Mrs J Sinclair v Khupe Legal Services Ltd and Women in Healthcare (WIH) Ltd: 1801994/2024
EMPLOYMENT TRIBUNALS
Case No 1801994/2024
Between
Mrs J SinclairClaimantKhupe Legal Services Ltd and Women in Healthcare (WIH) LtdRespondent
Before
Employment Judge ThemistocleousMr M Mensah (instructed by Counsel) for claimantMr D Bunting (instructed by Counsel) for respondentDate 15 January 2025
JUDGMENT
[1]The claims against the First Respondent were both withdrawn and are hereby therefore dismissed.[2]The claim for constructive dismissal against the Second Respondent is not well founded and is dismissed.[3]The claim for wrongful dismissal against the Second Respondent is not well founded and is dismissed.
REASONS
[1]At the outset of the hearing the Claimant accepted that on the date of her resignation, her employer and therefore the correct Respondent to these proceedings, was the Second Respondent, following an intra-group transfer from the First Respondent in or around April 2022. The Claimant agreed to withdraw all claims against the First Respondent and they were dismissed. The claim proceeded against Second Respondent only, and all references to the Respondent in the remainder of these reasons, relates only to the Second Respondent. Claims and issues to be determined[2]The Claimant brings two claims, one of constructive dismissal and one of wrongful dismissal. Within her particulars of claim, prepared by her legal representative, the Claimant articulated that she relied upon a breach of mutual trust and confidence only. The entire basis of the breach arose out of events that occurred at a meeting on 2 November 2023, relating to a discussion regarding an offer of employment made to her son, Jake Sinclair and a subsequent meeting on 9 November 2023, in which how the initial meeting was conducted was discussed. The Claimant alleged that the acts either individually or cumulatively amounted to a breach of mutual trust and confidence, with the last straw being the events that arose in the 9 November 2023 meeting, which led to her resignation the same day.[3]The specific allegations were as follows: On 2 November 2023: 3.1. The Respondent without proper inquiry, rushed into making allegations. 3.2. Within a day of Jake Sinclair being offered the role the Respondent rapidly concluded that the Claimant acted dishonestly and improperly. 3.3. The allegations were manifestly unreasonable. 3.4. The Respondent inappropriately put the allegations to the Claimant. 3.5. The Claimant received no notice of the nature of the meeting and was taken aback when the allegations were presented. 3.6. The approach taken by the Respondent was overly authoritative, employing terms like 'underhand' and 'improper' during the meeting, which undermined and belittled the Claimant. 3.7. The Respondent presumed guilt and demonstrated that they had lost faith in the Claimant. 3.8. The Respondent conducted the meeting in the presence of Dr Munavvar Syedda and Ms Jenny Rae, who should not have been a participant in such a meeting. On 9 November 2023: 3.9. The Respondent’s handling of the meeting demonstrated there was no remorse for the manner in which the 2 November 2023 meeting was conducted. 3.10. That the Respondent asserted that any comparable future occurrences would be addressed in a similar manner.[4]If the claimant was (constructively) dismissed, the Respondent relied upon misconduct, as being the potentially fair reason for dismissal.[5]The Claimant also alleged, if she was constructively dismissed, she was also wrongfully dismissed. The Respondent asserted she was not, on the basis that the claimant’s actions amounted to gross misconduct and therefore she was not entitled to notice. Application to amend[6]On September 2024, the Claimant via her legal representatives, made an application in writing to amend her claim to also rely upon an express breach of contract, namely that the Respondent breached a contractual grievance policy. The Respondent objected to the application to amend in writing on 6 September 2024. At the outset of the hearing, the issue remained unresolved and the Tribunal heard submissions by both counsel on the application before retiring to read the written submissions, documents referred to, consider the oral submissions and make a decision.[7]In summary, the Claimant asserted that the new claim arose out of the same facts already pleaded, that she had no knowledge of the contractual policies existence before she received the Respondents disclosure in August 2024 thus could not have made the application sooner and in any event the Respondent had good notice before the hearing to prepare to address the allegation. The Respondent asserts that the policy was not contractual and took the Tribunal to the document relied upon, that the Claimant could not have resigned in response to it as she had no knowledge of it at the time of her resignation (which the Claimant accepted), and the application was presented after exchange of witness statements and therefore the Respondent was not able to easily address it.