Mrs S Woodhead v Sussex Community NHS Foundation Trust: 2300071/2025
JUDGMENT
[1]The claims of unfair dismissal and wrongful dismissal succeed.[2]The respondent must pay the Claimant the sum of £9194.80 by 27/2/26REASONS
[1]The documents were in a bundle of 746 pages and a supplementary bundle of 32 pages. I heard evidence from the Claimant and then from the Respondent’s witnesses Ms L French and Ms E Smith.[2]At the outset Mr Woodhead raised the fact that on 2/1/26 the Claimant had applied for an unless order requiring the Respondent to provide disclosure under 7 headings. The Respondent’s solicitors had replied fully to the application by email dated 28/1/26 after which Mr Woodhead had provided a response to that in effect no longer pressing for an unless order but asking “the Tribunal to apportion appropriate weight to evidence produced by the Respondent and, where or if needed, make any necessary inferences in relation to that evidence”. The application for an unless order was not considered judicially before the final hearing started on 12/2/26 and, as I explained to Mr Woodhead, it was by then too late to make any unless order in any event without disrupting and probably delaying the Final Hearing. Mr Woodhead adopted a pragmatic approach saying “we are where we are” and agreeing that we should proceed with the evidence we had. During the lunchbreak on 12/2/26 I did have a look at the application itself and the above correspondence about it. Even if I had been aware of the application for an unless order at an earlier date, I would not have granted one because it would have been disproportionate to require further extensive disclosure of documentation which I think would have been of little or no evidential value, even if it did exist, and particularly during the last few weeks before the Final Hearing.The law
[3]In order for an employee to establish constructive dismissal she must establish a breach of contract by the employer.[4]The breach must be fundamental and repudiatory and going to the heart of the contract – ie sufficiently serious to have justified the employee resigning immediately. The test is whether the employers conduct is such that the employee cannot reasonably be expected to tolerate it a moment longer after he has discovered it and can walk out of her job without prior notice.[5]It is necessary that the employee left her employment with the employer in response to the breach and not for some other unconnected reason. It is sufficient for this purpose if the breach is one of the reasons amongst others for the resignation.[6]The employee must also not wait too long and so affirm the contract before resigning, but there is no fixed time limit in which the employee must make up his mind. Acts which positively affirm the continuation of the contract can amount to affirmation. It is possible to avoid affirmation by continuing to work under express protest. Mere delay does not constitute affirmation but it is possible for Employment Tribunal to infer implied affirmation from prolonged delay. Affirmation is fact sensitive, and the question is one of mixed law and fact.[7]The breach of contract can be of an express or an implied term.[8]There is a term implied by law in all employment contracts that an employer shall not without reasonable and proper cause conduct itself in a manner calculated (or) likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.[9]The implied term will be breached only where there is no reasonable or proper cause for the employer’s conduct.[10]The test as to whether there has been a breach of the implied term is an objective one. The motives of the employer are not determinative or relevant. If conduct, objectively considered, is calculated or likely to cause serious damage to the relationship between employer and employee, a breach of the implied term may arise.[11]The breach can be by means of a single act or by a series of acts which cumulatively amount to a repudiatory breach, though each individual incident may not do so. In such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract – the question is – “does the cumulative series of acts taken together amount to a breach of the implied term?” This is the last straw situation.[12]Once an employer is guilty of repudiatory breach it cannot make amends so as to preclude legal acceptance. All the cards are then in the employee’s hands and the employer can only make amends so as to try to secure affirmation Facts[13]The Claimant started work for the Respondent from 5/10/2009.[14]She worked as a part-time administrator (most recently working 18 hours over 4 days per week) at a number of the Respondent’s venues (most recently based at Sidney West Primary Care Centre) supporting Health Visitors and Community Nursery Nurses as part of the Mid Sussex South, Healthy Child Programme Team.[15]Since approximately 2022, the Claimant’s Line manager was Ms L French a “Team Lead”.[16]From early 2023 the Claimant felt she did not get on well with Ms French and she started keeping a diary of incidents at work which displeased her.[17]The Claimant and another administrator called Ms K Sargent had had a long-standing working relationship, having worked for the Respondent for longer than a third administrator Ms Hewitt. However as Ms Hewitt worked longer hours than the Claimant and Ms Sargent, Ms Hewitt took on more work, and was relied on by Ms French more than she relied on the Claimant. The Claimant felt that Ms French favouritised Ms A Hewitt at the expense of Ms Sargent and the Claimant. Ms Hewitt for her part felt excluded by them.