Ms S Rudd v Great Bowery (UK) Ltd: 2204586/2020 and 2206759/2020
EMPLOYMENT TRIBUNALS
Case No 2204586/2020, 2206759/2020
Between
Ms S RuddClaimantGreat Bowery (UK) LtdRespondent
Before
Employment Judge NicolleDate 3 August 2021
JUDGMENT
[1]The claim for detriments on grounds of making alleged protected disclosure(s) is struck out Under Rule 37 (1) (a) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (the Rules) on the basis that it has no reasonable prospect of success.[2]Whilst the application for a strike out was confined to detriments on account of protected disclosures and not dismissal being automatically unfair under S.103A of the Employment Rights Act 1996 the parties agreed that the basis of the strike out above meant that this claim could not be pursued and is therefore dismissed.[3]The claims for direct sex discrimination under S.13 Equality Act 2010 (the EQA) and harassment under S.26 of the EQA are dismissed on withdrawal. Case Nos: 2204586/2020 and 2206759/2020[4]For the avoidance of doubt the claims for constructive unfair and wrongful dismissal (breach of contract), indirect sex discrimination and victimisation under S.27 of the EQA proceed to a full merits hearing.
REASONS
[1]Oral reasons were given to the parties during the hearing.[1]The claim for detriments on grounds of making alleged protected disclosure(s) is struck out Under Rule 37 (1) (a) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (the Rules) on the basis that it has no reasonable prospect of success.[2]Whilst the application for a strike out was confined to detriments on account of protected disclosures and not dismissal being automatically unfair under S.103A of the Employment Rights Act 1996 (the ERA) the parties agreed that the basis of the strike out above meant that this claim could not be pursued and is therefore dismissed.[3]The claims for direct sex discrimination under S.13 Equality Act 2010 (the EQA) and harassment under S.26 of the EQA are dismissed on withdrawal. 1 of 8
The Hearing
[4]The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under Rule 46. The parties agreed to the hearing being conducted in this way.[5]In accordance with Rule 46, the Tribunal ensured that members of the public could attend and observe the hearing. This was done via a notice published on Courtserve.net. No members of the public attended the hearing.[6]The parties and were able to hear what the Tribunal heard.[7]The participants were told that it is an offence to record the proceedings.[8]From a technical perspective, there were no major difficulties.[9]There was a bundle comprising 622 pages. This was either viewed in physical or electronic format, but all participants had access to all the documents.
The Hearing
[1]Oral reasons were given to the parties during the hearing, but the Claimant has subsequently requested written reasons.[2]This is an application brought by the Respondent for the strike out, or in the alternative, the continuation of certain elements of the year claims being conditional on the payment of deposits.[3]By way of background the Claimant was employed as an agent by the Respondent from 1 June 2018 until her resignation with effect on 13 October 2 of 8 2020. She presented claim forms on 24 July 2020 and 16 October 2020. Those claim forms have been consolidated.[4]I conducted a Closed Preliminary Hearing dealing with case management issues on 7 December 2020. The Respondent requested a subsequent Open Preliminary Hearing to consider applications for the strike out of the claims for indirect sex discrimination and detriments on account of alleged protected disclosures.[5]Ms Tutian in her skeleton arguments said that victimisation should have been included. There was an initial discussion between Ms Tuitan, Mr Perry and me during which it was agreed that it would be consistent with the overriding objective and proportionality if the question of victimisation was considered in conjunction with the other matters and I preceded on that basis. Relevant background[6]The Claimant because of the pandemic was placed on furlough leave. She signed a letter dated 31 March 2020, which she says was signed under duress, setting out the terms of the furlough. The Claimant then raised a grievance on 8 April 2020. This included the contention that she believed her having been placed on furlough was an act of victimisation primarily by Thu Nguyen and based on age discrimination. She did not mention sex discrimination at that point.[7]The Claimant attended a grievance hearing on 24 April 2020 and in a letter dated 1 July 2020 she was advised that it had been rejected. The Claimant then appealed against the grievance outcome in a letter of 13 July 2020. She had a grievance appeal hearing on 28 July 2020 and received an outcome rejecting her appeal in a letter dated 11 August 2020. The letter said that she had offered no evidence of age discrimination but had suggested sex discrimination for the first time at the appeal hearing.[8]On 30 September 2020, the Claimant was advised that her position had been provisionally identified as at risk of redundancy following the application of a selection matrix based on what the Respondent says were relevant criteria. 3 of 8[9]The Claimant resigned in an email dated 13 October 2020 saying that there had been a breach of the implied term of trust and confidence and that her redundancy was a result of her having made a discrimination claim and having made a protected disclosure to the ICO regarding alleged breaches of GDPR and she considered this to be victimisation.
