S Smith v May Harris Cleaning Services Ltd: 2301053/2023

EMPLOYMENT TRIBUNALS

Case No 2301053/2023

Between

Susan SmithClaimant

May Harris Cleaning Services LtdRespondent

Before

Employment Judge N Wilson

In person for claimant

Date 19 November 2024

JUDGMENT

[1]The complaint of constructive unfair dismissal is not well founded and is dismissed.

[2]The complaint of breach of contract in relation to notice pay is not well founded and is dismissed. Note Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision. Page 1 of 2 Case Number: 2301053/2023

[1]The complaint of constructive unfair dismissal is not well founded and is dismissed.

[2]The complaint of breach of contract in relation to notice pay is not well founded and is dismissed. Page 1 of 26

REASONS

[3]These written reasons are provided following a request made by the claimant on 4 November 2024.

[4]An oral judgment was delivered in this matter on 31 October 2024 following a 4-day final hearing. It is to be noted the decision was explained orally but the claimant and her representative talked to each other throughout the Judgment being handed down (they were on mute in the video hearing). I did explain the importance of them listening so they could understand the reasons for the decision.

Background

[5]The claimant was employed with the respondent (a cleaning company) as a cleaner from April 2019. Her ET1 states her employment ended on 17 February 2023 however she asserts she informed the respondent during a telephone conversation on 15 February 2023 that she was resigning. The respondent does not admit the resignation happened during this telephone call but accepts the claimant emailed her resignation on 15 February 2023. This email from the claimant gives the respondent one month’s notice and confirms the last date of employment will be 15 March 2023. The respondent says the claimant resigned in writing which it accepted in writing and it made a payment in lieu of notice.

[6]I did not have a bundle but ascertained form the parties at the outset that a number of documents had been sent to the Tribunal marked as documents 1- 23 which were relied on for this hearing.

[7]I also had witness statements from: a) Clint Harber (respondent witness) b) Dawn Edser (respondent witness c) Lorraine Allchin (respondent witness) d) Valerie Bennett (respondent witness) e) Susan Smith (claimant) f) Lydia Salih (claimant witness) g) Ahmet Salih (claimant witness)

[8]I heard sworn evidence from all witnesses.

[9]Mr Harber, Managing Director and owner of the respondent business cross examined the claimant and her witnesses. Ms Hunt lay representative for the claimant cross examined the respondent’s witnesses. Page 2 of 26 Preliminary matters Bundle and witness statements

Preliminary matters

[10]I checked with the claimant’s lay representative Ms Hunt at the outset before we heard any evidence on day one that the claimant’s statement is the one emailed dated 20 September 2024. The reason I checked the position was because this statement is titled an ‘addendum statement’ which implies there is a previous statement. Ms Hunt confirmed that this was the claimant’s only witness statement.

[11]The parties confirmed they had these documents and statements in front of them. However, before we started hearing evidence it transpired the claimant’s witness statements from Lydia Salih (the claimant’s daughter) and Ahmet Salih (the claimant’s partner) were not before me. They were emailed to me during the hearing as was the claimant’s first witness statement which was not referred to by her or Ms Hunt during the first day but was ultimately emailed to the Tribunal on the evening of day one. The respondent has seen all the statements relied on by the claimant in advance of the hearing and I admitted them in evidence albeit the addendum statement and the one titled ‘final statement’ were served after the deadline provided in the case management order of Employment Judge Martin and were therefore served late by the claimant. I was satisfied the respondent was not prejudiced by their late admission as they confirmed having seen the statements in August and September 2024 well in advance of this final hearing and they confirmed to me they have prepared their case accordingly in any event. There are no new matters raised in these statements which the respondent was not aware of. It was therefore in the interests of justice to allow them to be admitted in evidence albeit the claimant gave no good reason for the failure to comply with the witness evidence deadline.

[12]Part way through day two after the claimant’s evidence and that of her witnesses had concluded and upon Ms Hunt commencing cross examination of the respondent’s witnesses it transpired Ms Hunt and the respondent also had another bundle which they both refer to as the ‘claimant’s bundle’. This bundle was not before me. I noted neither the claimant, nor her witnesses were referred to this bundle during their cross examination in any event. I asked the parties to ensure this bundle was emailed to me and ascertained the respondent also had it in its possession. I expressed my dissatisfaction with the number of documents which are being raised and sent on a piece meal basis during the course of this hearing which is not conducive to an efficient hearing particularly where I had specifically ascertained which documents the parties and I had before we started. I confirmed to the parties I would read this additional bundle after today's hearing before we started to hear evidence on day three and I did so.

[13]The ‘claimant’s bundle’ comprised of 47 pages and many of the documents therein appear in the bundle which the respondent has also sent to the Tribunal for this hearing comprising of documents 1-23 (and which I had seen prior to the hearing commencing). Page 3 of 26

[14]At the same time as sending the ‘claimant’s bundle’ after day two I noted the respondent had also sent an additional document namely the grievance hearing notes dated 20 December 2022. Again, I expressed dissatisfaction as to why this document which is referred to by one of the respondent’s witnesses in her statement did not a) form part of disclosure and b) appear in the bundle. I understand the parties are not represented but the previous case management order makes it clear what disclosure involves, and it appears obvious that any grievance hearing minutes would be relevant. In any event the respondent indicated they had not been sure it was a relevant document although their witness Ms Allchin makes reference to the grievance hearing in her witness statement.

[15]I gave the claimant and Ms Hunt time to read the document and confirm whether they object to this document’s late admission or not. I explained to Ms Smith that just because the document was not disclosed earlier it does not mean that it necessarily prejudices her case. She needs to think carefully whether she believes it may indeed assist her case and if so, she can confirm that she would like the document to be admitted in evidence. The claimant and Ms Hunt confirmed after a discussion between them that they objected to the document being admitted in evidence. The respondent indicated they had no real submission to make in so far as admitting the document is concerned. I did not admit the document (the grievance hearing minutes) given the respondent has failed to previously disclose it and the claimant states she objects on the basis the claimant has not previously seen the document. In the circumstances the balance is tipped against admitting the document as it could prejudice the claimant. The grievance minutes were accordingly not admitted in evidence. Amendment

[16]A further preliminary issue was raised by the claimant on day 3 of the hearing and after the claimant and her witnesses had concluded giving evidence. Ms Hunt indicated the claimant wanted to make an application to amend the claim. It was clear from her cross examination that Ms Hunt was repeatedly asking questions of the respondent’s witnesses which were not relevant to the issues in this case which I am going to be making decisions about.