[18]The administrators all worked different shifts and some days from home so there was little direct contact between them. There were mutual recriminations between them.[19]The Claimant went on stress-related sick leave from early October 2023 to 27/11/23.[20]At that time Ms French’s line manager was Ms J Sloper, the Clinical Services Manager.[21]Before going on sick leave the Claimant made a request to change her working from home days. She has complained about her exchanges with Ms French and Ms Sloper about this request, which was in fact finally agreed in full. The correspondence about this shows Ms Sloper being polite and conciliatory and the Claimant less so.[22]Ms French also experienced some difficulties managing the Claimant and Ms Sargent, for example when they challenged her over her decision to hire bank staff.[23]Ms French herself went away on stress-related sick leave in November and December 2023.[24]The Claimant complains about the fact that after her return to work some of her duties were not postponed, some of her duties were taken away and no risk assessment was carried out. These matters are relevant in that they form part of the background to the meeting in April 2024 but I do not find that they were part of the reasons for her resignation.[25]A decision was taken by Ms Sloper to have a meeting with the Team Leads and administrators to try to discuss and resolve the communication problems. The invitation did not say this but referred to the agenda as being “to look at various topics such as working practices, expectations, roles, workloads, flexible working etc”.[26]The meeting took place on 25/4/24 and was attended in person by Ms Sloper, (the Clinical Services Manager) Ms French, Ms S Hitchman and Ms N Clasby, (all Team Leads); and Ms K Sargent Ms A Hewitt and the Claimant (the three administrators).[27]The Claimant’s accounts of the meeting have been inconsistent in some respects. In her grievance she wrote that she had asked Ms Sloper shortly after the meeting started “ to be honest and tell us the real reason for the meeting”. In her formal grievance interview the Claimant’s toned-down version was that she had said to Mrs Sloper ’With respect I feel there is something more here’’. She has also been inconsistent as to whether Ms Sloper stated expressly that the historic complaints referred to by her during the meeting were specifically about the Claimant.[28]Nevertheless, my findings about the meeting are as follows: 29.At the meeting having been prompted by the Claimant to get to the point, Ms Sloper said “Ok, well I was going to start gently but ok let’s get straight to it’. She then stated that there were historic complaints from Team Leads of inappropriate behaviour from administrators. The Claimant assumed that this was a reference to her specifically, although Ms Sloper did not confirm this expressly. The Claimant’s assumption was a reasonable one because it was only she and Ms Sargent who had been the administrators at a time when it would be appropriate to refer to the allegations as “historic”. The Claimant’s assumption would also have been correct because Ms Sloper in fact was referring to the Claimant and to a lesser extent Ms Sargent when she referred to historic allegations. Ms Sloper did not tell the Claimant that the allegations were not about her when it was obvious that she thought they were. 30.The Claimant asked for further details and asked why this had not been raised before. At that point Ms Clasby said that they (ie the allegations) should have been. That interjection, which was supportive of Ms Sloper, would have tended to confirm her implicit claim that allegations had been made in the past against the Claimant which should have been raised with her in particular. Ms Sloper then agreed stating “that was an error on the part of management”. 31.The Claimant then started talking to Ms Sargent about the matter. Ms Sloper then objected to this by saying to the Claimant “You keep looking at Karen, is there a little gang thing going on between you two?”1[32]Ms Clasby then started asking the Claimant if she was happy to come to work. The Claimant replied that she came to work to work, fulfil her tasks and for the money. Ms Hitchman then interjected “How sad” . Ms Sloper then said “there is more to work than just coming to work to work, and others come to work not just for the money”. Ms Hitcham then observed that when the Claimant worked with her 12 years previously the Claimant had seemed happier. The Claimant at this point referred to her personal life including life changes and family bereavements. 33.None of the management team present interjected to support the Claimant or halt this discussion.[34]The Claimant was upset by the meeting, left work early that day shortly after the meeting, raised a grievance about it on 06/05/2024, and never returned to work afterwards.[35]Ms Sargent subsequently gave a statement to Ms C Stevens (a Family Nurse Supervisor who had been appointed as a grievance investigator) in which she said that she had been 1 The Claimant reported this consistently in her grievance letter, at the grievance interview, in her witness statement and in her oral evidence. In interview Ms Hitchman when asked about the comment “little gang” answered “I don’t remember her saying these exact words, but she did make the comment”. very upset by the meeting and had not wanted to come in to work the next day. She had said there had been an attempt to “railroad” her and the Claimant, that what was said made the two of them feel that they were being made the subject of a personal accusation against them in particular about claimed matters which, if they were to be raised at all, should have been raised previously in private by line managers. She said that the Claimant had been targeted because she had been vocal.