Mrs A Jenkins v Mr M Thompson and Mrs C Watkins (a partnership T/a Newbold Solicitors): 1600936/2020
EMPLOYMENT TRIBUNALS
Case No 1600936/2020
Between
Mrs A JenkinsClaimantMr M Thompson and Mrs C Watkins (a partnership T/a Newbold Solicitors)Respondent
Before
Employment Judge S JenkinsMr C Howells (instructed by Counsel) for claimantMr R Morton (instructed by Solicitor) for respondentDate 10 November 2021
JUDGMENT
The Claimant’s claim of unfair dismissal fails and is dismissed.
REASONS
[1]The hearing was to deal with the Claimant’s claim of constructive unfair dismissal arising from the termination of her employment on 31 December 2019, notice of her resignation having been provided on 21 October 2019. Her claim also included a claim that any award of compensation to her should be increased by 25% pursuant to Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, on the basis that it was argued that the Respondent had unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.[2]I heard evidence from the Claimant herself and from Mr Shaun Perry, formerly the Respondent’s Human Resources Manager, on behalf of the Claimant, and from the two partners on their behalf. I considered the documents in the hearing bundle to which my attention was drawn, and I also considered the parties written and oral submissions.[3]For convenience, I use “Respondent” to refer to the partnership in the remainder of this Judgment. Issues and Law[4]In a constructive unfair dismissal case such as this, the leading authority remains Western Excavating (ECC) Limited -v- Sharp [1978] ICR 221, which noted that three matters fall to be considered:(i) Was there a repudiatory breach of contract?(ii) If so, did the Claimant resign in response to that breach and not for another reason?(iii) If so, did the Claimant nevertheless affirm the contract, whether by delaying too long in resigning, or by words or actions which demonstrated that she chose to keep the contract alive?[5]The breach in this case was asserted to be a breach of the implied term of mutual trust and confidence. Whilst the ability to pursue a constructive dismissal claim based on that implied term had been established by the Employment Appeal Tribunal as far back as 1981 in the case of Woods -v- WM Car Services (Peterborough) Limited [1981] ICR 666, it was expressly approved by the House of Lords in Malik -v- BCCI SA (in compulsory liquidation) [1997] ICR 606, where Lord Steyn confirmed that it imposed an obligation that the employer shall not, “without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.[6]Whilst there was initially some debate following Malik as to whether the conduct had to be both “calculated” and “likely” to destroy or seriously damage the relationship, it has subsequently been made clear that the words are to be applied disjunctively rather than conjunctively. That means that there may be an intention behind the conduct, i.e. “calculated”, but equally the conduct may be considered objectively to destroy or seriously damage the relationship even where the employer had no intention that that should happen, i.e. “likely”.[7]It has been clear, since Woods in 1981, that any breach of the implied term of mutual trust and confidence will be a repudiatory breach. However, as noted in Malik, the conduct has to be such that it is likely to “destroy or seriously damage” the relationship of trust and confidence.[8]The prevailing law of constructive dismissal has been more recently summarised by the Court of Appeal in Omilaju -v- Waltham Forest London Borough Council [2005] ICR 481, where Dyson LJ explained it as follows: “1. The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761. 2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA [1998] AC 20, 34H—35D (Lord Nicholls) and 45C— 46E (Lord Steyn). I shall refer to this as ‘the implied term of trust and confidence’. 3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract: see, for example, per Browne Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666, 672A. The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship (emphasis added). 4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik, at p 35C, the conduct relied on as constituting the breach must “impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer” (emphasis added). 5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para [480] in Harvey on Industrial Relations and Employment Law: “[480] Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the “last straw” which causes the employee to terminate a deteriorating relationship.””[9]Dyson LJ continued at paragraph 15: “The last straw principle has been explained in a number of cases, perhaps most clearly in Lewis v Motorworld Garages Ltd [1986] ICR 157. Neill LJ said (p167C) that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. Glidewell LJ said at p169F: “(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?” (See Woods v W.M. Car Services (Peterborough) Ltd. [1981] ICR 666.) This is the “last straw” situation.”[10]In this case, the Claimant advanced contentions that the Respondent’s conduct at a meeting on 16 October 2019 was both sufficiently serious in its own right to amount to a breach of the implied term, but also could operate as a “last straw”, as noted by Dyson LJ in Omilaju.[11]The approach to be taken in last straw cases was considered by the Court of Appeal in Kaur -v- Leeds Teaching Hospitals NHS Trust [2019] ICR 1, where Underhill LJ stated, at paragraphs 45 to 46: “If the tribunal considers the employer’s conduct as a whole to have been repudiatory and the final act to have been part of that conduct (applying the Omilaju test), it should not normally matter whether it had crossed the Malik threshold at some earlier stage: even if it had, and the employee affirmed the contract by not resigning at that point, the effect of the final act is to revive his or her right to do so. “Fourthly, the “last straw” image may in some cases not be wholly apt. At the risk of labouring the obvious, the point made by the proverb is that the additional weight that renders the load too heavy may be quite small in itself. Although that point is valuable in the legal context, and is the particular point discussed in Omilaju, it will not arise in every cumulative breach case. There will in such a case always, by definition, be a final act which causes the employee to resign, but it will not necessarily be trivial: it may be a whole extra bale of straw. Indeed in some cases it may be heavy enough to break the camel’s back by itself (i.e. to constitute a repudiation in its own right), in which case the fact that there were previous breaches may be irrelevant, even though the claimant seeks to rely on them just in case (or for their prejudicial effect).”[12]Underhill LJ then set out, at paragraph 55, a number of questions that the Tribunal should ask itself in a constructive dismissal claim: “I am concerned that the foregoing paragraphs may make the law in this area seem complicated and full of traps for the unwary. I do not believe that that is so. In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?(2) Has he or she affirmed the contract since that act?(3) If not, was that act (or omission) by itself a repudiatory breach of contract?(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reason given at the end of para. 45 above.)(5) Did the employee resign in response (or partly in response) to that breach? None of those questions is conceptually problematic though of course answering them in the circumstances of a particular case may not be easy.”[13]As noted by Underhill LJ’s reference to “(or partly in response)” at paragraph 55(5), the repudiatory breach need not be the only reason why the employee resigns, it is sufficient if it played a part in the resignation.[14]As set out in s95(1)(c) of the Employment Rights Act 1996 (“ERA”), an employee can resign with or without notice, a restatement of the common law in the form of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, where Lord Denning MR said, at paragraph 226B, “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.”
