Mrs A Clayton v Advisory Insurance Brokers Ltd: 1406352/2023
EMPLOYMENT TRIBUNALS
Case No 1406352/2023
Between
Mrs A ClaytonClaimantAdvisory Insurance Brokers LtdRespondent
Before
Employment Judge Elizabeth GibsonIn person for claimantDate 22 June 2025
JUDGMENT
[1]The Claimant's claim for constructive unfair dismissal is not well founded and is dismissed.
REASONS
[1]The Claimant, Mrs Amy Clayton, was employed by the Respondent as an Executive Assistant from 04 June 2018 until 31 August 2023. She resigned with notice to the Respondent on 01 August 2023.[2]The Claimant brings a single claim - that she was constructively dismissed on the basis she was entitled to resign because of her treatment by the Respondent and that her resignation amounted to a dismissal which was unfair.[3]The Respondent, an insurance brokerage business of 2 Minster Court, Mincing Lane, London denies the Claimant's claim of constructive dismissal. The Respondent is one of a number of companies within the Advisory Division of the Ardonagh group of companies.[4]The Respondent's response to the Claimant's claim is that Mrs Clayton resigned voluntarily on 01 August 2023 with a month's notice and there was no dismissal.[5]The Claimant raised a grievance with the Respondent on 17 August 2023 which was partially upheld. The Claimant appealed the Respondent's grievance decision on 28 September 2023 and her appeal was dismissed on 01 December 2023. These two latter events were not relevant to the Claimant's claim.
The Hearing
[6]I heard Mrs Clayton's claim on 03 and 04 March 2025 via a Cloud Video Platform sitting in Exeter. The Claimant was a litigant in person. The Respondent was represented by Miss Annette Gumbs of Counsel.[7]I considered a hearing bundle consisting of 187 pages of documentary evidence. Page references in this document are references to the pages in the hearing bundle.[8]I heard oral evidence from the Claimant and on behalf of the Respondent from Ms Amanda Byrne, head of human resources at Ardonagh Advisory who had some day-to-day responsibilities in respect of the human resources support for the Claimant. I also heard from Simon King, general counsel of the Respondent who had heard the Claimant's grievance appeal in early October 2023. Mr King's evidence was not relevant to this hearing.
Preliminary Matters
[9]The Respondent applied for disclosure of certain information from the Claimant in respect of a new appointment she had taken up following her resignation from the Respondent. The Claimant said she was happy to do this as she understood she had previously submitted this evidence to the Tribunal and to the Respondent.[10]I received an email from the Claimant which attached an offer letter from IVC Evidensia dated 28 July 2023 offering Mrs Clayton an Executive Assistant post within this company's support operations centre.[11]The Respondent also asked me to consider three pieces of documentary evidence which had been mistakenly omitted from the bundle. These consisted of two fitness to work certificates dated 01 March 2023 and 03 March 2023 from the Claimant's GP and a screen clipping of an offer for the new post of Executive Assistant Team Leader (the "Omitted Evidence").[12]There were no objections from the Claimant to the inclusion of the Omitted Evidence in the bundle.[13]I carefully considered the Omitted Evidence and applied the overriding objective in Rule 3 of The Employment Tribunals Procedure Rules 2024 and determined it was proportionate to allow the Omitted Evidence to be added to the bundle because it was relevant to the question of whether the Claimant had been constructively dismissed.[14]I gave the Claimant time to review the Omitted Evidence prior to her giving evidence.
Issues
[15]I had been provided with an agreed list of issues following a preliminary hearing held on 06 December 2024 by Employment Judge Self. The issues were set out at paragraph 61 of the Record of A Preliminary Hearing and Case Management Orders which was provided at pages 49 to 57 of the bundle, an extract of which is summarised in paragraphs 16 and 17 (below). Constructive Unfair Dismissal[16]The Claimant claims that the Respondent acted in fundamental breach of contract in respect of the implied term relating to mutual trust and confidence. The breaches she claimed were:a. From November 2022 and after a personal assistant working with the Claimant resigned, the Claimant was not offered any support and was effectively forced to cover both roles thereby causing her to be unwell and signed off sick from work (the "PA Cover Issue");b. At the end of June 2023, a management restructure resulted in the creation of a new role of Team Leader Executive Assistant and a small pool of Executive Assistants was told that only internal applicants would be considered for this new role (the "New Role") and each of them was welcome to apply. However, on 02 July 2023 the Claimant discovered that the role had been advertised externally;c. Prior to the Claimant's resignation she raised questions and sought an update on the recruitment process for the New Role from Ms Byrne, a member of the Respondent's human resources team who did not provide any update to the Claimant;d. Around 11 July 2023 Ms Byrne told the Claimant that she could apply for the New Role and that her application would be considered. However, when the Claimant tried to submit her application electronically, she could not do so because the link no longer worked ((b), (c) and (d) together the "EA Restructuring Issue");e. The Claimant was informed that a colleague had been interviewed for the new role and had been offered the job from 01 September 2023 but the colleague had been told to keep the job offer quiet; andf. The last of those breaches was said to have been the "last straw" in a series of breaches, as the concept is recognized in law ((e) and (f) together the "Final Straw Issue".[17]I therefore had to consider:a. 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?b. If so whether it had reasonable and proper cause for doing so?c. Whether the Claimant resigned because of the breach?d. Whether the Claimant delayed before resigning thereby affirming the contract?e. In the event that there was a constructive dismissal, was it otherwise fair within the meaning of s98(4) of the Employment Rights Act 1996 (the "ERA 1996")? Background and Initial Finding of Facts[18]At the end of November 2022, the Claimant's team personal assistant resigned. The part-time personal assistant ("PA") left her role on or around 31 December 2022.[19]The Respondent did not recruit a new PA before the Claimant resigned. In covering the PA role the claimant had additional responsibilities.[20]The Executive Assistant restructuring exercise was not completed until mid-August 2023.[21]In June 2023 the Respondent introduced the new Executive Assistant structure including the New Role which carried responsibilities for allocation of work, performance management and arranging holiday cover.