[17]I informed the claimant and Ms Hunt that there are several factors I will need to take into account if they are to make a formal application including (but not limited to): a) The nature of the amendments and whether it is one of minor matters or is a substantive alteration pleading a new cause of action b) The applicability of time limits and whether a new complain or cause of action is out of time and if so whether the time limit should be extended and c) The timing and manner of the application.

[18]I further explained that given the respondent is not represented it is likely they will want the application in writing so they can properly respond to it and as we Page 4 of 26 are in day 3 of a 4-day final hearing, if they proceed to make the application it will likely result in the rest of the hearing not being able to proceed. I warned this was one of the factors (timing and manner) which will be considered by me and likely to weigh heavily against the amendment being permitted as I wanted them to think carefully before disrupting this hearing at such a late stage. I was also concerned regarding both parties getting a fair hearing and I am mindful the claimant’s cross examination and that of her witnesses has concluded. I am also bound to consider the overriding objective to deal with cases proportionately. The claimant has attended a previous case management hearing on 8 February 2024 before Employment Judge Martin and has had the opportunity to clarify her claims and raise any issues with the list of issues. I note she has failed to do so. I also take note I read out the list of issues on day one of this hearing and no issue was raised at that point also. It appears Ms Hunt’s cross examination raises breaches of various policies which are set out in the respondent’s employee handbook. What is important to note is that these matters were not raised at the case management hearing. I refer to the issues identified at the case management hearing on 8 February 2924 as set out in the Order of EJ Martin at paragraph 5.1 in respect of the matters relied on by the claimant as the reasons for why she resigned. None of those allegations include any breaches of policies set out in the employee handbook. There being one allegation of the claimant being in breach of its health and safety policy in making her carry things with a broken arm (this already being an issue to be determined during this hearing)

[19]Notwithstanding this Ms Hunt stated the claimant still wanted to make the application so I attempted to ascertain from Ms Hunt the nature of the amendments being sought, before needing to adjourn the hearing so the claimant could set out the formal application writing (with a view to having to return tomorrow to deal with the application once the respondent had sufficient opportunity to consider any application and prepare to respond to it).

[20]In response Ms Hunt states the additional allegations which will form part of the amendment application will be: a) A breach of the implied term of trust and confidence led to further injury b) The employee handbook and wellbeing of staff were ignored c) The respondent failed to follow the sickness procedure d) Failure to comply with the manual handling regulations.

[21]I explained the Tribunal does not have jurisdiction to deal with alleged breaches of the Manual Handling Regulations as a cause of action. I further stated the claimant is seeking to introduce allegations based on what is set out in the employee handbook (the respondent’s procedures) which the claimant gave sworn evidence about yesterday that she had not read or seen until she received disclosure of it as part of these proceedings. Her evidence was she had not been aware of the handbook nor the policies in it at the time she resigned. How can breaches of the handbook she states she was not aware of have been the reason she resigned and/or contributed to the reason she resigned in those circumstances? It appeared plain that Ms Hunt and/or the claimant have noted possible failures on the part of the respondent once they Page 5 of 26 received disclosure of this handbook. I had serious concern as to how her evidence can now be that those failures breached the implied term of trust and confidence causing her to resign in response when she has already given evidence to say she was not aware of that handbook and therefore had not read any of the procedures contained within it at the time she resigned. They are also not referred to in her resignation email as the reason for her leaving.

[22]Having raised these concerns, the claimant and Ms Hunt decided not to proceed with making any application to amend the claim and we continued with cross examination of the respondent’s witnesses. No formal application was therefore made, and I made no decision about the application. I merely tried to ascertain what allegations the claimant was now seeking to add to the claim. I explained to them I cannot advise them, but I did need to inform them of the difficulties they faced with such an application based on the information they have provided and the timing of the application being part way through a trial where we have already concluded the claimant’s and her witnesses evidence. General observations

[23]The respondent raised that Ms Hunt (during the claimant’s cross examination) appeared to be writing down things which the claimant was reading when answering questions. I did not observe this at the point it was raised initially but gave the parties a warning about this.

[24]I did on more than one occasion hear Ms Hunt seemingly give an answer for the claimant during the claimant’s cross examination and I had to warn her to not speak for the claimant when she was giving evidence.

[25]I also observed at one point the claimant appeared to be looking down and reading from something placed in front of Ms Hunt. This was during the claimant giving evidence in response to a question. Again, I gave the parties a warning and indeed warned Ms Hunt if this was observed again, she may be precluded from further participation. I was concerned about the claimant being prompted during cross examination. Whilst this was difficult to be certain about as the hearing was being conducted on video, I did observe some matters as recorded above which I had to raise with the claimant and Ms Hunt to ensure a fair hearing for all.

The legal framework

[26]The claimant brings the following claims: a) Unfair dismissal – and relies on a breach of the implied term of mutual trust and confidence. Section 95(1)(c) of the Employment Rights Act 1996 (‘ERA’) states that there is a dismissal when the employee terminates the contract, with or without notice, in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct. This form of dismissal is commonly referred to as ‘constructive dismissal’. Page 6 of 26 b) The guidance given for deciding if there has been a breach of the implied term of trust and confidence is set out in Malik v BCCI; Mahmud v BCCI

1997 1 IRLR 462

where Lord Steyn said 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 confidence and trust between employer and employee." c) In Western Excavating (ECC) Ltd v Sharp

1978 ICR 221

, CA, the Court of Appeal ruled that, for an employer’s conduct to give rise to a constructive dismissal, it must involve a repudiatory breach of contract. As Lord Denning MR put it: ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed’ d) In terms of causation, that is the reason for the resignation, a Tribunal must determine whether the employer’s repudiatory breach was ‘an’ effective cause of the resignation. However, the breach need not be ‘the’ effective cause — Wright v North Ayrshire Council

2014 ICR 77

, EAT. As Mr Justice Elias, then President of the EAT, stated in Abbycars (West Horndon) Ltd v Ford EAT 0472/07, “the crucial question is whether the repudiatory breach played a part in the dismissal’, and even if the employee leaves for ‘a whole host of reasons’, he or she can claim constructive dismissal ‘if the repudiatory breach is one of the factors relied upon” e) Where an employee has mixed reasons for resigning their resignation will constitute a constructive dismissal provided that the repudiatory breach relied on was at least a substantial part of those reasons ( Meikle v Nottinghamshire County Council