[8]Applying the principles in Selkent Bus Company v Moore [1996] IRLR 661, Vaughan v Modality Partnership UKEAT/0147/20/BA and the Presidential Guidance the Tribunal decided not to permit the amendment, as despite the fact the Respondent could have dealt with it at the hearing and had good notice of the application, it was apparent there were real issues with the merits of the allegation asserted, not only because the policy appeared not to be contractual but that the Claimant accepted having no knowledge of it when she resigned and therefore accordingly cannot have resigned in response to it. Therefore the Tribunal determined the balance of prejudice was very much in the Respondent’s favour, in that the Claimant would not be prejudiced by being prevented from bringing a meritless claim, but the Respondent would be prejudiced by having to respond to it. Evidence[9]The Tribunal had before it an agreed bundle of documents of 438 pages.[10]The Tribunal heard first from the Claimant and then her son, Mr Jake Sinclair. On behalf of the Respondent, it then heard from Mrs Angie Khupe (Managing Director), Mr Brasso Khupe (Compliance Officer) and Dr Munavvar Syedda (Business Development Management).[11]Having considered all relevant evidence, the Tribunal makes the factual findings set out below. Facts[12]The Claimant was employed by Khupe Legal Services Limited on 6 February 2021 as a Personal Assistant to Mrs Khupe. In April 2022, the Claimant’s employment transferred intra-group to the Respondent, as she was undertaking more work for them than Khupe Legal Services Limited, but she remained a PA to Ms Khupe.[13]There is some disagreement between the parties to the whether the Claimant’s job title changed to Executive Assistant, but that is not material to the Tribunals findings. It was accepted by Mrs Khupe that the Claimant assisted with executive level duties and was herself involved in some high level decisions with the executive management team, which was made up of Mrs Khupe, Mr Khupe and Dr Syedda.[14]One of the Respondent’s functions is to act a recruiter of temporary and permanent employees for businesses in the healthcare industry. It is agreed between the parties that the Claimant supported in that function and in relation to internal hires.[15]The Respondent employed Ms Jenny Rae as Recruitment Manager who was primarily responsible for recruitment for clients and internal colleagues. Upon her recruitment, it is agreed that the Claimant was required to support recruitment less than she previously had and that it would be led by Ms Rae.[16]The Respondent also employed Dr Syedda, initially as Group Administrator but subsequently as Business Development Manager. Dr Syedda was involved in the Respondent’s internal recruitment amongst other more client focused business development duties.[17]The Claimant’s son, Mr Sinclair had a history of working in the care sector but was seeking a role in recruitment. Mr Sinclair had previously being placed with one of the Respondent’s clients for a work placement but the Respondent alleged that there were challenges in his relationship with the client and that led to the client ceasing to work with the Respondent. This evidence was unchallenged. Mr Sinclair had also recently been unsuccessful in securing a Recruitment role at one of the Respondent’s clients.[18]In October 2023, a new internal position of Recruitment Officer working for the Respondent was advertised. Mr Sinclair applied for the role. The Claimant asserted that Ms Khupe originally approved the recruitment of a Recruitment Deputy Manager role and that both her and Ms Rae thought a more junior role was needed instead. The Claimant asserted that she persuaded Mrs Khupe to downgrade the role to Recruitment Officer which she agreed. The Claimant alleged that Mrs Khupe actively pushed for Mr Sinclair to apply for the role and was updated throughout the recruitment process with regards to the progress. The Claimant asserted it would have been impossible to hide this in such a small team. Mrs Khupe denied approving either role for recruitment or having any knowledge of the role being recruited for, despite agreeing that she had access to Indeed where the role was advertised. Mrs Khupe therefore denied encouraging Mr Sinclair to apply for the role. Dr Syedda asserted that she too was completely unaware of the recruitment of the role and by virtue of her position would have ordinarily been involved in the decision as to whether or not there was sufficient work to hire an internal colleague, as well as any recruitment process that followed, which she was not. Dr Syedda asserted that there was a vague plan in the future to recruit for such role but it had not yet come to fruition.