The Relevant Law
[10]The parties were broadly in agreement as to the applicable law both for strike out applications and deposits. Ms Tuitan referred me to the well-established principles in relation to strike out under Rule 37(1) on the basis that a case has no reasonable prospect of success. She referred to Mechkarov v Citibank NA [2016] ICR 1121 as authority for it should only being in the clearest case that a discrimination case should be struck out and that a tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.[11]Mr Perry referred to Ezsias v North Glamorgan NHS Trust [2007] IRLR 603 and the extremely well known passage in Anyanwu v South Bank Students’ Union [2001) IRLR305, HL per Lord Steyn at para 24 to the effect that it should be only in the most obvious and plainest cases that discrimination claim should be struck out and that such cases are generally fact sensitive.[12]He argued that tribunals should be reluctant to strike claims out other than in the clearest cases and he referred to Citibank to include that a claimant’s case must ordinarily be taken at its highest.[13]The parties also referred the principles in respect of deposit orders, but these are well known and there is no need for me to set them out.
Conclusions
[14]I will address the individual elements of the claim sequentially. Indirect sex discrimination under S.19 of the EQA 4 of 8[15]The Respondent says that there is no evidentiary basis to support the Claimant’s allegation that it applied a provision, criterion or practice (PCP) of furloughing staff in the Photography Division who had children to her. The Respondent says that say choices were made based on financial forecasts. They say that the Claimant has failed to identify any particular disadvantage she contends she suffered.[16]This is disputed by Mr Perry; he says the case should be taken at its highest level. He points to various remarks made which potentially evidence discriminatory practice on account of sex to include during the grievance investigation meeting on 17 June 2020 Ms Nguyen allegedly referring to staff having children as having been furloughed and an earlier email on 9 March 2020 saying about the Claimant “If she is looking after her kids then she is unable to work this affects us all”.[17]I took into account the fact that the Claimant’s initial grievance related to age but not sex. Nevertheless, I am not satisfied that the claim of indirect sex discrimination has no reasonable prospect of success and neither am I satisfied that it has little reasonable prospect of success which would justify my making its continuation conditional on a deposit order. I reach this decision for the following reasons: a) The claim of indirect sex discrimination whilst arguably not particularised as well as it could be with the benefit of full legal representation, nevertheless in my view is clear in so far as the Claimant contends that there was a practice of the Respondent disadvantaging those who were homeworking and/or looking after children in its decisions regarding furlough. b) There had been a recent history of the Claimant being involved in discussions regarding whether she could work from home or be required to attend the office. c) The remarks allegedly made pertaining to where those homeworking are looking after children whilst not necessarily indicative of any antipathy of the Respondent and its managers towards those working from home.[18]The basis of this element of the Claimant does therefore in my view pass the relatively low threshold for a case to have a reasonable prospect of success to avoid a deposit and therefore no reasonable prospect of success to avoid the more draconian strike out of this element of the claim.[19]Therefore, I order no deposit and no strike out in relation to indirect sex discrimination. 5 of 8 Victimisation under s. 27 of the EQA[20]The victimisation complaint is at least in part predicated on the first Tribunal complaint being a protected act. Ms Tuitan acknowledges that the Claimant had undertaken protected acts but disputes that the Claimant was subject to any detriment or that her proposed redundancy and ultimate constructive dismissal claim was in any way connected with such protected acts.[21]Whilst I accept that the Claimant has hurdles to overcome in demonstrating any causative link between alleged protected acts and her redundancy, I am nevertheless not sufficiently persuaded that the claim has no reasonable, or indeed little reasonable, prospect of success which would justify my either striking it out or making its continuation conditional on a deposit order.[22]In reaching this decision I am also mindful of the fact that the claim of victimisation is part of a wider claim to include constructive unfair and wrongful dismissal which by necessity would proceed in any event. I am not persuaded that the victimisation element of that claim is sufficiently distinct, and likely to result in significant additional evidence, time or legal argument, that it would be of any real benefit even if I were of the view that it had no or alternatively little reasonable prospect of success for it to be struck out or its continuation conditional on the payment of a deposit. Protected disclosure detriment claim[23]I discussed with Counsel the implications of a decision that element of the detriments claim detriment which is not subject to an application for a strike out or a deposit order, namely that the Claimant’s dismissal was automatically unfair on as being causatively linked to her having made protected disclosures.