Ms J Llewelyn v Oyster Bay Systems Ltd: 1602118/2019

EMPLOYMENT TRIBUNALS

Case No 1602118/2019

Between

Ms J LlewelynClaimant

Oyster Bay Systems LtdRespondent

Before

Employment Judge S Jenkins

Mr S Atherton (instructed by Solicitor) for claimant

Mr R Prais (instructed by Solicitor) for respondent

Date 20 October 2023

JUDGMENT

The Respondent’s application that certain correspondence between the parties should be ruled inadmissible due to the “Without Prejudice” rule is refused.

REASONS

[1]The hearing took place to consider the Respondent's application that certain correspondence between the parties should be considered to be subject to the “Without Prejudice” rule, and therefore judged inadmissible. Background Circumstances

[2]I did not hear any evidence in relation to the Respondent's application and therefore make no formal findings of fact. However, the background to the disputed correspondence and the application is that the Claimant was employed by the Respondent, a small family-run technology company, as HR and Recruitment Coordinator from January 2016. In February 2019 there appears to have been a falling out amongst the family which led to the appointment of a new external Managing Director. The Claimant alleges various aspects of maltreatment by the new Managing Director during the month of February 2019, which led to her commencing sickness absence on 1 March 2019 and, it appears, never returning.

[3]On 20 March 2019, the Claimant raised a grievance about her treatment. I have not seen that grievance but it was accepted by the Respondent that it summarised the Claimant's concerns about the way she had been treated and did not raise any threat of litigation. The grievance was not dealt with, although there appears to have been an indication that it would be dealt with by someone appointed externally by the Respondent once the Claimant was well enough.

[4]By June 2019 however, it appears that the externally appointed Managing Director had been removed and that the previous family directors had returned to take control of the Respondent, in particular, Michael Breach and his son, Martin Breach.

[5]The letter which is said to form the basis of the “Without Prejudice” discussions was dated 8 June 2019 and went from Mr Michael Breach to the Claimant. The letter appears to have come rather out of the blue but seemed to respond to the Claimant's grievance letter of 20 March 2019. The letter contained seven short paragraphs, the first six of which comprised a very clear, indeed what could perhaps be described as abject, apology from Mr Breach to the Claimant for the way she had been treated.

[6]In particular, the letter referred to the introduction of the Managing Director as “a stupid and unforgivable thing to do” and a “terrible lack of judgement”. It also referred to Mr Breach being appalled by the treatment the Claimant experienced at the hands of the external Managing Director and that he had let that happen. Mr Breach also referred to the external Managing Director being allowed to “fabricate lies”, and that Mr Breach had gone along with what she had said, “believing it the right way to behave”. He noted that he “accepted those lies concerning [the Claimant] in an act of blind faith and complete betrayal”. He also indicated that the Claimant had done nothing wrong, that any accusations against her were false, and had been designed to divide the company. He stated that he was sorry that he could not undo what he had done and that it had made the Claimant ill.

[7]The concluding paragraph to the letter was as follows: “I apologise to you without reservation, and I understand if you wish to take legal action against the company, and possibly [the new Managing Director] and myself. I would not try to dissuade you from doing that, but ask if you would first consider talking to me or to Martin about a private settlement.”

[8]The letter, whilst dated 8 June 2019, was not sent to the Claimant until Monday, 10 June 2019 under cover of an email which stated: “Dear Jo, I attach a letter of my sincere apology to you. My hope is that this can be a start to the process of bringing closure to this terrible situation. Best wishes Michael” The letter was attached to that email and had been given the title of “MRB apology to Jo 8 June 2019.docx”.

[9]The Claimant replied to Mr Breach by an email of 13 June 2019, acknowledging the apology and taking satisfaction from Mr Breach’s and the company's recent change in direction. In the email, the Claimant referred to having taken legal advice and that when she felt well enough, she had fully intended to bring proceedings against the company. She stated however that her desire to enter litigation “when the company is in its current form is diminished for obvious reasons”. She commented that she agreed that an attempt to reach a private settlement seemed a realistic first step. She also noted that she did not feel well enough to talk to either Michael Breach or Martin Breach and preferred for Mr Breach first to set out what he considered reasonable in further correspondence.

[10]In the event, Michael Breach did not write further to the Claimant, and it appears instead that Martin Breach send an email to the Claimant on 18 June 2019. I have not seen a copy of that email, but the pleadings suggest that Martin Breach resiled from the need for an apology, and felt that as the transgressors (the externally appointed Managing Director and one other) had been removed, nothing stood in the way of the Claimant's return.

[11]The Claimant then responded by a letter attached to an email of 25 June 2019, referring to her correspondence with Michael Breach and the fact that she was awaiting a response. She went on to say that she felt that she was now receiving mixed messages from the Respondent and that she felt that she had no option other than to formally tender her resignation. Mr Breach replied later that day, imploring the Claimant to reconsider, but it appears that she did not, and she has now brought proceedings, complaining that she felt that she had been constructively unfairly dismissed.

[12]I had sight of some further correspondence between the parties in August 2019, which was marked “Without Prejudice” and which the parties have accepted was indeed without prejudice. Issues and Law

[13]The issue for me to consider was whether the letter from Mr Michael Breach to the Claimant of 8 June 2019, and the ensuing correspondence between the parties in June 2019, was “Without Prejudice” and therefore inadmissible.

[14]In terms of background law, probably the principal authority in relation to “Without Prejudice” communications is the House of Lords decision in Rush & Tompkins Limited v GLC

[1989] 1 AC 1280

. In that case, Lord Griffiths noted that the rule of evidence that without prejudice communications were privileged from disclosure, and inadmissible in evidence, was derived from the public policy of the desirability of encouraging litigants to settle their disputes by agreement rather than litigate them to finish, and of ensuring that negotiations are not troubled by the fear that what is said will be used in evidence.

[15]It is clear from the cases, and was accepted by both parties, that it is not essential that the words “without prejudice” are used to qualify correspondence if it is clear from the surrounding circumstances that the parties were seeking to compromise the action. However, it was made clear in Rush & Tompkins and in several other cases that for the without prejudice rule to apply there must be an existing dispute between the parties at the time the alleged without prejudice communication is made, coupled with a genuine attempt to settle. If neither of those requirements is fulfilled then statements made in the course of discussions and correspondence will not be privileged.