[22]On 30 June 2023 the Respondent sent an email to some of its Executive Assistants, including the Claimant, providing an electronic link to the application for the New Role.[23]The Respondent also invited external applications for the New Role and other Executive Assistant posts.[24]The Claimant raised queries about the New Role in early July 2023. The Respondent did not reply to the Claimant's questions until 17 August 2023. This was after the Claimant had resigned (with notice) on 01 August 2023.[25]Ms Bryne in an email of 17 August 2023 timed at 3pm (at page 94 of the bundle) acknowledged the Claimant had asked her questions on 11 July 2023. Ms Bryne apologised for her oversight and answered the questions.[26]The same day but following the email from Ms Byrne the Claimant raised a grievance with the Respondent. In the Claimant's email time at 10.35pm setting out her grievance (at page 96 to 98 of the bundle) she stated there were two parts to her grievance which has "concluded in me having no option but to resign and find alternative employment elsewhere.", and "I feel I was left with no choice to submit this grievance despite numerous requests for both clarification and communication."[27]The grievance was considered at a meeting on 29 August 2023 by Erica Hunt, a former finance director of one of the Respondent's group companies and the Claimant.[28]The grievance was partially upheld by Ms Hunt following an investigation and the Claimant was notified of this on 22 September 2023.[29]The Claimant appealed the grievance outcome by email on 28 September 2023. Simon King, who at the time was deputy group general counsel of the Respondent heard the appeal on 22 November 2023.[30]On 01 December 2023 Mr King sent an email letter to the Claimant explaining why he was not upholding the appeal.[31]During the hearing it became clear that an element of the Claimant's case was that her grievance was not handled fairly by the Respondent.[32]As the Claimant's resigned on 01 August 2023 and this predated the instigation of her grievance, I determined that her allegation the grievance process was unfair was not relevant to the question of whether she was constructively dismissed.[33]However, some of the matters documented by the parties during the grievance investigatory process and outcome did assist me in in analysing the evidence presented to me and making findings of fact in the specific context of this matter.[34]However, to be clear, I find the Claimant did not resign in response to the Respondent's handling of her grievance. The Law - Constructive Dismissal[35]Constructive dismissal is not a term used in the ERA 1996 but s95(1)(c) of this act gives the legal definition of such a dismissal as where: "the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."[36]This statutory language incorporates the law of contract which means that an employee is entitled to treat himself as "constructively dismissed" only if the employer's conduct represents a fundamental breach (also termed a repudiatory breach) going to the root of the employment contract or shows that the employer no longer intends to be bound by one or more of its essential terms.[37]The statutory language shows there must be circumstances justifying the employee downing tools and walking out. In legal terms there must be a fundamental breach of contract by the employer which causes the employee's resignation.[38]One of the leading authorities in constructive dismissal and which includes the applicable test for such a claim is Western Excavating (ECC) Limited v Sharp [1978] IRLR 27 CA. In this case Lord Denning said: "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; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of his employer's conduct. He is constructively dismissed. The employee is entitled in these circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once.[39]Employment contracts include an implied term of trust and confidence between the employer and employee. The leading case in respect of this implied term is Malik and Mahmoud v Bank of Credit and Commerce International SA [1997] UKHL 23. The House of Lords (as it then was) considered the scope of the implied term of trust and confidence and approved a formulation which imposed an obligation that either party must not: "...without reasonable and proper cause, to conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee." (the "Malik Test" or "Malik")[40]For the purposes of this decision, it is important to note that the Malik Test has two elements to consider – that is the employer's conduct can be either calculated or likely to destroy or seriously damage the employment relationship.[41]The Malik Test is objective as described by Lord Nicholls "...it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer,".[42]Not every action by an employer can properly give rise to a complaint by an employee that amounts to a breach of trust and confidence. The Malik Test is a high hurdle to surmount for an employee.[43]The case of Woods v WM Car Services (Peterborough) Limited [1981] IRLR 347 CA sets out that is not necessary for an employee to show an employer intended to fundamentally breach the contract but it is the tribunal's function in these sort of cases is to consider whether: "the employer's conduct as a whole...is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with.it." ("Woods")[44]Each element of the Malik Test must be met by an employee claiming constructive dismissal where the employer is alleged to have breached the implied term of trust and confidence. |[45]The case of Frenkel Topping Limited v King EAT 0106/15 ("Frenkel') demonstrates the demanding nature of the Malik test.[46]The Employment Appeals Tribunal ("EAT") referred to the case of BG plc v O'Brien [2001] IRLR 496 which held that simply acting in an unreasonable manner was not sufficient to discharge the burden of the Malik test.[47]Mr Justice Langstaff (the then President of the EAT) said: "The word qualifying “damage” is “seriously”. This is a word of significant emphasis. The purpose of such a term was identified by Lord Steyn in Malik v BCCI [1997] UKHL 23 as being: “… apt to cover the great diversity of situations in which a balance has to be struck between an employer's interest in managing his business as he sees fit and the employee's interest in not being unfairly and improperly exploited.” Those last four words are again strong words. Too often we see in this Tribunal a failure to recognise the stringency of the test. The finding of such a breach is inevitably a finding of a breach which is repudiatory..."[48]The EAT case of Morrow v Safeway Stores Plc [2002[ IRLR 9 EAT ("Morrow") dealt with the implied term of trust and confidence and EAT in remitting the case found that the original tribunal has misdirected itself on the following basis: "...they appear to have directed themselves that they could therefore find a breach of the implied term of trust and confidence, which was nevertheless in all the circumstances not sufficiently serious to amount to a repudiatory breach entitling the [claimant] to resign. In general terms a finding that there has been conduct which amounts to a breach of the implied term of trust and confidence will mean, inevitably, that there has been fundamental or repudiatory breach going necessarily to the root of the contract, as the EAT recognised in Woods.