[24]Ms Tuitan argues that for various reasons that the claim should be struck out. She says that there was no disclosure of information, at best it was the making of allegations.[25]Mr Perry refers to Kilraine v London Borough of [2018] IRLR 846 which he says caveats the well-known decision in Cavendish Munro Professional Risks Management Ltd v Gelduld [2010] ICR 325 to the effect one must look at the background in which a purported disclosure was made. He says information was provided amongst the allegations made. 6 of 8[26]Ms Tuitan says that the Claimant could have no reasonable belief that the alleged disclosures tended to show a breach of a relevant legal obligation and further that such disclosures were not in the public interest. She says that this was simply a private workplace dispute. Mr Perry says that the disclosures regarding alleged bullying were wider than matters specific to the Claimant but rather a more general culture of bullying.[27]Having considered the pleadings, the submissions and relevant pages in the bundle I was taken to, I have decided that this element of the claim has no reasonable prospect of success and therefore I strike out the claim of the Claimant suffering detriments on grounds of her having made protected disclosures. I make this decision for the reasons set out below.[28]I consider that the matters relied on as being qualifying protective disclosures do not fall within the categories as identified under s.43 in the ERA. First, I am not sufficiently satisfied that they involve the provision of information rather than more general allegations.[29]More significantly I do not consider that there can be any reasonable prospect, and indeed no reasonable prospect, of establishing that the allegations and/or information depending on how that is categorised constitute matters which would engage the public interest requirement. These are in my view matters of a purely private nature relating to a grievance raised by the Claimant regarding the alleged approach of her manager. This therefore constitutes a private workplace dispute rather than a matter where there can be any reasonable prospect it would be found to engage the relevant legal protection.[30]Therefore, this element of the claim is struck out pursuant to Rule 37(1) (a) on the basis that it has no reasonable prospect of success.[31]For the avoidance of doubt the claims for constructive unfair and wrongful dismissal (breach of contract), indirect sex discrimination and victimisation under S.27 of the EQA proceed to a full merits hearing. 7 of 8
The law
[40]The second question focuses upon how the employer treats other people…[41]The third question focuses upon the employers' reasons for their behaviour. Why did they do it? Was it, in the terms of the Directives, a 'reaction to' the women's claims? As Lord Nicholls of Birkenhead explained in Khan's case [2001] IRLR 830, 833, paragraph 29, this 'does not raise a question of causation as that expression is usually understood ... The phrases "on racial grounds" and - 20 - "by reason that" denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.'” Reasons for unfavourable treatment. 6.5 When the protected act and detriment have been established, the tribunal must still examine the reason for that treatment. It must be shown that the unfavourable treatment of a person alleging victimisation was because of the protected act. A simple ‘but for’ test is not appropriate. 6.6 It is not necessary to show conscious motivation. However, there must be a necessary link in the mind of the discriminator between the doing of the protected act and the treatment. The protected act must be a reason for the treatment complained. It is a question of fact for the tribunal. The motivation can be subconscious. 6.7 Section 19 Equality Act 2010 defines indirect discrimination(1) A person (A) discriminates against another (B) if A applies a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.(3) The relevant protected characteristics are – . age; disability; gender reassignment; marriage and civil partnership; race; religion or belief; sex; sexual orientation. 6.8 Section 95(1)(c) of the Employment Rights Act 1996 states that there is a dismissal when the employee terminates the contract, with or without notice, in circumstances in which he or she is entitled to terminate it, with or without notice, by reason of the employer’s conduct. 6.9 The leading authority is Western Excavating ECC Ltd -v- Sharp [1978] ICR 221. The employer’s conduct which gives rise to constructive dismissal must involve a repudiatory breach of contract Lord Denning 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 - 21 - 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 then that terminates the contract by reason of the employer’s conduct. He is constructively dismissed. 6.10 In summary there must be established first that there was a fundamental breach on the part of the employer; second, the employer’s breach caused the employee to resign; and third, the employee did not affirm the contract as evidenced by delaying or expressly. 6.11 In so called last straw dismissals there can be a situation where individual actions by the employer, which do not in themselves constitute a breach of contract, may have the cumulative effect of undermining the implied term of mutual trust and confidence. One or more of the actions may be a fundamental breach of contract, but this is not necessary. It is the course of conduct which constitutes the breach. The final incident itself is simply the last straw even if in itself it does not constitute a repudiatory breach. The last straw should at the least contribute, however slightly, to the breach of the implied term of trust and confidence. 