Mrs A Tomkins v University Hospital Bristol and Weston NHS Foundation Trust: 1405733/2023
EMPLOYMENT TRIBUNALS
Case No 1405733/2023
Between
Mrs A TomkinsClaimantUniversity Hospital Bristol and Weston NHS Foundation TrustRespondent
Before
Employment Judge C H O’RourkeIn person for claimantMs L Redman - counsel for respondentDate 19 March 2025
JUDGMENT
The Claimant’s claim of constructive unfair dismissal fails and is dismissed.
REASONS
(Having been requested subject to Rule 63 of the Employment Tribunal’s Rules of Procedure 2013) Background and Issues[1]The Claimant was employed by the Respondent for ten years as a patient-flow co-ordinator in the Bristol Royal Infirmary’s Emergency Department, until her resignation, on four weeks’ notice, on 27 September 2023. Her effective date of termination was 25 October 2023.[2]The issues in this claim were set out in detail in the CMO of 9 July 2024 [49] and were agreed with the parties at the outset of the Hearing and are not rehearsed in detail here. Suffice to say that the Claimant makes five allegations of breach of the implied term of trust and confidence, entitling her to resign and bring a claim of unfair constructive dismissal. Each alleged breach was discussed with the parties at the outset of the Hearing, and it was clear that there was much of a factual nature that was not in dispute. I will deal with those matters later in this Judgment. 1 of 12[3]In brief, the Respondent’s position was that the allegations made did not amount, either individually or cumulatively to breach of the implied term and that in particular, looked at objectively, there was reasonable and proper cause for the actions of the Respondent. Further, the Respondent contends that the Claimant did not resign in response to any alleged breaches, but because she had found another job and finally, they stated that she affirmed the contract by her delay in resigning.[4]Preliminary Matter. The Respondent wished to adduce two supplementary witness statements, to which the Claimant objected, as they had been provided post-exchange of her witness statements. I decided to permit the statements to be relied upon, for the following reasons:a. They were relatively brief, and the Claimant had had ample opportunity to peruse them (approximately a week).b. They contained clarification evidence, rather than going to new matters.c. I would have permitted Ms Redman some opportunity for supplementary questions, in which much of this evidence may have arisen, for the first time, as opposed to being provided in advance to the Claimant, so she could be better prepared to deal with it. Apart from one question to one witness, about a matter that had arisen in cross-examination of the Claimant, Ms Redman did not seek to ask supplementary questions.
The Law
[5]Ms Redman referred me to s.95 of the Employment Rights Act 1996 and to the well-known cases of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 EWCA and Mahmud v BCCI International [1997] UKHL ICR 606, in respect of the principles that apply in a case of constructive unfair dismissal (and as set out in how the issues are formatted in the CMO). She emphasised that the burden of proof is on the Claimant and that the tests as to ‘reasonable and proper cause’ and of ‘conduct calculated or likely to destroy trust and confidence’ are objective ones.[6]She also referred to the case of Leach v Office of Communications [2012] ICR 1269 EWCA which stated that: ‘The mutual duty of trust and confidence, as developed in the case law of recent years, is an obligation at the heart of the employment relationship. I would not wish to say anything to diminish its significance. It should, however, be said that it is not a convenient label to stick on any situation, in which the employer feels let down by an employee or which the employer can use as a valid reason for dismissal whenever a conduct reason is not available or appropriate.’
