searches for documents around the team meetings referred to in that further information, the emails referred to and the capability procedure referred to. No such searches have been carried out.[38]No witness statement has been taken from Ms Rigby dealing with the specific allegations which have been made. At page 77 of the bundle is an email sent to Ms Rigby where the allegations made in the further information were set out. The email contained three questions,a. whether Ms Rigby would be able to give evidence,b. if not why not andc. whether Ms Rigby has any recollection of the matters being complained about. Ms Rigby replied stating “I would be happy to talk through what I remember but without detailed files which I do not have it would be very difficult.”[39]Nobody did speak to Ms Rigby, as far as I have been told, and the request to answer the three questions was reiterated. That led to Ms Rigby sending a further email stating. “Sorry I was away at the end of last week. Q1 yes although I have no records or detail so would be limited response. Q3 I was not aware”.[40]On that evidence I am not persuaded that for a trial is not possible. It may be that if the respondent carried out a wider search for documents, it would discover some which it could provide to Ms Rigby. Even without such documents, it may well be that if somebody talked through the allegations with Ms Rigby, with a view to taking a witness statement from her, her recollection would be more detailed than the relatively scant replies which she has sent so far. 9 of 14[41]I do not consider that the fact that the claimant’s employer no longer exists assists the respondent. No doubt provision has been made for its liabilities to be transferred to some other body and the simple fact of a transfer of employer does not, in itself, mean that a fair trial is not possible.[42]I am not persuaded on the evidence that a fair trial is not possible.[43]However, even if I was so persuaded, I would be slow to strike out the claim in the exercise of my discretion. A tribunal has found that it was not reasonably practicable for the claimant to present her claim before she did and that she presented it within a reasonable period. The delay from when the claimant presented her claim form until the hearing before Employment Judge Burns is not a delay for which the claimant was responsible. Indeed, it can now be seen that the respondent was wrong to resist the claimant’s submission that it was not reasonably practicable to present her claim in time. I do not say that it was morally wrong or was behaving unreasonably in the stance that it took, but as a matter of fact it is now known that it was not reasonably practicable to present the claim in time. It is also the case that the respondent was wrong when it argued that the claimant’s appeal should fail. Finally, the respondent was proved wrong in arguing that it was reasonably practicable to present the claim within time before Employment Judge Livesey. I am not suggesting that the respondent should not have taken those points, but if a party takes points which are ultimately unsuccessful, that may have consequences. In this case the consequences have been that the final hearing of this case has been substantially delayed. It cannot be said that the claimant has contributed to that delay and it is that delay which the respondent says has led to it being unable to have a fair hearing. The respondent did not assert that it could not have a fair hearing when the claim was presented in 2021.[44]It can be said that Employment Judge Burns adjourned the last hearing because of his view that the claimant had not properly particularised her claim. However, she had not been asked to provide further information before then, despite hearings having taken place before Employment Judge Midgley and Employment Judge Livesey. Once she was ordered to provide that information she did so, and although that information was slightly lacking, that was not surprising for the reasons identified in Liverpool Heart and Chest Hospitals NHS Foundation.[45]Thus, even if I was persuaded that a fair hearing is no longer possible, I do not consider that this would have been a proper case to exercise my discretion to strike the claim out. No Reasonable Prospect of Success[46]I turn them to the argument that the claimant’s claim has no reasonable prospect of success. Now that the allegations have been properly identified, I consider this to be the stronger of the respondent’s arguments.[47]The claim as now particularised is that in 2021 the claimant resigned because of a significant number of matters which took place in 2017, one 10 of 14 thing that happened in 2019, two things that happened in 2020 and the commencement of the capability procedure in 2021. It may well be that the claimant will struggle to persuade a Tribunal that those matters, even taken cumulatively, amount to a breach of the implied term of trust and confidence. It is trite law that it is not any unreasonable behaviour that breaches the implied term of trust and confidence and, as asserted by the respondent, the claimant will have to show that the respondent had shown an intention to abandon and altogether refused to perform the contract.[48]Moreover given that, even on the claimant’s case, the matters which she now relies upon as breaches of contract were not matters which she raised in her grievance, there will be serious issues of credibility.[49]However, those are all points which must be determined at trial. As has been pointed out by the claimant, in Kinch it was held that issues of affirmation could only be resolved by the hearing of evidence. It cannot be said that the fact that the claimant did not mention the matters about which she now complains in the grievance means that the tribunal is bound to reject her evidence. It cannot be said that what the claimant says is obviously incredible.[50]In my judgment, despite the reservations I have set out, it cannot be said that the claimant’s claim has no reasonable prospects of success.[51]I have considered whether, given what I have said, I should make a deposit order. The test for a deposit order is, of course, somewhat different. However, in circumstances where the respondent is professionally represented and must have chosen not to make an application for a deposit order, and in the circumstances of this case and, in particular, the substantial procedural background to it, I do not think that I should travel that route on my own initiative. The rules allow me to do so, but I do not think it appropriate in this case that I should do. Neither party addressed me on that question at the hearing.[52]The substantial procedural background to this case means that, now that the issues have been identified, what is needed is a speedy final hearing to resolve the claim. Having canvassed that with the parties, I have listed the case for a final hearing in December. Employment Judge Dawson 2 July 202522 July 2025 ……………………………. 11 of 14 Appendix Clarified allegations of Repudiatory Breaches of Contract 1.1 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 and/or express terms of the contract as identified below. The breaches were as follows;1.1.1 On 8th June 2017, Deborah Rigby, Deputy Director of Nursing, questioned the Claimant in a bullying manner in an open plan office in front of everyone.1.1.1.1 She asked everyone in the room, around 8 people, what the temperature was like in their life, she deliberately omitted the claimant.1.1.1.2 She told the claimant that if she stayed in the care home sector, she would lose her job1.1.1.3 She unfairly questioned the claimant’s TOIL, in that the claimant was owed TOIL and Ms Rigby would not listen to her explanation and said that she had to prove the amount owed. The claimant says that she was a senior nurse, and this was extremely embarrassing and upsetting. Breach of the implied term of trust and confidence1.1.2 In July 2017 the Claimant wrote to HR stating that she had not had an appraisal for two years. The claimant says this was a breach of the express term of the contract that appraisals must be carried out annually.1.1.3 On 17th July 2017, the Claimant sent an email to Deborah Rigby stating that she was upset as she had learned through an email trail that her post had been withdrawn and that it appeared that her post was redundant. Sandra Cory , Director of Nursing, stated at 9.40 hours that there was no money available and that her role was changing. The claimant reiterated that she did not want the lead role. Breach of the implied term of trust and confidence1.1.4 On 25th July 2017, at a team meeting, Deborah Rigby was rude and bullying to the Claimant in front of numerous people in that, Ms Rigby left the team meeting in a temper and came back quickly asking the Claimant to go to her office. She had singled the Claimant out. In her office Ms Rigby asked the Claimant if she felt that she required OH input and she also asked the Claimant if she was depressed. Ms Rigby proceeded to inform the Claimant that she intended to speak with HR and would put 12 of 14 the claimant’s job at risk. Breach of the implied term of trust and confidence1.1.5 On 1st August 2017 the Claimant declined to enter a room on her own with Ms Rigby. The Claimant was a senior nurse and was not being treated with respect and her views were not taken into consideration insofar as she did not want to go into the room. The Claimant stated that she would wish HR and the Union to be at any meeting with Ms Rigby. Ms Rigby then asked Marianne King, Director of Nursing to join them . The Claimant felt threatened and uncomfortable and was shaking. The Claimant asked to leave the room but both Ms Rigby and Ms King proceeded to question the Claimant and would not allow her to leave the room. Ms King eventually allowed the Claimant to leave the room. The Claimant was physically sick and met Ms Rigby in the kitchen where Ms Rigby laughed at her.1.1.6 At the meeting on 1st August 2017, Ms Rigby told that claimant to be quite about raising the risks of care homes1.1.7 The claimant was having to carry out Band 8 duties whilst being paid as a Band 6 nurse. Breach of the implied term of trust and confidence and breach of contract1.1.8 In early 2019, the Claimant’s work situation became even more stressful in that she had even more responsibility as the lead managing the IPC service. In May 2019, the Claimant was off sick with work related stress as she had only been allowed to recruit one WTE role to support care homes and primary care. She returned to work in August 2019 to find that one of the nurses recruited in her absence to job share WTE had been taken with a lack of references. This caused the Claimant more work-related stress as the workload was very difficult to manage. In addition, the Claimant’s NMC registration had lapsed, and Ms Rigby was allowed to carry out her interview despite the Respondent awareness that she had bullied the Claimant. Breach of the implied term of trust and confidence1.1.9 On 17th April 2020 the Claimant sent an email to the Deputy Director of Nursing stating that she was not getting time to pause. She informed her that she was on her own managing 2 inboxes which were her own and the IPC team’s inbox plus PPE emails. Breach of the implied term of trust and confidence1.1.10 On 26th October 2020 the Claimant received an email from HR stating that there had been an overpayment of salary and that it would be reclaimed at midnight. On 5th November 2020 HR emailed the Claimant stating that they had made a mistake. This caused the Claimant stress and financial hardship during that period. 