[16]In the context of grievances, the EAT, in BNP Paribas v Mezzotero

[2004] IRLR 508

, made clear that the mere act of raising a grievance does not, by itself, necessarily mean that the parties are in dispute, and suggested that, because a grievance might be upheld or resolved, the parties may never reach the stage where they could properly be in dispute.

[17]A qualification of that arose in the Court of Appeal decision of Framlington Group Limited v Barnetson

[2007] IRLR 598

, which made clear that discussions could be considered to be without prejudice even before formal proceedings were contemplated. Auld LJ noted that, “The critical feature of proximity [i.e., of the communication to the threat of proceedings]… is one of the subject matter of the dispute rather than how long before the threat, or start, of litigation, it was aired…. Would they have…lowered their guards…if they had not thought… that, by doing so, they could avoid the need to go to court? …the crucial consideration would be whether in the course of negotiations the parties…might reasonably have contemplated litigation if they could not agree.”

[18]The Barnetson case therefore suggests that it is more likely to be the nature of the grievance, and the manner and circumstances in which it is raised, that are relevant to the question of whether or not a dispute exists, than the fact that a satisfactory outcome might be reached to resolve it.

[19]Another aspect of guidance from the Mezzotero decision is the direction that if there is no existing dispute, then the parties cannot seek to engineer a termination by mutual agreement under the guise of a without prejudice discussion, and that the statements made in the course of such a discussion will be admissible.

[20]It is also clear from the authorities that, when considering whether a dispute exists, regard should be had not just to the correspondence but to the factual matrix around it, and if that shows an actual dispute or the potential for a future dispute, then the rule will apply. The parties’ submissions

[21]The Respondent relied on the Barnetson decision, that the crucial consideration was whether, in the course of their discussions, the parties contemplated or might reasonably have contemplated litigation. The Respondent noted the summary of this area in Harvey's which suggested that it is likely that, following Barnetson, most discussions and grievances would now be subject to the without prejudice rule, notwithstanding the Mezzotero decision.

[22]The Respondent also relied on an EAT decision of Brodie v Nicola Ward, trading as First Steps Nursery (UKEAT/O526/07), which concluded that a without prejudice letter, which included a proposal for termination, could not be disclosed, despite the fact that the claimant was arguing that that proposal was the very “last straw” for the purposes of her constructive unfair dismissal claim. However, I could see that the EAT in that case proceeded on the basis that the underlying decision of the Employment Tribunal, that the without prejudice rule applied to the relevant correspondence, was not appealed, and that the appeal focused purely on the application of one or both of two exceptions to the “Without Prejudice” rule. It was not therefore relevant for my deliberations.

[23]The Claimant contended that the she had raised the claim for constructive dismissal having raised an appropriate grievance with her employer and should be entitled to adduce evidence of the employer's response to that grievance during the course of the tribunal proceedings. The Claimant noted that it was the Respondent who raised the issue of potential proceedings and suggested that the Claimant should consider talking beforehand, that the letter did not mention any proposal for settlement, and nor did it contain any settlement details or any kind of route for resolution as opposed to litigation.

[24]The Claimant also contended that the letter contained admissions in respect of the agreement that the Claimant had suffered the conduct of which she complained within her grievance, and that if it was excluded under the ambit of the without prejudice rule, that would mean that any acknowledgements by an employer of any grievance raised during the course of employment would be excluded.

[25]The Claimant also contended that the letter contained apologies from the Respondent in relation to behaviour which it had been accepted had taken place. The Claimant contended therefore that any “dispute” which might be considered to have been raised by the Claimant would have been concluded, and therefore there would not have been any extant dispute at the time the letter was issued.

[26]Finally, the Claimant contended that even if the document could be considered to arise from a dispute, and thus be a potentially privileged document, it would be difficult to assess it as a genuine attempt to reach a settlement when considered in light of the Respondent’s subsequent conduct.

Conclusions

[27]In reaching my conclusion on the Respondent's application I went back to the basic principle set out by the House of Lords in the Rush & Tompkins case, which was that, for the without prejudice rule to apply, there must be an existing dispute between the parties at the time the alleged communication was made and also a genuine attempt to settle that dispute. In this case, I was not satisfied that either of those requirements was fulfilled.

[28]The Claimant had sent a grievance letter to the Respondent on 20 March 2019, and it was accepted by the Respondent that that letter contained a summary of the concerns that the Claimant had over the way that she had been treated during the month of February 2019 and did not contain any threat of litigation. Whilst I was not provided with a copy of the grievance letter, it seemed reasonable for me to proceed on the basis that the grievance had been sent on the basis that the areas of concern outlined by the Claimant would be addressed and that whilst, as with all grievances, a possible falling out between the parties, and possible litigation, may have been in the background, it was not sent, on the part of the Claimant, in relation to any dispute.

[29]The letter from Michael Breach was then sent nearly three months later and, as I have noted, appeared, for the vast majority of its content, to contain a very clear acceptance as to what had gone before, and an apology for that. It was only in the concluding paragraph that Mr Breach expressed his understanding that if the Claimant wished to take legal action he would not try to persuade her from doing that, but instead would ask if she would first consider talking to either his son or himself about a private settlement.

[30]Notwithstanding the potential qualification of it provided by the Barnetson decision, I considered that the communication fell within the ambit of the Mezzotero judgment. The Claimant had raised concerns about the way she had been treated and had anticipated that those concerns would be addressed. In my view, the stage had not been reached where, even taking into account the impact of the Barnetson case, it could be considered that there was a dispute between the parties.

[31]However, even if I had considered that there had been an existing dispute between the parties at the time that the letter of 8 June 2019 was sent, I would not, in any event, have considered that the letter amounted to a genuine attempt to settle that dispute. The letter did not put forward any form of proposal and, when the Claimant indicated that she would prefer the Respondent first to set out what it considered reasonable in further correspondence, no such proposal was forthcoming. Indeed, the Respondent's next response was to resile from the apology contained in the earlier letter.

[32]It seemed to me therefore that the factual matrix, both before and after the particular letter, did not show either an existing dispute between the parties or a genuine attempt to settle it. I therefore concluded that the relevant correspondence, in the form of the Respondent’s letter of 8 June 2019, and the parties’ subsequent correspondence in June 2019, was not covered by the without prejudice rule and was therefore admissible for the purposes of the Claimant's claim. ……………………………..

The Issues

[1]Whether the Respondent breached the implied term of trust and confidence. There is a factual dispute about this. The particulars of the breach as alleged are as set out at paragraph 8 of the claim form.