[2004] EWCA Civ 859

[2005] ICR 1

) f) Thus, where an employee leaves a job as a result of a number of actions by the employer, not all of which amounted to a breach of contract, they can nevertheless claim constructive dismissal provided the resignation is partly in response to a fundamental breach. g) If the employee waits too long after the employer’s breach of contract before resigning, he or she may be taken to have affirmed the contract resulting in the loss of the right to claim constructive dismissal. In the words of Lord Denning MR in Western Excavating (ECC) Ltd v Sharp

1978 ICR 221

, CA, the employee Page 7 of 26 “must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged” h) This was emphasised again by the Court of Appeal in Bournemouth University Higher Education Corporation v Buckland

2010 ICR 908

, CA, although Lord Justice Jacob did point out that, given the pressure on the employee in these circumstances, the law looks very carefully at the facts before deciding whether there really has been an affirmation. An employee’s absence from work during the time he or she was alleged to have affirmed the contract may be a pointer against a genuine affirmation. i) The Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust

2019 ICR 1

, CA, held that, in last straw cases, if the last straw incident is part of a course of conduct that cumulatively amounts to a breach of the implied term of trust and confidence, it does not matter that the employee had affirmed the contract by continuing to work after previous incidents which formed part of the same course of conduct. The effect of the last straw is to revive the employee’s right to resign. j) In relation to whether the contract has been affirmed, or the breach waived by the claimant, the Court of Appeal in Kaur (above) offered guidance to tribunals, listing the questions that it will normally be sufficient to ask in order to decide whether an employee was constructively dismissed:(i) what was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(ii) has he or she affirmed the contract since that act?

(iii) if not, was that act (or omission) by itself a repudiatory breach of contract?

(iv) if not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of trust and confidence?

(v) did the employee resign in response (or partly in response) to that breach? k) The burden of proving the absence of reasonable and proper cause lies on the party seeking to rely on such absence (RDF Media Group plc and anor v Clements

2008 IRLR 207

, QBD). As in that case, this will usually be the employee l) The claimant also pursues a breach of contract claim for notice pay. Page 8 of 26 Claims and Issues Constructive unfair dismissal

[27]The claimant accepts that she resigned from her employment. The Tribunal will consider the following matters which were set out in the case management Order of EJ Martin dated 8 February 2024 following a preliminary hearing to identify the issues and to case manage the claim. The claimant attended that preliminary hearing.

[28]Did the respondent commit a fundamental breach of the claimant’s contract of employment?

[29]The claimant relies on a breach of the implied term of mutual trust and confidence. Did the respondent do the following things: a) In October 2022 the claimant broke her arm and it was in plaster and her manager was not supportive and criticised her work. b) The respondent was in breach of health and safety as it made the claimant carry things with a broken arm c) The claimant received no advice regarding sick leave or statutory sick pay. d) Justine Rushton shouted at the claimant on the phone on 15 April 2023. The claimant says Ms Rushton was abusive saying she was an idiot and shouting as if she was stupid. This is the last straw event the claimant relies upon. e) The claimant was underpaid £130 on or about 15 February 2023 f) Clint Harber sent nasty emails, on 16 February 2023, to say the claimant was threatening staff. g) On 15 February 2023 the Claimant phoned the office and spoke to Justine Rushton who she says shouted at her in an abusive manner when she asked about her pay, in such a way as if she was stupid and did not sign in and out which the Claimant says she did (this is a repeat of allegation d) above but appears twice in the list of issues with a different date) h) Samual Acquah attending the Claimant’s home on 17 February 2023 and harassed the Claimant’s family for the work keys with no permission. Page 9 of 26

[30]Did those things breach the implied term of trust and confidence? The Tribunal will need to decide: a) whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and b) whether it had reasonable and proper cause for doing so. c) Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end. d) Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation. e) Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach. Notice Pay

[31]Did the respondent pay the claimant for her notice period? What was the claimant’s notice period, what notice pay was claimant was entitled to and what was or was not paid.

Findings of fact

[32]The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. References to page numbers are to the documents 1-23 and what was referred to as the ‘claimant’s bundle’ which ran to 47 pdf pages albeit many of the documents contained in that bundle formed part of the documents titled 1-23 in any event. I have considered all the oral evidence heard and the documents referred to in the bundles. I only refer to as much of the evidence as is necessary to explain my decision. I will deal with each allegation in turn.

[33]I remind myself that the test is objective. The matters that the claimant relies upon as cumulatively amounting to a breach of trust and confidence are set out at paragraph 30 above. Page 10 of 26 In October 2022 the claimant broke her arm, and it was in plaster and her manager was not supportive and criticised her work.

[34]The claimant informed her line manager Dawn Edser by text or WhatsApp message on 7 October 2022 that she had broken her wrist and that it was in a cast. In that message she states, and I quote: ‘it's in a cast I can try and. Work. Or take time off it's my left hand I can still use my fingers and I'm righ. James I want to try. It's up to you. If I can still work. I'm going to A & E. And. They may be able to give me more advice there. Sorry’ (NOTE: punctuation and spelling is taken directly from the claimant’s WhatsApp message in the bundle). In response Ms Edser replies ‘Hi Susan if you are able to it would be very helpful although I don't want you to hurt yourself x’

[35]There follows a number of text and/or WhatsApp message exchanges between the claimant and Dawn Edser. Essentially the claimant informs Ms Edser she could be in a cast for up to 8 weeks and she cannot afford the time off but says that she can book the rest of her holiday which is about a week. In these messages Ms Smith asks Ms Edser to find cover for her as that would be helpful. Ms Edser replies, ‘I will try my best as soon as possible x’.

[36]Ms Smith provides Ms Edser an update by text on 8 October 2022 stating she is in a cast but can still use her hand. She says she is still in a bit of pain, and ‘I will go in tomorrow but can't promise the 4 hours’. She asks if Sam can provide cover from Monday. She also refers to then using her holiday. She goes on to say ‘if you can't get Sam from Monday. I will have to try. To do my best. Is it ok if I take in a family member for a little help tomorrow. If not tell me’

[37]On the same date Ms Edser says she will try and get Sam to cover and confirms by text on 9 October 2022 at 9:40 am that Sam will cover for the claimant for the entire week although she would need to get the keys to him. In response Ms Smith said she would manage that day. She also confirms that she can use her hand. She states she needs to recover from the shock and pain.