Findings
[15]Before summarising my findings of fact in this case, I considered that it would be appropriate to set out my perspective on the evidence of the witnesses. Whilst I was satisfied that all witnesses from whom I heard were largely truthful and credible, I was left with the impression that all of them, quite understandably, approached events from their own particular perspectives. It is a not uncommon human tendency to recollect things in a light most favourable to the individual’s perspective of events, and that tendency is perhaps heightened when providing evidence to a court or tribunal. In fact, my perspective of the witnesses in terms of their relations with each other during the events giving rise to this claim, certainly that of the Claimant and of Mrs Watkins, was that there was a tendency on the part of both of them to focus on their perspective of events, and their own wishes and needs, such that potentially the wishes and needs of the other party were not recognised, or at least not recognised as fully as they might have been.[16]Bearing those points in mind, I sought support from my findings, wherever possible, in the contemporaneous, or near-contemporaneous, documents prepared by the parties, particularly the notes taken by Mr Perry of the meeting on 16 October 2019, which were taken at a time when there was no indication that the Claimant was going to resign shortly after it. I also took into account what I considered to have been the inherent probabilities of the particular situations raised by the Claimant.[17]My final preliminary observation is that the standard of proof for me to apply was the balance of probabilities, i.e. that something is more likely to have happened than not. That means that there could, in relation to any given fact, be a strong possibility that nearly 50% of what I think happened did not in fact happen.[18]My findings therefore, in relation to the matters relevant to the issues under consideration, were as follows.[19]The Respondent is a firm of solicitors, operating, at the time of the termination of the Claimant’s employment, from offices in Barry, Blackwood and Cwmbran. There was previously an office in Neath which closed earlier in 2019.[20]At all times, the Respondent was owned by Mrs Watkins and Mr Thompson, their partnership having been formed some ten or so years earlier. Mrs Watkins was in charge of the Respondent’s litigation work and was based in the Barry office, whereas Mr Thompson supervised the Respondent’s conveyancing work and was based in the Cwmbran office.[21]The Claimant, a qualified solicitor, commenced employment with the Respondent on 24 October 2014. She specialises in residential conveyancing. She initially worked in the Barry office on a part-time basis, working three days per week, which was subsequently increased, in September 2016, to four days per week.[22]In December 2017, following a period of time on maternity leave, the Claimant undertook a role across all of the firm’s offices reviewing conveyancing files and dealing with complaints.[23]In 2018, to assist with the development of potential future partners, the Respondent implemented a programme, known as, “Pathway to Partnership”. A written document governed this pathway, setting out the various steps that would be followed, and the various criteria that would need to be met in order for progress to be made.[24]The Pathway, implemented following discussions with the Respondent’s accountant and bank manager, was intended to operate over a three-year period. The wording of the document suggested that a person on the Pathway would be appointed to a position of junior associate after one year, and then spend two years being assessed against criteria before being appointed to senior associate. After a period as senior associate, and subject to fulfilment of various criteria, the person would then be considered for salaried partnership.[25]Whilst the junior associate stage was specified as applying over two years, there was no particular time period in respect of the senior associate stage, although, bearing in mind that it involved the assessment of performance against targets, it must have involved at least one complete financial year in order for that assessment to be made.[26]Despite the relative clarity of the written document, there appeared to be some confusion, both on the part of the Claimant and on the part of the partners themselves, in relation to how the scheme would operate. Despite, as I have noted, the written document seeming to clearly indicate that the person on the pathway would spend two years as a junior associate, it seemed that all parties were anticipating that progress would be made from junior associate to senior associate after one year. At each stage however, the written document referred to the individual employee reaching an agreed personal target, and also to their team reaching agreed targets in terms of fee income, and also to other criteria regarding complaints, maintenance of morale, and introduction and maintenance of new clients. The programme for year 2 required that the target set at year 1 should be exceeded by 20%, and then at senior associate level the targets were required to be increased by a further 20%.[27]The Claimant, and one other employee, were appointed as junior associates in 2018. The colleague was appointed to run the Blackwood office, with the Claimant being appointed to manage the Neath office. Whilst there was no written documentation to confirm the specific income target, it appeared that the Claimant was required to increase the profit of the Neath office by £75,000 in her first year and £100,000 in any subsequent year.[28]The Claimant commenced her role in the Neath office in September 2018. However, in January 2019, significant errors on the part of another employee were identified during the holiday absence of that employee. The problems were resolved, with the Claimant undertaking an important role in that, supported by the partners and by fee-earners from other offices. However, the partners, in discussion with the Claimant and Mr Perry, who had recently been appointed as the Respondent’s HR Manager, decided that the Neath office should be closed, in circumstances where its lease was expiring, with the employees working there, and the files being run from there, being transferred to the other offices.