[2]Whether the Claimant resigned in response and not for some other reason.

[3]Whether, if there is found to be a dismissal under s.95(1)(c) ERA 1996 the Respondent is able to rely on a potentially fair reason in the circumstances, namely SOSR.

The Law

[4]Section 95(1) ERA 1996 reads: ‘For the purposes of this Part, an employee is dismissed by his employer 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 his employer’s conduct.’

[5]Section 95(1) was considered by the Court of Appeal in Western Excavating v. Sharp [1978] 1 All ER in which the principles of a constructive dismissal were expounded. The key principles are that there must be a fundamental breach of contract or a breach going to the root of the contract; that the Claimant must resign in response to the breach and that he or she must not delay or it will be said that he or she will have been taken to affirm the contract.

[6]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 trust and confidence between employer and employee (Malik v BCCI SA

[1998] AC 20

). Any breach of the implied term will amount to a repudiation of the contract. The test of whether there has been a breach is objective. In circumstances where there has been a series of events such that there is a last straw the quality of that last straw was considered by the Court of Appeal in the case of London Borough of Waltham Forest v Omilaju

[2004] EWCA Civ 1493

. Lord Dyson held at paragraph 20 held that when viewed in isolation the final straw does not have to be ‘blameworthy or unreasonable’ but must contribute, however slightly, to the breach of the implied term of trust and confidence. Submissions

[7]On behalf of the Respondent it was submitted by Mr Howson that the removal of the Claimant’s files did not significantly impede her ability to do her job. She still had access to LinkedIn and Indeed. It was a minor inconvenience. Access to downstairs was not such a crucial function of her role that it was impeded when that part of the building was closed off. She could still send texts and emails and use the phone. Meetings could be arranged in the boardroom. The examples that she relied on at pp63 to 70 of examples of not being acknowledged by management were - on the whole bar one - emails sent to applicants. The one email she relied on was in respect of Nathan whom she spoke to on the phone. There was no substantial evidence of management not responding to her. The Respondent provided a fair explanation to the cancellation of the LinkedIn account which was due to the cancellation of a credit card. There were security guards to prevent Martin Breach from entering: that was temporary. The main issue the Claimant had was that she had witnessed others being mistreated and she took objection to that. She was unhappy when Michelle and Emma were suspended. She was unhappy when Michelle was shouted at by Claire Rose. There was only one incident where Claire Rose complained about her. At the pub meeting with Martin and Louise on 27th February the Claimant presented as an ally. She didn’t want to work there without them being there. Her complaint about workplace matters was only condensed into two weeks. She went off sick. She brought a grievance. The subject matter of her grievance was Claire Rose. In May Claire Rose was removed from the business, as was her sister who may have been brought in as a replacement for the Claimant. The atmosphere was resolved. The Claimant achieved what she wanted to happen, which was to get Martin and Louise back. Michael’s email was sent without consultation with his son and was an attempt to build bridges. He acknowledged the Claimant may have been impacted due to her close relationship to the family. Nowhere in that letter was there an acceptance that trust and confidence had gone. Martin Breach wanted to invite the Claimant to discuss things. Through both letters there was an attempt at reconciliation so it cannot be said that either of these letters could amount to a last straw. The last straw must contribute something to the loss of trust and confidence. An apology and an offer of a meeting cannot amount to a contribution to a loss of trust and confidence. As for the reason for resignation, the Respondent’s witnesses were consistent that the Claimant was offered to go elsewhere to Simpsons in February. She had an open offer. She was seeking a pay out from the company and used the situation to her advantage in order to do this.

[8]On behalf of the Claimant it was submitted that the Claimant’s grievance is set out at p.131 of the bundle and it is that she felt that she was obstructed from carrying out her duties in a number of different ways. There were folders removed without her consultation, which was an aggressive move from Claire Rose. She did not receive responses to her email of 21st February. The roles she was recruiting for were being taken away from her. She was spoken to by Claire in an aggressive way and Claire sough to elicit information about the family, which was inappropriate. Claire recruited someone to take up her role. Rachel Parker was being shown around the building by Claire. The Managing Director of the company was briefing against her to the owner of the company and this fundamentally undermined her role. She was isolated from members of the team and the CCTV was turned off, increasing her feelings of isolation. There was enough for the Claimant to raise a grievance and for the Respondent to deal with it. The Claimant went off on sick and there is nothing the Respondent can say to gainsay the sick notes certified by a medical practitioner. The Respondent’s attitude was that it was their family who were suffering and not others. Their grievances were dealt with whereas the Claimant’s was not. The Claimant’s evidence about what she said to her son was credible and her son verified this. Michael Breach’s email in June was not to deal with the Claimant’s grievance. It was to say ‘everything is as bad as you say it was and we acknowledge you may bring a claim’. The Respondent says it will be in touch with a proposal but this is rowed back on because of the different approach within the email of Martin Breach. The Respondent’s failure to deal with her grievance added something to the series of events. There was no formal invitation to a grievance meeting. Settlement was suggested but not followed through. The Claimant got mixed messages and was entitled to say ‘enough is enough’. There was no live argument on affirmation and this was not put to the Claimant. The Respondent’s evidence that the Claimant was fraudulently taking sick leave and planning to work for another company was all created as a narrative after the event and was selfserving. It was not right for an employer to say that just because an employee who is the subject of a grievance is sacked, that is the end of the grievance. There is an outstanding issue concerning the relationship between employer and employee and the grievance has not been dealt with. The Claimant was entitled to treat herself as constructively dismissed.

Findings of Fact

[9]The Claimant was employed by the Respondent from 4th January 2016 until 24th August 2019 as a HR and Recruitment Co-ordinator. She worked 30 hours (4 days) a week. The Respondent is a technology provider for the finance industry and is a small family-run business based in Swansea and employing 30 people. Prior to 11th February 2019 Michael Breach, Martin Breach and Louise Breach were all directors of the company. Michael and Louise are the parents of Martin and Emma Breach. There is no dispute that prior to the events of February to June 2019 the Claimant was both a friend of the family and an employee who enjoyed her job.