The Facts
[7]I heard evidence from the Claimant and from a former colleague, Mr Ian Pidgen, a former head of security with the Respondent. I was also provided with a statement from a Mr Michael Hockett, the Claimant’s former union 2 of 12 representative, but as he did not attend to give evidence, I gave that statement little weight. For the Respondent, I heard from Mr Owen Lloyd-Jones, the Claimant’s former line manager and from Ms Jessica Jackson, Mr Lloyd-Jones' line manager.[8]Chronology. A chronology is as follows: 16 October 2022 – the Claimant submitted a complaint alleging verbal abuse of her by a patient and a lack of support from a colleague (Christos), who effectively blamed her for the incident [108]. 11 December 2022 – the Claimant complained to Mr Lloyd-Jones as to what she regarded as excessive sickness absence of a colleague, ‘Juan’ [122]. 12 December 2022 - the Claimant directed her concerns about Christos’ actions of 16 October to Mr Lloyd-Jones [122]. 29 December 2022 – the Claimant escalated her complaint about Juan to Ms Jackson [123]. 19 January 2023 (all dates hereafter 2023) - the Claimant escalated her complaint about Christos to Ms Jackson, referring to Mr Lloyd-Jones’ lack of response to her email of 12 December 2022 [124]. This exchange was to form the basis of her first allegation of breach of the implied term, in that she considered that Mr Lloyd-Jones had failed to respond adequately to her complaint and that Christos’ actions ‘ignoring her and swearing at her’ continued to the end of her employment. 3 February to 11 April – attempts are made, unsuccessfully, to arrange mediation between the Claimant and Christos. 17 June – the Claimant was involved in an incident with a patient, where she subsequently, she admitted, referred to the patient as a ‘prick’ to another member of staff and which comment was captured on body-worn camera (which had been previously activated due to concerns about the patient’s bad behaviour). She was given a ‘letter of concern’ about her comment by Mr Lloyd-Jones [166], which it was common evidence was not an invoking of the disciplinary procedure. While the Claimant accepted that it was appropriate to give her a letter of concern, she considered that the footage used from the camera had been accessed unlawfully, in breach of GDPR. This matter formed her third allegation of breach of the implied term. 22 June – As a consequence of this incident and discussions with Mr LloydJones, it transpired that he had, in fact, written her a previous letter of concern, about an unrelated incident, involving Juan, in March and which had been placed on her file. However, he had neglected to send her that letter. He agreed therefore that that letter should be removed from the file, but again referred to it in an email of 23 June, which was placed on her file, but was subsequently removed and replaced with another letter, omitting such 3 of 12 reference, on 15 August. This matter comprised the Claimant’s second allegation of breach of the implied term. November 2022 to July 2023 – it was agreed evidence that in this period Mr Lloyd-Jones had failed to conduct five return to work interviews with the Claimant, after she’d been on sick leave. It was also agreed evidence that he had told her that, as he worked 8-4 on weekdays and she worked predominantly at night or on weekends, she needed to work more weekday daytime shifts to facilitate such interviews. This matter comprised the fourth allegation of breach of the implied term. 7 September – the Claimant made further complaints about Juan and Christos [188]. She said that she had discovered, from a conversation with a colleague, that Mr Lloyd-Jones had agreed to Juan not working in the same area as the Claimant, as he had refused to work with her. She asserted that Mr LloydJones had ‘not followed a proper process’ in coming to this decision. This is her fifth allegation of breach of the implied term. 27 September – the Claimant resigned [202]. 28 October – last day of employment. 30 October – A course training her for her new role, in an ambulance trust, commenced [201]. General Findings[9]It is clear to me from both parties’ evidence that there was considerable tension both between staff members and between staff and management in the twentystrong team of which the Claimant was a member. I reach that conclusion for the following reasons:a. There were several examples given of complaint and counter-complaint made between staff members, to include the Claimant.b. It was common evidence that working in the Emergency department could be both busy and stressful, with sometimes demanding or even abusive or aggressive patients to deal with.c. It was the undisputed evidence of Ms Jackson that prior to her taking on the role of Mr Lloyd-Jones’ line manager, in November 2022, that position had been filled by another manager, Heather, who was, Ms Jackson said, ‘very good friends’ with the Claimant. She said that as a consequence, Mr Lloyd-Jones had been effectively sidelined, ‘because everyone went straight to Heather’, with him doing little management. On Ms Jackson’s arrival, however, she made it clear to Mr Lloyd-Jones that it was his responsibility to manage his team, to include the Claimant and that she (Ms Jackson) should not be the first port of call for concerns from his team. 4 of 12d. Matters reached such a point that, in or about September 2023, the Respondent’s HR department arranged a ‘culture review’, for the team, with team members being interviewed about ongoing concerns, in an effort to improve relationships. The Claimant was interviewed on 8 September 2023 [190-195]. She referred to the team’s use of a WhatsApp group as ‘our rant space due to lack of support’. She also said that she’d witnessed other members of the team looking at colleagues’ rosters, in an effort to effectively ‘check-up’ on them, with the implication that they were ‘fraudulently claiming hours’. Although she denied in the interview that she herself had done this, she accepted in cross-examination that in fact she had and said that ‘we all have access’. She agreed that it was not her responsibility to make such investigations.