Ms L Panzini v International House Trust Ltd: 2201736/2020
EMPLOYMENT TRIBUNALS
Case No 2201736/2020
Between
Ms L PanziniClaimantInternational House Trust LtdRespondent
Before
Employment Judge HeathMr P. Dovey (instructed by Solicitor) for claimantMs J. Smeaton (instructed by Counsel) for respondentDate 14 May 2021
JUDGMENT
The Respondent was not constructively dismissed by the Respondent.
REASONS
[1]The claimant brings a claim of constructive unfair dismissal by an ET1 form presented on 25th of March 2020. The claimant had been employed in several roles with the respondent language school from the commencement of her employment on 1 June 1992 until the effective date of termination on 29th of November 2019.
Issues
[2]At the outset of the hearing, I put what I understood to be the issues of the case to the parties’ representatives, and they agreed with them. They are as follows: Was the claimant constructively dismissed?a. A. Did the claimant resign because of an act or omission (or series of acts or omissions) by the respondent?b. B. What are the acts and omissions relied on by the Claimant?c. C. If the claimant did so resign, did the respondent’s conduct amount to a fundamental breach of contract? The claimant relies on the implied duty of mutual trust and confidence. The Tribunal will therefore need to consider whether the respondent, without reasonable or proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties.d. D. Did the respondent’s failure to engage with issues the Claimant sought to raise at a meeting with Jason White in August 2019 amount to the “last straw” which contributed (however slightly) to the respondent’s breach?e. E. Did the claimant affirm any breach of contract? If there was a dismissal, was that dismissal unfair?f. F. The respondent has not advanced a potentially fair reason for the dismissal. Does the respondent therefore accept that, if the claimant is found to have been dismissed, the dismissal was unfair. [On this point Ms Smeaton indicated that she was not advancing a potentially fair reason for the dismissal].[3]There were other issues relating to remedy which I have not set out as they will not be applicable in this case given my findings on liability.[4]While considering the issues at the start of the hearing I indicated that it was difficult to discern exactly what acts and omissions were relied on by the claimant. Mr Dovey indicated that he hoped that production of the claimant’s witness statement would give more clarity. When the witness statement was provided at around 2:45 PM on the first day of the hearing this was not the case. Given the history of this matter, which I set out below, I took the view that I should proceed to hear the claim based on the above issues as I understood them.
Procedure
[5]The claimant’s ET1 and Grounds of Claim, as set out above, was presented on 25 March 2020. The respondents ET3 and Grounds of Resistance was filed on 30 September 2020. The Grounds of Resistance indicated at several points that there was a lack of particularity in a number of aspects of the claim. A telephone preliminary hearing was held on 6 January 2021 before Employment Judge Grewal who observed that there was indeed a lack of particularity in respect of a number of paragraphs in the claimant’s claim and made orders that the claimant to provide further particulars of those claims as requested in the Response.[6]Those Further and Better Particulars were served by the claimant on 27 January 2021. Unfortunately, those Further and Better Particulars fail in a number of respects to particularise the claimant’s case. For example, paragraph 3 a) refers to the repudiatory breach consisting of “the bullying behaviour on the part of senior management and unreasonable failure to manage the bullying conduct by that part of senior management with authority to prevent such continuation thus causing and/or contributing to, and/or aggravating the claimant’s distress and ill-health”. There was no attempt to particularise that bullying conduct (in terms of who, what, when), or the failure to manage it.[7]The respondent filed an amended Grounds of Resistance on 29 January 2021. In it, at numerous points, the respondent observed the lack of particularity within the Further and Better Particulars.[8]There were a few difficulties in terms of preparing this case for full merits hearing.a. Unfortunately, there was slippage in complying with case management orders due to no fault of the parties’ respective solicitors.b. The bundle was prepared by the respondent’s solicitor and exchanged on 26th of March 2021. On 7 April 2021 the parties’ solicitors agreed to delay the exchange of witness statements.c. On 9 April 2021 the claimant’s solicitor indicated in inter-partes correspondence that he had been made aware that bullying allegations had been made against one Mr Patton, the Respondent’s former Director of Sales and Marketing, and that a report into such allegations had been prepared. The claimant sought disclosure of this document.d. On 12 April 2021 the respondent disclosed that report. On 13 April 2021 the claimant’s solicitor asked various questions about the report, and the respondent solicitor replied later that day.e. On 15 April 2021 the claimant’s solicitor indicated that he would need to review his position given the “centrality” of bullying allegations against Mr Patton, and he sought disclosure of all documents relating to bullying complaints against Mr Patton, which he described as “manifestly relevant”. The respondent disclosed some further documents on a piecemeal basis in 10 or so emails. On 20 April 2021 the respondent indicated that there were no further documents to disclose on this issue.f. On 21 April 2021, the claimant’s solicitor suggested holding off from exchanging witness statements. The respondent’s solicitors, however, provided to the claimant’s solicitor witness statements from Mr White and from Ms Dean on behalf of the respondent.g. On 22 of April 2021 the claimant’s solicitor made an application, supported by a witness statement, for various case management orders including an application for specific disclosure of documents relating to Mr Patton, a postponement of the full merits hearing and other case management orders.h. On 26 April 2021 the tribunal wrote to the parties to say that there was not time to list a preliminary hearing, and that such matters should be raised with the judge hearing the full merits hearing.