[29]One of the elements of the Claimant’s claim of the breach of the duty of trust and confidence was that she was not given any support with regard to the closure of the Neath office, and was not given any recognition for the work she undertook in that. It seemed to me however, from emails in the bundle, that other fee earners did attend at the Neath office during the closure period. Also, the parties all agreed, albeit it was not clear whether it was by Mrs Watkins or Mr Thompson, that a comment was made, when the Neath office closure was being announced, that the Claimant’s efforts were to be congratulated and that, without her, it could have been that there would not have been a firm.[30]Following the closure of the Neath office, it was agreed that the Claimant would work from the Barry office, on the basis that there was no senior conveyancer working in that office, and also that it was geographically the closest to the Claimant’s home. The Claimant commenced work in that office at the start of April 2019. I observed that, certainly initially, there appeared to be a good, friendly, relationship between the Claimant and Mrs Watkins.[31]At the time, it was agreed with the Claimant that she would also manage the Barry office on a day-to-day basis, with Mrs Watkins focusing on her role as Head of Litigation, and also on her partnership role generally.[32]Another of the matters raised by the Claimant as forming part of the asserted breach of the duty of trust and confidence was that Mrs Watkins did not allow her to manage the Barry office, and continued to make decisions without reference to her. There was no specific documentary evidence of any such interference, and it seemed to me that any interference which may have arisen may have done so due to a confusion over the demarcation between the two roles which perhaps, with hindsight, was always likely to have arisen in the circumstances. Bearing in mind that Mrs Watkins was one of the two equity partners in the firm, and thus retained her directly vested interest in the performance of the firm, and the Barry office in particular, it was not likely that the Claimant would have been given a free hand to manage the Barry office in any way she thought fit, when perhaps her expectation was that she would. In my view, any interference in the Claimant’s office manager role did not itself amount to any breach of the implied term.[33]The Claimant also complained that there was a lack of supervision of her, and a lack of provision of reports to her, during her time as a junior associate. The Respondent, in a document prepared by Mr Thompson in advance of an appraisal meeting in October 2019, appeared to accept that reports had not been provided at three-monthly intervals, and as having been “sporadic at best”. It also seemed clear that there had been no formal supervision of the Claimant until the appraisal meeting in October 2019.[34]However, I noted, as would perhaps have been anticipated, that there was regular dialogue between the Claimant and Mrs Watkins in relation to matters arising in the Barry office, and between the Claimant and Mr Thompson in relation to conveyancing matters. Whilst some formality to the reviews would very much have been preferable, in the context of a small partnership working across different offices, the lack of such formal reviews was not surprising, and did not, in my view, amount to a breach of the implied term.[35]A further incident which the Claimant asserted involved a breach of the implied term arose in June 2019. At that time it appeared that one of the junior members of staff had emailed the Respondent requesting a relocation from the Barry office to the Blackwood office. The Claimant’s evidence, supported by her mother who overheard the conversation, was that Mrs Watkins called the Claimant, when travelling in her car, to tell her that the reason for the transfer was that there had been a lack of support.[36]The Claimant’s claim form in fact referred to “a lack of training and support”, without it being specifically linked to the Claimant herself. The Claimant’s written witness statement however, related the comment as being that the Claimant herself had not been providing enough training and support to the staff members in Barry, and the Claimant’s mother’s statement said that she heard Mrs Watkins say that the reason for the transfer was that “she felt she received no support from Alex at work”. Mr Perry also confirmed in his evidence that the employee had not said in her email that she felt unsupported by the Claimant. The Respondent was of the view that the individual employee had indeed complained about a lack of support.[37]Unhelpfully, the email from the individual concerned was not in the hearing bundle and therefore was incapable of being verified. However, the evidence of the Claimant, her mother and Mr Perry was consistent on what was said by Mrs Watkins, and Mr Perry confirmed that he had received the email from the employee and that it did not contain any such issue of concern. It seemed to me therefore, on balance, that the email did not make reference to any lack of support from the Claimant.[38]However, a continuing theme on the part of both of the Respondents, in particular Mrs Watkins, which derived some support from documents within the bundle, was that there were, from time to time, concerns raised by members of the Claimant’s team about her. It seemed to me possible therefore that the Respondent had in mind those concerns as being what they understood to have been the trigger for the employee’s transfer request. Regardless of that however, in my view it was not appropriate for Mrs Watkins to indicate a state of affairs to the Claimant which was not an accurate representation of the underlying email.[39]In my view however, this was not enough to amount to a breach of the duty of trust and confidence. It was not likely to destroy or seriously damage the relationship, although I considered it would have impaired the relationship. The Claimant noted in her statement that she spoke to the employee concerned, despite the fact, she asserted, that Mrs Watkins had directed her not to, and that the employee had confirmed that she had not said that she was seeking a transfer because of a lack of support from the Claimant. It occurred to me however, that it could be that the employee may have been less than frank about her true reason for making the request. Nevertheless, despite, in her statement, saying that the information from Mrs Watkins caused her “extreme upset”, she did not raise any concern about it at that time or at any point thereafter.