[10]Another general finding is that it appears that Mr Lloyd-Jones was a relatively inexperienced manager and was perhaps finding it difficult to deal with some of his team, to include the Claimant. He said in his statement that this was his first management role and that if he’d been more experienced, he would have dealt with the Claimant by either conduct or capability proceedings ‘long before she resigned’ (34). His unchallenged evidence in his supplementary witness statement was that the Claimant ‘was a big personality and good at networking with people in positions of influence – she was close to my former line manager and the matron. Other members of the team saw Millie (the first name the Claimant used) as being powerful. When Millie was working, she was the centre of attention.’ He went on to say that he would receive 5 or 6 emails per shift from her. Some were related to shift swops, or her caring responsibilities, but many related to complaints about colleagues. He noted in an email to her on 23 June 2023 [163] that ‘I absolutely agree that in the absence of seeing me in person, an e-mail is the right way to raise issues or ask for support. However, I would note that looking at my old e-mails I have around 70 from you in less than 6 months even after I filter out anything about bank / shift swaps / uniform etc. Some of these are undoubtedly legitimate queries (e.g. what to do with the extra person on strike days now the ITA is closed), but there are a number which are complaining about colleagues, querying other people's Healthroster shifts etc.’ [168] The Claimant denied this frequency of emails in crossexamination, but I note that her reply to Mr Lloyd-Jones’ email, at the time, a half an hour later, does not dispute this point [169]. I consider it more likely than not therefore that his evidence on this point is accurate.[11]Mr Lloyd-Jones went on in his supplementary statement (and which evidence was also undisputed by the Claimant) to say that the Claimant’s emails were ‘often related to issues outside of Millie’s role. For example, Millie would email me quite a lot about perceived flaws in other people’s work if they had left work for her to pick (up?), or about other employees speaking in their first language when Millie was in the room. I took Millie’s complaints seriously and at face value but in retrospect, I think I was being used as a tool for her to bully colleagues, such as when she went through Juan’s sickness records to then ask him why he had not been fired before emailing me to question his absences’ [122]. 5 of 12[12]Mr Lloyd-Jones said in cross-examination (while accepting however that he had no documentary evidence to support it):a. That Juan had not considered formalising any grievance against the Claimant as ‘he feared retaliation’.b. That Mr Lloyd-Jones had not proposed that there be a mediation between the Claimant and Juan, because ‘Juan feared retribution, referring to you (the Claimant) as ‘a powerful person’, close to those of influence’.[13]This evidence chimed with the undisputed evidence from his witness statements and therefore I am inclined to accept it. Constructive unfair dismissal.[14]Having made those general findings, I turn now to the detailed allegations of breach of the implied term of trust and confidence.[15]Allegation 1. This is in respect of Mr Lloyd-Jones’ alleged failure ‘to respond adequately’ to the Claimant’s complaint of 12 December 2022 about Christos bullying her, by ignoring her and subjecting her to ‘eye-rolling’ [125]. Mr LloydJones said that he could not recall when he saw this complaint (ws7), referring to the ‘large volume of emails’ he received from the Claimant. He agreed that he did not respond until 20 January 2023 and only after being prompted by Ms Jackson, whom the Claimant had emailed [132] and in which email the Claimant also referred to Christos swearing at her in Greek. Mr Lloyd-Jones told the Claimant that he had spoken to Christos’ line manager, who would, in turn, speak to Christos and that she (the Claimant) should keep him ‘up to date with the situation (whether his behaviour improves/deteriorates after he’s spoken to) so that we can take things further if necessary.’ Mr Lloyd-Jones then subsequently suggested a ‘mediation session with Christos to try to resolve this situation’ and the Claimant responded, ‘yes of course anything for a happy/healthy working environment.’ [126]. There is then extensive correspondence over the next two months attempting to arrange this mediation, but it does not take place. There was a dispute in the evidence as to why that was, with the Respondent stating that it was because both the Claimant and Christos wanted their respective managers present, which the mediator considered inappropriate and the Claimant stating that she had not stipulated such a requirement. Mr Lloyd-Jones disagreed, stating that he recalled that ‘Millie said that she could not sit in a room with Christos unless I was present’. The mediation did not proceed. Christos was then on secondment abroad for several months and that matter seemed to settle.