6.12 The question of waiver has to be considered. A clear waiver, or simple passage of time, may demonstrate that the employee has affirmed the contract at any particular moment. However, it may be that a final incident would be sufficient to revive any previous incidents for the purpose of showing a breach of the implied term. 6.13 In cases where there has been a course of conduct, the tribunal may need to consider whether the last straw incident is a sufficient trigger to revive the earlier ones. In doing so, we may take account of the nature of the incident, the overall time spent, the length of time between the incidents and any factors that may have amounted to waiver of any earlier breaches. The nature of waiver is also relevant in the sense of was it a once and for all waiver or was it simply conditional upon the conduct not being repeated. 6.14 There is no breach of trust and confidence simply because the employee subjectively feels that such a breach has occurred no matter how genuinely this view is held. If, on an objective approach, there has been no breach then the employee's claim will fail (see Omilaju v Waltham Forest London Borough Council [2005] EWCA Civ 1493, [2005] ICR 481, CA). The legal test entails looking at the circumstances objectively, ie from the perspective of a reasonable person in the claimant’s position. (Tullett Prebon PLC v BGC Brokers LP [2011] IRLR 420, CA.) 6.15 The repudiatory breach or breaches need not be the sole cause of the claimant’s resignation. The question is whether the claimant resigned, at least in part, in response to that breach. (Nottinghamshire County Council v Meikle [2004] IRLR 703, CA; Wright v North Ayrshire Council UKEATS/0017/13 - 22 - 6.16 Omilaju v London Borough of Waltham Forrest [2005] ICR 481 CA is authority for the proposition that the last straw does not have to be of the same character as the earlier acts, nor must it constitute unreasonable or blameworthy conduct, although in most cases it will do so. But the last straw must contribute, however slightly, to the breach of the implied term of mutual trust and confidence. An entirely innocuous act on the part of the employer cannot be a final straw. The test is objective. It is unusual to find a case where conduct is perfectly reasonable and justifiable, but yet satisfies the last straw test. 6.17 We must consider causation, the employee must show that he has accepted the breach, the resignation must have been caused by the breach and if there is a different reason causing the employee to resign in any event irrespective of the employer’s conduct there can be no constructive dismissal. 6.18 We note that where there are mixed motives the tribunal must consider whether the employee has accepted the repudiatory breach by treating the contract of employment as at an end. Acceptance of the repudiatory breach need not be the only, or even, the principal reason for the resignation, but it must be part of it and the breach must be accepted. The tribunal notes the case of Logan – v Celyn House UKEAT/069/12 and in particular paragraphs 11 and 12. 6.19 We note the case of Bournemouth University v Buckland 2010 IRLR 445 CA. the head note reads: (1) In constructive dismissal cases, the question of whether the employer has committed a fundamental breach of the contract of employment is not to be judged by a range of reasonable responses test. The test is objective: a breach occurs when the proscribed conduct takes place. The following stages apply to the analysis of a constructive dismissal claim: (i) in determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Malik test applied; (ii) if acceptance of that breach entitled the employee to leave, he has been constructively dismissed; (iii) it is open to the employer to show that such dismissal was for a potentially fair reason; and (iv) if he does so, it will then be for the employment tribunal to decide whether the dismissal for that reason, both substantively and procedurally, fell within the range of reasonable responses and was fair. It is nevertheless arguable that reasonableness is one of the tools in the employment tribunal's factual analysis kit for deciding whether there has been a fundamental breach. There are likely to be cases in which it is useful. But it cannot be a legal requirement…” 6.20 In Malik v Bank of Credit and Commerce International SA 1997 IRLR 462. The House of Lords confirmed that there is an implied duty of mutual trust and confidence as follows: - 23 - the employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. 6.21 We would note that it is generally accepted that it is not necessary that the employer's actions should be calculated and likely to destroy the relationship of confidence and trust,3 either requirement is sufficient. 