[9]At the outset of the full merits hearing Mr Dovey initially pursued his applications. However, on being told that the hearing would only be relisted sometime after November 2021 if it were postponed, he took instructions and did not pursue the application to postpone. It was agreed that the claimant would provide her witness statement during the course of the day, that Mr Dovey would continue to make further preparations for trial, which included serving a witness statement from an unnamed witness, and that the tribunal would use the time to read witness statements, documents referred to in those statements and any further documents the parties chose to highlight. It was agreed that, given the difficulties encountered so far in preparing for the full hearing, that a “catch-up” would be listed in the CVP room at 3:30 PM for me and the legal representatives so that any further case management issues which may have arisen during the course of the day could be dealt with then rather than the following morning.[10]The claimant’s witness statement, together with a number of documents, (most of which were already in the bundle or supplementary bundle) was provided to the tribunal and to the respondent at 2:46 PM. At the scheduled catch-up Ms Smeaton raised some “housekeeping” points about documents, expressed concern about references to discrimination in the claimant’s witness statement and schedule of loss, expressed concern that acts and omissions relied on by claimant were still not set out with sufficient particularity and wished to know when we could expect to receive the promised further witness statement and the identity of the witness.[11]The tribunal shared Ms Smeaton’s concerns. It was now clear that the tribunal and Ms Smeaton would simply have to “tease out” (to use Mr Dovey’s phrase) the acts and omissions from the pleadings and evidence as it stood.[12]Mr Dovey declined to identify the name of the witness he proposed calling. I warned Mr Dovey that the respondent needed time to prepare any cross examination of this witness, and that failure to provide the identity of the witness might make it easier for the respondent to argue at a later stage that his or her evidence should be excluded.[13]There was a further issue between the parties when Ms Smeaton indicated that she no longer proposed calling Ms Dean, one of the witnesses who statements had been provided to the claimant and to the tribunal, as she was unavailable.[14]On the morning of 29 April 2021, day two of the hearing, a witness statement from a Mr Van Oijen was provided to the claimant. Mr Dovey sent this to my email address, but for some reason I did not receive it. I took a short amount of time to read the witness statement and then heard the parties on whether the statement should be admitted and Mr Van Oijen be allowed to give oral evidence.[15]I did not allow Mr Van Oijen’s evidence to be admitted for reasons given in an oral case management decision given on the morning of 29th of April 2021. In short the witness statement had been provided too late after a warning that failure to identify a witness could cause difficulty for the respondent; that the balance of prejudice in admitting such a statement favoured the respondent (in that the content of the evidence was at best “similar fact evidence”, as Mr Dovey put it, which could be explored in other avenues such as cross examination of Mr White and certain documentary evidence within the bundles, and the respondent was in difficulty in preparing to address the evidence in Mr Van Oijen’s witness statement given its late production).[16]The tribunal was provided with a 341 page main bundle (pages in this will be referred to simply as numbers in [square brackets], a 52 page supplementary bundle (pages will be referred to as [SBnumber]) and certain itemised documents from the claimant. The claimant gave evidence on her own behalf after having provided a witness statement as stated above and Mr Jason White provided a witness statement and gave oral evidence. The witness statement of Ms Angela Dean was submitted, but she was not called to give evidence as, I was told, she was unavailable.
Facts
[17]The respondent operates a language school in central London. The claimant began employment with the respondent as an Italian language teacher on 1 June 1992. Over the years she had several promotions, and on 8 May 2018 she was made Head of Professional Language Centre.[18]In 2018 the respondent proposed merging the Executive Centre and Modern Languages Teams. On 16 April 2018 the claimant was notified by letter that her then role was at risk of redundancy and she was invited to a redundancy consultation meeting. She had been in discussion with the respondent about potentially applying for the role of Head of International Professional Language Centre created by the restructure. The claimant was interviewed for this role and was successful. On 8 May 2018 changes to her terms and conditions of employment were set out by email from Ms Capobianco, a human resources professional [187]. These changes were that her job title changed to Head of Professional Language centre and her salary was increased to £50,000 per annum. She was told that her new role would include a 3 month probationary period. All other terms of her employment contract remained the same, including an express term as to hours of work, which were 35 hours, Monday to Friday (see [76]).[19]That same day the claimant responded to Ms Capobianco’s email “Thank you so much for offering me this opportunity which I am delighted to accept. I left the signed letter on your desk. Looking forward to new challenges!”[20]The claimant was both relieved not to have lost her employment and excited by the new challenges of undertaking this role. This role involved more responsibility than her last role and she received a pay increase of around £3,500. She was heading two merged teams, one of which she had headed before (the Modern Languages Team), and her workload would have increased, but not doubled, as the executive team had been a smaller team.[21]The claimant’s line manager was initially Elizabeth Maly. The claimant was operating in a relatively senior role and enjoyed a fair degree of autonomy in her work. Nonetheless, she had regular catch ups with her line manager before Ms Maly went on maternity leave in around September 2018. The claimant was subject to a three-month probationary period and was expecting some sort of review at the end of this. There was no such review and she simply remained in post.[22]On 3 September 2018 Mr Jason White became Director of Education as Ms Maly’s maternity cover, and so became the claimant’s line manager. Mr White managed the claimant and three other heads of department. Mr White was a member of the Senior Management Team (“SMT”) along with the CEO and around five to six other senior colleagues responsible for different areas of the business. At the time of Mr White’s arrival Mr Lowe was the acting CEO, but Mr Rendell was appointed permanent CEO in January 2019. Mr White reported directly to the CEO.[23]For a short period after Mr White’s appointment the claimant did not have catch ups with the same regularity as she had with Ms Maly, but when Mr White settled into post, he and the claimant had regular catch up meetings which were not minuted. The claimant would create an informal agenda for these meetings (see [195-198]) in which she would set out the issues to be discussed, including challenges she or the organisation faced [197]. The claimant and Mr White enjoyed a reasonable professional relationship.