[36]Ms Hewitt (the third administrator) handed in her notice after the meeting and when interviewed for the grievance stated that there had been “Hostility all round, that’s why I don’t want to be part of it” and “it can be construed it was about Shirley. PDRs were mentioned so it become more personal.”[37]Ms Sloper, when interviewed by Ms C Stevens confirmed that in fact there had been no specific allegations or complaints by Team Leads made previous to the meeting on 25/4/24 against the Claimant. She said “There were never complaints specifically about Shirley. All team leads had difficulties with the team, which would have included her, but also others. No-one raised individual complaints. What I was saying was that we went through a difficult period with this team and various people raised complaints”. However, she tended to discount or explain away the upset which had been caused to the Claimant and failed to clearly accept fault on her part. The other Team leads followed suit.[38]The Claimant makes various complaints about how the grievance was dealt with. The main complaint was that other persons at the meeting who ended up as witnesses in the investigation were told that the Claimant had raised a grievance and that they might be witnesses before the Claimant had been interviewed. I find that the grievance was conducted reasonably and fairly and, in any event, how it was conducted was not a reason for resignation.[39]Ms Steven’s investigation outcome was that the Claimant’s grievance against Ms Sloper was upheld in full on 24/6/2024. The outcome letter includes the following: Allegation 1. Targeting Shirley with false accusations regarding behaviour without any evidence within a staff meeting. I have decided to uphold this allegation, because even though Jane Sloper said the meeting was not focussed on anyone individually, it was clear the discussion was mainly between you and Jane and it could have been perceived as being targeted at you. Jane did not provide any specific details or evidence of the historic complaints she mentioned at the meeting. Allegation 2. Lack of intervention during the meeting to stop inappropriate questioning by other team leads. I have upheld this allegation as in my opinion some questions or comments made at you were too personal or inappropriate to share during the team meeting with other people present and they could have made you feel uncomfortable. Even though all team leads and Jane Sloper confirmed their intention was supportive, I do agree that Jane should have intervene and change the course of the discussion. Allegation 3. Alleged complaints discussed within a public forum. It was evident that the complaints were brought up during the team meeting and although no individuals were named, this was not the right forum to discuss the concerns and therefore I have upheld this allegation.”[40]The recommendations in Ms Steven’s report were as follows: 1) It is recommended that a written apology is provided to Shirley Woodhouse from Jane Sloper. 2) Concerns raised must be addressed with individuals at the earliest opportunity to negate further issues repeating over time. 3) Concerns must be addressed on a one-to-one basis in a private setting and following trust guidance. 4) A period of mediation between Shirley Woodhouse and Jane Sloper should be offered to support transition back into work. Mediation is not a mandatory process and staff are not obliged to attend it, however it is strongly recommended that this is considered by Shirley and Jane. 5) Further training at team lead level to support development of communication skills when addressing difficulties within teams with positive solutions. 6) Confidentiality must be maintained regarding this grievance and respectfully adhered to by all parties involved.[41]The report and recommendations were accepted by Ms V Sharp (General Manager, HCP) and the Claimant was notified.[42]On 7/7/24 the Claimant appealed the recommendations in the grievance outcome on the grounds that they failed to address the issues raised by the grievance and downplayed the gravity of the Respondent’s misconduct and that “even if implemented, the recommendations would not provide a safe pathway for my return to work where I would be free from further victimisation or managed without prejudice”.[43]On 11/7/2024 the Claimant received an apology from Ms Sloper which the Claimant regarded as inadequate. The letter reads as follows: “In acknowledgement of the outcomes of the recent investigation and in recognition of how this situation has impacted on you I am writing to offer my sincere apologies for the negative experience you had during the meeting on the 25th of April. I am sorry that you felt that you were targeted or singled out in this meeting, this was never my intention, but I can understand why you felt uncomfortable, on reflection I think this could have been handled differently. In the future I will check to make sure that there is a clear agenda and this will be circulated beforehand so that everyone has access to what will be discussed. If anyone feels uncomfortable with any aspect of the agenda, then a private conversation can be offered either by myself or with one of the team leads. To ensure there are confidential options for further discussion 1-1s or supervision can also be provided. I’m sorry if you felt my lack of intervention contributed to the feelings you described, and I hope you are able to accept this apology in the sprit which it has been offered.”