[38]On 10 October 2022 Ms. Smith sends a text to Ms Edser stating that she managed to do her four hours yesterday but forgot to sign in and out.

[39]On 16 October 2022 Ms Smith informs Ms Edser by text that her doctor has given her a four-week sick note and enquires ‘how does that work do I get paid? As it's not possible if I don't’. She goes on to state in the same message ‘I don't want to cause problems for you. I willing to carry on as long as theirs no issues’. She makes an enquiry about whether she can keep the Hoover upstairs and says she can still use her fingers but no heavy lifting. Page 11 of 26 She also sends a picture of her in a cast and says ‘this is the situation. Is up to you to be fair not me’

[40]In response Dawn Edser confirmed ‘we do not pay sick pay. Please go in but ask Sam if he's available to do anymore cover for you at all just in case it is too much for you’. At the same time, she says if there is somewhere upstairs for a Hoover to be put, she cannot see it would be a problem.

[41]In response Mrs. Smith says ‘I'm feeling OK. and it's best I work…if I cant manage I will speak to Sam. But it should be OK. She refers to Jo not having let her previously keep a Hoover upstairs and in response to this Ms Edser states that ‘if Jo won't let you then let me know hun and I will discuss with her’.

[42]There follow some text messages where the claimant raises some issues she has about the state of the building she is cleaning and she is informed by Ms Edser to put her issues in the communications book. None of these issues relate to the claimant’s broken wrist or raise any issue about her being unable to carry out any specific tasks or needing assistance with any aspects of the job due to her injury.

[43]The respondent carries out audits of cleaning with all clients. The claimant had one such audit during the period her wrist was in plaster.

[44]On or around 18 November 2022 the claimant received an audit score of 86% which she refers to in a text message to Ms Edser as being a ‘good score for an invalid’. She then states, ‘considering I should not have been working I've done a pretty good job’. In response Ms Edser sends a message saying, ‘I think so too hun 86% is a good score’ and adds a ‘thumbs up’ emoji to the message.

[45]On 18 November 2022 Ms Edser sends Ms Smtih by WhatsApp photographs from the audit. This is the message where she informs Ms. Smith that she scored 86% and states, ‘so not bad’ and then proceeds to list a lot of areas she says that are being missed. She finishes the message saying, ‘Thanks Susan, please work on these items next week x’. Ms. Smith responds, ‘Ok will do’. Ms Smith then returned to Ms Edser by WhatsApp message on the 20 November 2022 stating these points raised are mainly to do with mould and bad conditions of the building not cleaning problems. Ms Edser’s answer says, ‘the radiators fridge dishwasher cobwebs are cleaning issues hun as I said I will take into account your arm etc just need you to work on it this week’. Ms. Smith replies I'm one armed at the moment washing fridges is difficult. That should have been taken into account…. I'm not happy with these views’. She goes on to state her family say she should complain because she should have taken the time off sick. Ms Edser sends a response saying ‘look Susan it was your choice not to take time off sick!! It has been Page 12 of 26 taken into consideration that you had your arm in plaster and if I'd of been worried about the result I would of said i have asked you to work on the other bits that is all if you feel you need to complain about me then do so Susan I cannot stop you doing that thank you’

[46]Ms Smith in response says ‘I may be signed off sick tomorrow when the plaster comes off. I'm to blame and I'm entitled to sick pay. And I should have taken the time. off’. She goes on to state ‘your right it was my decision not to go sick…… but sick pay is payed by the government I did not know that. The next communication is the claimant telling Ms Edser on 21 November 2022 that she has a sick certificate and wanted to drop off the keys and Ms Edser informs her she is on leave and asks her to please call the office to let them know so they can organise this.

[47]I find the tone of these messages was largely very amicable. I take note that most messages from Ms Edser end with a kiss (‘x’). I find based on the evidence and the documents Ms Edser was supportive of the claimant following her breaking her wrist. Whilst the claimant now states she should not have been allowed to make that decision as to whether she could carry out her job properly or safely without a proper medical assessment I accept Ms Edser, based on these contemporaneous messages and her oral evidence, reasonably believed the claimant wanted to work, needed to work and was informing her she was capable of carrying out the job whilst in a cast. I accept the unchallenged evidence of Ms Edser that the claimant never submitted a sick note following the end of her taking a week’s holiday on or around 16 October 2022 and Ms Edser reasonably believed the claimant was able to therefore return to work.

[48]The claimant's allegation is that her manager was not supportive and criticised her work. I heard no evidence nor is there any in the bundle that I was referred to of Ms Edser criticising the claimant’s work. The evidence disclosed shows that Ms Edser was repeating the results of an audit. While the claimant now states an audit should not have taken place whilst she was in plaster this is not the allegation or conduct Ms Smith relies upon as a reason for terminating her employment. It is not contained in her ET1 nor in the case management summary and list of issues discussed at the preliminary hearing. Her allegation is that her line manger was not supportive and criticised her work and I find that Dawn Edser was supportive as is evidenced by her arranging cover for the claimant during the week after being informed she had broken her wrist and approving holiday on the basis Ms Smith said she could not afford to be off sick. I also find Mrs Edser did not criticise the claimant’s work, to the contrary she expresses she believes the audit result of 86% was a good one. I accept Mrs Edser does go on to list a number of areas missed during the audit and whilst it could be said this is evidence of being unsupportive I accept her unchallenged evidence that she knew the claimant had been to hospital and the claimant had confirmed to her that she wanted to carry on working after getting medical Page 13 of 26 advice and she believed the jobs she was being asked to do were ones she was capable of whilst in a cast.

[49]I make this finding based on the tone and content of the contemporaneous text and WhatsApp messages and the oral evidence of Ms Edser. I find she reasonably believed based on information Ms Smith gave to her that she was able to work for the period in question before she was signed off sick. I heard no evidence from the claimant and nor is it evident in the contemporaneous messages between Ms Edser and Ms Smith that the claimant was asking for any other assistance other than asking Sam to cover which was provided and a Hoover being placed upstairs which Ms Edser says she asked the claimant to return to her about so that she could speak to Jo if Jo refused this. The claimant conceded in evidence that she did not return to Ms Edser to inform her of any problem with the Hoover being placed upstairs which she says she could not clearly lift with her broken wrist. It is therefore reasonable for Ms Edser to have assumed that Jo had agreed to this request, the claimant not having returned to her after she had asked her to do so if there had been an issue about it. Ms Smith's evidence about the Hoover issue was that it was not her job to follow up with Ms Edser. However, it is clear Ms Edser had asked the claimant specifically to come back to her in relation to the Hoover if it became an issue and in fact had stated that she would speak to Jo if there was a problem which indicates Ms Edser was attempting to assist and support the claimant with the request so she did not have to lift this heavy item. The claimant never returned to Ms Edser to inform her she was having to lift the Hoover. Ms Edser therefore reasonably assumed this was because the request to keep the Hoover upstairs to avoid having to lift it had been agreed to between the claimant and Jo.

