Ms C Chileshe v South East Coast Ambulance Service NHS Foundation Trust: 2303430/2024

EMPLOYMENT TRIBUNALS

Case No 2303430/2024

Between

Ms Caroline ChilesheClaimant

South East Coast Ambulance Service NHS Foundation TrustRespondent

Before

Employment Judge Othen

Dr Ogunsanya (instructed by advocate) for claimant

Ms Amartey (instructed by counsel) for respondent

Date 23 July 2025

JUDGMENT

ON LIABILITY The Claimant's claim of unfair dismissal fails and is dismissed.

REASONS

[1]The Claimant was employed from 11 October 2021 as Deputy Chief Pharmacist. By an ET1 claim form submitted on 15 April 2024, the Claimant brought a claim of constructive unfair dismissal under Section 95(1)(c) of the Employment Rights Act 1996. Her effective date of termination was 29 March 2024 which came about from a resignation email from the Claimant serving notice of termination on 5 January 2024.

[2]The Respondent contested the claim. It asserts that the Claimant resigned.

[3]The parties were represented at the hearing. The Claimant gave sworn evidence. The Respondent called sworn evidence from Monica Collins (previous HR Adviser for the Respondent) and Magnus Nelson (currently Chief Medical Officer for the Respondent). I considered the documents from an agreed, 633 page Bundle of Documents which the parties introduced in evidence. Issues for the Tribunal to decide

[4]An agreed list of issues was before the Tribunal for the hearing which was amended by order of the Tribunal on or around 22 May 2022, after an application made by the Claimant after the second day of the hearing. The circumstances and reasons for that application and order are set out in full in that written order and will not be repeated in this judgment unless relevant to it.

[5]The amended list of issues to be determined in the case was therefore as set out in Annex A to this judgment (with relevant redactions).

Findings of Fact

[6]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 PDF page numbers of the agreed Bundle of Documents (not the written page numbers).

[7]The Claimant had a written contract of employment. It states at paragraph 27 that any grievance raised by the Claimant should be dealt with in accordance with the Respondent's Grievance Policy and Procedure but that that procedure did not form part of her contract of employment. It also states at paragraph 30 that: "Bullying and Harassment at work will not be acceptable in any form. Failure to comply with or adhere to the Trust's Bullying and Harassment (Dignity at Work) Policy will be treated as misconduct……".

[8]The Grievance Policy (GP) (page 57) states that it does not apply to: "Complaints about bullying and harassment, discrimination or victimisation (please refer to Bullying and Harassment (Dignity at Work) Policy)."

[9]The grievance procedure involves two initial, "Informal" stages (steps one and two (page 65 bundle)). Step one requires an informal discussion with a supervisor or line management. Step two requires an employee to complete and "Informal Grievance Form". Paragraph 10.2 of the procedure states that: "the manager should reply verbally, as soon as possible, and in any event within 7 calendar days of the grievance being reported." The rest of the informal grievance procedure is set out thereafter. This requires the need for any member of staff about whom a grievance is raised to be given an opportunity to respond to that grievance (paragraph 10.4) and the need for a written outcome (paragraph 10.5). Furthermore, it clearly states at paragraph 10.6 that: "any discussion at this stage will be regarded as outside the formal grievance procedure".

[10]After the informal grievance process, the GP details two separate forms of "Conflict Resolution": "Facilitated Discussion", and "Mediation". They both require consent of concerned parties.

[11]Thereafter, the "Formal Grievance" process is set out from paragraph 13 onwards (page 67 bundle).,

[12]The Bullying and Harassment (Dignity at Work) Policy (DW Policy) (page 94) states that: "all formal concerns raised under this policy will be investigated in accordance with the Trust's Grievance (Resolution) Policy" (paragraph 2.4: page 98). At paragraph 4.7.3, it states that: "bullying may result from… A junior colleague towards a more senior employee, a manager or the trust". A nonexhaustive list of forms that bullying "may" include are set out at paragraph 4.7.4 which includes "offensive or abusive personal remarks". At paragraph 4.9 it defines Facilitated Conversations and Mediation, both of which require the agreement of relevant parties. An Informal Resolution stage is detailed which provides a manager with discretion to use various options including meetings, facilitated conversations and mediation.