[10]The Claimant was brought in to recruit talented software developers for the company. The Respondent’s rationale for bringing recruitment in-house was that by the time it had paid the fees of a recruitment agency it made commercial sense to have a job role performing that function and that the experience had been that the agencies did not necessarily hand pick the best candidates. Talent is an aspect of the Respondent’s stock in trade. There was a dispute about the proportion of the Claimant’s role that was allocated to recruitment with the Claimant saying it was 80:20 recruitment to admin and the Respondent saying it was more like 80 percent admin and 20 per cent recruitment. It was clear that there were times for the Claimant where she would be busy engaged in recruitment tasks and times where she would not so much. There was a job description for her role at p.34 of the bundle which defines the role. Aside the last criterion, the tasks are of a recruitment/ retention nature.

[11]When Martin Breach was questioned about this and why it was not updated he said that it did not cover everything that she did and covered the most important aspects only. Having heard both the Claimant’s and Martin Breach’s evidence my finding is that the main part of the Claimant’s role was recruitment and retention with some of her role dedicated to administration. I did not have enough evidence from the Respondent to confirm that the administration part of her role was general administration for the company rather than what she said it was, which was administration related to what she did. Martin Breach’s evidence was that she answered the phone and had assisted in putting together buffets for the Respondent as well as other general tasks. She may have done this but there was a lack of clarity about what precisely the 80% proportion of administration was.

[12]The evidence was that it was the support team who answered the phones and while the Claimant may have been involved in putting calls through when the phone rang and no-one else was there to do it, I do not find that her role was in the main part a telephonist/ administrator. That is not born out by her job description.

[13]She was able to give evidence of what her role entailed as concerned looking for candidates. In my finding she was a trusted employee and in her own words would ‘roll her sleeves up’ if she was required to assist the business. There was no dispute – however the tasks were quantified - that the important aspects of her role were to find good candidates for recruitment to the technical team.

[14]In practice the Claimant would source suitable candidates from LinkedIn or by putting out advertisements. She would be provided with the specification by Martin Breach and would write the advertisements. She would undertake the necessary preparatory work for interviews and then pass the candidates on to the management team. There was evidence that she had also been working on a retention project with Louise Breach. She carried out administrative tasks adjunctive to her role. She would also answer the telephones, host visitors around the building and carry out any other tasks required of her from time to time by the Respondent.

[15]In my finding any attempt at attributing a percentage to the tasks she did may not have been a perfect calculation. However I find that in the main she carried out recruitment related tasks with some related administration. Some of her role was also to assist the Respondent as and when required with other tasks: the ‘mucking in’ as this was after all a small family run busines and she was a trusted member of staff.

[16]On 11th February 2019 Michael Breach, the founder of the company, appointed a woman named Claire Rose as Managing Director of the company. On 11th February 2019 there was some active dissent to the decision from Mr Breach’s family members and this resulted in Martin Breach leaving the business that day. Michael Breach introduced Ms Rose to the Claimant and told her that Martin and Louise Breach had resigned. Martin then sought to persuade his father to reinstate him and to renege on the appointment of Ms Rose. However on 12th February when he came into the building for a meeting, the police were called to remove him from the premises. Martin addressed the staff and informed them that he and his mother would fight to reinstate themselves.

[17]From an objective perspective, for an employee who worked for a family run company this turn of events must have been shocking, dramatic and unsettling. A new managing director had been appointed and two family directors had been ousted and it all happened suddenly.

[18]In my finding there was an onus on an employer in those circumstances to fully and openly consult with staff to inform them of any changes to the way the company was going to be run and to reassure them that their jobs were safe. That was part of the relationship of trust and confidence.

[19]Given the context of the events of the previous day, on 13th February 2019 the Claimant arrived at work to find that her hard copy folder of recruitment files had been removed from the locked cabinet in her room. She kept in this folder notes and the things that she was working on. The Claimant enquired of Michael Breach where her folders were and she was told that Claire had them and that they would speak to her that afternoon. The Claimant did not have a meeting nor did she receive her files back or any explanation of why they were taken.

[20]I do not accept that it is a reasonable explanation that all managers had access to those files and that anyone could take them. They were some of the Claimant’s tools of her trade, kept near her workstation and they had been taken without any communication without being replaced.

[21]On 14th February the Claimant and her admin team colleagues were informed that the technical areas of the business were restricted access only so that if they wanted to talk to anyone in development they had to phone them to get them to come to them. I note what the Claimant said that she had hitherto gone into that area to offer support to the technicians and to follow up queries with the developers or managers. However I find that the email does keep the channel of communication open in that the developers would be contactable by phone and could be called to meet in person with the Claimant. It was however yet another change to the Claimant’s way of doing her role that had been brought in suddenly with little consultation so objectively speaking, would have been unsettling.

[22]The Claimant felt that she, Emma and Michelle (who were also family members) were being cordoned off from the rest of the company and therefore targeted as a group. On 15th February the security cameras in that room had been switched off which also fed into the sense of being isolated or excluded from the technical side of the company. In effect she was on the other side of the dividing line.

[23]On Monday 18th February the Respondent installed a security guard at the front entrance. The Claimant overheard Michelle being shouted at by Claire Rose.

[24]On 21st February the Claimant emailed Michael and Claire to request feedback in relation to four undergraduates who had attended for interview. She requested the return of her folder as soon as possible as there were other tasks that she needed to get on with from it. She asked about a candidate who unbeknownst to her, she discovered had been invited for an interview by someone other than her. When she asked Nick Bennett about it he had told her that Claire Rose was dealing with recruitment. She expressed disappointment about the email that had been sent in by the candidate. She received no response to this email. That lack of response, objectively speaking, would reasonably have heightened any concern she had about aspects of her role being removed from her.

[25]The Claimant says that there was a downturn in communication between her and managers around this time. There was little communication between her, Michael Breach and Claire Rose. It is clear from the correspondence in the bundle that she was still undertaking tasks during this period. She says that one manager took longer to get back to her. This may have been the case. Given the environment however and the lack of response to her email of 21st February it was reasonable for her to assume that there was a drawing back of communication by the management team.

[26]In the afternoon on 21st an employee called Sheridan Morgan visited the Claimant’s office and told her that there had been a pay rise for technical staff and mentioned something about Martin’s pay and productivity which the Claimant believed to be untrue. This was another indication of division within the company which would reasonably have been unsettling for her.