13 of 141.1.11 On 15th January 2021 CCG/Marrianne King wrote to the Claimant stating that they were requesting an OH referral / capability procedure. (The last of those breaches was said to have been the ‘last straw’ in a series of breaches, as the concept is recognised in law). 14 of 14
Analysis
[1]For clarity I should state that this judgment does not seek to address every point about which the parties have disagreed. It only deals with the points which are relevant to the issues which the Tribunal must consider in order to decide if a claim succeeds or fails. If I have not mentioned a particular point or piece of evidence it, it does not mean that I have overlooked it, it is simply because it is not relevant to the issues.[2]In this judgment I shall refer to Mrs Cross as the Claimant, NHS Somerset Clinical Commissioning Group as the first Respondent and NHS Somerset Integrated Care Board as the second Respondent. Collectively I shall refer to the first and second Respondent as the Respondent.[3]At the beginning of the hearing there was some discussion between the parties as to the identity of the correct Respondent in this matter. It was agreed by the parties and the Tribunal that this could most easily be resolved by adding the second Respondent as a party to the proceedings. The intention behind this was to cover the possibility that the second Respondent was the successor to the first Respondent in terms of a potential liability to the Claimant. An order adding the second Respondent as a party was issued by the Tribunal.[4]By claim form submitted on the 10 November 2021 the Claimant complains of constructive unfair dismissal. She was employed by the first Respondent from 6 January 2014 until 23 April 2021. The ACAS certificate is dated 8 July 2021 through to 19 August 2021.[5]In its ET3 dated 22 February 2022 the Respondent challenged the jurisdiction of the Tribunal on the basis that the Claimant had issued her claim out of time.[6]On 22 July 2022 employment Tribunal issued judgment dismissing the Claimant’s claim because it had been issued out of time. The Claimant appealed to the Employment Appeal Tribunal. Her appeal was heard on 3 January 2023 and was upheld. The case was remitted back to the employment Tribunal.[7]On 6 March 2025 the employment Tribunal determined that it had not been reasonably practicable for the Claimant to issue proceedings within the meaning of section 111 of the Employment Rights Act 1996 and the proceedings were issued within a reasonable time thereafter.[8]For reference at this hearing the Judge was presented with a 345-page bundle including an index.[9]The Claimant submitted a witness statement on her behalf and gave evidence at the hearing. She also submitted two further witness statements from:a. Mrs Julie White; andb. Mrs Nina Vinall. Both these witnesses gave evidence at the hearing.[10]The Respondent submitted four witness statements:a. Mrs Deborah Rigby, former Deputy Director of Nursing with the first Respondent (DR)b. Mrs Marianne King, former Associate Director of Human Resources and Organisational Development with the first Respondentc. Mrs Sophie Islington, HR and Recruitment Officer with the first Respondentd. Mrs Mandy Black, Associate Director of Human Resources and Organisational Development with the second Respondent[11]The Respondent’s counsel explained at the beginning of the hearing that Mrs King was not going to be able to give evidence due to the fact that she was on holiday in New Zealand in a camper van and was unable to secure Wi-Fi connectivity. After hearing submissions from all parties the Tribunal, noting its general discretion under rule 41 of the employment Tribunal rules to regulate its own procedure, determined that it would be in the interests of justice to read in the evidence from Mrs King. However, the Tribunal cautioned that it would give limited weight to her evidence.[12]It was also explained by the Respondent’s counsel that Mrs Islington was also not able to give evidence having suffered a miscarriage only a few prior to the hearing. For the same reasons set out above Tribunal agreed to read in Mrs Islington’s evidence, but again caveated that it would give limited weight to the same.[13]The Respondent’s counsel also made an application seeking to exclude the witness evidence from Mrs White and Mrs Vinall. In summary the Respondent’s objection to the witness evidence from these two individuals was that:a. Their evidence related to a period prior to 2017 when the Claimant’s issues with the first Respondent first arose and so were irrelevant to the matters before this Tribunal;b. The allegations were scandalous, slanderous and expressions of opinion;c. The Respondent was particularly exercised about the allegation by Mrs White that DR had an alcohol problem and argued that if nothing else cross-examination of DR on that issue should not be allowed.[14]The Claimant objected to the application noting that it was not for the Respondent to dictate the content of the Claimant’s witness statements. It was disputed that the statements were not relevant to the issues which the Tribunal had to determine because they provided evidence of previous alleged instances bullying on the part of DR.[15]After considering the arguments the Tribunal determined that these witnesses would be allowed to give evidence. It would be open to Respondent’s counsel to cross-examine these witnesses on these allegations to test their veracity. It would also be open to DR to answer any such allegations during the course of her cross-examination to give her side of the story. The Tribunal did not accept that the allegations were irrelevant to the issues because they were pertinent to the question of bullying by DR.[16]Remedy was discussed with the parties where it and noted by the Respondent that the Claimant’s Schedule of Loss had a number of items which were marked as TBC. It was also noted that there was minimal documentary evidence on the Claimant’s income and mitigation issues. In the circumstances it was agreed with the parties that, if the Claimant was successful, a separate Remedy hearing would be scheduled with appropriate case management orders.[17]The parties provided the Tribunal with an agreed a list of issues to be determined by the Tribunal in these proceedings which are set out below: 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 and/or express terms of the contract as identified below. The breaches were as follows;1.1.1 On 8th June 2017, DR, Deputy Director of Nursing, questioned the Claimant in a bullying manner in an open plan office in front of everyone.1.1.1.1 She asked everyone in the room, around 8 people, what the temperature was like in their life, she deliberately omitted the Claimant.1.1.1.2 She told the Claimant that if she stayed in the care home sector, she would lose her job.1.1.1.3 She unfairly questioned the Claimant’s TOIL (time off in lieu), in that the Claimant was owed TOIL and DR would not listen to her explanation and said that she had to prove the amount owed. The Claimant says that she was a senior nurse, and this was extremely embarrassing and upsetting.1.1.2 In July 2017 the Claimant wrote to HR stating that she had not had an appraisal for two years. The Claimant says this was a breach of the express term of the contract that appraisals must be carried out annually.1.1.3 On 17th July 2017, the Claimant sent an email to DR stating that she was upset as she had learned through an email trail that her post had been withdrawn and that it appeared that her post was redundant. Sandra Corry, Director of Nursing, stated at 9.40 hours that there was no money available and that her role was changing. The Claimant reiterated that she did not want the lead role.1.1.4 On 25th July 2017, at a team meeting, DR was rude and bullying to the Claimant in front of numerous people in that, she left the team meeting in a temper and came back quickly asking the Claimant to go to her office. She had singled the Claimant out. In her office DR asked the Claimant if she felt that she required OH input and she also asked the Claimant if she was depressed. DR proceeded to inform the Claimant that she intended to speak with HR and would put the Claimant’s job at risk.1.1.5 On 1st August 2017 the Claimant declined to enter a room on her own with DR. The Claimant was a senior nurse and was not being treated with respect and her views were not taken into consideration insofar as she did not want to go into the room. The Claimant stated that she would wish HR and the Union to be at any meeting with DR. DR then asked Marianne King, Director of Nursing to join them. The Claimant felt threatened and uncomfortable and was shaking. The Claimant asked to leave the room but both DR and Ms King proceeded to question the Claimant and would not allow her to leave the