[16]In considering whether or not Mr Lloyd-Jones’ actions or inactions in this matter amounted to a breach of the implied term, I find that they did not, for the following reasons:a. There was some delay in him responding, but it was agreed evidence that over that period, which included Christmas, he had had both leave 6 of 12 and sick leave (as did the Claimant). I note Mr Lloyd-Jones’ evidence in this respect, that he received many such emails from the Claimant, but he should obviously at least have sent a holding reply, acknowledging receipt, particularly as he knew that the Claimant was likely to escalate the matter to Ms Jackson, if he didn’t. I don’t however view this delay, alone, as breach of any implied term.b. Once he did take action that action was appropriate. He spoke to Christos’ line manager and the Claimant and Christos were offered mediation which was clearly the correct approach to take in such a situation. As stated, it’s unclear as to why this process did not proceed, it being suggested that both parties wanted their managers present, which the Claimant denies was her wish and for which there is no corroborative documentary evidence. In any event, however, mediation has to be a voluntary process, with both parties willing to participate freely, if it has any chance of succeeding and that was clearly not the case here. If the Claimant was unhappy with that outcome, then, as she was advised, she had the option of formalising her complaint in a grievance, which would have to be formally investigated and adjudicated upon by the Respondent. However, she did not, and this was to be a common theme throughout the history of this matter. While the Claimant was content to make informal complaints, she never, at any time, invoked the grievance procedure. I didn’t believe her evidence that she ‘feared retribution’ if she did so and that she’d been advised against it. The Claimant is clearly a person unafraid of asserting her perceived rights and of putting them in writing and therefore taking a formal grievance would have been the next obvious step for her if she was genuinely dissatisfied with the Respondent’s handling of her informal complaints. My view is that she chose to keep her complaints at the informal level, as, by doing so, it prevented the Respondent from any forensic examination of work relationships in the team, which may, perhaps, have resulted in conclusions unfavourable to her.c. The Claimant was invited by Mr Lloyd-Jones to keep him informed as to any developments in the ‘situation (whether his (Christos’) behaviour improves/deteriorates after he’s spoken to) so that we can take things further if necessary.’ , but there were no such further reports from the Claimant and therefore no further action that could be taken by Mr LloydJones, unless the Claimant sought to ‘take things further’, which as stated above, she didn’t.[17]Conclusion. It was not objectively reasonable therefore, in those circumstances, for the Claimant to consider that trust and confidence between her and the Respondent was ‘destroyed or seriously damaged’.[18]Second Allegation. This allegation related to Mr Lloyd-Jones’ placing of a previous ‘letter of concern’ on the Claimant’s file, when he had not sent a copy of that letter to the Claimant and when this was pointed out by her, removing that letter from her file, but making a reference to it in subsequent correspondence. This is, I consider, an extremely trivial matter and certainly not 7 of 12 one that would destroy or seriously damage trust and confidence. There was no dispute that the reason for the drafting of the ‘letter of concern’, inappropriate social media communication from the Claimant, was a genuine one and it was clearly simply an error on Mr Lloyd-Jones’ part that he hadn’t sent the Claimant a copy of it and for which he apologised. The presence of the letter on her file had no effect upon her employment (and indeed she was unaware of its existence until the meeting of 22 June 2023, when the error was realized). Indeed, the letter’s removal from her file can only have been to her advantage, as it could not be taken account of in any future possible progress to formal disciplinary proceedings. The subsequent reference to that letter in Mr LloydJones’ email of 23 June 2023 [163] was him simply recording their conversation of the previous day and the reference itself provides no details of that letter’s content. In any event, once further pointed out to the Respondent, that communication itself was amended. Nothing in this chain of events indicates anything approaching the level needed to ‘destroy or seriously damage trust and confidence’ but was simply the correcting of administrative errors by Mr Lloyd-Jones.