6.22 In Malik the House of Lords held that the trust and confidence may be undermined even if the conduct in question is not directed specifically at the employee and second, it was not necessary for the employee to be aware of the wrongdoing whilst employed. Third, the term may be broken even if subjectively the employee's trust and confidence is not undermined. Whether the term is broken must be viewed objectively. Conclusions The first claim7.1 In claim one, only the allegation of indirect discrimination remains. The PCP is alleged to be as follows "The practice of choosing to furlough staff in the photography division who had children." Of those initially furloughed, the claimant was the only one who had children. One person was furloughed later in the year who also had children. There is no correlation at all between having children and furlough. Further, the respondent has explained its decision. The background was the reasonable and realistic view taken by the respondent that the respondent’s income would dramatically decrease and that there would be a massive reduction in the potential work for agents. The board produced financial projections. It familiarized itself with the CJRS. The respondent considered whether individuals should be furloughed rather than laid off or made redundant. A rational and reasonable assessment was made of the likely fees to be generated by the three agents in photography. There was a rational reason for refusing to consider production fees, namely there would be little or no production. It was clear that the claimant was the poorest performer. Her selection was based on performance.7.2 It follows that the respondent establishes its explanation for why it chose to furlough the claimant. In no sense whatsoever was the claimant's selection anything to do with the fact that she had children. It follows that the claimant fails to establish, as a fact, the PCP. The indirect discrimination claim fails.7.3 We should add, lest we are wrong about the PCP, we are not satisfied the claimant has established that the PCP as alleged would have had a particular disadvantage to women. There were no male photography 3 See, for example Baldwin v Brighton & Hove City Council [2007] IRLR 232 - 24 - agents. However, in principle, the claimant must assert that the PCP would have applied equally to men.7.4 We are not satisfied that the claimant has accurately stated the real disadvantage about which she complains. It seems to us the real disadvantage is more likely to be fact of furlough and the loss of income. Any man with children would have also, on the claimant's case, have been put on furlough. Although we do not need to reach a final decision on this, it is difficult to see how the claimant envisages establishing group disadvantage.7.5 We accept that women are more likely to have childcare responsibility, but that is not the basis of the PCP as alleged.7.6 One possible effect of furlough is to increase the amount of time available for childcare, and it is difficult to see how this would have been different for men and for women.7.7 We invited the claimant at the beginning of the hearing to consider the way in which this claim was put because it appeared to be problematic. Having regard to the way the case was put in general, it is possible that the claimant was suggesting that the reason for her the selection was that there was hostility to her work arrangements, including working from home which stemmed, at least in part, from her childcare responsibilities. It follows that she alleged that hostility to her requirements arose out of her need to request homeworking, and occasionally time off to look after children, arising out of her childcare obligation. It follows that the claimant was suggesting that there was hostility to her because of her childcare responsibility, a responsibility more commonly falling on women. She then seems to suggest that she was selected because of that hostility. If that is the logic of her case, it is difficult to see that hostility as a neutral PCP applied equally to men and women. But any direct discrimination claim was withdrawn and dismissed.7.8 We can only consider pleaded claims. It is possible that if there were hostility based on her need to provide childcare, it is arguable it could be an act of harassment or direct discrimination. However, all such claims were withdrawn. It appears the claimant may be confusing the PCP, the particular disadvantage, and the cause of the group/individual disadvantage. If the PCP were established, which it is not, and if it were applied equally to men and women, all those men and women with children would be furloughed. The disadvantage is, presumably, not being able to continue work and receive full pay. Men and women would be equally affected because men and women equally have children.4 Standing back and considering how the claimant has advanced her case, it is possible to perceive that the claimant had in mind that the selection process was based on an active hostility to those who had requested adjustments to accommodate childcare. If that were her case, then it may 4 Albeit they may not have the same primary childcare responsibility. - 25 - be possible to see a potential group disadvantage. However, such a case, if it had been pleaded, could not survive our finding about the true reason for selection for furlough.7.9 For all the reasons we have given it follows that the indirect discrimination claims fail.7.10 There are no claims remaining in claim one. Claim two7.11 We first consider the victimisation claim. The protected acts are not disputed by the respondent. On 8 April 2020, the claimant suggested treatment of her was because of her age. It is common ground this is a protected act. On 24 April 2020, during her grievance, she referred to age discrimination. It is accepted this is a protected act. On 28 July 2020 it is accepted the claimant, at the grievance appeal hearing, alleged her selection for