[50]The claimant’s oral evidence in relation to the audit focused on not being offered any help as opposed to being given a list of things to do with an injured arm. However, I find at no point did Ms Smith ask for assistance which was not provided. When she asked Sam to cover for her Ms Edser arranged for this. When she asked if the Hoover could be kept upstairs Ms Edser informed the claimant to speak to Jo about it and if there was any issue to let Ms Edser know and Ms Edser confirmed that she would speak to Jo in those circumstances for the claimant which indicates she would have ensured that request was accommodated.

[51]The claimant raised a grievance which was heard on 22 December 2022 by Ms Allchin and reference was made in that grievance to the claimant not being happy with the audit result and not feeling comfortable with Ms Edser. The claimant said that Ms Edser was rude on the phone and had clashes with her. I heard no evidence from the claimant of any allegations of rudeness or clashes on the phone. Nor does this form part of the issues I have to decide about albeit if there was evidence heard about it, it may have supported the allegation of her line manager being unsupportive. As it is I heard no evidence to support a Page 14 of 26 finding that Ms Edser was rude or of any alleged clashes. The result of that grievance was Ms Allchin, in order to find a way forward, appointed the claimant with a new line manager Sameul Aquah. There is no evidence before me of any investigation or upholding of any of the assertions Ms Smith made about Ms Edser. I accept the evidence of Ms Allchin as to why she thought it was the best way forward and not that it was found that Ms Edser had been rude to the claimant. The claimant’s manager was changed because Ms Allchin felt there was a breakdown in communication between the claimant and Ms Edser. She did not uphold any allegation of rudeness on the part of any party. It was the unchallenged evidence of Ms Allchin that the claimant acknowledged she took the audit results personally and felt there was a breakdown in communication between her and Ms Edser. It was the unchallenged evidence of Ms Allchin that to pacify the claimant her line manager was changed to Samual Acquah and that the claimant stated she was happy in those circumstances to return to work. At the time of the grievance meeting on 20 December she was off sick with her wrist injury and a return-to-work date was agreed of 9 January 2023.

[52]I do not find that the actions of Ms Edser following the claimant breaking her wrist were unsupportive and breached the implied term of trust and confidence. The Respondent was in breach of health and safety as it made the Claimant carry things with a broken arm

[53]I accept the claimant as part of her job role had to carry a bucket and water and carry a Hoover and use both hands for cleaning. The claimant in evidence stated she was not fully capable of doing that at the material time. There is no evidence as referred to previously that the respondent made her carry a Hoover during the period she was in plaster. The respondent reasonably believed the claimant had asked Jo for permission to leave the Hoover upstairs to avoid having to carry it and in the absence of the claimant returning to Ms Edser to the contrary I find it was reasonable for them to have held this belief. In so far as carrying of the bucket and water is concerned it was unchallenged evidence given by the claimant that this was part of her job. I therefore find the claimant did this with a broken wrist. However, I heard no evidence nor is there any in the WhatsApp messages or text messages before me that the claimant brought this to the attention of the respondent at the material time. I find the the claimant did not at the time her wrist was in plaster inform her line manager that she was having to carry a mop and a bucket and/or that she could not. This is not referred to in any of the contemporaneous documents or messages between the claimant and Ms Edser. The claimant when asked about this specifically responded ‘they knew’ but did not give evidence that she had in fact raised it or informed them of this at the relevant time. Page 15 of 26

[54]The claimant raised a grievance to the respondent which was heard by Ms Allchin on 20 December 2022. The grievance focused on Ms Smith being unhappy with the audit results that had been carried out by the area manager on 17 November 2022. She raised concerns in the hearing about the state of the client premises, for example leaking toilets and a broken dishwasher. The unchallenged evidence of Ms Allchin was that this was not the claimant's responsibility and that if there were any issues with the client site, she could leave a note for the client in the communications book on site and to inform her area manager of the issues.

[55]There is no evidence the claimant raised having to carry heavy items as part of her grievance. I find the text messages and WhatsApp messages between the claimant and Ms Edser only refer to the Hoover as being an issue for her to carry and a solution was provided to that (namely keeping it upstairs). No other lifting of items was raised by Ms Smith and nor does she give evidence that she raised not being able to lift the bucket of water/mop with Ms Edser at the material time. Whilst I am not saying this would not have been challenging for anyone in a cast the claimant did not raise this contemporaneously and nor is there any evidence before me that the respondent made her do this having known it was an issue.

[56]Insofar as breaching the respondent’s health and safety policy is concerned the employee handbook states that an employee is to discuss with their line manager or the HR manager any health problem which prevents them from carrying out their job or has a detrimental effect on their work performance. If deemed necessary, the company will refer you for an opinion from a doctor in accordance with the procedures for dealing with ill health absence.

[57]It ought to have been evident that given the nature of the role Ms Smith was performing her ability to undertake all or part of it may have been impeded by the injury she had. There was no risk assessment carried out in this regard nor any referral to Occupational Health. I accept the respondent however was acting in accordance with the information being provided by the claimant in relation to what she was and was not able to do whilst in plaster particularly where she was receiving medical advice. It was the unchallenged evidence of Ms Edser that the claimant never submitted the 4-week sick note that she informed Ms Edser of on 16 October 2022 and that the claimant informed her that she wanted to continue to work and believed she was able to as the injury was to her left wrist and she was right handed.

[58]The claimant continued to work for the respondent despite her saying she was expected to lift heavy items. Her employment continued for some 4 months following her breaking her wrist albeit I take note there was a period of sickness absence after 21 November 2022. The claimant did however return to work on or around 9 January 2023 and continued to work and be paid by the respondent until she resigned on 15 February 2023. Page 16 of 26

[59]I heard no evidence that following her return to work in January 2023 and her resignation the claimant raised or indeed had any issue with carrying any items as part of her role.