[49]The case of Kaur v Leeds Teaching Hospitals NHS Trust [2018] IRLR 883 ("Kaur") confirms that an employee who claims constructive dismissal because of a continuing cumulative breach of the implied term of mutual trust and confidence is entitled to rely on the totality of the employer's acts notwithstanding a prior affirmation of a contract, provided the later act – the last straw – forms part of a series of breaches. It held that the effect of the final act was to revive an employee's right to terminate his or her employment based on the totality of the employer's conduct. Evidence and Further Findings of Facts[50]There was a degree of conflict between the parties on the evidence and there were discrepancies and inconsistencies, particularly in respect of some dates which I was unable to fully resolve but this did not affect my decision.[51]I considered all the evidence, both documentary and oral, and listened to the factual and legal submissions made by or on behalf of the parties. Where I had to resolve any conflict of evidence this is referred to at the material point. The PA Cover Issue[52]The Clamant said in her witness statement that despite repeated requests from her manager, Mr Iain Laws, the Respondent declined to advertise for a replacement and that: "as a result, I was forced to take on both my Executive Assistant Duties and the full PA role from December 2022 until my departure in August 2023 – a period of nine months. I was not offered any additional support, compensation, or recognition for this increased workload. The additional responsibilities caused significant stress and exhaustion leading to two periods of medically certified absence for work-related exhaustion from March 2023 and again in July 2023. Despite my absence no support was provided on my return, and I was expected to resume both roles without any adjustment."[53]The Claimant said the reason for not recruiting a replacement was budgetary. Ms Byrne said the reason was due to the business's plans for restructuring the Executive Assistant team and had been told by her boss in an email (at page 74 of the bundle) that the Claimant was "...the fact that Amy earns more than most of the other EAs already, I cannot support this. She is covering a small business area for the salary she was receiving compared to other Executive Assistants in the role." This latter point was not disputed by the Claimant.[54]Under cross examination the Claimant was taken to her sick notes for March 2023 (at pages 185 to 187 of the bundle). She accepted the first sick note dated 01 March 2023 stated the reasons for her being unfit for work were "Headaches, Insomnia and Exhaustion" and the second sick note dated 06 March 2023 stated the reason for her being unfit for work was "Exhaustion".[55]Her explanation for the fact that neither sick note stated her illnesses were work-related was that the doctor was a locum and that because she had never been signed off work before she did not know she could have asked the doctor to include the phrase "work-related".[56]In respect of the Claimant's period of illness in July 2023 no documentary evidence was submitted. The Respondent said it had no evidence of the Claimant having been off work due to sickness in July.[57]Under cross examination, the Claimant said she had raised her concerns about carrying out two roles in conversations with Mr Laws regularly and repeatedly and with another human resources colleague called Gemma Lee. There was no documentary evidence to corroborate the Claimant's oral evidence of her repeatedly raising her concerns.[58]In Mr Laws' interview, conducted on 05 September 2023 and which was part of Ms Hunt's grievance investigation (at pages 107 to 109 of the bundle) he said:a. "It is fair to say that Amy's work bias moved towards the PA role. This continued for some considerable period of time - if I had realised that it would take so long then I would have been far more vociferous in my objection to pausing the role. Especially as it came to light that once the OD process was rolled out that that PAs were not in scope. That I believe is some of the source of Amy's grievance, that she was covering the additional work for six months.";b. Amy was off for some time on compassionate leave but he was not prepared to go into details as it involved her personal life; andc. "I do not recall Amy stating that a contributing factor was work, but at the same time being asked to do two jobs probably would have been. I wanted to be a supportive employer."[59]In oral evidence Ms Byrne said if the Respondent's human resources team had been told the Claimant's absences were work-related then this would have been picked up.[60]The Claimant did not did not state she had contacted her human resources team when she was unwell in March but under cross examination the said her illness was work-related and that she had regularly talked to Mr Laws about being run-down due to covering two roles as part of her bi-weekly catch-ups with him.[61]Also, under cross examination the Claimant acknowledged her contract of employment included a term at section 2.1 (at page 59 of the bundle) that she could be asked to carry out additional duties from time to time.[62]She also agreed that she had been exploring the possibility of a new job with her new employer during the last week of July and that she secured her new position before resigning on 01 August 2023. Findings of Fact - the PA Cover Issue[63]Having considered all the evidence, I find the following facts on the balance of probability:a. The Respondent did not replace the Claimant's team PA from January to August 2023 and this was due to the restructuring of the Executive Assistant team by the Respondent – this finding is based on the consistency of the documentary evidence and because Ms Byrne's oral evidence;b. During March 2023 the Claimant was unfit for work and this was related to her workload; - this finding is made on the basis the Claimant's evidence was consistent with that of Mr Laws' statements and she was a credible witness despite there being was little documentary evidence;c. If the Respondent had been aware the Claimant's absence was due to her workload, its human resources team would have escalated the matter - Ms Byrne's evidence was credible in this respect.d. In July 2023 the Claimant was off work and despite the absence of any sick note this was more likely the compassionate leave Mr Laws referred to in his grievance interview;e. The Claimant was aggrieved she has covered two roles for so long and this was one of the reasons she resigned and subsequently brought a grievance against the Respondent – this is because the Claimant's witness statement, her answers under cross examination, her resignation letter and grievance email were consistent; andf. Although the Claimant's employment contract allowed the Respondent to require employees to carry out additional duties, this was on the basis of being from "time to time" not for months at an end.