[40]By August 2019, Mrs Watkins had become concerned about what I would describe as “moans and groans” within the Barry office. In her answers to cross-examination questions, which were supported by some emails in the bundle, Mrs Watkins confirmed that similar issues had arisen in 2015 and 2016, with complaints about trivial matters, and rumours about people leaving. Mrs Watkins in her answers indicated that the Claimant was primarily responsible for those matters, but there was no evidence in the bundle to confirm that, and Mrs Watkins confirmed that she did not address that with the Claimant at the time.[41]Nevertheless, in light of the resurgence of the “moans and groans” within the Barry office, Mrs Watkins decided to put in place a suggestion box, into which employees could put any complaints or suggestions on an anonymous basis. The suggestion box was opened in the middle of August, although the items posted were not within the Tribunal bundle. The indications from the Respondent were that there was feedback about the Claimant not answering calls in the team and about the general office atmosphere. Those points were not however raised with the Claimant until the appraisal meeting in October.[42]At around the same time, discussions were taking place between the Respondent and the Claimant about potential increases to her salary and the expansion of her team. Mr Perry sent an email to the Claimant on 9 August 2019 setting out two options for the Claimant, although both options contained subsidiary options as well. It does not appear that any discussions took place about those options and the Claimant then sent an email to the partners, copied to Mr Perry, on 10 September 2019 enquiring what was happening with the proposal. She referred in that email to her fellow junior associate’s targets being lower than hers, and yet that her salary was higher. She also noted that she was yet to hear if a senior associate position had been granted, and that twelve months had passed and yet nothing was forthcoming. She commented that she felt that her fees generated since October 2018 had been really promising, but that there appeared to be obstacles being placed in front of her.[43]The Claimant contended that this email amounted to a grievance, although when questioned about that she appeared to appreciate that it might not be capable of bearing that interpretation. Indeed, I did not consider that this email in any sense amounted to a formal grievance; I felt that it was more a statement of the Claimant’s position with regard to what she felt was a justified claim to be promoted.[44]No formal response was provided to that email, although an appraisal meeting was arranged for 8 October for the Claimant, and also for her junior associate colleague. That meeting had to be put off due to the concentration of the Respondents on their requirement to file their Solicitors Accounts Rules return at the end of September, and was then rearranged for 16 October 2019.[45]That meeting was attended by the Claimant, the two partners and Mr Perry. Notes were taken by Mr Perry and the meeting formed the core of the Claimant’s concerns about the breach of trust and confidence, with her representative contending that the meeting itself amounted to a breach of the implied term, or certainly that it was very much the last straw which led to that breach.[46]The notes of the meeting, which, as I indicated at paragraph 14 above, I relied on in reaching my findings, indicate that the meeting certainly did not go well, and rapidly deteriorated, primarily due to what perhaps can best be described as an argument between Mrs Watkins and the Claimant. The Claimant, in her witness statement, made several complaints about how the meeting was handled.[47]She first identified that, immediately upon entering the room, she was asked by Mr Thompson if she had dealt with a complaint that morning. However the notes record that Mr Thompson asked the Claimant how the complaint file that was being worked on was going, to which the Claimant replied that although it was difficult it was going ok. I did not see that that was in any sense challenging to the Claimant or a criticism of her, and was merely Mr Thompson enquiring as to how the matter was progressing. In her witness statement the Claimant indicated that she felt that that was a deliberate attempt to put her on the back foot for the meeting and to set the tone for the appraisal, but I did not consider that that was an impression she could reasonably have drawn.[48]The discussion then moved on to a general question from Mr Thompson as to how the Claimant felt the previous twelve months had gone for her personally, which led to Mr Thompson commenting that the Claimant’s fees for the period had been too low. The Claimant contended that it had been impossible to hit her target and referenced the issues with the Neath office, but Mr Thompson confirmed that the figures were still under budget.[49]Mr Thompson then asked about the office in general, which led to the Claimant commenting that she did not have any influence in the office and that two members of staff had said that Mrs Watkins had made the comment of, “Alex thinks it is her office, it isn’t, it is mine”. Mrs Watkins asked the Claimant to name the two staff in question, which the Claimant refused to do, indicating that it was not her place to do so. Mrs Watkins pressed the point, stating that the Claimant had a responsibility to notify her who had said it, but the Claimant again refused. Mr Perry’s notes of the meeting record, as a stand-alone paragraph, that “the situation quickly developed and turned aggressive with AJ and CH arguing the point”.