room. Ms King eventually allowed the Claimant to leave the room. The Claimant was physically sick and met DR in the kitchen where DR laughed at her.1.1.6 At the meeting on 1st August 2017, DR told that Claimant to be quiet about raising the risks of care homes.1.1.7 The Claimant was having to carry out Band 8 duties whilst being paid as a Band 6 nurse.1.1.8 In early 2019, the Claimant’s work situation became even more stressful in that she had even more responsibility as the lead managing the IPC service. In May 2019, the Claimant was off sick with work related stress as she had only been allowed to recruit one WTE role to support care homes and primary care. She returned to work in August 2019 to find that one of the nurses recruited in her absence to job share WTE had been taken with a lack of references. This caused the Claimant more work-related stress as the workload was very difficult to manage. In addition, the Claimant’s NMC registration had lapsed, and DR was allowed to carry out her interview despite the Respondent awareness that she had bullied the Claimant.1.1.9 On 17th April 2020 the Claimant sent an email to the Deputy Director of Nursing stating that she was not getting time to pause. She informed her that she was on her own managing 2 inboxes which were her own and the IPC team’s inbox plus PPE emails. The Claimant says this was a breach of the implied term of trust and confidence. On 26th October 2020 the Claimant received an email from HR stating that there had been an overpayment of salary and that it would be reclaimed at midnight. On 5th November 2020 HR emailed the Claimant stating that they had made a mistake. This caused the Claimant stress and financial hardship during that period.1.1.10 On 15th January 2021 CCG/Marrianne King wrote to the Claimant stating that they were requesting an OH referral / capability procedure. (The last of those breaches was said to have been the ‘last straw’ in a 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. 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.; and1.2.2 Whether it had reasonable and proper cause for doing so.1.3 Did the Claimant resign because of the breach?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
[18]The following facts were found to be proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after considering the factual and legal submissions made by and on behalf of the respective parties.[19]I shall deal with the facts relevant to each of the issues in turn below. Issues 1.1.1, 1.1.4 and 1.1.5[20]I have chosen to deal with these three issues together because they all relate to allegations of bullying which occurred between June and August 2017. 8 June 2017: Issue 1.1.1 DR questioned the Claimant in a bullying manner in an open plan office in front of everyone present. Specifically:a. DR asked everyone in the room, around eight people, what the temperature was like in their life, she deliberately omitted the Claimant;b. DR told the Claimant that if she stayed in the care home sector, she would lose her job;c. DR unfairly questioned the Claimants time off in lieu in that the Claimant was owed time off in lieu and DR would not listen to explanation and said she had to prove the amount owed. 25 July 2017: Issue 1.1.4[21]DR was rude and bullying to the Claimant in front of numerous people in a team meeting. DR left the team meeting in a temper and then returned shortly thereafter asking the Claimant to go to her office thereby singling her out. DR then told the Claimant that she felt she needed occupational health input and asked the Claimant if she was depressed. DR then informed the Claimant that she intended to speak with HR and would put the Claimant’s job at risk. 1 August 2017: Issue 1.1.5[22]The Claimant declined to enter a room on her own with DR because she felt she was not being treated with respect and her views are not been taken into consideration. Claimant asserted that she stated that she wanted HR and her union rep to be present with any meeting with DR. DR asked Marianne King to join them. The Claimant states that she asked to leave the room that DR and Marianne King continue to question her and, she asserts, would not allow her to leave the room. Eventually the Claimant was allowed to leave but became physically sick. She alleges that after the meeting DR laughed at her.[23]In relation to issue 1.1.1 despite these incidents allegedly occurring in front of numerous witnesses, no evidence from such witnesses has been adduced by either party speaking to these events.[24]In her statement and during cross-examination DR consistently denied that she had bullied the Claimant. In her statement she described herself as down-toearth and that she would try to respond openly and honestly when asked a question. As to the specifics of issue 1.1.1, DR denied ever intending to omit the Claimant when asking the team how they were. She did recall having a conversation with the Claimant regarding the funding for her role (referred to later in this judgment) but insisted that she was supportive of the Claimant as she did not wish to lose her and told her that attempts were being made to bring her role in house so it was safe.[25]In relation to the discussion regarding time off in lieu, there is contemporaneous email correspondence regarding this issue culminating in an email from DR to the Claimant on 8 June 2017 at 19:02 [B135] in which DR wrote: “On reflection I am sorry that we had this discussion in the open plan office. What I said was that the A/L and BH needed to be joined and to check with Alison Brown if the calculated pro rata i.e. 6 days was inclusive of bank holidays. Your secondment is the 7.5 hours per week so we would need to be inclusive of both A/L and BH entitlement… I do not want this to cause ill feeling, I personally value you enormously and feel this should not get out of proportion. I am happy to discuss TOIL and note you have requested advice from Marianna. There is CCG policy HR can send you. Would it be helpful to sit down in private and discuss this I can involve HR if this would be more comfortable. Once again I apologise for the way I handled this today.”[26]During cross-examination DR was asked to explain why she had felt it necessary to apologise to the Claimant in this fashion. DR stated that after the discussion and on reflection she concluded that it had not been appropriate to discuss issues relating to time off in lieu claimed by the Claimant in an open plan office. In the circumstances she felt it was appropriate to apologise in the interests of maintaining a good relationship with the Claimant who she valued enormously.[27]The burden of proof lies with the Claimant to establish on the balance of probabilities that her version of events is true. I am not persuaded that she has satisfied that burden of proof in relation to the first two allegations in issue 1.1.1. However, the contemporaneous email correspondence regarding the time off in lieu issue does suggest that was handled badly by DR and in a manner which could have been is construed by the Claimant as bullying. Accordingly, I prefer the Claimant’s version of events.[28]In relation to issue 1.1.4, once again no witness evidence from those who were present other than the Claimant and DR has been adduced. There is, however, contemporaneous email correspondence.[29]This starts often email dated 25 July 2017 timed at 12:13 [ B145] from DR to the Claimant. DR wrote: “I was really concerned about your update to the team meeting this morning as part of your Team Tuesday and your distress with your current position and feeling despair about your role. As I have previously said and confirmed that the team meeting this morning, you are a valued, skilled professional member of our team. The CCG is committed to the infection-control agenda and we are working through the changes relating to the public health funding. This may mean that there are changes to your working role as we have also previously discussed and this has been shared with you and Maggie Bradfield. I have asked HR to set up a meeting to offer support and guidance, I believe an invitation has been sent for next Tuesday. The aim of this meeting would be to enable you to express concerns and aim to offer solutions and process we are following. Thanks for being honest it important that we support you, my door is always open.”[30]The Claimant replied at 16:11 the same day [B143] writing as follows: “Thank you for your email and concern. I too was concerned at this morning’s team meeting mainly by the majority of the people saying they had reasons of concern and felt morale was low, and when asked what good news they had, the response was the same all around, people expressing their concerns about the position of the CCG and could hardly think of any good news.….I was also really surprised when following the team meeting you immediately came back into the office and asked if I would go to your office with you for a moment. I did not think for one minute that it would be to ask me if I felt I needed support from occupational health regarding feeling flat and in your words possibly depressed. I do wonder if everyone at this morning’s team meeting has been asked/offered the same by you today? What was also concerning was when you said about you speaking with HR to possibly put my job at risk hopefully you will understand that these words are all unfamiliar to me and very unsettling. Hence I said a meeting would be appreciated with HR.”[31]During cross-examination and in her statement DR denied threatening to put the Claimant’s job at risk and insisted that she was simply trying to be supportive in the light of the Claimant’s evident distress during the course of the meeting that day.[32]On balance I prefer the Claimant’s version of events principally because it is supported by contemporaneous documentary evidence in the form of the email of 16:11 which specifically refers to a threat by DR about speaking to HR to put the Claimant’s job at risk. If this allegation had been incorrect I would have expected DR to challenge the accuracy/truthfulness of the Claimant’s assertion in her email. No such evidence was adduced before the Tribunal nor was any mentioned by DR in cross-examination.