[64]The Claimant stated in her resignation letter: "It is with a heavy heart and many mixed feelings that I am doing this.......I am pleased to say that I have very much enjoyed my time working for Towergate Health and Protection over the last five years. However over the last eight months I have not enjoyed covering Avril's role which has taken me away from my own role.....As each month passed, I was sure that a replacement would be sought and I would be able to return some of the more basic tasks to the new PA but unfortunately, we are not much closer to finding that replacement and the situation drags on."[65]I consider the Claimant's sentiments in her resignation letter were important – whilst this evidence does demonstrate that subjectively Mrs Clayton was genuinely unhappy, her response in the end was to look for a new job which she quickly secured.[66]I find that at this time and in the circumstances surrounding the PA Cover Issue it was not until after the Claimant decided to move on, found alternative employment with IVC Evidensia that she resigned.[67]I do not find that the Respondent's conduct as a question of fact objectively amounted to a breach of the implied term of trust and confidence. The Respondent's conduct did not go that far and the Claimant was not entitled to regard herself as being constructively dismissed[68]The grievance email was sent more than two weeks after the Claimant's resignation and I noted that although the Claimant initially stated in this email that the fact of the grievance concluded in her having no option but to resign this was contradicted but her use of the words "I feel I was left with no choice to submit this grievance..."[69]I was troubled by the timeline around Mrs Clayton's resignation and grievance and by the Claimant's contradictory statements. It also became apparent as the documentary and oral evidence came out during the hearing that the Claimant was prone to exaggeration – for example she referred often to raising matters "numerous" times, but this was not corroborated by the documentary evidence. This undermined her credibility.[70]In coming to my findings as to whether the Claimant's upset about the PA Cover Issue amounted to a breach of the implied term of trust and confidence, I also considered the upholding of the Claimant's grievance in this respect.[71]The Respondent's (by Ms Hunt) report dated 22 September 2025 (at pages 142 to 146 of the bundle) (the "Grievance Outcome Report").determined the human resources team's conduct showed a lack of appreciation and escalation as to the implications to the Claimant in leaving the PA role unfilled for such a long term and that insufficient communication was provided to Mrs Clayton to explain the reasons for the delay.[72]I find that the acknowledgement of "lack of appreciation and escalation" and "insufficient communication" (albeit post the Claimant's resignation) showed candor but consider objectively, based on the evidence I heard and read, that as a matter of fact did not amount to a breach of the implied term of trust and confidence.[73]In conclusion, I find the PA Cover Issue was a factor in the Claimant's decision to resign but her resignation was not because of a breach of the implied term of trust and confidence entitling Mrs Clayton to claim she was in fact constructively dismissed. She was, however, perfectly entitled to raise a grievance. The EA Restructuring Issue[74]The Claimant's evidence was that she was told by Mr Laws about the restructuring of the Executive Assistants' roles in the business on 23 June 2023. In this conversation, which was based on a "script" from the human resources team, the Claimant said she was told by Mr Laws that this would be an internal vacancy only and she had a month to respond.[75]The Claimant said she did not receive the New Role advertisement until late on 30 June 2023. a[76]In her witness statement the Claimant said: "More concerningly, on 2 July 2023, I discovered that the same job was already posted externally on Indeed, [a recruitment website] before I had received the formal notification. This raised serious concerns about the lack of transparency and fairness in the recruitment process. The external advert showed no sign of an end date, so there was no clarity with regards to [the] application window."[77]The Claimant said she was very interested in the New Role as it was a natural progression for her based on her experience, responsibilities and tenure with the Respondent.[78]She contacted Ms Byrne to express her interest and to raise some questions about the reporting structure and whether the New Role was purely managerial or a hybrid of existing Executive Assistant duties and additional responsibilities.[79]Documentary evidence (at pages 83 to 86 of the bundle) shows the internal advertisement for the New Role was sent to four Executive Assistants including the Claimant and the Executive Assistant (Angela Bradshaw) to the chief executive of the Respondent's advisory group.[80]It was agreed by the Claimant in cross examination that this advertisement was clearly for internal and external candidates. Ms Bryne said in her witness statement that to her knowledge it was not stated that the EA Role would be for internal candidates only.[81]Both parties accepted there was no formal deadline in the advertisement.[82]The Claimant said she was shocked that the New Role was advertised to external and internal candidates and not ring-fenced as she had been given to understand by Mr Laws.[83]With respect to her queries to Ms Byrne, the Claimant said these were raised on a Teams call and included the question of how the New Role would work from a practical perspective if the new position was given to an Executive Assistant "below" that of Ms Bradshaw given that conflicts of interest and confidentiality issues could arise.[84]It was not entirely clear from the evidence when the Claimant raised her queries but from Ms Byrne's evidence suggests this was 11 July 2023 when she had a Teams call with the Claimant.[85]Ms Byrne said she made a handwritten note of the conversation (but was now unable to locate this note). Ms Byrne confirmed to the Claimant she would obtain answers for her – but admitted that she did not do so before the Claimant's resignation on 01 August 2023.[86]She said: "On 18th July 2023, I raised the questions with Tracy Toon and I was supposed to feed back the answers to the Claimant but due to an oversight, I failed to do so."