[19]Third Allegation. This allegation related to the ‘letter of concern’ sent to the Claimant about her reference to a patient as a ‘prick’. The Claimant accepted in evidence and submissions that that was inappropriate behaviour by her, which merited a letter of concern. She agreed that had it simply been the case that a manager had overheard her saying this and reported the matter then she would not have raised this issue as a breach of the implied term. She said, however that it was the fact, in her view that this information had been obtained ‘unlawfully’ by the Respondent from bodycam footage, in alleged breach of GDPR that breached trust and confidence. She had called Mr Pidgen to give evidence on this point and while it was his strongly held view that use of the footage was a breach of GDPR, he was unable to refer the Tribunal to any authoritative evidence that supported his view. He referred to a policy that he himself had drafted [96], but the Respondent’s undisputed evidence was that this policy had never been implemented. He also, erroneously, stated that Courts and Tribunals would not be permitted to consider evidence obtained in such a way, saying in his statement that ‘any further use of this body worn camera footage is illegal, and no inference can be drawn in any industrial tribunal or legal proceedings relating to Millie Tompkins’. When it was pointed out to him that Courts and Tribunals had an exemption from GDPR/data protection, he was clearly unaware of this fact, thus undermining his credibility, generally, on this issue. There was no evidence of any complaint made to the Information Commissioner about this matter, or any outcome from any such complaint. Whether or not any such use of the footage was or wasn’t breach of GDPR (and I make no such finding) is, in any event, a peripheral issue, upon which the Claimant seeks, in the words of Mummery LJ, in the case of Leech, to use as a ‘convenient label to stick’ on this situation, to attempt to justify this allegation. In the end, the Claimant, as she accepted, deserved her letter of concern and there was nothing remotely inappropriate in the Respondent deciding to do so.[20]Fourth Allegation. This allegation relates to Mr Lloyd-Jones’ accepted failure, on five occasions, to conduct return to work interviews with the Claimant, 8 of 12 following her being on sick leave and his undisputed statement to her that she should work more weekday daytime shifts in order to coincide with his working pattern, to facilitate such meetings. I consider this an entirely fallacious assertion on the Claimant’s part, and I do so for the following reasons:a. It was clear from the Claimant’s sickness record [210] that she took quite a bit of sick leave, but because of the missed return to work meetings much of that sick leave was not counted against her. She also had an exemption from asthma-related sick leave counting towards her total. Both parties’ evidence indicated that had this sick leave been taken account of, the Claimant’s absence would have triggered a formal capability procedure, although it was disputed as to what ‘stage’ that procedure would have been at. Nonetheless, therefore, it was clearly to the Claimant’s advantage that as a result of the failure to hold RTW meetings, the sick leave she was taking was not counting against her and thus she avoided formal capability proceedings (at whatever stage they may have commenced).b. There was undisputed evidence that the Claimant arranged her shifts so, having taken sick leave, she would not thereafter, for five days (the best practice period for conducting a RTW meeting), be on a daytime, weekday shift, thus preventing Mr Lloyd-Jones from holding a face-toface meeting. His repeated inability to do so led to Ms Jackson advising him that instead the meetings could be conducted over the phone, but his undisputed evidence was that when he phoned, the Claimant would not answer and he also had concerns, generally, about phoning staff during the daytime, when they had been working night shifts.c. The Claimant asserted, in evidence and in closing submissions that Mr Lloyd-Jones, as her line manager could have allocated her day shifts to facilitate such meetings but did not. That may well be the case and it may be an indication of Mr Lloyd-Jones’ weak management of the Claimant that this did not take place, but it was a situation that was entirely to her advantage and which she facilitated and therefore cannot be a breach of trust and confidence on the Respondent’s part (if anything, it might indicate such a breach on her part).d. Accordingly, therefore, her assertion in closing submissions that she ‘was asking for more support’ from Mr Lloyd-Jones is deeply implausible. She was being weakly managed by him and that entirely suited her.[21]Conclusion. Such a situation, therefore, where an employee is gaining an advantage by their employer’s failure to act, cannot be a breach of trust and confidence by the employer and as stated, if anything, may be the other way round.[22]Fifth Allegation. Fifth and finally, this allegation relates to the Claimant’s discovery, on 7 September 2023, from another member of staff that, in or about March 2023 that Juan had refused to work with her and that Mr Lloyd-Jones had arranged for Juan to work elsewhere from the Claimant, so they interacted 9 of 12 as little as possible. The Claimant stated that Mr Lloyd-Jones had not followed any proper process in doing so and she was concerned that this arrangement was known about by other colleagues, but about which she was in ignorance. Both Respondent witnesses said that in view of the history of complaints and counter-complaints between the two employees, they considered it entirely appropriate not to tell her about the arrangement they had made with Juan and that if she had herself, instead, said that she couldn’t work with Juan, they would have made the same arrangement for her, keeping the arrangement discreet. It