[50]The notes indicate that Mrs Watkins appeared to take particular offence at the comments alleged to have been made by the two colleagues, saying that there was no truth to them. She continued to press the Claimant to provide her with the names of the two individuals, but the Claimant continued to refuse. The notes record her commenting that she knew that that would be how the meeting would go, that it would turn into an argument, and that she felt the whole process “was bullshit”.[51]My conclusion was that, whilst it was certainly inappropriate of Mrs Watkins to indicate her annoyance to such a degree, it seemed that the Claimant very much gave as good as she got in relation to this exchange, and that neither party handled it as well as they should have. The notes then record the Claimant saying that her working relationship felt like an abusive relationship but, in my view, that was very much a heat of the moment indication.[52]The notes record that Mr Thompson stated that Mr Perry had raised with him that he felt that the atmosphere within the office was tense at present, and the Claimant agreed with that. Mr Thompson raised the suggestion box and the feedback within it, noting that it included a complaint that the Claimant was not answering calls. Mr Perry in his evidence indicated that the complaints had not specifically mentioned the Claimant, but the notes record the Claimant specifically referring to a note in the suggestion box that she was not answering the phones, and commenting that she should have been made aware of that..[53]Mr Thompson then appeared to try to move the meeting back to its original subject, i.e. the Claimant’s performance over the previous year, and in particular her performance against the Pathway to Partnership criteria. The Claimant complained that her ideas had not been taken up, in particular of her having a team of three, to which Mr Thompson responded that having a larger team would lead to a higher fee target, and as targets were not being hit at that stage it would not be practicable to increase the size of the team.[54]The discussion, principally between the Claimant and Mr Thompson at this stage, focused on the criteria and the Claimant’s performance against them. The Claimant’s position was that she was, by this stage, ten years qualified, and that she felt she should be a partner, with Mr Thompson and Mrs Watkins indicating that the criteria had to be met, and they had not.[55]Mr Thompson and Mrs Watkins both, in their witness evidence, indicated that they had, prior to the meeting, discussed the potential to promote the Claimant and her colleague to senior associate at these appraisal meetings. However, the notes of the meeting indicate that certainly Mr Thompson was not convinced that the Claimant’s performance justified promotion.[56]Ultimately, as the meeting was not progressing, and as the Claimant was upset, it came to a conclusion after approximately an hour and a half, with Mr Thompson indicating that the partners would update the partnership criteria so that they were more realistic and achievable, and that he and Mr Perry would also review the Claimant’s target and salary. There was an email in the bundle from Monday 21 October 2019 from Mrs Watkins to Mr Perry, with Mr Thompson copied in, requesting Mr Perry to send an email to the Claimant and her junior associate colleague with a draft revised Pathway, seeking their feedback. However, coincidentally at almost the same time, the Claimant submitted her resignation by email.[57]I observed that the Claimant had not been in work on Thursday 17 October 2019, that being her scheduled day off, but that she had been in work on Friday 18 October.[58]There was no documentary evidence in the bundle about discussions the Claimant had with potential new employers at this stage, but her oral evidence was that she had, entirely coincidentally, been contacted by a recruitment agent on the morning of the day of the appraisal meeting, i.e. 16 October. She had not explored matters further at that stage, but, following the appraisal meeting in the afternoon, had contacted the recruitment agent that evening. It appeared that, following that discussion, there were three possible opportunities for the Claimant to move, and she had interviews over coffee with three firms on her day off on 17 October. Although she did not formally accept one of those positions until after she had resigned; she tendered her resignation on 21 October 2019.[59]Initially, the Claimant did not tell the partners that she was going to work for another firm of solicitors, and instead she told them that she had the ability, due to her personal financial circumstances, to take her time over that. Mrs Watkins confirmed that she was not surprised at that comment as that was her understanding of the Claimant’s position.[60]However, in November, and certainly by early December 2019, it became known within the office that the Claimant was going to work for a firm of solicitors, indeed for a competitor of the Respondent. The Claimant was therefore put on garden leave with effect from 2 December 2019.[61]Although the Claimant was required under her contract to give three months’ notice of termination, she indicated in her resignation email that her last day would be 31 December 2019, pointing out that this would be convenient both to her and the Respondent. The Respondent did not appear to take any issue with that, and certainly did not take any step to indicate to the Claimant that she needed to give some three weeks’ more notice, and ultimately the Claimant’s employment ended on 31 December 2019, and she took up her new appointment on 2 January 2020. The Claimant confirmed that the appointment was at the same salary level as she enjoyed with the Respondent, but with potential additional earnings by way of bonus.[62]The Claimant’s junior associate colleague was also potentially going to leave the firm at the time, although she had not got to the stage of handing in her notice, but she was prevailed upon to stay and indeed did so, and it appears that she was appointed to senior associate in late 2020 or early 2021.