[87]"I hold my hands up to that oversight. It was not a deliberate act at all. There would be no benefit to doing that. I know I was stretched workwise at the time and as the questions were raised on a call and were noted in my notebook, as opposed to being by e-mail, this may have accounted for why it got overlooked, but either way it was far from ideal. I can understand why the Claimant may have been frustrated. Until reading the bundle, I was not aware that she had reached out to both Niamh Durkan and Tracy Toon to say that she had raised questions and had not had a response, and the Claimant never chased me during that period. The only thing I would say to mitigate my error is that the Claimant never chased me for a response. Whilst I accept I should have responded, she could have just as easily messaged me and reminded me and I would have realised that I had forgotten to respond and would have been prompted to respond.".[88]The Claimant said in her witness statement and in cross-examination that:a. In following up with Ms Byrne and had escalated the matter to other human resources staff. She said she had many ("numerous") telephone or Teams calls with members of the human resources team with no response;b. She had not emailed anyone about the lack of response from Ms Byrne (or other human resources team members) because in such situations she preferred having direct conversations and that people always have too many emails;c. On 11 July 2023 Ms Byrne reassured her that she could apply for the New Role despite being unable at that time to answer her questions; andd. At some point after this conversation, on 11 or 12 July 2023, she attempted to submit her application but found the electronic link (in an email message of 30 June 2023 at page 83 of the bundle) to the application form did not work.[89]The Claimant said in her witness statement; "I have reason to believe that the internal link was closed down as soon as the successful candidate had submitted her application. When I raised this with HR saying that the link should still be live, Amanda again reassured me that she would ensure the link was to be reopened for internal candidates but this never happened."[90]The Claimant did not expand on this assertion or provide evidence as to what her belief was based upon.[91]Ms Byrne said in cross examination she remembered the conversation with the Claimant on 11 July 2023 and that the Claimant mentioned the link to the application was not working. She said she did recall stating that application was on-going and that the Claimant could "throw her hat in the ring".[92]Ms Byrne confirmed in her witness statement that she did not consider her delay in answering the Claimant's questions prevented Mrs Clayton from applying for the New Role.[93]The Claimant resigned on 01 August 2023 stating in her resignation letter: "The final part of my decision to move was accelerated by the recent changes announced with regard to the EA structure and reporting lines. Disappointingly, this was handled in an appalling manner by Group HR and waiting a further three weeks, there has yet again still been no word from HR from my questions and queries raised, nor any further communication received with regards to structure..."[94]She continued: "I wish both yourself, and the business, the very best and continuing success....You must be, and remain very proud of the business you are leading."[95]The Claimant did not suggest or imply in her letter that she had no option but to resign – she said it was a "decision to move" and I found it significant that at this time Mrs Clayton ended her letter with positive statements about the business.[96]On 17 August 2023, Ms Byrne sent a Teams message to Mr Laws stating: "I need to advise you of an error I have made in not advising Amy of the answers to the questions she raised in relation to the EA Team Leader role. I am dropping her a note to explain, take responsibility and apologise but wanted to advise you also as this was a genuine oversight on my part which was not intentional. I know given her frustration with the changes and lack of PA support over the longer period etc this will not have helped."[97]Ms Byrne emailed an apology to the Claimant (also on 17 August 2023 and at page 94 of the bundle) which included the following: "It was a genuine oversight on my part, that I will not make excuses for as I know this oversight has added to your upset and frustration with the process which was clearly not the intent."[98]Later that day the Claimant raised her grievance. In this email she said there were two parts to her grievance - the PA Cover Issue and that the process for the New Role recruitment had been handled "appallingly from start to finish."[99]The Claimant said she was "left with no choice to submit this grievance, despite numerous requests for both clarification and communication. This has left my position untenable despite my five years service..."[100]The Grievance Outcome Report partially upheld this element of the Claimant's grievance and stated that the New Role recruitment process and timeline of response to the Claimant's questions - "Questions were originally raised w/c 3rd July, but responses were not received to (some of) the questions until 17th August. Some questions were missed completely. Responsibility for this has been accepted by Amanda Byrne and an apology given." Findings of Fact – the EA Restructuring Issue[101]Having considered the evidence; I find the following facts on the balance of probability:a. The Claimant was clear to the Respondent that she was interested in applying for the New Role, raising questions with Ms Byrne as to how this would work from a practical perspective and she reasonably expected these questions to be answered prior to her submitting an application – the Claimant was a credible and convincing witness in this respect;b. The New Role was not for internal candidates only – although the Claimant said she was told this by Mr Laws, the advertisement for the post was clearly for internal and external candidates as was acknowledged by the Claimant;c. The Respondent failed to answer the Claimant's questions about the New Role but this was due to a genuine oversight by Ms Byrne. The reasons for this finding are that: i. Ms Bryne was a credible and convincing witness in this respect, including under cross examination, and when she realised her mistake Ms Byrne emailed an apology both to the Claimant and to Mr Laws; ii. There were no email chains or contemporaneous notes provided by the Claimant to show she had chased "on numerous occasions" for answers; and iii. The Claimant's frequent recourse to words such as "numerous", "repeatedly" and "multiple times" did not aid her case and undermined her credibility at times in relation to this element of her claim. I find that the Claimant was prone to exaggeration.d. The Respondent did not prevent the Claimant from applying for the New EA Role, notwithstanding the failure of the electronic link to the application form. The reasons for this finding are that: i. Ms Bryne in her oral evidence and the evidence in the record of the grievance investigation was clear that the Claimant could submit her application after 11 July 2023 – which the Claimant acknowledged; ii. The Claimant's claim in her witness statement that the Respondent deliberately excluded her from a promotion opportunity was not made out by the evidence and Mrs Clayton did not state the basis for her belief that the process was closed as soon as the successful candidate submitted her application; iii. I was not provided with a separate copy of the Claimant's questions, however the email of answers to the questions by Ms Byrne on 17 August 2023 (at page 94 of the bundle) shows the answers should not have prevented Mrs Clayton from applying for the New Role. iv. The Claimant's grievance did not state she had been deliberately excluded from the application process – it was primarily about the competence of the human resources team in managing and communicating about the recruitment process; and v. The Claimant's resignation letter made no mention of Respondent having conducted itself in a way which she could not be expected to put up with.