redundancy was an act of sex discrimination. It is accepted this was a protected act.7.12 The only detriment relied on is the selection for redundancy. It is part of the claimant's case that the alleged redundancy "situation process" was a sham. It is unclear what the claimant means by sham. It is not explained adequately in her witness statement. It was not addressed in the claimant's submissions.7.13 For the reasons we have given, we find there was a redundancy situation. The pandemic led to a lockdown. That had a catastrophic effect on the respondent's income. The work dried up. There was a diminished need for agents to provide services to artists. It follows there was a diminished need for the agents’ work, which was work of a particular kind. We would add that the production work also dried up and there was a diminished need for work of that kind. There was a clear redundancy situation.7.14 We have considered in detail the redundancy procedure or process. The claimant was provisionally selected for rational objective reasons. The respondent considered the likely fee generation in the months going forward. It was clear that the claimant was the poorest performer out pf a pool of three. That pool was selected for reasonable and rational reasons. There was a rational reason for selecting her. The respondent started the process of consultation. The claimant would not engage with that process with her line manager. The respondent provided a suitable alternative manager. However, the claimant disengaged in the process and refused to complete it. In no sense whatsoever can it be said that the alleged redundancy situation, or the process adopted in considering the claimant’s redundancy, was a sham.7.15 The reality is that the claimant has not pursued this case at all. The victimisation case was put to no witness. It was suggested to no witness - 26 - that the reason for the claimant's selection of redundancy was because of any protected act.7.16 We should note that in her statement, the claimant suggested that part of the reason for her dismissal was bringing the first claim. There can be no doubt that the first claim was also a protected act. However, it was never suggested to any witness that the first claim had anything to do with her selection for redundancy. The reality is that the respondent established its explanation on the balance of probability having regard to the clear and cogent evidence produced. No protected act as pleaded, or potentially implied by her statement, was any part of the reason for her selection for redundancy. The claim of victimisation fails.7.17 The claimant alleges that she was constructively unfairly dismissed. The first question is whether she was dismissed at all. The claimant alleges that the respondent was in breach of the term of mutual trust and confidence; it is for her to prove that breach. We will consider those matters identified in the issues as being the breach or as contributing to the breach.7.18 We have already considered the allegation that Ms Nguyen bullied the claimant. For the reasons we have given, we find that this allegation is without foundation. It is apparent the claimant formed a negative view of Ms Nguyen. However, Ms Nguyen was required to act as a manager. Ms Nguyen making decisions concerning the claimant’s requests, particularly for homeworking, may have been unwelcome to the claimant, but they were dealt with professionally and the responses were within her discretion. The claimant unhappiness is not evidence of any bullying.7.19 The claimant alleges that Ms Sands, another manager, had knowledge of the bullying. To the extent that this is advanced as some form of breach, it appears to be in the context that Ms Sands should have taken action. However, no complaint was made to Ms Sands. The claimant suggests that bullying was common knowledge. However, there is no rational evidential basis for it. There was no evidence of any complaint ever being made against Ms Nguyen. There was never any reason for Ms Sands to take any action.7.20 The claimant alleges that she raised allegations of bullying with Ms Lowther and Ms Browne. We reject that evidence. In any event, any fault for not pursuing such allegations would not be Ms Sands. No action, or failure of action by Ms Sands, contributed to any breach of contract.7.21 It is alleged that Ms Nguyen was not joined in a "bullying workshop." There was no such workshop. There were several workshops put on by HR. None of them dealt with bullying and there is no basis for this allegation.7.22 It is alleged there was poor treatment of the claimant "because of her status as a single mother/widow." It is difficult to understand exactly what - 27 - is meant. The specific allegation was never put to any witness. It appears there is no overlap with the general allegation that Ms Nguyen bullied the claimant. What is meant by this allegation is not addressed adequately or at all in the claimant's submissions.7.23 We have considered the claimant's statement generally in order to ascertain what she appears to allege to be poor treatment.7.24 She refers to the fact that she was not put on performance management. In no sense whatsoever was this a breach of the claimant’s contract. It was clear that the claimant was not performing well in her role as an agent. However, that does not immediately lead to the need for a performance management process. Failing to institute performance management is not in itself a breach of contract.7.25 Ms Nguyen maintained