[33]In relation to issue 1.1.5 DR stated in cross-examination and in her witness statement that the Claimant had been aggressive with her when refusing to enter her office with her. In this regard she noted that the Claimant had apologised to her for behaving in this way in her email to her of the same day timed at 10:22 [B145]. DR denied preventing the Claimant from leaving her office or laughing at her as has been alleged. DR did agree that it was a matter of concern that the Claimant was reluctant to be alone with her in her office.[34]The email from the Claimant addressed to DR and Marianne King timed at 10:22 reads as follows: “I would like to recap on our conversation that took place just now. Firstly to Debbie I apologise that I declined an offer to come to your office on my own. When you came into our open planned office, I made it very clear and was polite saying I did not feel comfortable to have a meeting on our own. I said I would prefer for something to be arranged with HR at the knowledge of the union. You said you would go and asked Marianne if she had a couple of minutes. Marianne came out of her office and you came back to invite me in with you both. I came in and said I feel uncomfortable as I had asked for this morning’s meeting to not go ahead. Debbie then said, I have only invited you into say that I am happy to put your meeting back until after Sandra’s. I thanked you for this and asked if I could leave. Debbie went on to say why had not I gone to her as my line manager? I replied “but you are not my line manager”. Debbie said, “who do you think it is?” I said we have emails stating that Maggie Bradfield is my line manager, also stating that I have raised this previously via email. Debbie said, “who Do You Think your line manager is on the other four days of the week?”. I said that I have previously pointed this out and that no one said or documented Debbie as my line manager. I said three times I would like to leave. I said at least three times that I felt uncomfortable. I looked at Marianne and said “please can you understand that I feel uncomfortable and would like to leave.” Marion asked what was making me uncomfortable. I said, thank you for agreeing that this morning’s meeting can be put back and that I have nothing more to say. Marianne agreed that I could leave. I then left the office.”[35]As I have stated above, Marianne King did produce a statement but did not appear in person and was not cross-examined. Therefore I am only prepared to afford limited weight to Marianne King’s evidence. Mrs King asserts that no point was the Claimant prevented from leaving the room and has no recollection of her shaking. She did recall that DR was nervous about meeting with the Claimant.[36]On balance I prefer the Claimant’s version of events principally, once again, because of the existence of contemporaneous documentary evidence supporting her version of events regarding what happened during the meeting. I should state that I do not accept that she was physically prevented from leaving DR’s office, but was effectively kept there by persistent questioning from DR and Marianne King. Once again I find it significant that no documentary evidence that either DR or Marianne King took exception to the description of the meeting set out in the Claimant’s email was adduced.[37]There seems to be no dispute between the parties that the Claimant was extremely anxious to avoid being in a room on her own with DR. In my assessment that level of anxiety is entirely consistent with someone who has been bullied and wishes to avoid being put in a position where it could occur again.[38]After carefully considering the totality of the evidence adduced on the issue of bullying I am satisfied that, on the balance of probabilities, the relationship between the Claimant and DR in 2017 had deteriorated to a point where it constituted bullying and was certainly perceived as such by the Claimant. Issue 1.1.2:[39]The Claimant asserts that in July 2017 she wrote to the Respondent’s HR Department stating she had not had an appraisal for two years. The Claimant asserts that this was a breach of an express term in her contract that appraisals must be carried out annually.[40]In fact the contract contains no express provision relating to annual appraisals. During her cross-examination DR was taken to section 9 of the employment contract which relates to qualifications/registration. It was put to DR that this provision requires that the employee must maintain appropriate current registration as a condition of employment. DR conceded that this was correct but pointed out that although there was an annual obligation to make payment for registration as a nurse, the obligation for an appraisal only occurred on a three-year basis.[41]In line with the above I find that there was no contractual obligation on the Respondent to appraise the Claimant annually as she asserts.[42]On 17 July 2017 the Claimant sent an email to DR stating that she was upset as she had learned through an email trail that funding for her post had been withdrawn and that it appeared that her post was redundant. Sandra Corry, Director of Nursing, stated at 9:40 hours that there was no money available and that her role was changing. The Claimant reiterated that she did not want the lead role.[43]During cross-examination DR asserted that the Claimant had misconstrued what had been written in the email chain. The email in question appears to one sent by DR to Maggie Bradfield and Sandra Corry on 13 January 2017 where she states “A good report I would suggest changing 9.1 to say the infection control post has been withdrawn.” [B139] DR explained that this was a suggested amendment to a report which was going to go to the governance committee. The report’s objective was to try to secure increased funding of the IPC team. DR asserted that the reference to the IPC post being withdrawn was intended to illustrate the potential consequences of reduced funding rather than confirmation that the posted had actually been withdrawn. Unfortunately, the report in question was not produced in evidence and so it is very difficult to ascertain the true context of the suggested change.[44]Nevertheless, this explanation would appear to align with what was actually written in the email of 17 July 2017 timed at 09:43 from DR to the Claimant [B140] insofar as it states: “For the purposes of reporting we have to tell the governance committee that the funding has been withdrawn from the SCC. Our CCG position remains unchanged that we are committed to the post and have restructured to reduce care home visits and focus on the E-coli quality premium. We are committed to you and your skills and energy and we have identified funding from our substantive budget due to changes on other roles. We are still challenging the council to fund through the better care fund so it is now about the politics happy to discuss.”[45]At the bottom of this email there is a note which was entered by the Claimant which reads: “Had a conversation with Sandra Corry at approx. 09:40 17 July 2017 and said about this email trail. Sandra said there is no money from SCC or CCG and that my role is changing to accommodate more of Maggie’s role. I explained that I have said for a very long time that I do not want Maggie’s role and I like my job with the care home sector. Sandra said that she cannot see this happening. I said that I had been led to believe that although the LA had removed my money and in effect two days of work per week, that I still had the rest of the week supporting care homes from CCG monies….. Sandra said for me to continue for the time being and that our meeting needs to take place with Maggie to decide the IPC function within the CCG. I explained that this is again so unsettling and has been going on since just before Christmas 2016.”[46]On 25 July 2017 [B141] Sandra Corry emailed the Claimant to advise that situation had crystallised saying: “I wanted to email you following our telephone discussion to formally confirm that the CCG is now able to formally identify a permanent funding stream to continue to support your substantive role as Infection Control Adviser for care homes - Band 6. I would also like to thank you for your patience through what I fully appreciate has been a very stressful and unsettling time for you and the wider team. Going forward as I briefly mentioned on our call I would like to work with you and Maggie to review your job description recognising that we are in a changing environment for care homes and the CCG, both from an Infection Control perspective i.e. the E-coli agenda and also taking into account the demands upon a modern CCG infection, prevention and control team. This will I think be helpful from your personal perspective but also to understand how we can strengthen the CCG team going forward.”[47]The Claimant responded to this email on 27 July 2017 at 08:49 stating: “Firstly, thank you for your telephone call on Tuesday. I very much welcome this good news. I will look forward to our meeting to look at how things may look in the changing environment.”[48]Sandra Corry was interviewed as part of the investigation into the grievance raised by the Claimant in the aftermath of her resignation [B256]. During this interview the Claimant’s concerns about her role being under threat were raised. Sandra Corry’s response was: “I think this was to do with the fact that her role originally was developed to specifically work with care homes around Infection Prevention Control. Part of our restructuring and strategy going forward we were pulling her out of that role, which she wasn’t happy about but we wanted her to have a more generic strategic role across all areas in the system. Julia’s role was going to be more focusing on the care home aspect of this along with Michelle Bell….”[49]It was then put to Sandra Corry that the Claimant’s email to her was very much around her feeling stressed that the Band 6 role was being removed. In response to this Sandra Corry stated: “She could have gone back to that; she was offered that if she wanted to at any point as we managed to get the additional funding for the two roles which we did bring in. However, she did not want it then.”