[24]By way of background, the respondent, which has charity status, operated at huge losses between 2015 and 2017. In 2018 it turned a small surplus of £18,000 and in 2019 it would have turned a surplus of £160,000 had it not been for some financial write-offs. As an organisation the respondent had been forced to change into a more business led organisation. Within educational institutions, such as the respondent, there can be a tension (hopefully a healthy one) between the academic staff and the more business focused parts of the organisation. Academics, of which the claimant is one, are often, understandably, focused on delivering a firstclass academic offer for the students, whereas the business side of the organisation can often be more financially driven.[25]One challenge the claimant faced was the growth of student intake which affected her team. Over the course of 2018 and 2019 the number of modern languages students more or less doubled. On the other hand, the Executive Centre had suffered a reduction and (for reasons unrelated to the claimant’s efforts) had a decreasing turnover by around £200,000 in 2019.[26]The respondent’s Sales and Marketing Team was headed by its director Mr Patton who was appointed early in 2018. The way Mr Patton and other members of his team operated created some conflict within the respondent organisation. Unknown to the claimant, Mr Dignum, Head of Service Quality between May 2015 and June 2018, was having difficulties with Mr Patton. He set these out in his exit interview [SB 3-6] and they included his being quick to criticise Mr Dignum and his team for perceived poor service with little evidence provided, constant emails saying customers were being let down by Mr Dignum’s team, saying that there had been numerous external complaints with no evidence provided, being critical of long-standing arrangements and changing them with no notice, and other matters.[27]This criticism led to an external human resource professional, Ms Creese (who had once been an employee of the respondent), carrying out an investigation. Ms Creese examined some emails and Mr Dignum’s exit interview but did not talk to Mr Patton or get his side of the story. Ms Creese prepared a report [337 – 338] which summarised issues raised in the emails and exit interview and observed “Behaviour outlined in some of the documentation provided does look like classic bullying behaviour and the tone of some of the emails from GP [i.e. Mr Patton] is surprising and not appropriate to be sending to the CEO and especially not copying others into. Coming straight after another member of staff claiming bullying this does look an issue that has a pattern and needs to be looked into formally and dealt with quickly. GP does of course need to give his side of events”. The claimant was unaware of this investigation and report.[28]Professional relationships between Mr Patton and several others in the SMT were strained, to put it neutrally, and they did not find working with him always easy. Mr Lowe, who was acting CEO until Mr Rendell’s appointment in January 2019, had problems with Mr Patton’s communication style, particularly in relation to emails sent by the latter which could appear undermining of Mr Lowe’s authority. In turn Mr Patton had legitimate issues with Mr Lowe. This led to a mediation process being initiated between the two men some time in 2018. Other senior managers such as Tim Martin (an interim director) and Chris Van Oijen had difficulty working with Mr Patton.[29]The claimant herself had difficulties with Mr Patton and his team. The claimant and her team received regular emails complaining about delays in servicing issues which were copied to numerous other people. The claimant or her team would be accused of errors which were not detailed or evidenced. The Sales and Marketing team was very demanding and expected swift responses and it set targets which the Claimant felt were impossible to achieve. The only example of emails from the sales team appears at [SB 45 – 48] which I will deal with later.[30]On 1 December 2018 the claimant received a salary increase [206].[31]On 7 February 2019 the claimant had a catch up with Mr White [198].[32]On 27 February 2019 Mr Patton had a conversation with the claimant in which she understood him to be saying that he would “build a case against her” but not to take it personally. The claimant provided no context to this but I accept that she perceived it as some sort of threat to discredit her professionally in some way. The claimant told Mr White of this conversation at her catch up with him the following day and Mr White took up the issue with Mr Patton, who denied making such a threat. Mr White came back to the claimant with this information, the claimant did not want to take the matter any further and it was not mentioned again by the claimant to Mr White until after her resignation.[33]The respondent has both a harassment [275-276] and a grievance procedure [277-278], and at no time did the claimant raise any issues under either of these policies against Mr Patton or anyone else in relation to any of the claims she makes before this tribunal. The claimant’s evidence was that her perception was that if you complained against senior managers you were “committing career suicide”. She cited examples of Maureen McGarvey and Paul Kwatersky as being staff members who spoke out against senior management and were subsequently dismissed. The claimant’s evidence in this regard was unspecific. I accept Mr White’s evidence that Ms McGarvey was made redundant for business reasons (which he went into in considerable detail) and offered alternative employment which she declined, and that Mr Kwatersky was dismissed for capability reasons. Neither of these terminations were related to real or perceived criticism of senior management. However, I accept the claimant was genuine in her belief that complaining about a senior manager was not an easy thing to do which might carry risks.[34]In or around March 2019 the respondent opened a new Executive Centre. This was a project that the claimant was enthusiastic about and which had been introduced as there had been a downturn in business. The claimant had a meeting with Mr White on 28th of March 2019 to discuss the new centre and was enthusiastic and did not indicate that she was having difficulties at work.[35]During her early 2019 demand for modern languages and executive services had increased substantially. The claimant was working with approximately 130 teachers and the offer, in terms of the number of languages taught, had increased. The claimant was also concerned about the marketing strategy being undertaken by the Sales and Marketing Team. The claimant was finding it increasingly difficult to manage service delivery. On 8 May 2019 the claimant emailed Mr White suggesting that they get together with the sales and marketing team to look at some of these difficulties and agree on solutions [215].