[63]Mrs Watkins and the Claimant had a meeting shortly after the resignation email, on 21 October 2019. Mrs Watkins provided a note of her discussion with the Claimant to Mr Perry and Mr Thompson later than evening and, as it was a contemporaneous note I was satisfied that it was likely to be accurate. In this, she recorded that the Claimant was very upset during the meeting, and not angry this time, the implication to my mind being that she had been angry the previous week, and that the Claimant had said that everyone was to blame for that meeting going wrong. During this meeting, Mrs Watkins asked the Claimant if she would reconsider her notice but she replied that she felt that it was the right time for her to go. Mrs Watkins in her email recorded that she had said that Wednesday, i.e. the appraisal meeting the previous week, had been a shame and that the Claimant had come in with a preconceived idea and had come in on the defensive, and that the Claimant had agreed.[64]Mr Thompson, who was away on annual leave at the time, also emailed the Claimant on 22 October 2019, suggesting that a meeting take place when he returned. There were also emails in the bundle of discussions between Mrs Watkins, Mr Thompson and Mr Perry, on 30 November 2019, in which the question of offering partnership to the Claimant to stay, and indeed to making the same offer to her fellow junior associate, was discussed. Mr Perry provided input to this discussion, noting that he did not think that the Claimant would stay, although if she was made a junior partner she may well do so. He commented that he would not suggest offering the Claimant a partnership “purely due to the lack of revenue/growth and staff issues”. He commented that he thought the only way that it would work would be to move the Claimant from Barry as he did not think that the Claimant was “the right character for Catherine [i.e. Mrs Watkins] or that office”. Ultimately, those discussions were not taken forward with the Claimant.
Conclusions
[65]My conclusions in relation to the issues identified above, in light of my findings and the applicable law, were as follows.[66]As this was a constructive unfair dismissal claim based on alleged breaches of the implied term of mutual trust and confidence, my primary focus was on the question of whether the Respondent had, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between it and the Claimant. As noted by Dyson LJ in the Omilaju case, the test of whether there has been a breach is an objective one, and that any breach of the implied term, bearing in mind that it must, or must be likely to, destroy or seriously damage the relationship, will amount to a repudiatory breach.[67]Mr Howells, on behalf of the Claimant, set out four specific incidents in particular as being relied upon to form the breach of the implied term, with the appraisal meeting on 16 October 2019 being the “last straw” event, or an event of significant magnitude in its own right such as to constitute a breach of the implied term alone. Mr Howells noted that these were the incidents relied upon “in particular”, noting that others were set out in the pleadings and in the Claimant’s witness statement.[68]On review of those documents however, it did not appear to me that the Claimant had advanced in her claim form any matter which was not referenced in particular in Mr Howells’ submission, apart from a reference that she was left to oversee the closure of the Neath office without support, which, as I have noted above, I did not consider happened in fact, and that the Claimant’s email of 10 September 2019 was not dealt with in a reasonable fashion.[69]In that regard, whilst a formal response was not provided to the Claimant’s email, the focus of it, that the Claimant felt she should be appointed to the senior associate position, formed the core part of the appraisal meeting on 16 October 2019. I did not consider therefore that the Claimant’s contention in that regard involved any conduct amounting to a breach of the implied term.[70]With regard to the particularised aspects set out in Mr Howells’ submissions, and applying sub-headings to summarise his contentions, my conclusions were as follows. (a) Supervision[71]As I have noted in my findings, whilst the Respondent’s supervision of the Claimant was not as formal or comprehensive as it might have been, that was in the context of a small firm where contact between the Claimant and the two partners, Mrs Watkins in relation to matters within the Barry office and management generally, and Mr Thompson in relation to conveyancing matters, was very regular. In my view, it would not be unusual for monitoring and supervision in such circumstances to be undertaken in an ad hoc manner, and I did not consider that the lack of formally documented supervisions or reviews amounted to any breach of the implied term. (b) Management.[72]Much was made by the Claimant, in the appraisal meeting on 16 October 2019, of the contention that she did not have any influence within the Barry office, and that her ideas were shot down constantly. I certainly did not consider that the Claimant was given, in any sense, a free hand to manage the Barry office, but I considered that it would have been unrealistic for the Respondent to give a junior associate, i.e. someone two rungs below a salaried partner, such freedom. Little evidence was put before me of Mrs Watkins’ interference in the management of the Barry office, and Mrs Watkins seemed to take significant umbrage at the suggestion that she ran the office as opposed to the Claimant, and indeed it led to the significant argument between the two of them at the appraisal meeting. However, I anticipated that it would be likely that Mrs Watkins would have continued to play a significant role in the running of the Barry office, bearing in mind that it was the office in which she was based, and that she was one of the two equity partners and owners of the firm. In my view, whether consciously or not, Mrs Watkins remained involved in the management of the Barry office, but I did not consider that her doing so involved a breach of the implied term.[73]I noted that the Claimant also complained in the appraisal meeting that her ideas were not implemented, in particular her suggestion that her team be expanded to three. However, Mr Thompson’s response that that would result in a higher fee target at a point when the Claimant and her team were not hitting their existing targets, and thus could not be entertained, was, in my view, a reasonable response, bearing in mind the needs of the two partners to run the business in a profitable manner.