[50]In her grievance the Claimant disputed that it would be possible to go back to her original Band 6 role as it “disappeared from the structure” around the end of 2017 [B233].[51]Taking all of the above into consideration, I find that the Claimant did experience anxiety about whether or not her role will continue during the early part of 2017 and that initially she believed that it had been made redundant. However, the position was clarified as soon as funding position became clear by the Respondent, albeit with a caveat that her job description may need to be reviewed to accommodate the changing environment for care homes in the CCG.[52]At a meeting on 1 August 2017, DR told the Claimant to be quiet about raising the risk of care homes.[53]During cross and DR adamantly denied that she had ever instructed the Claimant not to raise risks about care homes. She explained in her testimony that it was imperative that potential risks were identified and managed in order to ensure that they were minimised or eradicated. She explained that there was an online reporting system in place called DATEX which was open to the Claimant to use if she had concerns. She also stated that she had huge respect for the Claimant’s abilities and would not have disregarded or discourage the reporting of any potential risks that she had identified.[54]Perhaps unsurprisingly given the nature of the allegation, no evidence in support of the Claimant’s assertion was adduced other than her witness testimony.[55]Overall I prefer DR’s testimony on this issue. The Claimant did not put forward any explanation as to why DR would wish to suppress the raising of issues in relation to the care home sector. Moreover, I believed DR when she articulated that her strong belief was that potential risks identified by highly experienced individuals such as the Claimant should be reported so they could be assessed and addressed.[56]The Claimant was having to carry out Band 8 duties whilst being paid as a Band 6 nurse.[57]In her testimony and her submissions supporting her grievance dated 8 April 2021, the Claimant asserts that in 2015 there was a vacant Band 8 Infection Prevention and Control Specialist Nurse role within CCG. She asserts that she was encouraged to take this role by Marianne King, but declined to do so because she had experience of holding a senior role previously and did not wish to do so again. She also expressed concern that the role was too big for her to manage on her own. She states that she declined to take the role for these reasons.[58]The CCG managed to fill the role in 2016, but the person recruited was, in the Claimant’s assessment, insufficiently experienced and eventually left the role at the end of 2016.[59]The Claimant asserts that this left her on her own in the IPC service with no Band 8 lead nurse in place. As a result, she was being expected to perform more and more of the Band 8 lead role as there was no one else to do it. The Claimant states that she continued to decline to take the Band 8 role and so CCG attempted to bring in part-time assistance which the Claimant asserts comprised a Band 8B nurse who provided help “here and there” for a month or two and a further Band 8 who was available to work one day a week for approximately one year. The Claimant asserts that this was inadequate to cover a full-time Band 8 position and still left her with a great deal to cover on top of her own responsibilities.[60]In her email to Neil Hales in support of her grievance dated 8 April 2021 [B234] the Claimant states that between July and November 2017 she sought assistance from her union. This resulted in meetings with Marianne King to discuss the Claimant’s role. The claimed asserts that following these meetings there was an agreement that the Claimant would take on the Band 8 role and see how it went, but that she could return back to her Band 6 care home role if things did not work out.[61]During cross-examination and in her witness testimony DR accepted that there may have been some time prior to 1 December 2017 when the Claimant was being paid as a Band 6 Infection Prevention Control Nurse whilst transitioning to the Band 8a senior Infection Prevention Control Nurse role. But in her view this was unlikely to have been for any sustained period.[62]On 22 November 2017 the Claimant executed a change of circumstances form detailing her promotion from a Band 6 Infection Prevention Control Nurse to a Band 8a senior Infection Prevention Control Nurse commencing 1 December 2017 effective until 1 June 2018 [B146].[63]On 8 June 2018 the Claimant executed a further change of circumstances form extending her role as a Band 8a senior Infection Prevention Control Nurse from 1 June 2018 to 3 September 2018 [B147].[64]On 7 September 2018 the Claimant executed a further change of circumstances form which detailed a permanent change to Band 8a effective from 4 September 2018 [B166].[65]Having considered the evidence on this issue I am satisfied that during 2017 the Claimant was put in a position where, due to the absence of anybody else to perform the role, she undertook at significant proportion of the duties and responsibilities which otherwise would have been performed by a Senior Infection Prevention Control Nurse (Band 8a) whilst being paid as a Band 6.[66]This issue is effectively divided into two parts which I shall deal with separately.[67]The first sub-issue is that in May 2019 the Respondent agreed to allow the recruitment of a full-time employee to support care homes in primary care. During a period when the Claimant was on sick leave, the Respondent recruited two individuals to undertake the role in a job share. It seems that one of these individuals was appointed without appropriate references which the Claimant alleges caused her additional stress.[68]During her phased return to work in August 2019 the Claimant was confronted with two new staff members to induct. In her email to the Respondent setting out her grievance [B233] the Claimant asserts that one of the two individuals who had not provided appropriate references needed “a lot of attention”. The other appointee was already a CCG employee, but supporting care homes in a non-IPC role. The Claimant asserts that it was agreed that this individual’s support care homes role would be backfilled to allow her to train as an IPC nurse. However, it seems that this person’s previous CCG role was not backfilled and so she was not given the time she needed to train for the new IPC role.[69]Other than the document referred to above, no evidence was adduced by either party in relation to this specific issue. In these circumstances I simply accept that upon returning to work after a period of sick leave in August 2019 the Claimant’s workload was increased by the need to deal with training to parttime nurses of top of her other duties.[70]The second sub-issue was that the Claimant’s NMC registration lapsed on 31 January 2018, but this did not come to light until 6 August 2019. The Claimant alleges that DR was involved in the investigation into this lapse in circumstances where the Respondent was aware that she had been bullied by the Claimant.[71]In her witness statement the Claimant asserts that DR was allowed to carry out the first part of the internal investigation concerning the Claimant’s lapsed registration.[72]In her witness statement DR explained that the investigation into the lapse of the Claimant’s NMC registration was conducted by Phoebe Sherry-Watts, Associate Director Continuing Healthcare Services (PSW). She stated that her role in the investigation was limited to an interview enquiring whether she had any concerns about the quality of the Claimants work during the period when her registration had lapsed and whether there had been any risk to patient safety. DR advised that she had confirmed that there had been no such risks or concerns.[73]The report of the investigation conducted by PSW was published on 25 October 2019 [B278]. This makes reference to a statement regarding the quality and safety of work carried out. The report states: “Deborah Rigby in her role as Deputy Director of Quality and Safety has a relevant familiarity with the work of JC to provide an informed view as the risks associated with this lapse in registration whilst employed as the CCG’s lead for Infection Control. Deborah Rigby has provided assurance that JC’s work has during this time been of the quality of that which would be expected of a registrant and in her view has posed no risk to patient safety.”[74]In the light of this evidence I am satisfied that DR’s only role in this investigation was as a witness. Issue 1.1.9(a)[75]On 17 April 2020 the Claimant sent an email to the Deputy Director of Nursing stating that she was not getting time to pause. She informed her she was on her own managing to inboxes which were her own and the IPC team’s plus PPE emails [B167].[76]No evidence was adduced by the Respondent to refute this point. However, the closing submissions from the Respondent refer to the fact that, at the time in question, the NHS generally was struggling to handle a huge volume of work created by the Covid pandemic. In the circumstances I am satisfied that the Claimant was managing a high volume of work at that time in common with all frontline healthcare staff in the NHS. However, I do not accept that, in isolation, this email evidences that the Claimant was working any harder than the rest of the NHS frontline staff were at this very difficult time. Issue 1.1.9(b)[77]On 26 October 2020 the Claimant received an email from HR stating that there had been an overpayment of salary and that it would be reclaimed at midnight. On 5 November 2020 HR emailed the Claimant stating they had made a mistake.[78]Clause 16 of the Claimant’s contract of employment [B130] states that for employees that had completed more than five years’ service (as was the case for the Claimant) sick pay will comprise an allowance of six months on full pay and a further six months on half pay. The contract also states that full details of sick pay allowances are set out in the Terms and Conditions Handbook.