[36]At some point during this period the claimant told Mr White that she was working long hours. She told him that the arrangement with her previous line manager had been that she would work longer hours during the busy periods, but would take hours or days off in lieu during less busy times. Mr White told the claimant that she was not entitled to time off in lieu.[37]Mr White himself voluntarily worked well over his contracted hours. The claimant had high professional standards and took pride in high quality of her work. She was not told, in terms, how many hours she had to work, but she regularly worked long hours in order to deliver work to the high standards she set herself. The claimant, as the head of department, would have been responsible for her department in terms of planning time and putting in holiday and office cover plans, and that if she needed to adapt her times then this was something she could do. I find that the claimant would have been likely to be putting in 50 to 60 hours in some of her busier weeks. In her own evidence she acknowledged that there were times when things were not so busy, and I find that she would not have been working these sorts of hours except at the busiest times.[38]Other than the conversation with Mr White about taking time off in lieu there is no evidence that the claimant made further complaints about her working hours.[39]In or around June 2019 a second administration position was added to the Modern Languages Team [256].[40]In early August 2019 Mr White and the claimant had a conversation in which the claimant outlined the fact that student numbers had increased on the evening modern languages courses and that there were a number of associated difficulties. On 15 August 2019 at 2:24pm Mr White emailed the claimant as follows [41-42]:- Hi Lara, FYI – I spoke with Mark today re the ML situation and that there is a need for us to have some clear boundaries and that we need to be able to make decisions based on profit etc as well. We will have a mtg first week of Sept. I’ll send an invitation later today. Have a think of items you would like on the agenda – we can then discuss this when I am back. I will then circulate an agenda for everybody before we meet. Thanks Jason[41]That evening at 8.35pm Mr White sent the calendar invitation for 5 September 2019 to the claimant and a number of the Sales and Marketing team and the CEO Mr Rendell [43-44]. The invitation read as follows: Dear All, We would like to have a ML review meeting on Thursday 5th Sept, focussing only on the ML evening / open courses. As we all know, the number of students has grown a lot, so we need to ensure we have the correct processes and number of staff in place to ensure effective delivery. I will circulate an agenda when I am back from holiday but wanted to make sure we block out this time. Best wishes Jason[42]ML stands for Modern Languages, and the “ML situation” that Mr White referred to in his email to the claimant covered the issues with student numbers, correct processes and staff numbers in “ML evening / open courses” that he referred to in the invitation later that day. Mr White went on annual leave on 16 August 2019. He had not attached an agenda to his invitation to the 5 September meeting as he was expecting the claimant to think about what she wanted to include on the agenda and for them to discuss this on his return from leave. The indication in the invitation about the scope of the meeting did not represent a narrowing of the issues that the claimant had raised with Mr White, and there was no further attempt by Mr White, or anyone else, to narrow the scope of discussions.[43]On 28th August 2019 a Mr Jackson, from the Sales and Marketing team, emailed Mr White and the claimant cc’ing Mr Patton and another member of the Sales and Marketing Team, complaining that the claimant’s team were not adequately prioritising sales leads. This chain is at [SB 45-48]. He suggested that an admin member of the team had not done her job properly. The claimant replied to this email in measured terms admirably coming to the defence of a newly appointed administrator with a heavy workload. She suggested that a constructive solution to problems outlined could be reached at the next meeting. She was referring to the diarised meeting on 5 September 2019. Mr Patton responded to this email as follows: - “Hi Lara A constructive solution is what we are all looking for? The pressures on the ML resources (both academic and sales/marketing) are well publicised and have been the same for quite a long time. We are all under different pressures – sales, being to hit an aggressive growth for ML of 40% in 2019. Which we are working hard to achieve. Fingers crossed that we make it. Allowing us to grow the department and expand the offering. We have all invested time in helping Mina feel welcome, understand SW/SF and recognise why a speedy response to enquiries is important. It would be great if you could help her to prioritise her work load accordingly and manage the leads on a hourly/daily basis. How you do that is up to you. As before we are here to help if the volume becomes unmanageable. Currently, we have a 24 hour turnaround promise on leads which hasn’t and isn’t being met. Personally I think in a world that expects increasingly quick turnaround and excellent customer service a 24 hours is too long – it should be more like 4 hours. Looking forward to our discussion re ML next week and I really appreciate your help in ensuring Mina keeps onto of the ML enquiries in the meantime. Many thanks”[44]On 29 August 2019 the claimant incorporated the company Impact Services International Ltd at Companies House. This company provided languages services.[45]On 1 September 2019, the Sunday of an August bank holiday weekend, the claimant emailed her resignation to Ms Capobianco in human resources and CCed to Mr White and Mr Rendell. It read as follows:- “Please accept this email message as notification that I am leaving my position with International House London. My last day will be 30th November 2019. I would be grateful if you could confirm what my accrued personal leave and my final salary will be. lf l can be of assistance during the transition period, please let me know”.[46]On 2 September 2019 (notes written up at [238]) the claimant had a meeting with Mr White (on his first day back from annual leave) to discuss her resignation. The claimant explained that she was leaving because she felt exhausted and that the current setup was not sustainable. Mr White told the claimant that the respondent was looking into restructuring the department as it had grown. The claimant also told Mr White that she had been put under unfair pressure by the sales and marketing team, and she felt she had no control over her department. She also mentioned again that Mr Patton had said that he was building a case against her. The claimant also said that she felt she was not adequately supported at work. Mr White said that he was very sorry that the claimant had resigned and asked her to reconsider her position after so many years service. The claimant told Mr White that she would be “open to offers depending on what they were”. Mr White asked the claimant not to tell other staff about her resignation, so that the respondent could look into other possibilities.