[60]I do not find the claimant was made to carry a hoover with a broken arm. I find the claimant did not bring to the respondent’s attention any other issues she had with carrying any other items following her injury. I find the employer had reasonable and proper cause to assume there were no other items the claimant had to lift for her role which were causing an issue (because the claimant did not raise this with them at the relevant time). I do not find this was conduct which was calculated or likely to destroy or seriously damage trust and confidence. The Claimant received no advice regarding sick leave or statutory sick pay (SSP).

[61]The only contemporaneous written evidence I have before me referring to SSP and sick leave information being requested by Ms Smith are the WhatsApp and text messages between the claimant and Dawn Edser. I find those messages are not the claimant asking for advice or assistance with what sick leave she was entitled to as there is no mention of sick leave. However, she does say in one message on 16 October 2022 ‘The doctor has given me a four-week sick note. How does that work do I get paid?’ In response Ms Edser simply states, ‘we do not pay sick pay hun’. It is clear this relates to the respondent’s sick pay policy.

[62]The claimant in evidence stated she had no understanding at the material time off entitlement to statutory sick pay ‘SSP’. I accept her unchallenged evidence that she had never previously received statutory sick pay. I find Ms Edser did not give the claimant any information about the fact that she would have been entitled to statutory sick pay even if the company were not paying her for sickness absence.

[63]I find that Ms. Smith asking if she would get paid when signed off sick was her asking her line manager for information about her sick pay entitlement. In response to this her line manager did not refer to her entitlement to SSP. Ms Edser in evidence stated she did not consider that Ms. Smith had asked her for advice. I accept Ms Edser’s evidence that she believed the claimant would have know about her statutory sick pay entitlement and how to claim it because she had received the employee handbook.

[64]I find this was a reasonable belief to have held given the claimant's own evidence that she had received an employee handbook. Ms Smith’s evidence about the employee handbook (which does contain information about an employee’s entitlement to SSP) was contradictory. She initially accepted she Page 17 of 26 received the employee handbook when she started her employment but that this was online, and she could not print it off. She then changed her response to ‘I do not recall getting it online’ then she stated it probably got lost and finally said ‘yes, I did receive it but it got lost’. Her evidence was clear in one regard about the employee handbook and that was she had not read the employee handbook before these tribunal proceedings. When asked why she had not read it before she stated in evidence it was because she relied on her manager to give her the advice needed.

[65]I find whilst Dawn Edser had not advised the claimant about SSP or sick leave the claimant had received advice and information about sick leave and entitlement to statutory sick pay within the employee handbook which she accepted she had been issued with at the start of her employment. I find however the claimant had not read this handbook before she left the employ of the respondent.

[66]I do not find that the claimant therefore had received no advice regarding sick leave or statutory sick pay as she has received the employee handbook which contained such information, yet she simply had not read it.

[67]I find that Ms Edser had reasonable and proper cause to believe the claimant had access to information about sick pay and sick leave entitlement via the employee handbook. Justine Rushton shouted at the Claimant on the phone on 15 April 2023. The claimant said this was abusive saying she was an idiot and shouting as if she was stupid. On 15 February 2023 the claimant phoned the office and spoke to Justine Rushton who she says shouted at her in an abusive manner when she asked about her pay, in such a way as if she was stupid and did not sign in and out which the claimant says she did. The claimant was underpaid £130 on or about 15 February 2023

[68]I will deal with these allegations together. Whilst there is a reference to two different telephone conversations, one occurring on 15 April 2023 and the other on 15 February 2023 in the list of issues it is plain that only one telephone conversation is being relied upon by the claimant with Justine Rushton that being the one on 15 February 2023. The claimant had of course left the employ of the respondent by 15 April 2023. It is clear therefore whilst 2 dates have been given for a telephone conversation with Justine Rushton where she is alleged to have shouted and been abusive towards the claimant this is indeed a Page 18 of 26 reference to one telephone conversation which took place on 15 February 2023.

[69]This is the telephone conversation that Ms. Smith relies upon as her last straw event.

[70]I find the claimant called the office and spoke with Justine Rushton to query what she believed was an underpayment of her wages by £130. The respondent’s witnesses were cross examined about the claimant being correct regarding the underpayment relying on Ms Fearn subsequently confirming to the claimant that she had been underpaid statutory sick pay (which was corrected the following week). The claimant accepted in evidence at the time that she made this telephone call she was querying an underpayment of what looked like £130 from her wages for hours she had worked and was not querying any underpayment of statutory sick pay. It is evident that at the time that she made the call she was not alleging any underpayment of statutory sick pay.

[71]I find the claimant had not been underpaid her wages and in fact she accepted when referred to the pay slips for the relevant period that she had in fact been paid 57 hours when her hours worked for the same period were 52.02 hours which was an overpayment of the hours worked in January 2023. She also accepted in evidence when referred to the hours and pay for February 2023 that the hours worked correlated with the hours paid. Finally in relation to the underpayment of SSP she accepted this payment was made to her the week after it had been noted by Ms Fearn. In any event she was not asserting an underpayment of SSP when making the call to Justine Rushton nor was an underpayment of SSP part of her claim. Her claim is for an underpayment of £130 for the hours she had worked and been paid for on or about 15 February 2023. Based on the payslips and the claimant’s oral evidence I find there was no underpayment of £130 for the hours she had worked for the relevant pay period.

[72]I find no payments are outstanding and due to the claimant for wages/SSP.

[73]I find the claimant had access to her payslips via a wage’s portal. Her evidence about why she did not access this portal was not very clear. She stated initially she did not log into this because of a password issue. She then stated she had asked Ms Edser for paper pay slips because she could not log in. Her evidence also changed about what Ms Edser’s reply was to this request. The claimant initially said Ms Edser said she would help her to log into the wages portal and she subsequently changed this to Ms Edser said she will get her paper pay slips. Page 19 of 26

[74]I find the claimant did not ask Ms Edser nor anyone else at the respondent for paper payslips before she resigned. The claimant gave different accounts in this regard. I find she did not ask Justine Rushton for paper pay slips during the telephone conversation on 15 February 2023 when she queried her underpayment.

[75]I find the claimant had access to her pay slips via a secure wage’s portal. She gave different reasons in her oral evidence for why she did not simply login to this given the payslips show the hours worked, the hours paid as well as the SSP and any deductions made. Ms Hunt in re examination alluded to the claimant not signing into the portal due to concerns about security but Ms Smith’s evidence changed again at that point saying she did not want to sign for the payslips online. She then stated she could not print them off without making a big effort. There was no cogent evidence given as to why she could not view them online and why she needed printed versions to be able to read them.