[79]The letter from Sophie Wainwright of 26 October 2020 [B183] stated: “I write to inform you that unfortunately there was an error in your most recent absence paperwork for the month of September being provided to payroll ahead of their pay run for September. This resulted in your absence pay remaining at full-time pay rate, whereas this should have dropped to half pay from 2 September 2020. Unfortunately, this means that you have been overpaid for the month of September and it is necessary for this to be corrected within the October pay run. I can inform you that therefore, your sickness absence pay should have dropped to half pay from 2 September 2020, and you will reach the point of nil pay on 11 December 2020, if you are still not well enough to return to work before this point.”[80]During cross examination the Claimant conceded that there was no reference to money being reclaimed at midnight. She explained that what she meant by this was that the letter was received from Sophie Wainwright the day before funds were due to hit her account which she stated would have occurred around midnight.[81]The Claimant emailed Sophie Wainwright back on 28 October 2020 [B185] seeking clarification of her entitlement to sick pay and complaining about the short notice given by the Respondent of a significant reduction in pay.[82]Sophie Wainwright responded on 29 October 2020 [B184] advising that her concerns had been escalated to Marianne King and provided details of the Claimant’s sick pay allowance. This mirrored what was contained in the Claimant’s contract of employment.[83]On 5 November 2020 [B189] Marianne King emailed the Claimant regarding this issue. In her email, Mrs King stated that she was sorry that the Claimant had felt shocked upon receiving the email letter advising that she would be receiving a reduction in her salary and that the situation had cause her harm. She went on to explain that the sick pay allowance referred to in Sophie Wainwright’s letter took into account any sickness absence in the year prior to the start of the current sickness absence. She then went into calculations which explained why the Claimants salary would reduce to half pay as from 2 September 2020 and then to nil pay as from 11 December 2020. Mrs King acknowledged that the letter regarding the reduction in the Claimant’s salary should have been receive sooner and apologised for that. Mrs King then stated that in order to avoid a position where the Claimant was not able to support her family she had authorised payroll not to reclaim the overpayment made to the Claimant in September 2020 and for her to be paid half pay in respect of October 2020. This effectively meant that the Claimant received an additional half a month’s pay over and above her entitlement under the Respondent’s sick leave policy.[84]On 15 January 2021 Marianne King wrote to the Claimant advising that the Respondent was requesting a further occupational health referral and was considering undertaking a capability procedure. The Claimant asserts that this was the “last straw” in a series of breaches which prompted her to resign on 24 January 2021[85]On 27 May 2020 the Claimant took sick leave stating she felt overwhelmed and had concerns for her well-being.[86]On 22 June 2020 the Claimant provided a fit note signing her off from 4 June 2020 through to 4 July 2020 with a further appointment with her GP booked for 1 July 2020 to discuss the next steps.[87]It seems that at some stage during this period the Claimant agreed to provide an occupational health report dated 30 June 2020 [B168]. The report included the following: “Ms Cross reports symptoms of stress which she perceives as relating to work issues so you may wish to have a meeting with her to discuss this and consider any potential supportive adjustments…… Based on the reported clinical history and ongoing symptoms, in my opinion, Ms Cross is not yet fit to undertake work activities. I do not feel any workplace recommendations would be beneficial at this stage, and as such I have arranged a review appointment with her in 5-6 weeks to discuss her progress.”[88]The Claimant produced a further fit note signing her off work due to stress at work from 1 July 2020 for 6 weeks.[89]On 4 August 2020 the Respondent wrote to the Claimant as follows: “I am writing to arrange a meeting with Sophie and myself to discuss your return to work as I know the current period of sickness will be expiring in early August and we want to make sure that we firstly are able to understand your current health position and secondly can begin to plan your return to work, ahead of your next occupational health meeting on 6 August, if this is the correct time to be considering this for you. I also wanted to share that we would like to explore with you whether you feel that a redeployment to a Band 7 position on your return would be a supportive approach for you. We appreciate that you have expressed concerns about both the quantity of work in your current role and your responsibility but we are keen to consider all options to retain you within the team in a way that is sustainable for you and to allow you to continue to do the work you love and you are so good at……”[90]A further occupational health report dated 6 August 2020 confirmed once again that the Claimant reported symptoms of stress which she perceived as relating to work issues, was not yet fit to undertake work activities and that she would need a further review appointment in 6-7 weeks.[91]A meeting took place between the Claimant, Georgina Hallet and Sophie Wainwright on 13 August 2020. In an internal email Ms Hallett refers to the meeting with the Claimant and states they had a discussion regarding possible opportunities available to her. The email states: “…Jacqui felt reassured that there are differing options although does have some concerns which she would like to think through. Jackie would like us to be able to explore and discuss any viable options from NHS E/I ….”[92]On 18 August the Claimant emailed Sophie Wainwright and Georgina Hallet advising: “You asked me to update you once I had my GP appointment. The appointment was yesterday and I have a medical certificate for a further six weeks. I am not in a position to make any decisions and am now seeking legal advice. I will be back in contact shortly.”[93]On 21 August 2020 a further fit note signing off the Claimant from 12 August 2020 to 23 September 2020 was received.[94]On 1 September 2020 Sophie Wainwright emailed the Claimant: “… It would be helpful for us to complement your response with a further enquiry to occupational health, as to their opinion on your ability to attend a meeting to discuss work and, if you are not fit so to do currently if there are any adjustments they would suggest could help to facilitate this. If this is not possible at the current time, it would also be helpful for us to understand from occupational health when they feel that this would be suitable. We are keen to ensure that we are able to support you in the best way possible and in our previous discussion we suggested an option being to consider redeployment to a Band 7 position. This offer does remain open to you, however in order to provide stability in the IPC team and to ensure that we are able to continue to deliver business-critical services, we can only continue to hold this vacancy until 4 September 2020. Please know that this email doesn’t represent a request for your response on this, as we recognise you have noted you are not able to make any decisions regarding your employment, however it would be helpful to understand if we can approach occupational health again to see whether any discussions on this would be possible ahead of us needing to move forward with this post or whether this redeployment offer does not present a reasonable approach due to the timing of this within your recovery. In my previous email, I also asked if he would be keen for us to continue to explore options for you with NHS England however as we have not received a response on this matter we have continued to explore this on your behalf, again it would be helpful for us to understand from occupational health when we might be able to have a discussion with you on this.”[95]The Claimant responded on the same day as follows: “As I have said in my last email I am not in a position to make any decision about work. I have spoken with a solicitor and am now seeking advice from a barrister.”[96]However, in an email of the next day the Claimant did agree to undergo a further occupational health assessment.[97]A further occupational health report dated 17 September 2020 [B179] was produced and concluded: “Ms Cross reports symptoms of mental ill-health which she perceives as relating to work issues… Ms Cross is not yet fit to undertake work activities. As such, I have referred her to the occupational health physician for further advice and guidance. I do not feel any work adjustments would be beneficial at this stage, although, I would recommend that if any formal meetings are contractually required with Miss Cross, that this be postponed until after the occupational health physician consultation and guidance.”[98]On 23 September 2020 a further fit note signing off the Claimant from 21 September 2020 for a further six weeks was received.[99]On 23 October 2020 a further occupational health report dated 21 October 2020 [B181] was received by the Respondent. It contained the following observations: “… She attributes her stress to pressures within her role and unfortunately has now lost confidence in her employer… There does not appear to be any immediate prospect of a return to work and I doubt that the issue can be resolved medically. In view of the length of her absence it would be important to meet formally as soon as possible with the aim to discuss her concerns so the current situation can be brought to a conclusion one way or another. Prolonging her absence period is only likely to increase the risk of psychological harm. However, I am reasonably confident that if the current situation can be resolved in a mutually acceptable way and timely fashion the likelihood of any long-term psychological sequelae is low. In your discussions you may find it helpful to conduct a stress risk assessment itemising the HSE’s management standards as a template, as this approach can help shed light on the specific areas within a role that are causing an individual to feel stressed and in turn what management actions may be helpful to consider. In my view she is fit to meet with you formally to discuss issues relating to her employment.”