[47]On 5 September 2019 the claimant had a meeting with Mr White and Mr Rendell [239]. The claimant was visibly tired and emotionally drained at this meeting, and indicated that her family was concerned about her health. The claimant outlined her reasons for resigning, explaining she was exhausted and fed up with the continual pressure she and her department were placed under by the Sales and Marketing team. She repeated her complaint that Mr Patton said he was building a case against her, and said she felt undermined in her role and not adequately supported. She said she did not want to take any of these matters forward or lodge any grievance. She had no suggestions for how the situation could be resolved and gave no indication that she would reconsider her resignation.[48]On 6 September 2019 the claimant was signed off work with an “acute stress reaction”. She returned to work on 1 October 2019 on a reduced workload. The claimant’s last day at work was 30 November 2019.[49]After the claimant left the respondents employment the respondent restructured the area in which the claimant had worked, demerging the modern languages team and the executive team.
The law
[50]Under section 95(1) Employment Rights Act 1996, an employee is considered to have been dismissed in circumstances where “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”. This is commonly known as constructive dismissal.[51]In order for there to have been a constructive dismissal there must have been:-• a repudiatory or fundamental breach of the contract of employment by the employer;• a termination of the contract by the employee because of that breach; and• the employee must not of affirmed the contract after the breach, for example by delaying their resignation.[52]In Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, CA, it was said “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, 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”.[53]An employee can rely on breach of an express or implied term of the contract of employment. In cases of alleged breach of the implied term of trust and confidence the test is set out in the case of Malik v Bank of Credit and Commerce International Ltd [1998] AC 20; namely, has the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. The test of whether there has been such a breach is an objective one (see Leeds Dental Team Ltd v Rose [2014] IRLR 8).[54]It is open to an employee to rely on a series of events which individually do not amount to a repudiation of contract, but when taken cumulatively are considered repudiatory. In these sorts of cases the “last straw” in this sequence of events must add something, however minor, to the sequence (London Borough of Waltham Forest v Omilaju [2005] ICR 481).[55]On the question of waiving the breach, the Western Excavating case makes clear that the employee “must make up his mind soon after the conduct of which he complains; if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will regarded as having elected to affirm the contract”.
Conclusions
[56]As indicated earlier, there was some difficulty in gaining clarity as to what acts and omissions the claimant was relying on as forming the sequence of events which cumulatively amounted to a breach of the implied term of trust and confidence. Ms Smeaton, in her written closing submissions organised the allegations under four heads. Although the claimant had not used these headings herself, it appeared to me that this was a useful way of grouping the allegations made by the claimant, and I adopt Ms Smeaton’s headings. I will, however, “stand back” from these headings and consider the allegations as a whole, to assess whether cumulatively they amount to a breach of the implied term of trust and confidence. Arbitrary reorganisation of C’s work without meaningful consultation or her consent[57]The claimant’s case in her Further and Better Particulars at paragraph 7a), was that the respondent undertook an arbitrary reorganisation that led to the creation of her post from two separate posts. She said she received no notice of redundancy from the respondent and no payments relating to termination by reason of redundancy. She claimed she received no new contract and was instead sent an email noting notifying her of “the unilateral change to her existing contractual terms and conditions and referring to what proved to be entirely artificial three months probationary period that it was said to expire in July 2018”. She claims that she received no supervision or guidance during the probation period.[58]This characterisation of the circumstances in which the claimant was appointed into the post she occupied prior to her resignation is not accurate. The claimant received notice that her role was at risk of redundancy [145], she applied for a new role within the redundancy exercise, was successful in securing a role which she accepted with apparent excitement. She was provided with written notice of the changes to the terms and conditions of contract, and she signed her acceptance of these terms.[59]The claimant’s first few months in her new role was under Ms Maly’s line management, and the claimant said in evidence she had catch up meetings with her which were helpful. The end of the claimant’s three month probation period in post would have been shortly before Mr White took over line management responsibility. There may well have been a short period in which catch up meetings were less frequent, but this was soon remedied. Additionally, the claimant operated at a relatively senior level and would not have needed (nor probably welcomed) micromanagement from her managers. It is likely that no formal review probationary period, or formal confirmation in post took place, but the claimant simply continued to do the job that she had been appointed to. Furthermore, she made no complaint about this at the time. In the circumstances it is difficult to see what if anything about this allegation could amount to or contribute to a repudiatory breach of contract. Bullying by Mr Patton/ culture of workplace bullying[60]In paragraph 3 of her Further and Better Particulars the claimant alleges, but does not particularise, “bullying behaviour on the part of senior management and unreasonable failure to manage the bullying conduct by that part of senior management with authority to prevent such continuation”. She further asserts that the respondents were put on notice of bullying behaviour at the time of her resignation, and that they gave no indication that it would not continue. This is described as being an anticipatory breach of her employment contract.