was uncontested evidence from Mr Lloyd-Jones that the Claimant had asked him, in the past, whether she could work with particularly people, in order to avoid others. Ms Jackson said in her statement that: ‘18. In the Patient Flow Co-Ordinator team, there were four people on shift at once – two in each side of the Emergency Department. This meant that individuals would be working together for 12 hours at a time. There had been so many allegations made by individuals about bullying but at the same time, noone wanted to pursue their allegations formally, nor did they want anyone to know that they had made a complaint. As a result and to try and keep the peace as much as possible, there were several arrangements in place regarding who could and could not work with each other. Owen would never guarantee anything to anyone but he would try not to put certain people on shift together. As Millie had put in a counter-complaint about Juan in March 2023 having found out that Juan had complained about her, Owen and I deemed it appropriate to try and keep the two of them separate given that neither had pursued their complaints formally.’[23]Both Respondent witnesses accepted, however that given the nature of this working environment and despite management requests that such matters be kept confidential that there would be gossip and that these arrangements would become public knowledge.[24]I consider that in respect of this allegation there is at least the potential for the Claimant to consider that her trust and confidence had been breached, in that, without her knowledge, a colleague had been permitted not to have to work with her, for six months and that she only found out this fact, through office gossip. However, a conclusion of that nature would be to completely ignore the background and history leading to this event. In summary, those matters are as follows:a. A long history of complaints and counter-complaints of bullying between employees, to include the Claimant.b. The unwillingness of all concerned to formalise any such complaints, thus preventing the Respondent from getting to the bottom of them and if appropriate taking disciplinary action.c. The undisputed evidence of the Respondent witnesses that the Claimant’s colleagues feared retribution and retaliation from her, in the event that she was informed of any such arrangement. 10 of 12d. The need, in a busy and pressurized environment, to keep the team’s performance as effective as possible.[25]I conclude, therefore, looking at this matter objectively that the Respondent, in these extreme circumstances, had reasonable and proper cause for the action it took, in making this arrangement with Juan and that therefore it was not a breach of trust and confidence on their part.[26]Conclusion on Breach of the Implied Term of Trust and Confidence. I don’t therefore, for the reasons set out above, consider that the Respondent breached the implied term of trust and confidence, as alleged by the Claimant.[27]While, therefore, I do not, in theory, need to go any further in my deliberations, I also make conclusions, in the event, nonetheless that there had been a breach of trust and confidence. In that respect, there would be two further hurdles for the Claimant to get over. Firstly, did she resign because of any alleged breach, or for some other reason and secondly, did she affirm the contract by her actions after any such breach?[28]Reason for Resignation. There are several references in the documentation to the Claimant looking for alternative work, from June/July onwards [199, by September, having made seven applications). I consider that she was doing so because she was in disagreement with how she was being managed, with that management becoming more effective since the arrival of Ms Jackson and that therefore she may face more scrutiny than she had in the past. She may also have considered that she had fallen out with colleagues and that a fresh start was needed. None of that indicates justification for a claim of constructive unfair dismissal. She decided therefore to find alternative employment, which she did, and which commenced almost immediately after the expiry of her notice period. That, I consider, is the true reason for her resignation.[29]Affirmation of the Contract. It was agreed evidence that after her resignation, the Claimant offered to work on a ‘Bank’ contract with the Respondent, effectively a zero-hours contract, in which work she could be expected, at least theoretically, to work in the same team as she had before. The Claimant said that she needed to do this due to financial commitments, in particular her and her husband’s mortgage. However, even offering to do so is in fundamental contradiction with the basis of her claim of constructive unfair dismissal, namely that the Respondent’s action or inactions had destroyed or seriously damaged trust and confidence between her and them, giving her no choice but to take the drastic step of resigning. Employees who genuinely leave in such circumstances do not then offer to be re-engaged, in any form, by the same employer, regardless of financial pressures, indicating to me that the alleged breaches of the Respondent did not, in fact, breach the Claimant’s trust and confidence, as she now claims. 11 of 12[30]Judgment. Accordingly, therefore, for these reasons, the Claimant’s claim of constructive unfair dismissal fails and is dismissed. COSTS JUDGMENT The Respondent’s application for a costs order is refused.