[44]Ms E Smith (Deputy Operational Divisional Director for Children’s & Adult Prevention Services) held an Appeal meeting with the Claimant on 29/8/2024 but dismissed the appeal on 27/9/24.[45]During the course of conducting the appeal process Ms Smith also referred the Claimant to OH, spoke to HR regarding the fact that the Claimant, contrary to policy, had not been assigned a “buddy” to support her, and was active in trying to identify and offer alternative roles that could be offered to the Claimant either as an interim option or on a permanent basis.[46]In October 2024 the Claimant was offered an opportunity to work at alternative work locations. The Claimant declined them.[47]The Claimant’s main problem with the grievance outcome recommendations was that they did not require Ms Sloper to be disciplined, although in evidence she could not suggest what form that discipline should have taken.[48]The Claimant felt that she could not face going back to work under the same line management, who she felt had humiliated her and who would victimise her for having raised a successful grievance.[49]By then the Claimant had read the grievance investigation statements given by Ms Sloper and the Team Leads which tended to confirm the Claimant’s view that they thought they had done nothing wrong.[50]The Claimant complains about various policy breaches by the Respondent in particular, its failure to appoint a supervisor from a different team to undertake welfare checks during her absence from work from April 2024 and failure to allocate an independent ‘buddy’. These failures were admitted by the Respondent, and Ms E Smith who was not responsible for them, nevertheless apologised to the Claimant for them.[51]The Claimant resigned on 27/10/24 without notice, claiming that the conduct of the Respondent had breached the implied term of trust and confidence. Conclusions.[52]I do not accept that either Ms French or Ms Slope were generally bad managers or that the Claimant was the wholly innocent victim, as she has sought to suggest. The Claimant was at least partly to blame for the bad relations which affected the team prior to the meeting in April 2024. While the Claimant was an experienced and conscientious worker, she seems to have been a poor communicator at work. It is likely that Ms Hewitt and Ms French found it just as difficult working with the Claimant as she did with them.[53]However, as already acknowledged and found by the Respondent, (whose Ms Stevens is to be commended for her grievance report and outcome), the Claimant was justifiably aggrieved by the meeting on 25/4/2024.[54]It was unreasonable of Ms Sloper to present complaints so that Ms Sargent and the Claimant felt that they were being individually singled out, when in fact there had been no such specific complaints made about them, and to do so publicly when, if such complaints had been made, they should have been discussed privately.[55]It was rude, divisive and isolating for Ms Sloper to publicly accuse the Claimant and Ms Sargent of ganging up.[56]It was inappropriate for Ms Clasby to ask the Claimant whether she was happy to come to work and then for Ms Hitchman to chime in with the comment “how sad”, the reasonable interpretation of which would be sarcasm or criticism.[57]It was inappropriate for Ms Sloper to compare the Claimant’s reasons for coming to work unfavourably with the motives of others.[58]It was inappropriate for Ms Hitchman to make unfavourable comparisons about the Claimant’s apparent happiness at different stages of her working life and to prompt the Claimant to start discussing personal matters.[59]It was disappointing for Ms French not to step in to support the Claimant or at least stop what had become by then an inquisition.[60]Whatever the intentions of Ms Sloper and the three Team Leads may have been, viewed objectively the meeting ended up as a public unjustified attack against and humiliation of the Claimant by several senior managers in front of the whole team.[61]Objectively considered, the meeting was likely to, and in this case did, cause serious damage to the relationship between employer and employee and it breached the implied term of trust and confidence.[62]I agree with the Claimant’s criticism of the text of the apology letter in that it is lacking a necessary retraction. It omits a clear statement from Ms Sloper, that, contrary to what she had implied and intended to suggest at the meeting, there had not in fact been any historic complaints by Team Leads against the Claimant in particular.[63]Furthermore, an apology written by a manager because HR has told her to is a very different matter from a heartfelt and voluntary apology given because the manager feels remorseful. In this case the Claimant recognised that the letter fell into the former category, and was not worth much. However, the apology letter was not a breach of contract.[64]Although the Claimant complains about the grievance recommendations and the rejection of her appeal against them, these were not breaches of the implied term. The grievance recommendations were sensible and appropriate but sadly not enough to salvage the situation.