[100]A further fit note was received from the Respondent on 10 November 2020 signing her from 3 November 2020 through to 15 December 2020.[101]On 11 November 2020 a meeting took place between the Claimant, Sophie Wainwright and Georgie Hallet. A letter from Marianne King dated 18 November 2020 summarising the outcome of this meeting was sent to the Claimant by email. This stated that the Claimant asserted during the meeting that she felt she had been psychologically damaged by the CCG over the past four years and that that such damage had occurred as a cumulative outcome of the events of the past four years. The note went on to record: “You also stated within this meeting that you felt that you were unable to get past this psychologically and emotionally and that you are now in a place where you cannot see yourself returning to work with the CCG and would like to part ways.[102]On 7 December 2020 the Claimant sent an email marked without prejudice confirming that she would support a stress risk assessment. Privilege was waived over this document by the Claimant during the hearing. It seems to be common ground between the parties that no steps were taken by the Respondent to progress this stress risk assessment.[103]On 15 January 2021 Marianne King sent a letter by email to the Claimant requesting that she grant permission for a further occupational health referral. The letter goes on to state: “Based on the information that we have available to us, including the most recent occupational health advice dated 21 October 2020 which recommended that a formal meeting should be held as soon as possible, we propose to arrange a hearing to discuss the position with you. Please be informed that this hearing may result in your dismissal from the CCG on the grounds of capability due to ill-health. However, we would like to seek occupational health guidance before this meeting takes place. If you are not prepared to attend a further appointment then the capability hearing will proceed to consider the position based on the evidence that is available.”[104]In her witness evidence, Marianne King explained that she felt that she had to write a letter to the Claimant in these terms because she had been absent for a considerable period of time, had exhausted her sick pay had indicated that she did not consider that she could return to work and was not engaging with steps to obtain occupational health advice.[105]Under cover of email dated 24 January 2021 the Claimant resigned giving three months’ notice. She also attached a fit note signing her off from 21 January 2021 through to 25 April 2021. In her email she stated: “… I believe that the CCG has made my future employment with it untenable. This is because of the poor treatment I have received over a number of years, culminating most recently with the undue stress that is been put on me, which has had an adverse effect on my mental health…. I believe that there has been a fundamental breach of the trust and confidence in the employment relationship and, as such, I have been left with no other option but to resign.”[106]When cross-examined as to why she had resigned at this juncture, the Claimant stated she was very concerned about the prospect of being dismissed on the grounds of capability which she felt would be bad for her career. She also asserted that she felt that a dismissal on that basis would be very unfair after she had had such a successful career. She also stated that she felt it would be unjust for her to be dismissed because a lack of capability in circumstances where that incapability had been caused by the treatment she had suffered whilst working for the Respondent.[107]On 9 April 2021 the Claimant initiated a grievance procedure. Whilst I have made reference to the records of interviews conducted during the course of that grievance is not necessary for me to deal with that investigation or its outcome it in any detail here.
The Law
[108]Under section 95(1)(c) of the Employment Rights Act 1996 (the “Act”), an employee is dismissed if he 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 the employer’s conduct.[109]In relation to trust and confidence cases, Dyson LJ summarised the position in Omilaju v Waltham Forest London Borough Council: The following basic propositions of law can be derived from the authorities: 1. The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Limited v Sharp [1978] 1 QB 761, CA. 2. It is an implied term of any contract of employment that 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 confidence and trust between employer and employee: see, for example Malik v Bank of Credit and Commerce International SA [1998] AC 20, 34H – 35D (Lord Nicholls) and 45C – 46E (Lord Steyn). (Supreme Court) I shall refer to this as “the implied term of trust and confidence. 3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract, see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666 CA, at 672A; the very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship. 4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must: “impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer”.[110]Lewis v Motorworld Garages Ltd 1986 ICR 157[111]Kaur v Leeds Teaching Hospitals NHS Trust 2019 ICR 1, CA.[112]Horkulak v Cantor Fitzgerald International 2004 ICR 697, QBD[113]FC Gardner Ltd v Beresford 1978 IRLR 63, EAT[114]Logan v Customs and Excise Commissioners 2004 ICR 1, CA).[115]Abbycars (West Horndon) Ltd v Ford EAT 0472/07[116]In this matter the Claimant is asserting that she was constructively dismissed insofar as she alleges that the Respondent’s repudiatory conduct comprised a series of acts or incidents which cumulatively amounted to a breach of the implied term of trust and confidence. In Lewis v Motorworld Garages Ltd Glidewell LJ said: “The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so….”[117]Applying the Court of Appeal guidance in Kaur v Leeds Teaching Hospitals NHS Trust I need to consider the following questions in relation to this matter:a. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, her resignation?b. Has she affirmed the contract since that act?c. If not, was that act (or omission) by itself a repudiatory breach of the contract?d. If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of trust and confidence?e. Did the employee resign in response (or partly in response) to that breach?[118]In this case the Claimant asserts that receiving the letter of 15 January 2021 advising her that the Respondent was considering dismissing her on the grounds of capability ill-health was the reason why she resigned. I accept that this was the case based on her witness testimony and what was said in her resignation email.[119]The email of resignation was sent nine days after receiving the email of 15 January 2021 at a time when the Claimant was on sick leave. In the circumstances I do not regard the Claimant as having affirmed her contract of employment by delaying nine days before resigning.[120]The next question I have to determine is whether or not the letter sent on 15 January 2021 amounted to a repudiatory breach of the implied term of trust and confidence. I do not find that this was the case. The Respondent was faced with a situation where the Claimant had been on sick leave for nearly eight months at the time the letter was sent. The occupational health reports received in respect of the Claimant gave no indication as to when she would be fit to return to work. Moreover, during the course of the meeting with the Claimant on 11 November 2020 she made it abundantly clear that she had no desire to return to work for the Respondent and instead would prefer some sort of financial settlement allowing them to part ways.[121]It is clear from the correspondence during this period that the Respondent actively explored alternatives in the form of redeploying the Claimant in a less demanding Band 7 role or secondment to NHS England. These options were declined by the Claimant on the basis that she was too ill to make a decision.[122]In making a determination on this issue I am mindful of the guidance provided by Lord Denning in Western Excavating (ECC) Ltd v Sharp where he explained: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, and the employee is entitled to treat himself as discharged from any further performance….”[123]I do not accept that by taking the decision to explore the possibility of dismissing the Claimant on capability grounds in the circumstances pertaining at the time the 15 January 2021 letter was written amounts to a fundamental breach of the implied term of trust and confidence. It may well be the case that the Claimant’s subjective view was that this was yet another instance of conduct on the part of the Respondent which she regarded as prejudicial to her. However, I am obliged to take an objective view of the Respondent’s conduct. In circumstances where the Claimant had been unable to work for a period of almost eight months and had indicated that she had no desire to return to work, I am satisfied that, in these circumstances, the Respondent was entitled to explore the possibility of terminating the contract of employment on the grounds of capability/ill-health. I regard this as a reasonable and proper cause for the conduct in question (see Malik v Bank of Credit and Commerce International SA) and, therefore, find that sending the 15 January letter was not a fundamental breach of the implied term of trust and confidence.[124]Having determined that sending the letter of 15 January 2021 was not a fundamental breach of the implied term of trust and confidence I must now determine whether, nevertheless, it was part of course of conduct which viewed cumulatively amounted to such a repudiatory breach.