[13]Paragraph 10 set out the "Formal Resolution" requirements which are that a request for formal resolution should be made via the grievance policy where either: "the informal procedure is exhausted, the matter is considered too serious or the colleague does not wish to deal with the matter informally". Formal resolution requires a formal investigation, to be carried out in accordance with the grievance policy (paragraph 10.7: page 106). Paragraph 12 entitled: "Outcome of the Investigation" details various requirements in circumstances where objective evidence to support an allegation of bullying, harassment or victimisation has been established from a formal investigation. These include a written outcome of findings (paragraph 12.1 to 12.4: page 107).

[14]Collectively, the above policies will be referred to in this judgment as "the Policies".

[15]On 11 October 2021, the Claimant commenced employment as a Band 8a Deputy Chief Pharmacist. CO was a Lead Pharmacy Technician managed by the Claimant. In the Claimant's witness statement, she reported problems with managing CO since December 2022. These included problems in managing her performance.

[16]Approximately six months prior to this, in July 2022, the Claimant had unintentionally breached the confidentiality of CO and had apologise for doing so in an email dated 12 July 2022.

[17]On or around 9 March 2023, there was a one-to-one meeting between the Claimant and CO which is recorded in notes written by the Claimant (page 288). During this, CO is noted as saying: "basically what you're saying is I do f**k all". The note also records that CO became distressed and stated she had trust issues with the Claimant. The notes record that CO chose to end the meeting before "saying something she would regret".

[18]The Claimant sent an email to CO on 23 March 2023 which clearly set out her expectations regarding outstanding tasks. The Claimant then commenced capability performance monitoring of CO.

[19]On 18 May 2023, a further one-to-one meeting took place. This followed a funeral which CO had attended the day before. The Claimant's account of that meeting in her witness statement was that CO began shouting at her, becoming agitated and criticising her management of her, making accusations such as the Claimant being "cold, robotic" and lacking basic compassion before ending the meeting. The Claimant further gave evidence that she was very shocked and upset by this meeting. Her evidence regarding what was said to her and her reaction to this is accepted. I found the Claimant's evidence regarding this to be credible and it is corroborated by further documents which are referred to in further paragraphs below (the Claimant's subsequent complaint/grievance).

[20]Following this meeting, CO emailed the Claimant to complain about her treatment by her. This email made very clear her sense of grievance regarding the Claimant's alleged lack of support, understanding and compassion. The email says: "I understand you are my line manager, and we are very different people, but the one thing I know 100% is that you do not have my best interests at heart or that of the unit". She reported that she intended to raise the issue with her trade union representative and was no longer happy for further oneto-one meetings to take place with the Claimant alone.

[21]The Claimant then followed this up with an email on the same day, 18 May 2023, to her manager, Carol-and Davies-Jones (CD). The email is stated to be a "formal complaint about CO's behaviour since December 2022, culminating with some of the things which CO said to her on 18 May 2023 and says: "… this sustained attack and my character has become too much". CD contacted the Claimant via Teams to discuss her email and was referred to the GP. She was asked to clarify whether she wished to pursue an informal or a formal grievance.

[22]On 7 June 2023, CO returned to work following a period of stress related sickness absence and the Claimant wrote to her to confirm the commencement of formal performance management. During cross-examination, the Claimant admitted that she should have delayed sending this letter in the circumstances. On 8 June 2023, CO failed to attend a scheduled one-to-one meeting with the Claimant and all further meetings with her and cancelled by CD.

[23]Following this, on the same day, 8 June 2023, the Claimant raised an informal grievance (page 263). The narrative within this grievance is roughly 1 page long and summarised within the first paragraph is a complaint about CO's "increasingly antagonistic and slanderous" behaviour. She details seven specific occasions which include the one-to-one meetings on 9 March 2023 and 18 May 2023. The resolution that C sought (page 265) was as follows: "[CO's] behaviour is not in line with the Trust values or dignity at work policy. I would like the poor behaviour to stop and a professional, workable relationship to be maintained."