[19]On the balance of probabilities, the Tribunal has found that Mrs Khupe did not approve or have knowledge of the recruitment of the Recruitment Officer role. The Tribunal found that such contention would have been entirely inconsistent with the matters that unfolded on 2 November 2023, whereby Mrs Khupe questioned how the offer of employment made to Mr Sinclair had come about and the Tribunal did not accept the Claimant’s assertion that perhaps Mrs Khupe was having a breakdown, so as to justify her approving the recruitment, knowing about it and subsequently challenging it.[20]It is agreed that the normal recruitment process at the Respondent is for applications to be reviewed and the best candidates shortlisted. Ms Rae plus one other colleague (sometimes the Claimant) would then undertake 1st round interviews for shortlisted candidates and then Mrs Khupe would undertake a 2nd round interview for those candidates who performed the best at 1st interviews, as determined by the 1st round interviewers and then a decision would be made as to who should be appointed between the interviewers following a discussion. The Claimant asserted that this process was not always followed and indeed had not been when Mrs Khupe’s brother was appointed, which the Respondent accepted, on the basis that no role had been advertised hence why the normal process was not followed, as no one else was involved/impacted. The Claimant did not however assert that she was under the impression that the normal recruitment process should not apply in the recruitment of the Recruitment Officer role and rather sought to assert she had gone over and beyond to ensure the correct process was followed due to Mr Sinclair applying. The Tribunal found the recruitment of Mrs Khupe’s brother without following this process therefore had no material impact on this case.[21]As well as Mr Sinclair’s application, a significant number of other applications were received. Four candidates (including Mr Sinclair) were shortlisted for the role.[22]The Claimant asserted that due to Mr Sinclair applying for the Recruitment Officer role, she distanced herself from the recruitment process and put safeguards in place to ensure that the process was carried out fairly. However, the Claimant accepted frequently liaising with Ms Rae regarding the recruitment of the role, assisting Ms Rae in shortlisting candidates and interviewing three of the shortlisted candidates excluding Mr Sinclair. The Tribunal was taken to messages between Ms Rae and the Claimant regarding them having a discussion after the interviews, albeit the Claimant denied that this occurred. The Tribunal was not able to establish from the evidence what alleged safeguards were put in place by the Claimant, bar the Claimant not conducting Mr Sinclair’s interview herself and therefore concluded on the balance of probabilities there were no such safeguards and her involvement had been inappropriate.[23]In cross examination, when asked how the Claimant would know she should not be involved in the process, Mr Khupe asserted that the Claimant’s involvement in the recruitment process was contrary to the Respondents conflict of interests policy. Such policy was not before the Tribunal, albeit due to the Claimant’s confirmation that she knew she should distance herself from the recruitment process to ensure it was carried out fairly, the policy would not have taken matters any further. Put simply, the Claimant knew she should not be involved in the process.[24]In cross examination the Claimant was taken through three shortlisted candidates CVs (all of whom had previously held recruitment roles) but denied that the other candidates had more relevant recruitment experience than Mr Sinclair. Mr Sinclair however accepted in cross examination that in his previous roles, recruitment was only part of his job, rather than the entirely of it. On the balance of probabilities, the Tribunal found that that there was sufficient evidence that the other candidates had more relevant experience than Mr Sinclair, so as to warrant the Respondent wanting to make further enquiries regarding his offer of employment and whether the best candidate had been selected.