[74]In this part of his submissions Mr Howells raised the issue of the suggestion box at the Barry office, noting that it was introduced without consultation with the Claimant and without involving the Claimant. As a matter of fact that was indeed the case, and, in her oral evidence, Mrs Watkins was quite candid that she anticipated that complaints placed within the box would relate to the Claimant herself. Indeed, paragraph 33 of the Respondent’s ET3 Response noted that, “for this reason”, i.e. because employees in the Barry office were regularly complaining about the Claimant, the suggestion box was introduced.[75]Mr Howells, in his oral submissions, expanded on his written submissions in light of Mrs Watkins’ evidence. I also considered Mrs Watkins’ evidence on this point closely, as I was initially concerned that her action may have been objectively likely to destroy or seriously damage the relationship of trust and confidence with the Claimant. It certainly seemed, to my mind, a rather strange method of managing the Claimant, as opposed to addressing matters directly with her.[76]However, I was conscious that the Claimant was in no way aware of any agenda on the part of Mrs Watkins behind the implementation of the suggestion box, and I did not consider therefore that introducing the suggestion box, and addressing any concerns raised by its contents would ultimately have involved any breach of the implied term. (c) The transfer request[77]With regard to the allegation that Mrs Watkins falsely indicated that the employee requesting a transfer from Barry to Cwmbran had done so because of the lack of support from the Claimant, I was somewhat hampered by the fact that the email from the particular employee was not put in evidence before me. Had that happened, I could very easily have satisfied myself as to whether the employee had made such a complaint or not.[78]In the absence of that evidence, and in the context of the consistent evidence of the Claimant, her mother and Mr Perry, I concluded that Mrs Watkins had indicated that the reason for the employee requesting the transfer was a lack of support from the Claimant, and that that was not what the employee had indicated in the email. This was, in my view, a strange action for a partner in the firm to take although, as I have indicated in my findings, it could possibly have been that a comment, whether strongly expressed or otherwise, about the level of support being provided to the employee had been made by her apart from the email.[79]Regardless of that, I did not consider that the way Mrs Watkins raised the issue was one to be recommended. As with the concerns raised in the suggestion box, it would have been better for the matter to have been addressed with the Claimant in order that any desired improvements could have been made. It seemed to me that Mrs Watkins, perhaps due to her close and friendly relationship with the Claimant, was not keen to confront her with issues about her performance.[80]Overall in relation to this matter, I did not consider that it would, without more, have amounted to a breach of the implied term. In addition, as I have noted above, the Claimant did not appear to have raised any issue about what she perceived to have been a false allegation, whether at the time the issue arose in early June 2019 or later, and I would therefore have considered, in any event, that the Claimant had affirmed any breach in that regard. I did note Mr Howells’ submission that an affirmed earlier breach may nevertheless form part of the consideration of a course of conduct involving an additional “last straw”, but, as I have noted below, I did not consider that there was such a “last straw”. (d) The conduct of the appraisal meeting[81]Mr Howells referenced five specific aspects by which the conduct of this meeting was said to amount to a breach of the implied term.[82]First, he noted that Mr Thompson had made an allegation that most of the suggestions in the suggestion box were in relation to the Claimant’s performance, but that no particular incidents were identified, and that the Claimant was not able to respond to any particular allegation. He contended that such conduct was procedurally unfair and in breach of natural justice, and was indeed demonstrably untrue.[83]As noted in my findings, I did not consider that that assertion was untrue, in that the Claimant herself appeared to engage with a criticism arising from a content of the suggestion box. Whilst the forum of an appraisal meeting may not have been the best one within which to consider any such complaints, I noted that it was an appraisal meeting which had the underlying purpose of assessing the Claimant’s ability to be promoted to senior associate. In my view, bearing in mind that the criteria in the Pathway to Partnership document included ensuring that staff morale in the office was high, it was not inappropriate for Mr Thompson to move the discussion on to the atmosphere within the Barry office, and then to discuss feedback from the suggestion box. I did not consider it amounted to a breach of the implied term.[84]Secondly, Mr Howells raised a concern that Mr Thompson had unreasonably accused the Claimant of acting aggressively when she raised her written grievance on 10 September 2019. On reviewing the notes of the appraisal meeting following the hearing however, I could not ascertain a section within them where Mr Thompson had made this accusation. In any event, the conduct of the meeting, following the heated exchange between the Claimant and Mr Watkins, had become rather fraught, and the minutes of the meeting indicate that the Claimant was very much on the defensive throughout. Whilst Mr Thompson appeared to make efforts to get the meeting back on track and to focus on the Claimant’s performance against the Pathway to Partnership criteria, that ultimately did not happen, and the meeting remained a contentious one. I did not consider that any of the comments of Mr Thompson in this meeting amounted to a breach of the implied term.[85]Thirdly, that Mrs Watkins used intimidatory and belittling behaviour towards the Claimant during the meeting. Mr Howells contended that such behaviour was unjustified, inappropriate and unacceptable, not least because of the power imbalance in the relationship.