[76]In relation to the conversation itself, I heard evidence from Ms Smith that Ms Rushton was abusive and shouting but she was unable to remember the precise words used. Ms Smith stated that Justine Rushton was shouting at her that she did not sign in an out. She states she was shouting at her until she nearly collapsed. She was unable to be specific about any language but did not allege any swearing or name calling took place aside from Ms Rushton calling her stupid. She simply referred to her tone being abusive. She stated Justine was not prepared to answer her questions and then when she did answer it was the ‘wrong answer’. Ms. Smith stated that Justine called her stupid and it reduced her to tears.

[77]I take note of both the evidence of Mr Harber who was present in the respondent's offices and could hear Justine Rushton’s side of the conversation and the evidence of the claimant’s daughter Ms Salih who also gave evidence about Ms. Smith’s side of the telephone conversation.

[78]I also take note the claimant was unable to specifically recall or give an account of what Justine Rushton stated to her just that she was shouting abuse, and she believed Ms Rushton was giving her the wrong answers.

[79]I accept Ms Smith during this conversation told Ms Rushton that she would be resigning and that Ms Rushton asked her to send an e-mail to the office to follow that up. Following the conversation on 15 February 2023 Ms. Smith sent an email to the respondent confirming she was resigning and gave one month’s notice. That e-mail is titled ‘handing in my notice’. In the e-mail she does not say that Ms Rushton shouted at her but does refer to being spoken to rudely and unprofessionally. This is a contemporaneous e-mail sent on the day of this conversation between Mr. Smith and Ms Rushton. I note it does not refer to any shouting by Ms Rushton and nor does it refer to Ms Rushton calling her stupid. Page 20 of 26 I find if Ms Rushton had called the claimant stupid during this conversation the claimant would have most certainly referred to it within this e-mail given she clearly refers to other matters which she was unhappy about for example Ms Edser ‘being a complete and utter nightmare’.

[80]Ms Salih gave evidence that she heard raised voices on both sides during this telephone conversation although she then qualified this by saying the raised voice was mainly from ‘her side’ referring to Ms Rushton. Ms Salih was specifically asked whether she heard any verbal abuse, and she was only able to say she heard Ms Rushton say ‘look here Susan you didn't sign in or out’. She did not give evidence of hearing the word stupid being used.

[81]I find Ms Salih did not hear any abusive language nor Ms Rushton calling the claimant stupid.

[82]This is corroborated by the evidence of Mr Harber who was also able to overhear Ms Rushton’s side of the conversation on the same date. It was unchallenged evidence that his desk is located next to Ms Rushton’s. He was candid that he could not hear what Ms. Smith was saying but I accept that he was in a relatively small open plan environment, sitting close enough to Ms Rushton and could hear Ms Rushton repeating the same information over and over again to the claimant about an underpayment of hours. Whilst he was candid that he could hear the conversation was becoming heated I accept his evidence that Ms Rushton was not screaming or shouting at Ms. Smith and nor was she abusive. This is consistent with Ms Salih's evidence that she heard raised voices on both sides but did not given evidence that she heard anything which could be reasonably construed as abusive.

[83]I find the conversation between Ms Rushton and Ms. Smith on 15 February 2023 clearly became a heated one because Ms. Smith in her own words felt she was being given incorrect answers by Ms Rushton about a query regarding an underpayment of hours. I do not find Ms Rushton shouted abuse or was verbally abusive to the claimant during this conversation albeit there was a disagreement and raised voices on both sides. This again is consistent with the words that Ms Salih states she actually heard Ms Rushton say.

[84]I find the claimant resigned from her employment during this conversation in her own words to ‘shock’ Ms Rushton into stopping talking. Her contemporaneous e-mail dated 15 February 2024 gives the reason for her resignation as being ‘I’m afraid I'm Giving May Harris a months notice. Due to serious underpayment of wages’. She refers to ‘When phoning I was spoken to rudely and unprofessional. And no reason for underpayment was given’. She then goes on to state ‘Dawn was a complete and utter nightmare’. She states that Dawn was unprofessional and rude and bullied the claimant and did not want to cover the work. There is no evidence before me of Page 21 of 26 Ms Edser having bullied the claimant. There is also no evidence of Ms Edser being unprofessional or rude and in any event it is to be noted this allegation does not form part of the claimant’s complaint as to why she resigned and nor does it appear in her list of issues.

[85]The conversation between Ms Edser and Ms Rushton, given my findings, falls short of conduct which is calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent. The evidence clearly points to both Ms Rushton and Ms Smith being heated. There is no cogent evidence to support a finding that Ms Rushton was abusive. Clint Harber sent nasty email on 16 February 2023, to say the Claimant was threatening staff and; Samual Acquah attending the Claimant’s home on 17 February 2023 and harassed the Claimant’s family for the work keys with no permission.

[86]I will only touch on these two allegations briefly as this is conduct which occurred after the claimant has already resigned from the respondent’s employment. It cannot therefore be conduct which the claimant considers she was subjected to by the respondent which entitled her to terminate her employment for a breach of the implied term of trust and confidence. The claimant states this was conduct which occurred during her notice period (for which she was paid in lieu and therefore she did not continue to work beyond the date she resigned). She had already handed in her resignation and given her notice giving the reasons for her termination before this alleged conduct. It cannot therefore have been in her contemplation and formed part of the conduct which is alleged to have resulted in her terminating her employment. In this regard I take note of the oral evidence and the claimant’s own email on 15 February 2023 which sets out her reasons for leaving the respondent. Notably she states ‘I’m afraid I’m Giving May Harris a months notice. Due to serious underpayment of wages’. At this point clearly the allegations relating to Clint Harber’s emails and Samual Acquah’s attendance at the family home to collect work keys had not yet happened. This conduct cannot have formed part of the alleged conduct in those circumstances which led to the claimant resigning. The claimant herself relies on the telephone call with Justine Rushton on 15 February 2023 as her ‘last straw’ event. Notice pay

[87]I heard and received no evidence in support of any claim for notice pay. The claimant was given one month’s pay in lieu of notice and it is not disputed by her that this was the amount of correct applicable notice nor that the notice pay was not received. I cannot find that the claimant is owed any notice pay. Page 22 of 26

Conclusions

[88]In order to claim constructive dismissal, the employee must establish that: a) there was a fundamental breach of contract on the part of the employer- in this case the claimant relies on the implied term of trust and confidence b) the employer’s breach caused the employee to resign c) the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.