[25]In this recruitment exercise, it is accepted that the Claimant assisted in shortlisting candidates and interviewing all candidates, bar Mr Sinclair. All interviews are recorded and a transcript was included in the bundle. Mr Sinclair was interviewed on 31 October 2023 by Ms Rae and Faatimah (surname unknown), a junior colleague, who it is agreed had no experience at all interviewing candidates. From the transcript of the interview, Faatimah does not appear to participate in the interview at all. Dr Syedda gave evidence that she would ordinarily be involved in interviews, as opposed to Faatimah where needed and she was surprised the interview had been organised with Faatimah in attendance rather than her, at a time she was on a short period of bereavement leave.[26]Mrs Khupe accepted that said was informed “Jake” was applying for a Recruitment Officer role (albeit she was unaware it was to work at the Respondent directly) on the day of his interview and that the Claimant had said it was her son.[27]The Tribunal was taken to messages that showed a discussion between Ms Rae and the Claimant following the first round interviews regarding blocking time in Mrs Khupe’s diary for second interviews, which the Claimant asserted she did and Mrs Khupe denied ever receiving. Regardless, it is agreed a second interview never took place. The Claimant asserts this was because Mrs Khupe had told Mrs Rae a second interview wasn’t necessary. On the balance of probabilities the Tribunal has found that Mrs Khupe did not say a second interview was not necessary, on the basis it is inconsistent with the matters that unfolded on 2 November 2023, whereby Mrs Khupe challenged the process followed.[28]It is accepted by Mrs Khupe that on 1 November 2023, she was informed by telephone that Ms Rae had made the decision to recruit “Jake” but that she was distracted at the time due to being at a funeral, therefore did not raise any further questions. The same day, an offer of employment was made to Mr Sinclair, which he promptly accepted. Later that day, Mrs Khupe reviewed the job advertisement, applications and requested the CVs of shortlisted candidates from Ms Rae for review. Mrs Khupe had concerns the best candidate had not been selected and discussed the matter with Mr Khupe, who agreed it should be discussed at the coffee morning meeting the next day.[29]On 2 November 2023, the Respondent held its usual daily online coffee morning meeting. It was agreed that the format of the meeting was first, for the whole team to join to discuss business wide matters and following that only relevant persons were directed to stay online, to discuss any matters arising involving them, without notice as to what they were. Whilst there is an irrelevant dispute as to who asked who to stay on the call for a further a meeting – it is agreed that Dr Syedda, Mrs Khupe, Mr Khupe Ms Rae and the Claimant remained. Dr Syedda was intending to discuss the Gloucestershire tender with the Claimant, which she had pre-warned her of, but was aware Mrs Khupe had a matter she wanted to address first, which required her input (albeit she did not know what it was). It is agreed that at the meeting Mr Sinclair’s offer of employment was discussed and Mrs Khupe asserted she had not approved the recruitment of the role, nor did she have knowledge it was indeed the Claimant’s son who was involved in the process for a role at the Respondent. It is also agreed that the Claimant asserted all proper processes had been followed and that she had put safeguarding measures in place.[30]The Claimant asserted that the manner in which she was spoken to at the meeting made her feel attacked and allegations were put to her without any notice. She asserted that Mrs Khupe referred to her as being “sneaky”, “underhand” and/or “improper”, that Mrs Khupe was unprofessional, assumed her guilt from the outset and that it had undermined her, brought into question her integrity/honesty in front of colleagues and caused significant distress. The Claimant took umbrage at the presence of Ms Rae, despite her involvement in the matter and Dr Syedda, despite accepting under cross examination that she would ordinarily be involved in decision making processes regarding recruitment and that she could have been added to the discussion at a later stage. The Claimant accepted that when Mr Sinclair’s offer being withdrawn was mentioned, she said words to the effect ‘I wouldn’t do that’ but asserted that it was suggested as if Mrs Khupe had already made her mind up regarding doing so and it was not a matter for discussion. The Claimant accepted leaving the meeting before it ended due to being upset, but says this was due to how the meeting was conducted by Mrs Khupe.