[61]In terms of the background, or culture, it has been obvious that Mr Patton was seen as difficult to work with by a number of his colleagues, as I have set out in my findings above.[62]It is important to note that the claimant was entirely unaware of the problems between Mr Patton and other members of the SMT. My focus, in considering whether there has been a repudiatory breach of the claimant’s contract of employment which she resigned in response to, is on the claimant. Evidence of Mr Patton’s work relationships with other colleagues is, of course, potentially supportive of the claimant’s claims as to how she herself was treated.[63]I do not consider that it is strictly necessary for me to make a finding about whether there was a bullying culture at senior management level and the respondent organization. However, I find that there was not such a culture, not least because the claimant herself says she was entirely unaware of any issues at senior management level. She relies on allegations of bullying against Mr Patton himself, and does not herself give direct evidence suggestive a wider culture. It seems abundantly clear that a number of people found Mr Patton difficult to work with, largely, it seems, because of his communication style. This does not equate to a culture of bullying.[64]The claimant claims to have been bullied herself face major difficulties, namely lack of particularity and lack of evidence.[65]It is often the case that workers find it difficult to complain about being badly treated by others within the organisation. There can be many reasons for this, including the one put forward by the claimant, namely that complaining is perceived as career suicide. However, the claimant pitches her case high. For example, in paragraph 8 of her witness statement she refers to the fact that her “professional self-confidence and good standing within the organisation had been continuously and systematically undermined by(a) by the head of sales and marketing and(b) consistent and continued failures by senior management to deal with this”. At paragraph 18 she refers to the “constant bullying from Sales and Marketing”. At paragraph 24 of her witness statement she also refers to a “toxic workplace environment over the years”.[66]Such a state of affairs is bound to leave some sort of an evidential trace. In this case there is practically no contemporaneous documentary evidence of what the claimant is alleging. There is absolutely no evidence whatsoever of any contemporaneous written complaint. There is evidence, which the respondent accepts, of an oral complaint being made about Mr Patton “building a case” against the claimant, but that is the only specific example given of alleged bullying behaviour, or complaints being made about it.[67]The allegation made against Mr Patton that he was “building a case against her” is an odd one. As Mr White said in evidence, if Mr Patton were doing this it seems strange that he would tell the claimant about it. Nonetheless, as indicated in my findings I accept that Mr Patton said something to the claimant which made her perceive that he was seeking somehow to discredit her professionally. Quite what words he used, and the context in which they were used, is not easy for me to determine. However, when the claimant brought this to Mr White’s attention he took up the issue with Mr Patton. Mr Patton denied the comment was made and so Mr White took this information back claimant. The claimant did not want to take the matter any further and so Mr White respected her wish. It is difficult, in the circumstances, to know quite what more Mr White could have done about this allegation given that the claimant did not want to pursue it.[68]In terms of the documentary evidence of alleged bullying, the only document put forward by the claimant was the email exchange of 28 August 2019 [SB 45-48]. No doubt it was difficult for the claimant to see criticisms of the new administrator being articulated by Mr Jackson to 4 email recipients, and to her credit the claimant comes to the administrator’s defence. The question mark in Mr Patton’s “A constructive solution is what we are all looking for?” could hint at sarcasm, but it is difficult to certain about this. The rest of this email (which I have set out in full in my findings above) simply addresses work issues in a neutral manner. Again, it might have been alarming for the claimant to see Mr Patton suggesting a four-hour turnaround on sales leads as opposed to a 24-hour period, but none of this email, shorn as it is of any context, is suggestive of bullying.[69]In the circumstance it is difficult to see anything in the evidence put forward by the claimant on the issues of bullying to suggest that the respondent was conducting itself in a manner that was either calculated or likely to destroy or damage the relationship of trust and confidence between it and the claimant. Unreasonable failure to manage the bullying/failure to institute proper grievance procedures or otherwise act on the serious allegation of bullying/failure to keep proper records of complaints[70]As stated in the previous section, at paragraph 3 of her Further and Better Particulars the claimant alleges a failure of the respondent to manage the bullying conduct. She further says, at paragraph 6 of her Further and Better Particulars, that the respondent failed to “institute proper grievance procedures or otherwise act on the serious allegation of bullying”.[71]I have touched upon this issue above in respect of the “building a case” allegations, pointing out that there is hardly any evidence of contemporaneous complaint from the claimant.[72]In evidence the claimant told the tribunal that to make complaints would be “career suicide”. In her witness statement at paragraph 24 the claimant also seeks to explain why she did not make complaints. It is not entirely easy to understand her reasoning. She says that she adopted to key defensive strategies. “Firstly, I would not complain about the sort of behaviour that was also exhibited by those whose job it was to deal with any complaint. To do so would have been to have to take on the cause of the complaint and at the same time the system that gave rise to the conduct complained of and frankly life is too short. Secondly, I know that I’m very good at my job and by adopting a totally professional approach at all times over the years I knew that no casual criticism could ever stick.” The claimant made the point that in her view this approach was a particularly female coping mechanism in response to a discriminatory environment. She goes on to say “in any event from a professional point of view I believe that if I describe conduct to a line manager which objectively puts me into a position of being a victim of bullying, a competent manager dealing fairly in an un-discriminating way should reasonably be expected to take up the issue on his own account in order to help detoxify the workplace”.