[27]The Claimant called in sick on 22nd February but went into work on 25th February. On the afternoon of that day Ms Rose approached her while she was making a coffee and said that people had been interviewed about the conduct of Louise Breach, Martin Breach, Michelle Jenkins and Emma Breach and that the information was not good. She went on to say that she knew all about the Claimant. The Claimant said she felt Ms Rose was giving her too much information. Ms Rose said that she had seen everyone in the business apart from the Claimant as she was surrounded by toxic colleagues. Ms Rose’s tone was hostile and intimidating. I accept this was an unpleasant and unprofessional form of communication from a superior about her colleagues which left her feeling uneasy, given the circumstances.

[28]On 27th February the Claimant found that she did not have access to her LinkedIn account. This was because Louise’s credit card had been cancelled. This was an innocent explanation but added to the Claimant’s sense of insecurity regarding her role and what was happening in the business. At 1215 the Claimant was informed by Ms Rose that she would be the point of contact while Michelle and Emma were suspended and under investigation. She then delivered a tirade about the Breach family.

[29]Later that day the Claimant discovered that Ms Rose was walking a candidate around the building, which was someone the Claimant had been dealing with earlier. On 28th Ms Rose walked another candidate round the building. The Claimant had reason to believe that aspects of her role were being removed from her without consultation.

[30]There is a dispute about whether or not the Claimant was genuinely stressed at this time for the purposes of gaining a sick note or whether she was using the situation to buy herself some time before she left the Respondent and moved to a job with a local estate agent’s. The Respondent’s case was that she had an open offer from Simpsons’ estate agents and that she had informed Louise and Emma that her plans were to ultimately reduce her hours so that she could work for Simpsons. Louise had wanted to retire so had discussed the future with her and this had been her feedback.

[31]In my finding, considering the circumstances in the round and how the Claimant came to resign I do not find that the Claimant planned the events so as to move on to employment that she wanted to move on to. She did secure employment with Simpsons after her termination but I find that the reasons for her resignation were not because she wanted to take up employment there all along and was taking advantage of the company.

[32]There was also a dispute about what had happened on 27th February. There is no dispute that around this time the Claimant was preserving her loyalty to Martin and Louise. On that evening Martin and Louise collected the Claimant and they went to the Harrow pub in Bishopston. It is said by the Respondent that during that evening the Claimant told Martin and Louise that she intended to ‘pull a sickie’ and claim to have stress so she could be signed off work. She told them how her son had told her that it was not a good idea (he is a barrister). When they told her that they did not think that was a good idea she said ‘you’re just like Patrick, he told me not to do it as well.’ Louise told the Claimant that she was only entitled to 6 days full pay.

[33]The Claimant disputes this in its entirety. She said that the conversation about the sick pay never came up. She says that she said that she felt very stressed with her job being under threat and was totally intimidated by Claire Rose. Some time prior to this meeting she had a conversation with her son, Patrick. His account was that when he spoke to his mother she said ‘I’m going to resign’ to which he encouraged her to keep going. She replied to him, ‘it’s making me ill’ to which he says he said ‘if it’s making you ill don’t go in’. He denies that she used the words ‘pull a sickie’ to him.

[34]In my finding the Claimant was genuinely stressed by the turn of events and had reason to be stressed. By 27th February she had real concerns about her role. There had been huge upheaval in the company with two of her friends/ directors being outed. Two others had been suspended. There were changes to the everyday operations and there was little or no real consultation about what was going on to reassure her that her job was safe. It is reasonably likely that she would be stressed. She told her son that it was making her ill: I have no reason to doubt his evidence on this point. On 5th March the Claimant visited her GP who issued a sick note. While there is some scope for selfreporting, given the surrounding circumstances I find that it is more likely than not that the Claimant was in fact stressed and had to be signed off. My impression of Martin and Louise were that they were more interested in what was happening in the company and to get Claire Rose out at this point in time. The Claimant may have put on a brave face. I formed the impression that she is someone who will get on with it and soldier on in the face of adversity and that rather than go off sick at an earlier stage she carried on until she could not take any more. I preferred the Claimant’s version of events.

[35]The Claimant raised a grievance on 20th March about the events in February 2019. The heads of complaint were that there was obstruction in her carrying out her duties without any consultation and her duties being carried out by others; that she was isolated from other members of the team and that she was bullied and treated unfairly.

[36]The Claimant did not get an immediate acknowledgment and so chased the Respondent on 3rd April. The Claimant’s grievance was acknowleged by Claire Rose on 4 April 2019 who said that she had instructed an impartial consultant and that the consultant would be in touch with her shortly. The consultant never got in touch with her.

[37]In the meantime the Claimant learnt from browsing LinkedIn that the Respondent had recruited Alison Cahill as a business administration manager without her having been consulted. The Claimant was concerned as she noted that Ms Cahill described as an ‘experienced recruitment professional’.

[38]The Claimant did not hear anything and therefore emailed Michael Breach and Claire Rose again on 22nd April 2019 to complain that she had not heard anything. She also raised the point that she had noted that the company had recruited a new employee who specialised in recruitment and that the company had not liaised with her before doing this. She enquired whether this person had taken up her role and responsibilities. She requested that this be added to the list of grievances. Claire Rose responded to her on 26th April 2019 to tell her that she would engage with their HR consultant to ensure a date and further information was provided as soon as possible. In response to her enquiry she said ‘the company will not discuss any of our employee contractual terms. The company has no intention of liaising with you regarding our recruitment requirements. I will however add your concerns to the grievance as requested.’

[39]In my finding this was a direct shutting out of the Claimant’s reasonable enquiry about what had happened or what was happening to her role in the context of there having been no prior consultation with her about this at all.

[40]The Claimant’s grievance was not dealt with and she remained off sick. She bumped into Martin Breach when out walking on 8th June. He was with his partner and child at that time. I find that at that stage there may have been some conversation about him anticipating that he was coming back but I find that there was nothing certain and that the conversation was most likely polite and chatty with neither party airing their dirty laundry or discussing their respective employment situations in any depth.

[41]On 8th June Michael Breach wrote to the Claimant. He said that he deeply regretted the chain of events that had unfolded and apologised for taking so long to reply to her grievance letter dated 20th March 2019. He went on to say: ‘I am appalled by the treatment you experienced at the hands of Ms Rose and that I let it happen. There was no justification for the way the duties were taken from you by Ms Rose, there was no justification for the way that you, along with Emma and Michelle were isolated from the rest of the company, and the way Claire Rose spoke to you, bullied you and treated you was wholly unacceptable. I allowed her to fabricate lies and went along with what was said, believing it to be the right way to behave. I accepted those lies concerning you in an act of blind faith and total betrayal. You did nothing wrong, any accusations were designed to divide the company. I am so sorry that I cannot undo what has been done and that it has made you ill. I apologise to you without reservation and if you want to take legal action against the company and possibly Claire Rose and myself I would not try to persuade you from doing that but I first ask you to consider talking to me or Martin about a private settlement.’