[31]Mrs Khupe asserted that she remained calm throughout the meeting, used the meeting as a fact finding exercise to clarify what indeed had happened, due to concerns as to whether all the appropriate processes had been followed. Mrs Khupe asserted questions were primarily directed to Ms Rae as Recruitment Manager, but that the Claimant answered for her. Mrs Khupe denied using any of the terms the Claimant alleged, albeit agreed she may have said words to the effect “the procedure doesn’t appear to have been followed properly”, putting allegations to her or assuming her guilt, reaching conclusions or belittling her. Mrs Khupe asserted that she proposed the parties voted as to whether to temporarily withdraw the offer, at which point the Claimant became upset, said “I wouldn’t do that if I were you” and left the meeting prematurely. Mrs Khupe asserted that following the Claimant leaving, a vote was taken to withdraw Mr Sinclair’s offer and that was agreed and actioned. Mr Khupe and Dr Syedda supported Mrs Khupe’s version of events. There were no notes of the meeting and the Respondent asserted that was ordinary practice for no notes to be taken at the coffee morning meeting.[32]Following the meeting the Claimant went on sick leave immediately and raised a grievance to Mr and Mrs Khupe regarding the meeting, alleging she had been “hauled over the coals”. The grievance omitted to mention specific details of the things Mrs Khupe had allegedly said to the Claimant. The Claimant asserted that this was to avoid embarrassing Mrs Khupe, as she thought perhaps she was on the brink on a breakdown. Mr Khupe acknowledged her grievance and wished her a speedy recovery. Mrs Khupe also wished her well regarding her health.[33]The Tribunal was taken to various text messages between the Claimant and Ms Rae, a statement of Ms Rae produced for the Claimant, notes of a meeting between Mr Khupe and Ms Rae and an email from Ms Rae to Dr Syedda giving a variety of versions on events as to the recruitment process followed, the meeting on 2 November and the Claimants contact thereafter. No weight can be attached to any of these exchanges, because put simply, Ms Rae changed her version of events dramatically and repeatedly, to suit her audience.[34]In cross examination all of the Respondent witnesses confirmed that no disciplinary action was commenced at the time, nor has it been since against the Claimant or Ms Rae. They noted that the Respondent is a small business, has never had experience in disciplining employees and preferred to try and resolve matters informally.[35]On the balance of probabilities the Tribunal finds that the Respondent had good grounds for querying Mr Sinclair’s offer of employment and was justified in doing to do so. The Tribunal finds that the content of the discussion was not inappropriate, it was not an “attack”, the Claimant was not referred to as “sneaky”, “underhand” or “improper”, allegations were not put the Claimant, nor was her guilt assumed, or any conclusions reached. Rather, it was a fact finding exercise, that was potentially quite uncomfortable for the Claimant due to her inappropriate involvement in the recruitment process, that led to her son being offered a role. It is however not accepted that questions were only put to Ms Rae and not the Claimant as the Respondent contended, but in the circumstances the Tribunal did not find that to be unreasonable to ask questions of the Claimant due to her involvement. The Tribunal finds that whilst this may have been a sensitive topic for the Claimant, due to the level she was operating at, it was not inappropriate for Ms Rae or Dr Syedda to be present, as Ms Rae was directly involved and Dr Syedda was on the executive and involved in recruitment decisions.[36]On 4 November 2023, the Claimant raised a second grievance to Mr Khupe regarding the same topic. Mr Khupe informed the Claimant that these matters would be fully addressed on her return from sick leave, albeit the Claimant wanted matters to be addressed before her return.[37]The Tribunal was taken to various text messages between Ms Rae and the Claimant, whereby the Claimant suggested she may have to resign in the absence of Mr Khupe hearing her grievance before a return and was considering making a claim for constructive dismissal.[38]A meeting was organised for 9 November 2023. Mr Khupe asserted that this was not a formal grievance meeting rather return to work discussion, to discuss the content of the Claimant’s grievance, to see if there could be any informal resolution, as it was still to be determined as to whether or not he would hear the grievance. In cross examination it was put to Mr Khupe that it would be inappropriate for him to hear the grievance as he was witness to the 2 November 2023 meeting, albeit that is not a live issue before the Tribunal and as such the Tribunal will not make a finding on that point.