[65]At the appeal stage Ms Smith performed her role reasonably and sensibly and also went further to try to make amends on the part of the Respondent and to find a way in which the Claimant could remain in her employment.[66]It would not have been appropriate to discipline or dismiss Ms Sloper, as what she had done was tactless and mistaken but, on the Respondent’s findings, fell short of deliberate bullying and harassment. It was also not practical to remove or replace the whole management structure, which from the Claimant’s evidence, seems to have been the only thing that would have satisfied her in the end.[67]I understand how the Claimant felt that the trust and confidence had irretrievably broken down. Given the background and the uncomfortable relationships in the team before the April meeting and given the personalities involved and what happened at the meeting, there was no reasonable way back for her and it was natural that the Claimant would feel unable to return to work under those managers in that team.[68]The policy breaches which the Claimant complains about were unfortunate but not fundamental breaches and not the real reason for her resignation.[69]The reason for the resignation was the meeting on the 25 April which was a fundamental breach, which catalysed the breakdown of what was already a poor work relationship and made its continuation untenable from the Claimant’s reasonable point of view.[70]As a matter of law even if an employer takes reasonable steps to make amends after a fundamental breach of contract by it, this does not prevent the employee resigning because of the breach and making a successful claim of unfair constructive dismissal, if the amends for whatever reason, do not prevent the resignation. That was the case here.[71]There was no affirmation or waiver of breach. The Claimant was absent from work and either pursuing her grievance or appeal in relation to the breach throughout the period up to her resignation.[72]The claims of unfair constructive dismissal and wrongful dismissal therefore succeed.Remedy
[73]The Claimant was entitled to 12 weeks’ notice so I award net pay for that period as compensation for wrongful dismissal[74]She confirmed that she did not wish to be re-instated.[75]The Claimant stated in her witness statement “I found the job market highly competitive and opportunities scarce. Being 58 years old and having worked for the same employer for 15 years was a disadvantage. I was ill-equipped for a modern administrator role outside the NHS and needed training incurring costs I could not afford. I did not apply for state benefits because I was told that, as my employer had recorded my employment ending by way of ‘voluntary resignation’, I could wait up to 26 weeks for payment. I had expected to have secured a job by then. I made internet searches for local, part-time jobs but failed to secure any interviews. I have had no paid work since I resigned and have had to rely on my family for financial support. I currently volunteer, from home, as a call handler for a Wildlife Rescue group.”[76]She said in her oral evidence that she had made many unsuccessful job applications[77]The Claimant was directed as follows by a Tribunal Notice dated 7/1/25 as follows: “The claimant and the respondent must send each other copies of all the documents they have relevant to the claim. This includes documents relevant to financial losses and what the claimant has done to find another job. Documents includes recordings, emails, text messages, social media and other electronic information. You must send all relevant documents you have in your possession or control even if they do not support your case.”[78]Despite this, and despite the fact that the Claimant and Mr Woodhead have been industrious in other aspects of prosecuting the claim, the Claimant has not produced a single document to show that she has made any job applications. She said she had drafted a CV but that has not been produced either. She has not been able to give details of any specific application.[79]I find that there has been a failure to take reasonable steps to mitigate.[80]The Claimant was in a job at or close to the minimum wage working only 18 hours a week. She has not yet reached normal retirement age and she did not complain of any disabling ill health. I find that had she made a real effort to secure at least equivalent alternative employment she would have been able to do so within her notice period, for which she is being compensated. Accordingly, I find it just and equitable to not award loss of earnings as part of the unfair dismissal remedy (apart from pension loss during the notice period).[81]The Claimant made a claim for holiday pay. There is no evidence before me as to what, if any, holidays may have been due. In any event acting reasonably she should have taken her holidays during her paid absence from work during the period between April 2025 and her resignation. Hence, I do not award any holiday pay. Calculation of award Notice pay £2694.36 Basic award2 for UD: £5327.10 Compensatory award LOSR £500 Loss of employer pension contributions for 12 weeks 12 x £236.76 x 23.7% = £673.34 TOTAL £9194.80 I make no uplift because the ACAS code relating to disciplinary procedures does not apply to constructive dismissals and the Respondent complied with the ACAS code in relation to the Claimant’s grievance. 1 Gross pay £236.76 Net pay £224.53 per week Claimant had 15 years service and was 58 years old when dismissed J S Burns