The Facts
[1]The Claimant was employed by the Respondent, until her resignation, on notice, with an effective date of termination of 28 October 2023.[2]She brought a claim of constructive unfair dismissal, which was heard on 17 to 19 March 2025, following which, on the latter date, the claim was dismissed.[3]The Respondent made an application for costs on 22 April 2025, copied to the Claimant. The Claimant was invited to indicate whether, as proposed by the Respondent, the application be dealt with by way of written submissions and she concurred, providing her written response to the application, along with accompanying documentation, on 28 April 2025. Those submissions were provided to me on 28 May 2025.
The Law
[4]Rule 74 of the Tribunal’s Rules of Procedure 2013 states: When a costs order or a preparation time order may or shall be made 1 of 6 (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success;[5]Rule 82 provides that the Tribunal may have regard to the paying party’s ability to pay any costs order that may be made.
The Evidence
[6]I was provided with the aforementioned application and response, as well as a costs schedule from the Respondent, a copy of their costs warning letter to the Claimant of 19 February 2025 and from the Claimant copies of bank statements and a debt schedule.[7]As both parties sought to rely on the contents of the written reasons for my Judgment, I refer, in general, to that document, dated 19 March 2025. Submissions[8]I summarise both parties’ written submissions below.[9]Respondent. The submissions are as follows:a. The Claimant acted unreasonably in bringing and pursuing her claim when it was clear that the actions alleged by her did not amount to a fundamental breach of the implied term of trust and confidence.b. Her conduct of proceedings was also unreasonable, in rejecting the Respondent’s ‘drop hands’ offer made in their costs warning letter.c. While the Respondent considers that the Claimant should have been aware of the weakness of her case from receipt of the Amended Response, in August 2024, it restricts the costs claimed to the period following the costs warning letter (totalling £13,510.75 inclusive of VAT - which the Respondent is unable to claim back from HMRC).d. The costs warning letter referred to the amended response, setting out why the claim would fail. In particular, it emphasised that the Respondent considered that the Claimant did not resign in response to any breach, but because she had found new employment and thus delayed resignation until that point. The letter also set out anticipated costs of £8,000 (subject to finalisation) and the application letter explained why the eventual final figure is higher than that anticipated. 2 of 6e. Despite the Claimant being advised in the letter to seek independent legal advice in respect of it, she rejected it three hours after it was sent to her.f. The Respondent relied on the following remarks from the Tribunal’s written reasons: i. In relation to the First Allegation: “It was not objectively reasonable therefore, in those circumstances, for the Claimant to consider that trust and confidence between her and the Respondent was ‘destroyed or seriously damaged’.” ii. In relation to the Second Allegation: “This is, I consider, an extremely trivial matter and certainly not one that would destroy or seriously damage trust and confidence” and “Nothing in this chain of events indicates anything approaching the level needed to ‘destroy or seriously damage trust and confidence’”. iii. In relation to the Third Allegation: “In the end, the Claimant, as she accepted, deserved her letter of concern and there was nothing remotely inappropriate in the Respondent deciding to do so.” iv. In relation to the Fourth Allegation: “Such a situation, therefore, where an employee is gaining an advantage by their employer’s failure to act, cannot be a breach of trust and confidence by the employer and as stated, if anything, may be the other way round.” v. In relation to the reason for the Claimant’s resignation: “None of that indicates justification for a claim of constructive unfair dismissal. She decided therefore to find alternative employment, which she did, and which commenced almost immediately after the expiry of her notice period. That, I consider, is the true reason for her resignation.” vi. In relation to affirmation of the contract: “It was agreed evidence that after her resignation, the Claimant offered to work on a ‘Bank’ contract with the Respondent, effectively a zero-hours contract…even offering to do so is in fundamental contradiction with the basis of her claim of constructive unfair dismissal.”g. The application referred to a range of authorities, to which I shall further refer (as I think appropriate) below.h. As to ability to pay any order, the Claimant is in full-time secure employment, having claimed only five days’ loss of earnings in her schedule of loss.[10]Claimant. The submissions are as follows:a. The Claimant acted reasonably throughout the proceedings. 3 of 6b. She sought legal advice from both her union representative and a lawyer, who informed her that she had a strong case/reasonable prospects of success, respectively.c. As a litigant-in-person she paid for three hours of ‘employment tribunal coaching’ and if she could have afforded legal representation at the hearing would have done so.d. She conducted herself appropriately and respectfully throughout the Tribunal process, complying with orders and co-operating with the Respondent.e. Despite her preparation, her ‘mind went blank’ during the hearing.f. The Tribunal found that there was ‘at least the potential for me to reasonably consider that my trust and confidence had been breached.’, thus indicating that her claim had merit, based on genuine concerns and ‘worthy of judicial consideration’. She stated that she ‘genuinely believed in good faith that I had a strong case.’g. She attempted to settle the dispute ‘amicably and (to) avoid unnecessary litigation costs’ by making four offers via ACAS, which were rejected by the Respondent.h. She took legal advice on the costs warning letter and was assured that costs orders were ‘rare and 6% of cases had been awarded … costs’.i. Due to her personal circumstances, she would be unable to pay it, without severe financial hardship.
