Employment Judge W BeardMR M STEPHENS (instructed by SOLICITOR) for claimantMR J BROMIGE (instructed by COUNSEL) for respondentDate 20 December 2018
JUDGMENT
[1]The judgment of the Tribunal is that the claimant’s claim of unfair dismissal is not well founded and is dismissed. Judgment posted to the parties on 26 October 2018[3]The judgment of the Tribunal is that the claimant’s claim of unfair dismissal is not well founded and is dismissed.
REASONS
[1]The claimant claims constructive unfair dismissal pursuant to section 95(1)(c) Employment Rights Act 1996. The tribunal was provided with a bundle of documents which ran to 161 pages. The claimant gave evidence herself and called evidence from Mr Richard Pettit (her domestic partner). The respondent called three witnesses: Mr Tony Davies senior HR manager for the respondent, Mrs Geraldine Butler, the respondent’s managing director and Mrs Rhiannon Howard who was the claimant’s line manager.[2]At the outset of the hearing, the tribunal attempted to identify the issues between the parties who agreed that the issues were those contained in a document sent to the tribunal by the respondent which set out as follows: 2.1. Was there a fundamental breach of contract on the part of the respondent? 2.2. What is the nature of the fundamental breach? 2.3. What is the term that is alleged to have been breached? 2.4. Did the respondent’s breach caused the claimant to resign? 2.5. Did the claimant leave too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal?
The Facts
[3]At all material times the claimant worked in the finance Department for the respondent. The respondent is a company that delivers supported accommodation for adults. The claimant commenced her employment with the respondent on 11 July 2014. In January 2017 the claimant tendered her resignation having been offered alternative employment. The respondent offered to promote the claimant and to increase her salary rather than the claimant resign; the claimant accepted this offer. The claimant then resigned for second time on 10 August 2017 giving notice that her employment would end on 8 September 2017. This resignation terminated the claimant’s employment with the respondent on that date.[4]On 26 May 2017 the claimant along with a number of other employees went for a pre-arranged evening out. They attended one venue at the beginning of the evening with the intention of going on to a restaurant with a table booked for a specific time. My understanding is that four individuals, the claimant was one, ordered some drinks to be brought to the table. There was a significant delay in the drinks being brought. It is not controversial that there were discussions amongst the group about not paying for the drinks because of the delay. In due course the drinks were brought and were consumed. There was a dispute between the parties as to whether the claimant had suggested that the group leave that establishment in pairs in order to avoid paying for the drinks. The claimant’s evidence was that she said no such thing. Mr Davies told me that she had. I prefer the evidence of the claimant. Mr Davies seemed to me was equivocal in an aspect of his evidence which I refer to below. This gave less confidence in his answers overall. I do not doubt Mr Davies’ honesty, however I am concerned about his reliability as a witness to these events.[5]The group left the first venue without paying for the drinks. They made their way towards the booked restaurant (a short distance away). In discussions between various individuals it became clear that they had left and no-one had paid for the drinks. The claimant’s partner Mr Pettit, Mr Davies and another individual made their way back in order to pay. The claimant and respondent agree that comments were made by some individuals poking fun at Mr Davies and the others for going back to pay. Those comments continued to be made during the meal at the restaurant. However, when cross examined, Mr Davies did not attribute any of these comments directly to the claimant. In his evidence he appeared to be saying that the claimant repeated such comments when others had made them. This explanation he applied to all the comments referred to in his witness statement. When asked to attribute the comments Mr Davies named the same individuals that the claimant and Mr Pettit had. In my judgement Mr Davies was treating the matter as a collective fault and therefore was attributing comments to the claimant whether she actively supported them or not. In my judgement I prefer the claimant’s evidence that she was not actively supporting these comments. I note, in particular, that the evidence did not indicate that any specific individual was nominated to pay for the drinks on leaving. In my judgement this was a case of oversight, at least on the part of the claimant. I make no findings as to the motivation of others from whom I have not heard.[6]Mr Davies was perturbed by these events. However, he was not in work the following week because of annual leave. On his return Mr Davies spoke to Mrs Butler about his concerns. He attributed dishonesty to the claimant and others. The respondent has a disciplinary policy which would, in my judgement, cover the circumstances. However, Mrs Butler chose not to apply the policy. Instead Mrs Butler decided that she should speak to all of the individuals involved informally. This was in order to impress upon the employees that behaviour of this kind would not be countenanced by the respondent as it might damage the respondent’s reputation. The claimant considered that this imprecation implied that she had been dishonest when a meeting was held with her on 6 June 2017.[7]On 7 June 2017 the claimant spoke to Mrs Howard expressing her distress that she had been dealt with in this way. She expressed her concerns that this was something that might impact on her record with the respondent. Mrs Howard impressed on the claimant that the process was entirely informal and that there were no records or notes being kept in respect of this incident.[8]The claimant raised no formal complaint or grievance and, apart from a fortnight where the claimant, along with a number of other employees, was “subdued” the claimant showed no outward signs of distress. Correspondence I have seen demonstrates that the claimant was carrying on working as normal over the ensuing months.[9]On 10 August 2017 the claimant gave the employer a resignation letter. The letter does not indicate that the reason for the resignation was the treatment of the claimant on 6 June 2017. Neither does the letter refer to the matters raised by Mr Davies which had caused that meeting to come about. There was a meeting with Mrs Howard on 10 August. The claimant contends that she mentioned during that meeting her dissatisfaction with the events of 6 June 2017. Mrs Howard denies that to be the case. The first mention of such a discussion is in the claimant’s witness statement. That discussion is not foreshadowed in the document commencing these proceedings or any correspondence. For those reasons I prefer the evidence of Mrs Howard on this dispute. The claimant does not deny telling Mrs Howard that her reason for leaving was that she had a new post with higher salary and which was more convenient her home allowing her more flexibility.[10]The claimant agreed to work her notice and in addition agreed to take on consultancy work, albeit of a short-term nature which would be after her notice had concluded. On 6 September 2017, during discussions with Mrs Howard, the claimant was informed that she would have to repay a sum of money which the respondent had expended on her education. It is of note that the claimant told me that it was on this day that she spoke to a solicitor. The claimant did not return to work after this. The respondent expected the claimant to return, the claimant said that she had exams and did not normally have to come to work on such days. It seems to me that this non-attendance is likely to have arisen from a lack of communication and is not relevant to the issues I have to decide.