[102]I found it difficult to accept that an executive assistant of Mrs Clayton's experience did not appear to consider the importance or value of having an audit trail detailing the times she had raised matters with the Respondent. I find the Claimant's explanation that in such situations she preferred having direct conversations and that people always have too many emails was not convincing.[103]Having evaluated the context and circumstances surrounding the evidence, given the findings I made and despite the Claimant's irritation (latterly expressed in her grievance), she could have applied for the New Role – she was not excluded from the process by the Respondent.[104]If I take the Claimant's case at its highest, I find the conduct of the Respondent provides insufficient grounds to objectively conclude that either or both limbs of the Malik Test are engaged. I do not find that the implied term of trust and confidence was breached by the Respondent.[105]I find that at the time and in the circumstances surrounding the EA Restructuring Issue it was not until after the Claimant decided to move on and found a new job that she resigned.[106]I also find that that the Claimant' explanation (in her grievance letter) that she was left with no choice but to raise a grievance with the Respondent better reflected the situation – the choice related to the grievance and not to her resignation.[107]In conclusion I find that the EA Restructuring Issue was a factor in the Claimant's decision to find a new job and to resign but that the Respondent's behaviour did not amount to a breach of the implied term of trust and confidence entitling Mrs Clayton to claim she was in fact constructively dismissed. The Final Straw Issue[108]The Clamant claimed that the "final straw" which precipitated her resignation was when she was informed that a colleague had been interviewed for the New Role and had been offered the job from 01 September 2023 but the colleague had been told to keep the job offer quiet by the Respondent[109]Under cross examination the Claimant was taken to a screen shot of a Teams meeting request dated 08 August 2023 from a member of the human resources team to Angela Bradshaw (an internal candidate for the New Role) (at page 172 of the bundle).[110]Although the meeting request referred to an interview with Ms Bradshaw being held on 25 July 2023, the Claimant accepted that the meeting did not take place until 08 August 2023 because Ms Bradshaw was on leave on 25 July 2025.[111]The Claimant's also confirmed in her witness statement that 08 August 2023 was the date she learned Ms Bradshaw had been informally offered the New Role.[112]The Claimant was asked to consider a screen clipping detailing the Respondent's process in respect of a job offer made to Ms Bradshaw (at page 184 of the bundle) showing the formal offer process commenced on 17 August 2023.[113]The Claimant agreed 17 August 2023 was the date of the formal offer in the Respondent's system but said: "This did not necessarily mean that offer did not go out until 17 August 2023. She told me just following the interview on 08 August 2023."[114]Supplementary questions were put to Ms Byrne about the dates of Ms Bradshaw's interview and job offer and she confirmed the interview did not take place on 25 July 2023 and that as far as she was aware this was rescheduled for 08 August 2023.[115]Ms Byrne also said: "I'm aware the formal offer was made on 17 August. I am also aware a verbal offer was made on 11 August."[116]All the dates relating to Ms Bradshaw's interview, verbal offer and formal offer for the New Role post-dated the Claimant's resignation. Findings of Fact – the Last Straw Issue[117]Having considered the evidence, I find the Claimant's claim that the final straw to her resignation was when she learned that Ms Bradshaw had been interviewed for and offered the New Role was not made out.[118]The Claimant in fact resigned on 01 August 2023 prior to Ms Bradshaw's interview. Therefore, the Claimant's claim in respect of the Final Straw Issue is not credible. Discussion, Further Findings and Conclusions[119]In reaching this decision I considered all the evidence I was directed to and where I was directed to part of a document, I read the whole of it along with the witness statements. Not every matter is referred to in these reasons which are provided to assist the parties in understanding why I came to my decision.[120]The Claimant claims the Respondent acted in fundamental breach of her employment contract in respect of the implied term relating to mutual trust and confidence.[121]In determining each of the PA Cover Issue, the EA Restructuring Issue and the Final Straw Issue, I took account of the Malik Test and reminded myself that in order for there to be a fundamental breach of the implied term of trust and confidence in an employment contract I had to decide on the balance of probability whether an employer, without reasonable and proper cause, behaved in a way that was either calculated or likely to destroy or seriously damage the trust and confidence between the employee and the employer.[122]In coming to my conclusions, I also reminded myself that the Malik Test is an objective test, meaning that due to the conduct of the Respondent the Claimant was reasonably entitled to conclude her employer had breached the implied term of trust and confidence.[123]For completeness I reminded myself that in light of the Morrow case, I must not misdirect myself by introducing a test of seriousness to assess any extent of breach of the implied term of trust and confidence. In following the EAT's reasoning in this case the issue is binary – if there is a breach of the implied term of trust and confidence there is a fundamental breach of the contract. It is not correct to find that some breaches of the implied term of trust and confidence pass the Malik Test because they are so serious and some do not because they are less serious. The PA Cover Issue[124]In relation to my findings of fact on the PA Cover Issue, while I accept the Claimant was unhappy at her treatment (and taking into account that her grievance in this respect was upheld) she chose to move on and found another job and this was the reason for her resignation.