[73]As I have set out in my findings, Mr White gave cogent evidence that Ms McGarvey and Mr Kwaterski were not dismissed in response to their speaking out against management as the claimant asserted. While I accept that making complaints against colleagues, especially senior colleagues, is very rarely easy for a worker, I do not find that the respondent organisation was a particularly difficult environment in which to make complaints. It is accepted by the claimant that she made no formal grievances to any of the matters about which she now complains. The evidence in her witness statement appears to place more of an onus on Mr White to have escalated concerns which she says she raised in her catch-ups with him.[74]There is no evidence of the claimant raising these issues in her catch-ups, despite the fact that her written preparation for her catch ups do at times indicate the challenges that she was facing (see [197]). There are no follow-up emails either to Mr White, or, following any alleged inaction by him, to peers, other colleagues or to more senior management or Human Resources. It must also be borne in mind that the claimant was a relatively senior employee of some 27 years standing who, on the evidence of Mr White, which I accept, had a reasonable relationship with human resources. In contrast, Mr White was an interim director covering Ms Maly’s maternity. That is not to say that there were not power imbalances operating here, but the claimant certainly was not without avenues to forward complaints about a state of affairs which she says was systematic, constant and being overlooked by her line manager.[75]An employer can only be criticised for unreasonably failing to manage a state of affairs if it knows, or ought reasonably to know, of that state of affairs (Ms Smeaton cited Sweetin v Coral Racing [2006] IRLR 252 in support of this). In terms of bullying, the only evidence I have received about how the respondent reacted to complaints relates to the allegation of “building a case” which I have dealt with above, observing that it is difficult to see what more Mr White could have done in the circumstances.[76]The respondent does not here appear to be acting in a manner calculated or likely to destroy or seriously damaged trust and confidence, either as a stand-alone issue or in contribution with other matters. Excessive workload[77]The claimant claims at paragraph 11 of her further and better particulars that the respondent imposed an excessive workload on her.[78]It was not clear to me (or to the respondent) until Mr Dovey’s closing submissions that the claimant puts her case on the basis of this aspect of the claim being both part of the breach of the implied term relating to trust and confidence, and a breach of an express term of the claimant’s contract, namely the term that her hours of work were 35 hours per week. I considered that it was likely to make little difference, though I observed that it was still for the claimant to prove not only that the respondent had breached this term, but that had been a repudiatory breach. Ms Smeaton added that it would also be necessary to focus on whether the claimant resigned in response to this specific breach if the case was now being put this way.[79]The claimant’s appointment to the role of Head of Professional Language Centre in May 2018 represented a promotion which carried an increase in salary. The overwhelming impression I gained of the claimant was that she was a committed and able worker with high professional standards. She was clear in her evidence that she wanted to perform the role to the best of her ability and provide a high-quality service to the respondent’s students.[80]Over the course of 2018 and 2019 there was an ebbing and flowing of the number of modern languages students who enrolled on courses with the respondent, as set out in paragraph 13 of the claimant’s witness statement. However, at the point when the claimant resigned on 1 September 2019 the respondent was expecting its biggest ever intake, 825 students, which was around double the number of students on the previous September’s intake.[81]I do not accept that double the number of modern languages students equates to double the amount of work for the claimant. More students can be accommodated in larger classrooms, and they do not require double the number of teachers. Additionally, the executive team’s work was diminishing. On the evidence put before me it was difficult to be certain of the extent of additional work for the claimant due to the increase in numbers of modern languages students, but I accept that her workload increased substantially.[82]The claimant, in her catch ups with Mr White, was in continual dialogue with him about how her department was operating. I consider that the claimant told Mr White on one occasion that she worked long hours and that she used to have an arrangement where she would take time off in lieu during less busy times to compensate for hours she worked during busy times. Mr White did not allow the claimant to take time off in lieu, and my impression of the evidence I heard was that there was something of a misunderstanding here. I also find that this was the only time that the claimant specifically mentioned that she was working long hours. Again, as with the allegations of bullying, this is another allegation that simply does not leave a trace. It does not feature in the claimant’s notes of catchup meetings and there is no evidence of any contemporaneous complaint by email or any other means.[83]The modern languages part of the respondent’s business expanded over the course of 2019, but the respondent was reactive to the strain that this put the claimant under (although not to the extent she would have hoped for). In the summer of 2019, a further administrator was appointed, and some of the functions formally undertaken by the claimant’s team began to be undertaken by the Sales and Marketing team.[84]The claimant and Mr White had a conversation in early August about the growing number of modern languages students on evening/open courses, and the need to ensure staffing levels were there to ensure the work was delivered effectively. This led to Mr White emailing the claimant at 2:24 PM on 15 August 2019 (see above paragraph 39). It is clear from this email that Mr White is receptive to hearing about the difficulties the claimant faced, sought her input as to how they could be addressed and was looking to bring in other people within the organisation to take the issue forward. This was what Mr White was attempting to achieve when he sent out the invitation to 5 September 2019 meeting.