Findings
[11]Threshold for Making a Costs Order. I find that the threshold for the making of a costs order in this case has not been reached, for the following reasons:a. It is a margin call, but in paragraph 24 of the Reasons, I found that in respect of the fifth allegation ‘there is at least the potential for the Claimant to consider that her trust and confidence had been breached, in that, without her knowledge, a colleague had been permitted not to have to work with her, for six months and that she only found out this fact, through office gossip.’ While I went on to set down why, nonetheless, this allegation did not constitute a breach of trust and confidence, those findings were dependent on me hearing evidence in respect of the background to this claim and the Claimant’s recent employment history, without which, the finding may have been of an act of breach of the implied term, thus indicating that, without such deliberation that allegation had some merit.b. The fifth allegation arose from complaints raised by the Claimant, with the Respondent, on 7 September 2023, following which she resigned, three 4 of 6 weeks later. In that context, therefore, she could not reasonably have been considered to have unduly delayed in doing so, thus affirming the contract.c. While my finding as to the Claimant having affirmed the contract by offering to do ‘bank’ shifts with the Respondent was unequivocal, it is not necessarily the case that a litigant-in-person would understand the potential legal consequences of making such an offer. The Claimant’s evidence was that she and her husband needed the money she might earn from such work, and she may, perhaps understandably (but wrongly) have seen such ‘bank’ work as being at ‘arms distance’ from her previous employment.[12]Exercise of discretion as to making a costs order. While, having found that the threshold has not been reached for the making of a costs order, I would, in any event, have decided against exercising my discretion to do, for the following reasons:a. The Claimant was a litigant-in-person for some time prior to the Hearing, and she stated in her submissions in response to this costs application that previous legal advice given to her was that she had ‘reasonable prospects of success’. Despite the burden of proof being upon her in that respect, there has been no application by the Respondent for her to disclose that advice, or the information she provided to any such advisor, which, applying Brooks v Nottingham University Hospitals NHS Trust [2019] UKEAT/0246/18, in which it was stated that: 36. … Reliance upon advice is a factor that may be taken into account by the Tribunal but positive professional advice will not necessarily insulate a Claimant against an award for costs. There may be many reasons for the advisers reaching a different view as to the prospects of success from the Tribunal: these may include the fact that the advice was based on more limited material than that which is considered by the Tribunal, the advice being based on the Claimant coming up to proof, or the advice being negligent. In the absence of any evidence to the contrary, the Tribunal is entitled to proceed on the assumption that a represented party has been properly and appropriately advised as to the merits. 37. In the present case, the Tribunal was faced with little more than a bare assertion that the Claimant had been advised that he had a good case. The Respondent, not surprisingly, had sought disclosure of such advice on the assumption that the Claimant had waived privilege in this regard. Notwithstanding that apparent waiver no evidence was disclosed to the Tribunal or to the Respondent setting out the terms of any advice received. An assertion in submissions falls short of evidence as to the advice. Such evidence would ordinarily set out the context in which the advice was given, the particular instructions which led to the advice and the evidence taken into account in coming to that conclusion. Without such contextual material, the Tribunal will have little to warrant departing from the normal starting assumption that a represented party has been properly advised. 5 of 6b. The offer letter would not, of itself, justify a costs order, but can be a ‘factor’ (along with other matters) that might do so (Kopel v Safeway Stores Plc [2003] IRLR 753 EAT). The fact that it contains only a ‘drop-hands’ offer, as opposed to any financial incentive to the Claimant (even a token one, expressed say as aiming to save costs), renders it less forceful, in my view, perhaps indicating to the Claimant that she ‘had nothing to lose’ by proceeding, based on the advice that she said that she had received on the issue of costs. Judgment[13]For these reasons, therefore, the Respondent’s application for a costs order is refused.