[125]Consequently when applying the principles in the case law to the evidence I determine there was an insufficient basis to objectively conclude the Respondent breached the implied term of trust and confidence.[126]The evidence did not show the Respondent's conduct was such that it was calculated to destroy or seriously damage the implied term of trust and confidence. I find that there was no active plan or premeditation by the Respondent to force the Claimant's resignation by not replacing the PA.[127]Furthermore the evidence did not meet the alternative limb of the Malik Test that the Respondent's conduct was likely to destroy or seriously damage the implied term of trust and confidence.[128]My rationale for reaching this conclusion is as follows:a. A breach of the term of trust and confidence will not occur because an employee simply feels that such a breach has happened – no matter how genuinely such a view is held.b. The legal test entails considering all the circumstances objectively, i.e. from the perspective of a reasonable person in the Claimant's position.c. Even though I found the Claimant's response to the length of time she was expected to carry out the PA role was to resign after finding a new job, I asked myself was whether the Respondent's conduct was likely to seriously damage trust and confidence – in other words was the effect of the Respondent's conduct such as to seriously damage Mrs Clayton's trust and confidence in her employee meaning there was a repudiatory or fundamental breach of contract?d. Frenkel demonstrated the high hurdle of the Malik Test. In the words of Mr Justice Langstaff: "We would emphasise that this is a demanding test, it has been held...that simply acting in an unreasonable manner is not sufficient. The word qualifying "damage" is "seriously".e. The purpose of using such a term (as observed in Malik) was to cover diverse situations in which "a balance has to be struck between an employer's interest in managing his business as he sees fit and the employee's interest in not being unfairly and improperly exploited.".f. On this basis and in conclusion to my findings there was no breach of the implied term of trust and confidence and the Malik Test was not met. The EA Restructuring Issue[129]In relation to the EA Restructuring Issue and the findings of fact, whilst the failure of the Respondent to answer the Claimant's questions was an oversight, the evidence shows this was not deliberate or calculated to destroy Mrs Clayton's trust and confidence in her employer so as to fundamentally breach the contract.[130]I also considered objectively whether the Respondent's conduct was likely to seriously damage the Claimant's trust and confidence in her employer and used the same reasoning as I have described in my analysis of the PA Cover Issue.[131]On this basis, I determined that the high hurdle provided by the Malik Test was not met by the evidence and whilst there was compelling evidence of inefficiency this did not objectively mean the Claimant was entitled to treat the conduct of the Respondent as a breach of the implied term of trust and confidence.[132]I was very mindful that the Claimant's resignation came after she found a new job and was prior to any interview of the successful candidate for the New Role. In applying the Malik Test in respect of the Respondent's conduct at the time of her resignation, the evidence was limited - in the Mrs Clayton's own words: "The final part of my decision to move on was accelerated by the recent changes announced with regards to the EA structure and reporting lines."[133]As in the PA Cover Issue, the Claimant did not help her case by her of expressions such as "numerous" and "repeatedly " and "multiple times" and the fact there was no email or other audit trail to corroborate her claims undermined her evidence. The Last Straw Issue[134]In relation to the Last Straw Issue, I found that the Claimant resigned prior to Ms Bradshaw's interview for the New Role and as such she was not entitled to rely on this as a last straw of a series of breaches as provided for in the case of Kaur Considering the Issues Cumulatively[135]I then went on to consider whether cumulatively the evidence in respect of the PA Cover Issue and the EA Restructuring Issue was capable of being construed as a breach of the implied term of trust and confidence by the Respondent.[136]Having eliminated the question of the Respondent calculating to destroy trust and confidence, the question I asked myself was whether the combined effect of the Respondent's conduct was objectively capable of meeting the Malik Test.[137]In this regard I also reminded myself of the test in the case of Woods and asked myself whether the Respondent's conduct as a whole, prior to 01 August 2023, was such that its effect judged reasonably and sensibly meant that the Claimant could not have been expected to put up with it.[138]My answer to this question is that objectively the Respondent's conduct was not.[139]My conclusion is that what happened is that the Claimant became increasingly frustrated with her employer in 2023 and this led to her decision to move on. She waited to resign until she had secured a new job.[140]It was only with hindsight following the apology from Ms Byrne that she conflated the two issues, as described in her grievance and decided she had been entitled to resign due to the Respondent's conduct.[141]For these reasons, I conclude the cumulative evidence did not meet the Malik Test and therefore the Respondent's conduct did not breach the implied term of trust and confidence.[142]Therefore, the Claimant did not have a reasonable and proper cause which entitled her to treat her employment contract as being at an end. Final Conclusions[143]The Claimant was not dismissed because of a fundamental breach of contract by the Respondent. She resigned of her own volition on 01 Augus t 2023 after she secured a new position with IVC Evidensia.[144]She was not constructively dismissed by the Respondent pursuant to s95(1)(c) of the ERA 1996.[145]Given these findings the Tribunal did not need to consider whether the Claimant affirmed her employment contract, whether the Respondent had reasonable or proper cause to act as it did (in accordance with the Malik Test) and whether in the event she was constructive dismissal this was fair.[146]The Claimant's claim for unfair constructive dismissal pursuant to s95(1)(c) ERA 1996 fails and is dismissed.
Issues
[1]The Claimant's application dated 20 July 2025 for reconsideration of the reserved judgment sent to the parties on 07 July 2025 is refused because there is no reasonable prospect of the decision being varied or revoked. The reserved judgment is confirmed.