The Law
[11]The law which I have to apply begins with Section 95 of the Employment Rights Act 1996 which provides, so far as is relevant: (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) . . ., only if)— (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.[12]The approach to constructive dismissal is set out by Lord Denning in Western Excavating (ECC) Ltd v Sharp [1978] 1 All ER 713, [1978] QB 761, [1978] 2 WLR 344, CA in which he defined constructive dismissal in the following way: “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 the employer's conduct. He is constructively dismissed. The employee is entitled in those 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 the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once.”[13]The guidance given for deciding if there has been a breach of the implied term of trust and confidence is set out in Malik v. Bank of Credit; Mahmud v. Bank of Credit[1998] AC 20; [1997] 3 All ER 1; [1997] IRLR 462; [1997] 3 WLR 95; [1997] ICR 606 where Lord Steyn said that an employer shall not: ". . . without reasonable and proper cause, conduct itself in a manner calculated (or) likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.” In Buckland v Bournemouth University Higher Education Corp [2010] EWCA Civ 121 (24 February 2010) at paragraph 44 it was said That does not mean, however, that tribunals of fact cannot take a reasonably robust approach to affirmation: a wronged party, particularly if it fails to make its position entirely clear at the outset, cannot ordinarily expect to continue with the contract for very long without losing the option of termination, at least where the other party has offered to make suitable amends. The present case, for reasons explained by Jacob LJ, may be seen as the kind of exception which proves the rule.[14]The tribunal is therefore required to decide whether the respondent’s conduct in this case could objectively be said to be calculated, or in the alternative likely, to seriously damage confidence and trust between the claimant and the respondent. Thereafter are required to examine whether the claimant resigned in response to that conduct and whether the claimant affirmed the contract.
Analysis
[15]Where an employer indicates to an individual, who is not guilty of dishonest conduct, that such conduct is inappropriate it is possible, depending on the circumstances, that an employee could conclude that they were being accused of dishonest conduct. In my judgement, in the circumstances of this case, on 6 June 2017 the claimant was entitled, on an objective basis, to consider that she was being accused of dishonesty. The employer, in circumstances where no investigation has taken place, is then making an accusation based on unexplored and untested evidence. In my judgement to make an accusation without an investigation would be a paradigm example of conduct likely to undermine the implied term of trust and confidence. In my judgement it was clear that Mrs Butler had accepted the evidence of Mr Davies without challenge and not sought any response from those he had accused of dishonesty. The respondent did not impose any disciplinary sanction but Mrs Butler acted as though she thought the claimant guilty of the actions complained of by Mr Davies. In my judgement that amounts to a breach of the implied term of trust and confidence in the circumstances of this case.[16]The claimant, however, did nothing further than complain on the 7 June 2017. After two weeks had passed the claimant showed no indication that she considered there were any further problems. The claimant had also been told that this would not impact on her record at work and that she was a valued employee. In my judgement this means that the claimant gave no indication that she was working under protest or that she thought there was a continuing problem which needed to be dealt with. In my judgment the claimant had affirmed the contract by the time she gave notice more than two months later.[17]Even if I were wrong about that I do not consider that the claimant’s reason for leaving was the conduct of the respondent on 6 June 2017. The evidence of her letter of resignation does not support such a conclusion. Further the claimant only raised issues with the respondent once the question of her repaying sums to the respondent was raised. In my judgment this appears to be the trigger for the claimant complaining of constructive dismissal. I have no doubt that the claimant was distressed in June however I do not consider that that was the reason why she ended her employment in August. The claimant had another job and the claimant considered that there were better terms and conditions in that employment. In my judgement the claimant has not established that the matters on which she relied and which I have outlined caused her to resign. Judgment posted to the parties on ………24 November 2018…….