a dialogue with the claimant. She discussed the difficulties with the claimant’s performance in the end of year appraisal. She discussed the difficulties in the probation meeting. She discussed the continuing problems on 25 February 2020. Ms Nguyen continued to offer constructive feedback and advice, which was consistent with her role as a manager. Her approach to performance management cannot be seen as a breach of contract.7.26 The claimant complains that she attended a sales meeting which appears to have taken place in or around September 2018. Ms Lowther had invited the claimant. Ms Nguyen did not know she was attending. It is alleged Ms Nguyen said, "What are you doing here?" Ms Nguyen explained to us that she had not expected the claimant to attend, but, in fact, was pleased that she attended because the meeting concerned tedious administration and she was able to offload the task onto the claimant. The claimant did not dispute this evidence. The claimant's statement fails to say what happened as a result of the meeting. The words complained about are innocuous. We accept Ms Nguyen’s evidence that she welcomed the claimant's presence. This is no evidence of poor treatment.7.27 At one point the claimant sought clarification of the sums she generated by way of production work. However, the claimant’s salary of £80,000 was increased by Ms Lowther to £110,000. It is common ground that this, effectively, rendered any possible bonus irrelevant, as any potential bonus was incorporated in her salary. Whilst there may be an argument the bonus should have been assessed by reference to production fees, the facts of this case do not support an assertion of poor treatment. The reality is the bonus is rendered moot because her salary was dramatically increased.7.28 The claimant alleges, in general, unfair assessment of her contribution, particularly in relation to income generated by production. To the extent it is alleged that there was unfairness, that would relate to one of three matters: a bonus; selection for furlough; and redundancy. For the reasons - 28 - we have given, there can be no unfairness relating to any bonus, as, essentially, the bonus was paid upfront in the salary. We have already considered the reason for selection for furlough, and it was rational and reasonable, as was the reason for selection for redundancy.7.29 There is no credible evidence of poor treatment. There was no poor treatment. There is no basis for finding unfair treatment was given because claimant was a single mother and widow.7.30 The claimant relies specifically on the unfair assessment of her generation of revenue. We have considered this. We find no unfairness. The claimant relies specifically on the decision to furlough her. However, there is a clear rational and reasonable reason for selecting the claimant, as we have described. The claimant alleges specifically that the redundancy was a sham process. We have already considered this. We have found that the respondent makes out its reason. That reason was entirely reasonable and rational.7.31 The claimant refers to the last straw of having been singled out for redundancy. The way she put this changed during the hearing. The letter of resignation is probably the most reliable indicator of her reason for resigning when she did. In her letter, she stated the last straw was her selection for redundancy. In her evidence she placed more emphasis on the nature of the consultation meeting. However, the claimant was selected for redundancy because of a reasonable assessment of the respondent’s needs and an assessment of the claimant's contribution. In no sense whatsoever was it blameworthy.7.32 The approach to the consultation meeting was dictated by the claimant's refusal to discuss the matter with her manager. The claimant then complained that the person who did the meeting had limited knowledge. However, the respondent had no choice other than to provide a substitute manager. Inevitably that person would only have limited understanding. He ascertained the claimant's concerns and promised to investigate and come back to her. None of that is blameworthy or unreasonable.7.33 It follows that of all the matters relied on by the claimant in support of her contention that there was a breach of the term of mutual trust and confidence are not sustainable. Further, the matters relied on as a last straw do not in any sense whatsoever contribute to any breach and in themselves are not blameworthy in any event.7.34 The reality is, there was no breach of the claimant’s contract. As there was no breach of the claimant's contract, it was not open to her to resign and accept that breach.7.35 It follows that her resignation was in breach of contract. She failed to give notice, when she was obliged to do so. - 29 -7.36 As there was no constructive dismissal, it follows that there is no dismissal for the purposes of unfair dismissal and the unfair dismissal claim fails.7.37 We do not need to consider whether the respondent has established a potentially fair reason or has acted fairly; the claim of unfair dismissal fails at the first stage.7.38 The final claim is wrongful dismissal. The claimant would be entitled to her notice if she resigned in response to the respondent's repudiatory breach of contract. The respondent was not in breach of contract. It was the claimant who was required to give notice. She failed to do so. It follows she is not entitled to notice pay.7.39 For the reasons we have given, all the claims are dismissed.