[42]The Claimant responded by email on 13th March. She was thankful for the apology and took some satisfaction from the company’s recent change in direction. She spoke of the events being unsettling, continuing to attend her GP and the uncertainty that surrounded the company and her role. She accepted that the Respondent’s letter was an indication that mutual trust and confidence had gone and that private settlement was a realistic first step. She said that she did not feel well enough to talk in person and requested that any proposal be set out in writing. She said that she looked forward to hearing from him.

[43]On 18th June Martin Breach wrote to the Claimant. This was breezy and newsy in tone. He reported that Claire and her sister had been removed from the company and that he was now in charge. He said that Michael was not looking after the day to day running of the company but assisting with items that he was able to pick up at that time. He suggested a catch up to see what she wanted to do going forwards and so that he could bring her up to speed.

[44]The Claimant replied to Martin Breach to say that the correspondence had taken her unawares in that she had been corresponding with her father and that he had accepted that there had been a breakdown in trust and confidence. She said that she now felt that she was getting mixed messages from the company and that she had no option but to tender her resignation. She invited him to respond to her correspondence on 13th June regarding any proposal. Martin Breach then encouraged her to reconsider and to return to the workplace as a highly valued employee but she did not.

Conclusions

[45]During the period after 11th February until she went off sick on 5th March there were a series of events which served to undermine the relationship of trust and confidence between the Claimant and the Respondent. During this time Michael Breach and Claire Rose were effectively running the company, with Claire Rose as managing director and Michael Breach assisting. In my finding the turn of events may not have directly affected the Claimant. She was not suspended or removed from the company. However what had been a reasonably well-functioning family-run company became bitterly divided. There was Michael Breach, Claire Rose and the developers in one camp. In the other camp were the other members of the Breach family. The upshot was that Martin and Louise left the company. Then Emma and Michelle were suspended. The Claimant naturally experienced the emotional fallout from this. It was a hostile working environment by all accounts with the then Managing Director leading with an autocratic management style. There were changes which would reasonably have unsettled an employee in the Claimant’s position. The code to access downstairs was changed so that she could not freely wander in to see the developers or management. Security cameras were removed from her room. Her files were taken with no explanation given or consultation with her. Then significantly she noticed that Claire Rose was undertaking aspects of her role such as arranging the interviews for candidates without her consultation. In my finding this scenario led to her isolation and fear for her job. There was no meaningful communication with her from Michael or Claire about what was happening which was a serious undermining of the relationship of trust and confidence. The Claimant went off sick and raised a grievance. There was no redress to this despite the Claimant chasing it up. Finally in June Mr Michael Breach, who had ostensible authority to write to her as her employer and in fact held himself out as such, accepted that his conduct had been such that he would understand if she was going to take action. I do not accept that this was exaggerated. I find that it was a genuine attempt on his part to apologise for what he knew was a course of events that had caused the Claimant distress. He was there. He had first-hand knowledge of what was going on. He allowed it to happen. I gave that letter weight. It was from the horse’s mouth. It was the first time that there had been any real acknowledgment of the Claimant’s grievance letter by Michael Breach which had been written two and a half months earlier.

[46]That letter was an acceptance of poor conduct by an employer. It was an acknowledgment that the conduct had become so bad that the Claimant could accept any repudiation. It met the Claimant where she was and she was grateful for that. She had to take the letter at face value at that point in time. There was an acceptance that she had been betrayed, that her duties had been taken away, that she had been bullied, mistreated and lied about. The Respondent called witnesses to the hearing to say that the Claimant was being disingenuous and had disputed many of the facts which underpinned her reasons for the grievance and the ultimate reason for resignation. However there was an overt acceptance of repudiatory conduct by an employer and an apology. I considered that these two positions from one party were entirely inconsistent.

[47]I add here that the reference in the letter to lies was that Michael was aware that Claire Rose had referred to the Claimant as ‘lazy’ but the Claimant did not know this at the time. She read the letter and thought that Ms Rose had spread lies about her and that her reputation would have been damaged.

[48]Having then had the same employer (albeit via Martin) communicating to her that all was well and she should come back to the office was such a U-turn on the position adopted by Michael that the Claimant was entitled to resign. By one hand the Respondent had laid its hat in the ring and accepted its conduct was such that she would be entitled to leave. By the other hand she had been invited back as if nothing had happened. This chain of emails added something to the preceding events and sealed the breach of trust and confidence so as to entitle the Claimant to resign. This correspondence highlighted that there was still no apparent unification within the company. I find therefore that there was a breach of trust and confidence and that the Claimant was dismissed.

[49]Given the conduct as found and admitted by the Respondent in this case I do not consider that it has a potentially fair reason by way of SOSR.

[50]The Claimant’s dismissal was therefore unfair.

REMEDY

[51]The Claimant’s schedule of loss is in the bundle. Mr Howson for the Respondent agreed that she had a net weekly earnings of £334.62 (gross 392.31). The basic award and the figure given for loss of statutory rights were agreed.

[52]What was in dispute was the level of the ACAS uplift and whether or not the Claimant secured permanent employment with Simpsons such that when she was made redundant from that company the redundancy broke the chain of causation so that she no longer sustained a loss of earnings for which the Respondent was liable. Mr Howson relied on the case of Mabey Hire Company Ltd v Richens [1992] UKEAT207/90.

[53]The Claimant had a contact at Simpsons by the name of Nick and she was aware that there may have been an opening for her there. She wanted fulltime employment because she needed the money but he could only offer her part-time.

[54]She started employment there on 3rd September 2019. Unfortunately she was made redundant on 31st October and this was because a lease on one of the company’s offices was not renewed. The arrangement for work at Simpsons was not formal but there was an understanding by the Claimant that it would have carried on indefinitely were it not for the branches’ closure. In that sense it was in fact permanent employment.