[86]As I have noted in my findings, there certainly appeared to be a severe falling out between the Claimant and Mrs Watkins fairly early on in the meeting, following the Claimant’s reference to comments other employees had made. I would hope that Mrs Watkins will not look back on the meeting as her finest hour, as she did seem to be significantly affected by the assertion, and by that I mean the comments asserted to have been made by the other employees, rather than that by the Claimant herself. Mrs Watkins understandably wished to ascertain who had made those comments in order that she could, presumably, address those matters with them subsequently. She certainly made her view, that the Claimant should tell her the identity of the two individuals, very clearly known, and returned to the point on more than one occasion. Equally, the Claimant was adamant that she would not provide that information and, as Mr Perry’s notes of the meeting record, the situation “turned aggressive”, with both the Claimant and Mrs Watkins arguing the point.[87]I noted that Mrs Watkins was a partner and the Claimant a junior associate, but it seemed to me that neither behaved as well as they might have, as the Claimant herself appeared to agree in her subsequent discussion with Mrs Watkins.[88]Overall, as I have noted, it appeared to me that the Claimant was someone who felt strongly that she was ready to be promoted to the next level, and who felt that she thoroughly deserved to be promoted to the next level. Conversely, the Respondent, particularly in the form of Mr Thompson, approached the Pathway to Partnership in a more rigid, formulaic way, and was concerned that appointing someone to the next level when they had not satisfied the criteria was something that the Respondent should not do.[89]In my view, this disconnect between the parties would always have made the meeting a difficult one, and that was exacerbated due to what I can only describe as a “bust up” between the Claimant and Mrs Watkins. I did not however consider that Mrs Watkins used intimidatory and belittling behaviour, and again did not consider that this amounted to a breach of the implied term.[90]The fourth point raised concerns that the Respondent had suggested that the Claimant had failed by not identifying the errors of another member of staff in the Neath office.[91]I noted that this did not appear in the Claimant’s ET1 Claim Form, although she did mention her dissatisfaction that she had not been thanked for the work she had undertaken in that office. However, regardless of that, my reading of the notes of the appraisal meeting was that the reference to the Neath office and the discovery of the errors of the other employee was raised almost in passing, and in reaction to the Claimant’s query as to where had been the thanks for the work she had undertaken in the closure of the Neath office.[92]Whilst the notes of the meeting certainly hint at the prospect that the errors could have been discovered earlier, both the Claimant and Mrs Watkins agreed that the failure of the Neath office had arisen because it was not supervised properly and both Mr Thompson and Mrs Watkins made it clear that the Claimant was not blamed for the closure. Again, I did not consider that this amounted to a breach of the implied term.[93]Mr Howells’ final point was that the Respondent had unreasonably failed to consider departing from the criteria of the Pathway to Partnership. He contended that the Claimant had missed her target by a relatively small margin, and that that had happened notwithstanding that the Claimant had had to deal with the closure of the Neath office. He also noted that the other junior associate had different targets, and therefore that the criteria were not universal.[94]In that regard, whilst I noted that the other associate had a different target, the Pathway to Partnership document did not refer to a specific target, but referred to “an agreed personal target”.[95]With regard to the Claimant’s performance against that target, whilst there were no specific figures before me, it appeared to be accepted by Mr Thompson and the Claimant that the Claimant had billed approximately £63,000 of fees against a target of £75,000. That was a shortfall of some 16%, which I did not consider could reasonably be described as a relatively small margin. I also noted Mr Thompson’s evidence that he had only focused on the period after the Claimant had moved to the Barry office, and I also noted, from the minutes of the appraisal meeting, that the Claimant did not demur Mr Thompson’s comment, in relation to the decision not to expand the Claimant’s team to three, that the Claimant was not hitting her target.[96]Overall, I did not consider that there was anything unreasonable in the Respondent not departing from the criteria in the Pathway to Partnership policy. Indeed the indications from the evidence were that the Claimant’s junior associate colleague was hitting her targets but that she, in any event, was not promoted to senior associate until late 2020 or early 2021.[97]Ultimately, it appeared to me that there was a disconnect between the Claimant’s own perception of her performance and her worth to the firm, and that of the partners. It was for the partners to make decisions about their business, and, in particular, to make decisions as to who would be promoted within the firm and groomed for partnership. My view of the meeting was that the Claimant was on the defensive within it, perhaps recognising that, by reference to the fee income data, she had not performed to the required level. Overall, I did not consider that that involved a breach of the implied term.[98]Overall my conclusion was that, whilst there were occasions on which the Respondent, particularly Mrs Watkins, is not likely to look back on its, or in particular her, behaviour in relation to the Claimant with any pride, it nevertheless was not behaviour which was calculated or likely to destroy or seriously damage the relationship of confidence and trust between it and the Claimant.[99]Following that conclusion, it was not necessary for me to decide whether the Claimant had resigned in response to her asserted breach or whether there had been any affirmation of any asserted breach.