[85]I have no doubt that the claimant worked hard and worked long hours. I do not, however, accept that she was overwhelmed with work and starved of support, which is the narrative she seeks to present. At the time the claimant resigned the respondent, through Mr White, were seeking to progress operational concerns the claimant had raised.[86]I consider that the hours worked in excess of the contracted 35 hours by the claimant do not amount to repudiatory breach of an express term of the contract of employment. It must be borne in mind that it must be shown that the employer has shown that it no longer intends to be bound by an intrinsic term of the contract of employment. It is difficult to see how this can be shown in circumstances where the claimant appears only to have raised the issue of working long hours on one occasion. That the claimant continued to work long hours is more to do with the high standards she sets herself than the respondent’s refusal to be bound by the terms of the contract. If I am wrong on this issue, the claimant has not shown she resigned in response to this breach. She resigned, on her case, in response to the last straw (see below).[87]I consider that although the claimant worked long hours, these were not imposed on her, and it is highly likely that had she raised these concerns at the time, and had she not resigned the respondent would have worked towards addressing the issues she was facing. In the circumstances I consider that there is no evidence to suggest that this was part of the respondent conducting itself in a manner calculated or likely to destroy or seriously damage trust and confidence. The last straw[88]There is some confusion about the way in which the claimant has presented her case on the last straw. In paragraph 14 of her Further and Better Particulars she states as follows: “The meeting which constituted the ’last straw’ and which precipitated the Claimant’s resignation in circumstances giving rise to a 'constructive dismissal' claim had been arranged with Jason White, Director of Education during the month of August 2019. As with other meetings held since April 2019 the issues to be discussed were virtually identical; no solution having being found by senior management in the interim: After the Claimant insisted that the latest management ”plan” was simply undeliverable with the resources available and constant bullying from Sales and Marketing Jason White agreed to organise a joint meeting between himself, the Claimant and the Senior Sales and Marketing Manager to discuss these points. The meeting's Agenda was then deliberately later changed into a further ’restructuring meeting’ with no agenda being shared which identified the Claimant's complaint. The Respondent‘s action and in action deliberately and / or knowingly belittled the Claimant’s professional status, deliberately avoiding any engagement with the Claimant’s grievance and thereby providing a de facto 'licence’ to the senior management personnel concerned to continue with the bullying. Grounds 14 (a) The Claimant asserts that the 'last straw’ event is (i) a standalone breach of the implied term of trust and confidence, (ii) indicative of future anticipated breaches in the form of intolerable conduct bullying and is (iii) a factor in the ongoing course of repudiatory breach conduct as elaborated elsewhere in these Particulars.”[89]The claimant said in oral evidence that an agenda had been supplied for the meeting and that Mr White had changed the agenda, and that she heard from other people that there was going to be a restructure. She said that in her calendar agenda items have been removed and people were asking for a new agenda.[90]This account does not fit in with the documentary evidence within the supplementary bundle at [SB 41-44]. It is clear from this correspondence that Mr White first emailed the claimant on 15 August 2019 suggesting a meeting in September and saying “Have a think of items you would like on the agenda – we can then discuss this when I am back. I will then circulate an agenda for everybody before we meet”. In his invitation to 5 September meeting he says “I will circulate an agenda when I am back from holiday but wanted to make sure we block out this time”.[91]The claimant resigned while Mr White was on holiday. He did not change the agenda and he did not indicate that he would narrow down the issues up for discussion. I accept Mr White’s evidence that saying that the meeting would be “focusing only on the ML evening/open courses” was maintaining focus on the issues the claimant had raised with him. It was the evening /open courses which had seen the large increase in student numbers and other logistical difficulties.[92]In the circumstances the claim as pleaded by the claimant is at odds with the evidence which she presented, which in turn are at odds with the contemporaneous documentation.[93]In the circumstances I consider that the claimant has not shown that the last straw added anything of substance to the series of events that preceded it.[94]For completeness, the claimant’s Further and Better Particulars allege that the respondent was in anticipatory breach of contract in that it gave no indication that issues relating to bullying and excessive workload would improve. It was not entirely clear whether this was a case that the claimant was running at the hearing, but again, this is not supported by the evidence. Prior to going on holiday Mr White proposed a meeting on 5 September 2019 to address work concerns raised by the claimant, and she resigned while he was still on holiday. In short, it was right that prior to the claimant’s resignation the respondent gave no indication that bullying and workload issue would improve. But the reason for this is that no complaints had been made in that regard. The cumulative series of events as a whole[95]Under each particular head above I have set out that individually I have seen nothing to persuade me that the respondent was acting in a manner calculated or likely to destroy the relationship of mutual trust and confidence between the parties. However, in last straw cases it is the cumulative series of events taken together as a whole which is to be assessed in order to decide whether the employer is in repudiatory breach of the implied term of trust and confidence. Looking at the whole picture I do not consider that the respondent has conducted itself in a manner calculated or likely to destroy or seriously damage trust and confidence.[96]There is no legal obligation for an employee to put in grievances or make complaints, but in a case where a worker alleges systematic bullying and sustained overwork, it will be difficult to establish that an employer has demonstrated that it refuses to be bound by the contract when these issues have not been brought to its attention.[97]A further difficulty with the claimant’s case is that I have found that her last straw did not add anything of significance.[98]In all the circumstances I find the claimant was not constructively dismissed by the respondent.