[55]I have had regard to the Mabey authority and the Respondent’s point that the Claimant was dismissed by reason of redundancy from permanent employment such that the chain of causation was broken. The Claimant’s agreement was that the working arrangement would continue indefinitely. She had no contract as such. She had hoped for a permanent position but had to take a part time position. Having regard to s.123 ERA 1996 I find that she continued to have a residual weekly loss that was attributable to her dismissal from the Respondent and that loss was £76.23. 52 weeks x 76.23 = £3, 963.96

[56]The Respondent does not take issue with the Claimant taking reasonable steps to mitigate her loss.

[57]The Claimant obtained temporary employment with the DVSA on 17th February 2020 at £9.51 per hour. This ended on 31st March 2020. The Claimant found employment with the DWP commencing on 30th April for £10.65 per hour working 37 hours and 5 days a week.

[58]The Claimant was 57 years old at the time of her dismissal and I take that into account. I find that the loss would have continued for twelve months and thereafter it would have been reasonable to expect that she would have mitigated her loss.

[59]In terms of the ACAS award I find that there was a wholesale failure to deal with any grievance in line with the ACAS Code and despite Mr Howson’s assertions that the uprooting of Ms Rose and change of management impacted on the Respondent’s ability to deal with it, there was a significant period of time when the Respondent had the grievance and did nothing. Therefore it was unreasonable and the Claimant is entitled to the whole 25%.

[60]I put to the parties whether they want to add anything to that and they assisted with the calculation which was put as follows: Basic award £1765.00 Compensatory award Loss of earnings Week 1 before the claimant starts at Simpsons £334.62 Then 51 weeks at £76.23 = £3, 887.73 £4, 222.35 Uplift of 25% so total compensatory award is £5277.94 Loss of statutory rights £500.00 Total is £7543.38

[61]Accordingly I award judgment for the Claimant in the sum of £7, 543.38. The Claimant was not in receipt of any benefits so there is no element for recoupment.

REMEDY

[1]By way of a submission which was sent to the Tribunal on 18th February 2022 the Claimant applied for a reconsideration of the remedy judgment dated 14th January 2022. This was opposed by the Respondent by way of an email dated 24th February 2022, principally on the basis that the application was out of time as it had not been made within 14 days of the receipt of the written reasons in accordance with Rule 71 of the Employment Tribunals Rules of Procedure. I determined that given the challenges to the judgment it would be in the interests of justice for me to reconsider of my own initiative in any event.

[2]The application invites reconsideration of the capping of the Claimant’s losses to one year and to challenge the Tribunal’s decision to follow the guidance in the authority of Mabey Hire Company Ltd v Richens [1992] UKEAT 207/ 90. Application of Mabey Hire Company Ltd v Richens [1992] UKEAT 207/90 Case Number: 1602118/ 2019

[3]There was a finding at paragraph 54 that the Claimant’s new employment at Simpsons was permanent albeit that it was part-time. The Claimant was therefore made redundant from a permanent part-time position. Therefore there was no loss that arose from the redundancy of that position that could be attributable to the Respondent on the application of Mabey Hire Company Ltd v Richens [1992] UKEAT 207/90. Any residual loss was attributable to the fact that the position had been part time so there was still an ongoing loss because the Claimant’s position with the Respondent was full time. That finding is reflected at paragraph 55 of the decision. The Period of Twelve Months Loss

[4]This finding is reflected in paragraph 58 of the decision. Having regard to s.123(1) the amount that I considered just and equitable to award the Claimant as compensatory loss was for a period of twelve months. Given her age and experience I found that it would be reasonable to expect a full mitigation of loss by that point in time. I do not consider that there is any basis for revoking that decision.

[1]By way of a document that was sent to the Tribunal on 18th February 2022 the Claimant applied for costs under Rule 76 of the Employment Tribunal Rules of Procedure on two bases: firstly that the defence was misconceived and secondly, that the Respondent had conducted proceedings unreasonably.

The Law

[2]Under Rule 76 of the Employment Tribunal’s Rules of Procedure a Tribunal may make a costs order and shall consider whether to do so, where it considers that ‘a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted or b) any claim or response had no reasonable prospect of success.’ Findings Correspondence

Findings

[3]I have considered the correspondence in this matter relating to the alleged litigation conduct on the part of the Respondent. This case was postponed owing to the COVID pandemic. It was originally listed for a day but the listing was extended to three days. During the course of the litigation the Respondent raised an argument that the letter of Michael Breach dated 8th June 2019 was without prejudice as it was an attempt to settle an extant dispute between the parties. Witness statements were due to be exchanged on 26th March 2020 but the Respondent deferred the date for exchange and wrote to the Tribunal on 14th April 2020 to request that the issue concerning the without prejudice letter ought to be resolved prior to exchange of witness statements.

[4]The dispute about the letter was determined by the Tribunal by way of a preliminary hearing and a judgment was handed down on 29th April 2020 which dismissed the Respondent’s application for the letter to be without prejudice. On 15th June 2020 the Respondent then appealed that decision (which was subsequently rejected on 13th July 2021). By a case management order dated 29th April 2020 EJ S Jenkins ordered the Respondent provided the parties with a paginated hard copy of the trial bundle by 26th May 2020 and for witness statements to be exchanged by 23rd June 2020.

[5]The Claimant sought to secure exchange on 23rd June 2020 in compliance with the case management order. The Respondent was chased on 2nd July 2020 and on 9th July 2020.

[6]On 10th July 2020 the Respondent applied for a stay of proceedings pending the appeal but this was rejected by EJ Harfield on 3rd September 2020. EJ Harfield confirmed that the current directions applied. Following this the Claimant’s representative wrote to the Respondent and invited exchange of witness statements by 11th September 2020. On 4th September 2020 Ms Prais for the Respondent responded to say that she was unable to give a definite response but that there was some additional disclosure that she wanted to make. By email sent at 5.14pm Ms Prais requested exchange take place on 18th September because of absences and other commitments.

[7]On 29th September 2021, the Respondent not having exchanged statements, the Claimant’s representative wrote to the Tribunal asking for an unless order.

[8]On 2nd October 2021 the Respondent wrote to the Tribunal and the Claimant’s representative apologising for the delay in exchange. It stated that the previous case handler had left the business which had caused some slippage with the timetable. It was explained that a new consultant had been assigned and would action the witness statement on his return from leave on 16th October. On Friday 16th October the consultant wrote to the Claimant’s representative asking if they were happy to exchange the following Monday. The consultant was off sick on the Monday and did not forward the Respondent’s witness statements on until 20th October. The Claimant’s representative subsequently chased for signed and dated copies of the witness statements as the original statements sent in were not signed and dated.