[89]I have not found that the claimant was not supported by Ms Edser after she broke her wrist. Indeed, cover was arranged for her, and she was informed her audit result was a good one. She was not criticised by Ms Edser for her work rather feedback was given about the audit. Whether or not the audit should have taken pace when the claimant had a broken wrist is not conduct the claimant relies on in this case and therefore, I am not making a finding about that. It does not form part of her allegations nor the list of issues. I further find the claimant continued to work for the respondent for some 3 months after the audit results. The grievance she raised about her line manager Ms Edser did not raise that Ms Edser was unsupportive when she broke her wrist. The grievance was dealt with by the respondent replacing her line manager for when she was due to return back to work on 9 January 2023. In the circumstances any issue she had with a breakdown of communication between herself and Ms Edser had therefore been resolved by the respondent replacing her line manager prior to the claimant’s resignation. I do not find the claimant resigned in response to the allegation that her line manager was not supportive of her during the time she had broken her wrist. I further do not find Ms Edser’s conduct towards Ms Smith after she broke her wrist amounted to a breach of the implied term of trust and confidence.

[90]I have found the claimant was given the employee handbook and there was information about the SSP and sick leave entitlement in there. The claimant simply did not read it until she had left the employment of the respondent and commenced these proceedings. There is no evidence before me that she had informed the respondent at any time prior to termination her employment that she wanted a paper copy and had not read it or could not access it to read unless she had it in paper form. There is no evidence that her resignation was caused or contributed to by her not being given information about her SSP or sick pay entitlement. In this regard I take note of the oral evidence of the claimant and the contemporaneous resignation email. As the claimant had received the employee handbook before she injured her wrist, I do not find this alleged conduct amounted to a breach of the implied term of trust and confidence. In any event I do not find the claimant resigned in response to the allegation that she was not given information about any SSP or sick pay entitlement. Page 23 of 26

[91]I have found the claimant inevitably would have had to carry items such as a bucket of water as part of her cleaning duties but that the contemporaneous WhatsApp and text messages after her wrist injury only indicated to the respondent’s Ms Edser that she needed assistance with a Hoover being moved upstairs. The respondent's response to this was that there was no problem with it providing the claimant spoke to Jo and if Jo raised any issue with it then Ms Edser was clear in her response that the claimant could come back to her, and she would raise it with Jo herself. The claimant did not raise any issue subsequently with the Hoover needing to be carried by her with Ms Esder. Importantly the carrying of items is not mentioned by the claimant as the reason for her handing in her notice when she emailed the respondent on 15 February 2023. Based on her evidence and the contemporaneous documents I do not find this formed part of the alleged course of conduct which led to the claimant terminating her employment. In so far as lifting the Hoover is concerned I find the respondent reasonably believed it was not an issue and that this was resolved by keeping it upstairs as the claimant had requested so that the claimant was not having to carry it because she did not return to Ms Edser about it. Even if the allegation about having to carry a mop and bucket/heavy items was within the claimant’s contemplation when she resigned (which I am not satisfied it did based on the oral and documentary evidence before me) I am not satisfied this alleged conduct was calculated or likely to destroy or seriously damage trust and confidence. I do not find the claimant was unfairly and improperly exploited. Based on the respondent’s response to the issue raised by the claimant about the Hoover, had she brought up an issue with any other items she had to carry (which I find she did not) I am satisfied the respondent would have responded in a similar manner and would have provided a suitable solution. Whilst there could be some criticism of the respondent not considering for example a risk assessment or an assessment of Ms Smith’s capabilities following her injury, the claimant informed the respondent she was able to and needed to continue to work. Perhaps naively the respondent felt they were assisting the claimant by enabling her to do so without a proper risk assessment. However, I do not find the claimant resigned in response to this alleged breach nor that this amounted to conduct calculated or likely to destroy or seriously damage trust and confidence.

[92]I have found the telephone conversation between Justine Rushton and the claimant on 15 February 2023 was heated on both sides. I found no evidence of verbal abuse and heard evidence there were raised voices on both sides.

[93]I find there was ‘no serious underpayment’ of the claimant’s wages as alleged at the time that she resigned from the respondent’s employ. Whilst Ms Fearn confirmed to the claimant that she had noted an underpayment of SSP this was not the underpayment the claimant was querying when she called Justine Rushton on 15 February 2023. The claimant’s evidence throughout has been she was underpaid by £130 for hours worked not SSP. She repeats in an email Page 24 of 26 on 15 February 2023 that she was 10 hours down in pay. When the claimant was referred to her payslips, she accepted she had been paid for the hours worked for the relevant period. I have also found the underpayment of SSP was noted by the respondent on the same day (15 February 2023) and the claimant was informed of this on the same date also, with it being rectified the following week.

[94]I found that the issue raised about Dawn Edser and the claimant not being able to work with her had already been resolved by providing the claimant with a replacement manager following the grievance in December 2022.

[95]I have found the reason the claimant resigned during the telephone call on 15 February 2023 was to stop Justine Rushton in her tracks during a heated telephone conversation and the contemporaneous email on the same date confirms the claimant left due to a serious underpayment of wages when the payslip clearly show no underpayment of wages had been made for hours worked which is what the claimant was referring to at the time she made the call and emailed her resignation. The SSP underpayment was not in her contemplation at that time. She only became aware of it when Ms Fearne emailed her about it. The claimant’s own evidence was that she was only querying that the hours worked had been incorrectly calculated and was not querying or challenging the SSP at the time she resigned . In the circumstances I do not find this allegation (even it can be construed as encompassing the error with the SSP which I do not find it was) amounted to a breach of the implied term of trust and confidence.

[96]None of the allegations the claimant complains of alone amount to a breach of the implied term of trust and confidence. That leaves the question of whether there was a course of conduct comprising of some or all of the acts and omissions complained of which cumulatively amounted to a repudiatory breach of the implied term of trust and confidence. I find there was not. Looking at the allegations and the findings I have made I do not find that the respondent through any single allegation or by a combination of any act or omission complained of behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.

[97]I therefore find the claimant’s claim for constructive unfair dismissal to be not well founded, and it is dismissed.

[98]I find the claimant’s claim for notice pay to be not well founded, and it is dismissed Page 25 of 26 Note Reasons for the judgment were given orally at the hearing.