[39]It is agreed that at the meeting on 9 November 2023, there was a discussion about the Claimant’s wellbeing but matters quickly moved on to the 2 November 2023 meeting. Mr Khupe noted that he was aligned with the manner in which Mrs Khupe conducted the 2 November 2023 meeting and that should such similar matter arise again in the future, it would be addressed in the same way. At this point, the Claimant said on that basis there was no point proceeding with the meeting and terminated the call. The Claimant asserted that Mr Khupe showed no remorse as the how the 2 November 2023 meeting had gone. Mr Khupe disagreed. On the balance of probabilities, the Tribunal finds that Mr Khupe showed limited remorse, but that was in keeping with its findings that the 2 November 2023 meeting had been managed appropriately.[40]Following the meeting, the Claimant then resigned immediately by email stating that her position was untenable due to the two meetings outlined above. The Claimant’s employment terminated on 9 November 2023, by virtue of her resignation. Applicable law[41]In order to bring a claim of unfair dismissal an employee must have been dismissed. In this regard the Claimant relies on Section 95(1)(c) of the Employment Rights Act 1996 which provides that an employee is dismissed if she terminates the contract under which she is employed (with or without notice) in circumstances in which she is entitled to terminate without notice by reason of the employer’s conduct. The burden is on the Claimant to show that she was dismissed.[42]The classic test for such a constructive dismissal is that proposed in Western Excavating (ECC) Ltd v Sharp 1978 IRLR 27CA where it was stated: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employer is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover he must make up his mind soon after the conduct of which he complains; or, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract”.[43]The Claimant asserts there to have been a breach of the implied duty of trust and confidence. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract.[44]In terms of the duty of trust and confidence, the case of Mahmud v Bank of Credit and Commerce International 1997 IRLR 462 provides guidance clarifying that there is imposed on an employer a duty that he “will not without reasonable and proper cause conduct himself in a manner calculated [or] likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee”. The effect of the employer’s conduct must be looked at objectively.[45]The Court of Appeal in the case of London Borough of Waltham Forest v Omilaju 2004 EWCA Civ 1493 considered the situation where an employee resigns after a series of acts by the employer. The Claimant brings her case, in the alternative, on such basis.[46]Essentially, it was held by the Court of Appeal that in an unfair constructive dismissal case, an employee is entitled to rely on a series of acts by the employer as evidence of a repudiatory breach of contract. For an employee to rely on a final act as repudiation of the contract by the employer, it should be an act in a series of acts whose cumulative effect is to amount to a breach of the implied term of trust and confidence. The last straw does not have to be of the same character as the earlier acts, but it has to be capable of contributing something to the series of earlier acts. There is, however, no requirement for the last straw to be unreasonable or blameworthy conduct of the employer, but it will be an unusual case where perfectly reasonable and justifiable conduct gives rise to a constructive dismissal.[47]Underhill LJ in Kaur v Leeds Teaching Hospitals NHS Trust 2018 EWCA Civ 978 cited Dyson LJ in Omilaju approvingly on the question of the 'last straw' as follows: “39. Against the background of that summary Dyson LJ addressed the last straw doctrine specifically in paras. 15-16 of his judgment (pp. 487-8), which read:"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 (p 167C) 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 p 169F: '(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.'16. Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim ' de minimis non curat lex ') is of general application…” ……. 46. 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)…..[55]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: 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? Has he or she affirmed the contract since that act? If not, was that act (or omission) by itself a repudiatory breach of contract? 