[9]Moving forwards to October 2021 the Claimant’s representative chased for the signed witness statements and an index to the bundle. The Respondent was chased again for signed witness statements by the Claimant’s representative on 8th November 2021.

[10]On 12th November the Claimant’s representative wrote to the Tribunal seeking an Unless Order for the Respondent to provide signed witness statements, a paginated hard copy of the bundle and the costs of that application within 7 days. The Claimant’s representative sent a chasing email to the Respondent on 19th November.

[11]On 29th November the Respondent’s representative indicated that he was going to upload the bundle and witness statements that afternoon and he sought confirmation of the hard copy requested. There was then some further correspondence about documents that were not in the bundle.

[12]On 30th November the Respondent applied to postpone the hearing, due to take place on 6th December owing to the illness of one of the witnesses. The Claimant objected.

[13]On 2nd December EJ Brace directed the Respondent to send a copy of the bundle to the Claimant’s representative by 4pm on 3rd December.

[14]On 3rd December the Claimant’s representative noticed that the bundle that the Respondent had uploaded contained without prejudice documentation and attached the correct index. The bundle that had been sent over was missing two documents. The Claimant’s Submissions as to Litigation Conduct

[15]The Claimant made submissions that the Respondent’s conduct was unreasonable in that the Respondent delayed service of the witness statements; the Respondent uploaded documents containing without prejudice information; the Respondent produced a bundle which did not contain the key letter from the Respondent’s witness notwithstanding the admissibility point had been dismissed by the EAT; the fee earner for the Respondent changed five times over the course of the litigation and that the Respondent refused to settle the case. It was submitted that the Claimant’s solicitors had wasted costs seeking compliance and copies of the bundle had had to be printed and re-printed. It was submitted that had the Respondent behaved reasonably they would have settled the matter at an early stage. The Respondent’s response regarding Litigation Conduct

[16]On behalf of the Respondent it was submitted that the Respondent served its statements on the Claimant two years prior to the hearing and that witnesses do not need to sign the statements but can confirm their truth at the hearing. The Respondent accepted that two documents were not in the final bundle but the week before it was agreed that these documents would be sent to the Tribunal and used. As concerned the offer to settle, the Claimant’s offer was greater than what the Claimant came out with at trial and in any event a failure by a party to settle is not unreasonable conduct. There were five fee earners because of the time the case took to get to trial. Findings on the Unreasonable Conduct and Costs

[17]In this case there were delays to the case management timetable which were at first caused by the Respondent’s desire to exclude correspondence which it said was without prejudice. The Respondent genuinely viewed the correspondence as being without prejudice and even though this was not accepted by the Tribunal and the EAT this was not an unreasonable position to take in the context of litigation. While it was unsatisfactory for the Respondent to have not inserted this correspondence into the bundle for the hearing it was not wholly left out and indeed became part of the evidence before the Tribunal at the hearing upon which findings were made. Again, this was not in my finding unreasonable.

[18]The Respondent failed to comply with the case management timetable as to the index of documents and witness statements. This was unsatisfactory and unreasonable. There were departures of fee earners who had conduct of the file. However, the tribunal’s directions are there to be observed and it is incumbent on professional representatives to ensure that any handovers are done in a way that file deadlines are carried out. However I decline to exercise my discretion to make a costs award in the circumstances. The Respondent generally sought to vary the timetable by agreement and the case was ready for trial by 6th December 2021. The Respondent sought agreement about the bundle albeit that this was very last minute. The Respondent did in fact exchange witness statements well in advance of the hearing. It is not unreasonable that the statements were not signed or dated as the witnesses’ evidence was confirmed at trial.

[19]Having regard to the correspondence in the round I do not consider that there is anything over and above the normal inter partes in litem correspondence that would normally be expected to be generated on a case of this nature. In addition the case was ready for trial and proceeded to be heard during the listed window. There were some additional documents to be inserted in the bundle but this is not out of the ordinary. I do not consider that the litigation conduct of the Respondent warrants a costs order in the circumstances.

[20]As regards the offers to settle, I do not consider the Respondent’s decision not to settle to be unreasonable conduct. In the event the Claimant was awarded less than the offer that was made.

[21]Having regard to the conduct as a whole I decline to make a costs award. Defence ‘Misconceived’ Claimant’s Submissions

[22]The letter sent to the Claimant from one of the Respondent’s directors admitted that she had been bullied by a superior in the company and her duties taken away. Once it had been accepted that the Claimant had been bullied, mistreated and lied to, the Claimant’s acceptance of that repudiation was bound to found a claim of constructive dismissal. The points taken by the Respondent that Mr Breach exaggerated his letter, that the Claimant had been disingenuous and had lied and that the Claimant concocted a fraudulent reason for sick leave were hopeless. Respondent’s Submissions

[23]The Respondent’s perspective was that the letter of Michael Breach in June 2019 was an attempt to repair the relationship after it had removed Ms Rose from the Respondent’s premises. The issues were whether there was a fundamental breach and whether the Respondent’s actions by way of its letter in June could repair the relationship. It was submitted that there were some prospects of this argument succeeding. Findings on Misconceived and Costs

[24]I have had regard to my conclusions at paragraph 45 onwards of the judgment.

[25]I went on to find at paragraph 48 that communication from the other director was such that it was such a U turn from the letter from Michael Breach. I found that there was still no unification within the company and that this sealed the breach of trust and confidence so as to entitle the Claimant to resign, which she did.

[26]The Respondent ran as part of its defence that the real reason she left was to further her career with Simpsons and that she did not resign in response to any breach. It also sought to argue that both Michael and Martin Breach were intending to repair what had gone before and that the smoothing of the ways by both directors was inconsistent with conduct likely to damage the relationship of trust and confidence.

[27]The burden is on the Claimant to prove that she was dismissed. In addition there was no application to strike out under rule 37. There was a requirement for the Tribunal to hear evidence and to make findings of fact about whether the conduct alleged on the part of the Respondent constituted a fundamental breach of contract, when that breach crystallised and whether the Claimant resigned in response.

[28]While in my finding the merits of the response were weak, particularly in the face of the letter of Michael Breach and the evidence of the conduct of Ms Rose towards the Claimant, it cannot be said that it had no reasonable prospects of success. I had to carefully consider and evaluate the evidence that I heard in order to make the findings that I ultimately made. Therefore I do not make an award for costs on this basis. The costs application is dismissed.