[125]The list of issues agreed by the parties which I have been asked to determine comprised 10 alleged breaches of the implied term of trust and confidence plus a number of sub issues. I deal with these in turn below: Issues 1.1.1, 1.1.4 and 1.1.5[126]For the reasons stated earlier in this judgment I am satisfied that the allegations of bullying dating back to 2017 are well founded. The High Court in Horkulak v Cantor Fitzgerald International 2004 ICR 697, QBD, determined that a contract of employment included obligations on the employer in connection with the self-esteem and dignity of the employee. Clearly, bullying is not consistent with respect for the dignity of the employee and so I find that the Respondent was a breach of the implied term of trust and confidence in relation to these issues.[127]Contrary to the Claimant’s allegations there was no express term in her contract of employment requiring annual appraisals. Accordingly, the failure to appraise her for two years was neither a breach of an express or implied term of her contract of employment.[128]I have found that there was some misapprehension on the part of the Claimant regarding whether her role had been made redundant in July 2017. However, as I have referred to above, the position was clarified by the Respondent once issues relating to funding had crystallised. I do not find that this was fundamental breach of the implied term of trust and confidence on the part of the Respondent, as it is clear that the Claimant misunderstood the true context of the email chain that she had reviewed.[129]The Claimant alleges that she was instructed to remain quiet about risks in relation to care homes by DR during the meeting on 1 August 2017. This was denied by DR and I have accepted her version of events. Accordingly, I find that there was no breach of the implied term of trust and confidence as alleged.[130]I am also satisfied that during 2017, prior to her formal promotion to a Band 8a senior IPC nurse on 1 December 2017, the Claimant had been performing substantial parts of a Band 8a role whilst only being remunerated as a Band 6 IPC nurse. In FC Gardner Ltd v Beresford 1978 IRLR 63, EAT, the Employment Appeal Tribunal held that employers should not treat employees inequitably in matters of remuneration. I find that it was inequitable of the Respondent to expect the Claimant to undertake the duties which she performed during most of 2017 whilst only remunerating her as a Band 6 nurse. Accordingly, I find that the Respondent did breach the implied duty of trust and confidence by failing to remunerate the Claimant for the work that she was performing.[131]The first sub-issue related to additional work imposed on the Claimant caused by the need to train two additional staff who were job sharing a one day per week IPC role. I have accepted that this resulted in increased workload for the Claimant at a time when she was returning to work after a period of stress related illness. Viewed objectively I find that the Respondent was entitled to expect that the Claimant would undertake responsibility for training junior staff in her team. Accordingly I do not regard this as a breach of the implied term of trust and confidence.[132]The second sub-issue was that DR was involved in the investigation into the lapse of the Claimants nursing registration during August 2019. I have determined that DR’s only involvement with the investigation was to provide witness evidence regarding the quality of the Claimant’s work during the period that her registration had lapsed and whether there had been a risk to patient safety.[133]However, I question whether it was appropriate for DR to be involved in any capacity in the investigation in circumstances where the Claimant had made allegations of bullying against DR and where those allegations been the subject of a mediation in 2018. The Claimant was entitled to expect a fair and unbiased hearing. I am not suggesting that that did not take place. However, I find that it should have been apparent to the Respondent that the involvement of DR could have created the perception of bias even if there was no actual bias. In the circumstances I find that the Respondent was in breach of the implied term of trust and confidence in failing to ensure that the investigation into the lapse of her nursing registration was free from the perception of bias on the part of the Claimant. Issue 1.1.9(a)[134]The Claimant alleges that in April 2020 she sent an email to the deputy director of nursing complaining about her workload. Of course this coincided with a massive increase in workload for all NHS frontline staff due to the onset of the Covid pandemic. At this time of unprecedent crisis I believe that it is true to say that all NHS frontline staff were asked to go above and beyond what would ordinarily be expected of them. There is no evidence that the Claimant’s workload was any more onerous than that facing most frontline NHS staff at this exceptionally difficult time. In these circumstances I do not find that the workload faced by the Claimant at this time was the result of a fundament breach of trust and confidence on the part of the Respondent. Issue 1.1.9(b)[135]This issue arose due to an inadvertent overpayment of salary to the Claimant in September 2020 when her sick pay should have changed from full pay to half pay. The error was realised late in October and an email was sent to the Claimant advising that she would receive zero pay in October as a means of clawing back the overpayment in September.[136]I do not find that this was a breach of the implied term of trust and confidence. An employer is clearly entitled to recover overpayments of salary inadvertently paid to an employee. The Respondent acknowledged that the timing of the email advising of the clawing back of the overpayment was unfortunate insofar as it left the Claimant with little time to manage her finances. However, the Respondent waved its entitlement to recover the overpayment and so in the end Claimant was actually better off than she would otherwise have been.[137]As I have stated above I do not regard the letter of 15 January 2021 as a fundamental breach of the implied term of trust and confidence.[138]In line with the authority in Lewis v Motorworld Garages Ltd it is not necessary for me to make a determination that each one of the issues referred to above separately comprised a fundamental breach of the implied term.[139]Nor is there a need for there to be proximity in either time or nature between the event which constitutes the last straw and the previous acts of the employer which the employee asserts constituted a course of conduct serious enough to amount to a repudiatory breach of the implied term of trust and confidence. (see Logan v Customs and Excise Commissioners 2004 ICR 1, CA).[140]I also note the guidance of Dyson LJ in Omilaju v Waltham Forest LBC where he said: “A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term… The act does not have to be of the same character as the earlier acts. It is essential quality is that, when taken in conjunction with the earlier acts in which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant….. Moreover, an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employees trust and confidence has been undermined is objective..”[141]The letter of 15 January 2021 gave a clear indication that the Respondent was giving active consideration to dismissing the Claimant. Even though I have found that the Respondent was entitled to embark on this process, I do not find that it could be considered an entirely innocuous act as was referred to by Dyson LJ on Omijalu. The prospective reason cited by the Respondent for the Claimant’s potential dismissal was capability/ill-health. The occupational health reports on the Claimant‘s condition indicate that in her assessment the reason for her illness and consequent inability to work was work-related stress. Applying an objective analysis it seems to me that raising the possibility of dismissal on capability grounds must have served to further undermine, at least to some degree, the Claimant’s trust and confidence in the Respondent.[142]As I have made clear above, I do not regard all of the issues which I have been asked to determine as breaches of the implied term of trust and confidence – although some were. However, when viewed cumulatively, I am satisfied these issues constituted a course of conduct which amounted to a repudiatory breach of the implied term of trust and confidence on the part of the Respondent.[143]Finally I must determine whether the Claimant resigned in response (partly or wholly) to that breach. In this regard I am guided by the decision in Abbycars (West Horndon) Ltd v Ford EAT 0472/07 where the Employment Appeal Tribunal held: “It follows that once a repudiatory breach is established, if the employee leaves then even if he may have done so for a whole host of reasons, he can claim that he has been constructively dismissed if the repudiatory breach is one of the factors relied upon.”[144]As I stated above I am satisfied that one of the reasons that the Claimant resigned was to avoid the risk of being dismissed on capability/ill-health grounds which may have had adverse consequences for her future career. However, I do not find that was the exclusive reason for her resignation. The Claimant’s email of resignation sets out in terms that she is resigning because there had been a fundamental breach of the implied term of trust and confidence on the part of the Respondent. Accordingly, I am satisfied that there was a causal link between the Respondent’s cumulative breach of the implied term of trust and confidence and the Claimant’s decision to resign.[145]In line with the foregoing I find that the Claimant was constructively unfairly dismissed.[146]In its Particulars of Response the Respondent pleads that, in the event the Claimant is found to have been dismissed, then the reason for the Claimant’s dismissal was some other substantial reason which was described as a breakdown in the working relationship between the Claimant and Respondent. No evidence was adduced during the course of the hearing in support of the allegation that the Claimant’s dismissal was fair and so I have not considered it further. Judgment
The Law
[1]The complaint of constructive unfair dismissal is well-founded. The Claimant was unfairly dismissed.[2]This matter will now be set down for a separate Remedy hearing. Approved by