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.) Did the employee resign in response (or partly in response) to that breach?”48. Applying the legal principles to the facts as found, the Tribunal reaches the conclusions set out below. Conclusions49. The Claimant relies on the meeting of 9 November 2023 as, on its own, a breach of trust and confidence, but also as a last straw allowing the Claimant to rely on a preceding course of conduct of the Respondent. In particular: 49.1. The Respondent’s handling of the meeting demonstrated there was no remorse for the manner in which the 2 November 2023 meeting was conducted. 49.2. That the Respondent asserted that any comparable future occurrences would be addressed in a similar manner.50. First the Tribunal considered what happened at the 9 November 2023 meeting. Following the Claimant going on sick leave and raising two grievances, the meeting was arranged on her return to work to understand how she was and discuss the content of the grievances, to see if an informal resolution could be reached in the absence of a formal grievance hearing. Mr Khupe confirmed that he was comfortable with how the 2 November 2023 meeting had been conducted, that any similar matters arising in the future would be addressed in the same way and therefore showed limited remorse as to the events. Upon learning this, the Claimant said there was no point continuing the meeting and terminated the call. Whilst the Claimant may have hoped for an apology, the Respondent’s response was justified in the circumstances. The Respondent organised the meeting with genuine intent to check on the Claimant’s wellbeing and understand if an informal resolution could be reached. On the basis the Claimant did not get the response she was hoping for, she terminated the call. In all the circumstances, what was said at that meeting was not “calculated or likely to destroy or seriously damage the relationship of trust and confidence” between [the parties]” and it did not amount to a breach of trust and confidence, nor was it sufficient to amount to a final straw.51. The Tribunal then went on the consider the course of conduct during the 2 November 2023 meeting and whether that on its own amount to a breach of trust and confidence. In particular: 51.1. The Respondent without proper inquiry, rushed into making allegations. 51.2. Within a day of Jake being offered the role the Respondent rapidly concluded that the Claimant acted dishonestly and improperly. 51.3. The allegations were manifestly unreasonable. 51.4. The Respondent inappropriately put the allegations to the Claimant. 51.5. The Claimant received no notice of the nature of the meeting and was taken aback when the allegations were presented. 51.6. The approach taken by the Respondent was overly authoritative, employing terms like 'underhand' and 'improper' during the meeting, which undermined and belittled the Claimant. 51.7. The Respondent presumed guilt and demonstrated that they had lost faith in the Claimant. 51.8. The Respondent conducted the meeting in the presence of Dr Munavvar Sayeeda and Jenny Rae, who should not have been a participant in such a meeting.52. First the Tribunal considered what happened at that meeting. Following, the Recruitment Officer role being advertised and recruited for without the appropriate approval, in the absence of the Respondent’s full knowledge, it appeared in the absence of the ordinary recruitment processes being followed and with the Claimant’s involvement, her son, Mr Sinclair was offered the role. On learning of this, following a review of applications and a request for shortlisted CVs, Mrs Khupe, quite rightly had concerns the best candidate may not have been appointed and the appropriate procedure may not have been followed. Following a discussion with Mr Khupe, it was agreed information needed to be obtained as to what had happened. At the daily coffee morning meeting on 2 November 2023, Mrs Khupe without notice sought to understand what had happened, seeking information from both the Claimant and Ms Rae. Whilst the Claimant maintained that the all procedures had been followed and safeguards put in place, Mrs Khupe remained concerned and suggested the offer was withdrawn. Following which the Claimant said “I wouldn’t do that”, became upset and subsequently left the meeting early.53. The allegation that the Respondent without proper inquiry, rushed into making allegations, was not determined to have occurred by the Tribunal. Rather the 2 November 2023 meeting was a fact finding exercise in which no allegations were made, which in the circumstances was an entirely appropriate