Issues
[1]The Claimant applied for a reconsideration of the reserved judgment dated 22 June 2025 which was sent to the parties on 07 July 2025 (the "Judgment"). The grounds were set out in Mrs Clayton's email letter dated 20 July 2025.[2]The rules in respect of reconsideration applications are set out in Part 12 of The Employment Tribunal Procedure Rules 2024 (the "Rules"). Rule 69 of the Rules provides that an application for reconsideration must be made within 14 days of the date on which the written record of the Judgment was[3]The Claimant's application was therefore received within the relevant time limit.[4]Rule 68 of the Rules provides an employment tribunal with a general power to reconsider any judgment where "it is necessary in the interests of justice to do so". This is the only ground for reconsideration.[5]Rule 70 of the Rules sets out the procedure that the tribunal will follow upon receipt of an application for reconsideration. If the tribunal considers that there is no reasonable prospect of the original judgment being varied or revoked the application will be refused (Rule 70(2)).[6]The grounds relied upon by the Claimant are these: a) Substantial delay in issuing the Judgment may have affected recollection and evaluation; b) Disproportionate and unjustified credibility assessment; c) Misapplication of the legal test for constructive dismissal (Malik v BCCI); d) Failure to properly apply the cumulative breach principle; e) Failure to properly consider grievance outcome as relevant evidence; f) Unresolved and inconclusive factual findings; and g) Additional employer failings evident from the Judgment.[7]The matters raised by the Claimant were considered in the light of all of the evidence presented to the Tribunal before it reached its decision and are more fully detailed below.[8]There is an underlying public policy principle in respect of all proceedings of a judicial nature that there should be finality in litigation. Reconsideration applications are thus best seen as limited exceptions to the general rule that employment tribunal decisions should not be re-opened or re-litigated. Reconsideration is not a method by which a disappointed party to the proceedings can get a second bite of the cherry.[9]The case of Outasight VB Limited v Brown 2015 ICR D11 EAT (the "EAT") held that an employment judge has a broad discretion to consider whether reconsideration of a judgment is appropriate in the circumstances. However this discretion must be exercised judicially and must have regard not only to the interests of the Claimant (as the person making a reconsideration application) but also in the interests of the Respondent, as well as the public interest requirement that there should, so far as is possible, be finality in litigation.[10]In coming to a decision whether to grant Mrs Clayton's application for reconsideration because it was necessary in the interests of justice to do so, I reminded myself that I must also seek to give effect to the overriding objective in Rule 3 of the Rules to deal with cases "fairly and justly" and to be guided by the common law principles of natural justice and fairness.[11]The overriding objective includes: a) Ensuring that the parties are on an equal footing; b) Dealing with cases in way which are proportionate to the complexity and importance of the issues; c) Avoiding unnecessary formality and seeking flexibility in the proceedings; d) Avoiding delay, so far as compatible with the proper consideration of the issues; and e) Saving expense.[12]In determining the Claimant's application I directed myself that in assessing the "interests of justice" I must make an assessment of all relevant facts and circumstances of the matter and balance the interests of both parties which includes the principle of finality of litigation.[13]The EAT in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review (a review under the former employment tribunal procedural rules is analogous to reconsideration under the Rules).[14]In addition, in Fforde v Black EAT 68/60 ("Fforde") the EAT decided that the interests of justice ground of review does not mean: "...that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order".[15]Although more recent case law suggests that the "interests of justice" ground should not be construed as restrictively as set out in Fforde (this case was decided prior to the introduction of the overriding objective), it is necessary for me to have regard to the overriding objective balancing the interests of both parties and the public interest that there should be finality in litigation.[16]Mrs Clayton's reconsideration application stated that: "The interests of justice require the decision to be reconsidered; The decision may involve an error of law; There may have been a procedural irregularity; and Relevant evidence and findings may not have been fully or fairly assessed.[17]She claimed the following: a) The delay in promulgating the Judgement given the hearing was on 03 and 04 March 2025 was "exceptional" and raised serious concern over my ability to retain a reliable recollection of the oral evidence – especially as credibility was central to the outcome and as such could constitute a procedural irregularity; b) The fact that I had found the Claimant was prone to exaggeration was not consistent with the consistency in her written and oral testimony and the partial outcome in her favour of the grievance she had raised with the Respondent; c) That I had applied the Malik Test with "excessive stringency" and this "flawed interpretation may amount to an error of law..."; d) I had not properly applied the "cumulative breach principle" in that the Judgment did not "genuinely integrate the findings of earlier sections and appears to have rejected each issue individually, thereby denying the cumulative argument its proper weight."; e) I had dismissed the "evidential value" of the grievance outcome on the grounds that the grievance was submitted after her resignation and this "appears flawed, and may amount to a material error of law or an omission of relevant evidence."; f) My failure to fully resolve some dates "may constitute a procedural irregularity and affect the Tribunal's ability to make safe findings."; and g) The fact that I had found certain failings by the Respondent should have been given more weight in my assessment whether there was a breach of the implied term of trust and confidence.[18]Other than the issue of delay, the Claimant's grounds for the most part were reassertions of the arguments and submission she made at the hearing (or variants of the same) which I rejected.[19]The Judgment sets out my reasons for my decision to dismiss the Claimant's claim of constructive unfair dismissal but Mrs Clayton plainly considers I have made errors of law and procedure.[20]I consider that the Claimant's proper recourse for her claims is by way of an appeal to the EAT.[21]As to the highly regrettable delay in promulgating the Judgment, I made detailed contemporaneous notes of the hearing and am confident that my ability to reliably recollect the oral evidence was not compromised. In any event Mrs Clayton considers the delay was a procedural error which she can take to the EAT where she will have the opportunity to ventilate her concerns.[22]Accordingly and taking alI these matters into consideration, I refuse the application for reconsideration pursuant to Rule 70(2) of the Rules because there is no reasonable prospect of the Judgment being varied or revoked.