course of action. The Respondent could have and would have been justified in taking a more serious approach and commencing a disciplinary investigation but it elected not to do so, rather seeking to understand what had happen and try and resolve the matter informally. Whilst some of the questions may have been difficult to answer, the Respondent was justified in asking them. Also prior to this meeting Mrs Khupe had indeed made enquiries by reviewing the applications received and requesting the CVs of shortlisted candidates for review. It therefore cannot have amounted to a breach of trust and confidence.54. The allegation that the Respondent within a day of Jake being offered the role rapidly concluded that the Claimant acted dishonestly and improperly. Again, this was not determined to have occurred by the Tribunal. Rather the 2 November 2023 meeting was a fact finding exercise, where no conclusions were reached, which in the circumstances as detailed above was an entirely appropriate course of action. It therefore cannot have amounted to a breach of trust and confidence. 55. The allegation that the allegations put to the Claimant were manifestly unreasonable, was not determined to have occurred by the Tribunal. As already referenced above, no allegations were put to the Claimant. Questions were asked of both Ms Rae and the Claimant and due to the potential procedural irregularities and the Claimant’s involvement in the recruitment of her son, that was entirely reasonable. It therefore cannot have amounted to a breach of trust and confidence.
Conclusions
[56]The allegation that the Respondent inappropriately put the allegations to the Claimant, was not determined to have occurred by the Tribunal. As already referenced above no allegations were put to the Claimant. Rather a fact finding exercise was undertaken whereby both the Claimant and Ms Rae were asked questions about the recruitment process undertaken in light of the well-founded concerns about the process. It therefore cannot have amounted to a breach of trust and confidence.[57]Regarding the allegation that the Claimant received no notice of the nature of the meeting and was taken aback when the allegations were presented. Whilst the Claimant did not receive any notice of the meeting and may have not expected the topic of discussion, it is important to note this was not a disciplinary investigation, no allegations were put to the Claimant and rather it was a fact finding meeting held informally, at the teams daily coffee catch up, for which no notice was ever given. In the circumstances described above, it was reasonable for the Respondent not to provide any prior notice of the matter to be discussed, albeit that of course may have been preferable to the Claimant. Not providing notice was not “calculated or likely to destroy or seriously damage the relationship of trust and confidence” between [the parties]” and it did not amount to a breach of trust and confidence.[58]The allegation that the approach taken by the Respondent was overly authoritative, employing terms like 'underhand' and 'improper' during the meeting, which undermined and belittled the Claimant, was not determined to have occurred by the Tribunal. Rather Mrs Khupe questioned if the procedure had been carried out properly, which is the circumstances was reasonable and justified. It therefore cannot have amounted to a breach of trust and confidence.[59]The allegation that the Respondent presumed guilt and demonstrated that they had lost faith in the Claimant, was not determined to have occurred by the Tribunal. It therefore cannot have amounted to a breach of trust and confidence.[60]Regarding, the allegation that the Respondent conducted the meeting in the presence of Dr Syedda and Ms Rae, who should not have been a participant in such a meeting, whilst the Tribunal found this indeed occurred and the discussion may have been a sensitive topic for the Claimant, due to the level she was operating at, it was not inappropriate for Ms Rae or Dr Syedda to be present. Ms Rae was directly involved in the matter being discussed and Dr Syedda was on the executive and involved in recruitment decisions. Whilst he meeting could have been conducted another way, perhaps on a 1-2-1 basis, holding the meeting in the presence of Ms Rae or Dr Syedda was not “calculated or likely to destroy or seriously damage the relationship of trust and confidence” between [the parties]” and it did not amount to a breach of trust and confidence.[61]The Claimant was therefore not dismissed and the complaint of constructive dismissal must fail.[62]Accordingly, the Claimant claim for wrongful dismissal must therefore also fail.