[24]On 13 June 2023, CO's trade union representative wrote to CD in an email of approximately three pages. He noted various concerns arising from the Claimant's grievance about CO. The email reported the alleged effect on CO's mental health of the grievance itself and also said that: "[CO] has painted a very worrying picture of her day-to-day work life under Caroline's management". Furthermore, the email refused any participation in a facilitated discussion and requests: "a full pause of all processes", the cessation of the Claimant's direct line management of CO and that the contents of his email be kept confidential from the Claimant.

[25]Because of this, a facilitated discussion meeting which had been arranged for 14 June 2023 was cancelled that day.

[26]Discussions then proceeded with regard to possible mediation between the Claimant and CO. On 13 July 2023, Monica Collins emailed the Claimant regarding the Claimant's confirmation that she wished to participate in mediation with CO and the fact that the mediator who was first appointed to this process was, at that time, unable to proceed. Some ACAS guidance on mediation was attached to that email.

[27]On 17 July 2023, the Claimant received a phone call from Tim Widdowson, then Acting Deputy Director of HR. The Claimant's witness statement at paragraph 16 explained that he proposed to chair mediation between the Claimant and CO, together with CO's trade union representative as a co-chair. The Claimant went on to explain that she felt extremely stressed by this as she felt the co-chairing suggestion to be inappropriate. During cross-examination, the Claimant clarified that she found three things to be alarming about this telephone call: that it was made out of the blue, that it was from Tim Widdowson and the co-chair suggestion. She said that she felt backed into a corner and that at the time, despite this being presented as a suggestion only, there was no other option given. She acknowledged that the suggestion may have been intended as well meant but didn't agree that it had that effect.

[28]The Claimant then took some advice from her trade union representative and replied by email to Tim Widdowson on 19 July 2023 saying that she did not feel that CO's trade union representative would be impartial. She also then raised some further questions about mediation and the grievance process in general.

[29]Tim Widdowson responded to the Claimant email on the same day to explain his reasoning, stating: "I understand and respect that you feel uncomfortable with that approach".

[30]I accept that the Claimant was distressed by the call from Tim Widdowson. The balance of evidence from the Claimant's evidence suggests that it was not only his co-chair suggestion that upset her but was the sudden involvement of Tim Widdowson without any notice or previous rationale.

[31]On 3 August 2023, the Claimant had an informal discussion with Tim Widdowson via teams to discuss his credentials as a mediator and to clarify various other issues. In her witness statement at paragraph 24, the Claimant says that at that point, she confirmed that she was still happy to commence mediation with CO and for him to be the mediator. This would appear to indicate that the Claimant had trust and confidence in the mediation process and in Tim Widdowson's role as a mediator.

[32]On 10 August 2023, the Claimant commenced a period of stress related sickness absence.

[33]A mediation meeting took place between the Claimant, CO and TW on 4 September 2023. The mediation failed, because, according to the Claimant, CO refused to consider any reasonable resolution suggestions, said that she would not feel safe or remain on site while the Claimant was in the same building as her and then left the mediation meeting. It is clear that at that point, there is a total breakdown in the relationship between the Claimant and CO and that the latter, rightly or wrongly, felt very aggrieved.

[34]The Claimant returned to work on 2 October 2023. After further discussion with the Respondent, she escalated her grievance to make it formal on 11 October 2023. She also agreed to the Respondent's suggestion that the grievance investigation be undertaken by an external third party provider.

[35]On 5 December 2023, the external grievance investigator (Carol Spencer) provided her investigation report. The grievance investigation had included interviews with the Claimant, CO and seven other witnesses. It defined a summary of the Claimant's grievance grounds by two allegations:35.1 "that CO's behaviour towards [the Claimant] is not in line with the trust values or dignity at work policy and has been increasingly antagonistic and slanderous since December 2022" and

35.2 "that in the last six months, CO's behaviour has persistently attempted to undermine [the Claimant's] character".

[36]The report is lengthy and detailed. It found that there was no evidence to support the Claimant's grievance grounds. It made various recommendations and suggested resolutions.

[37]It detailed a lengthy period of individual incidents and interactions between CO and the Claimant resulting in a broken relationship but concluded that CO's conduct was not because of an intentional desire to ruin the Claimant's reputation but was "born out of frustration, communication difficulties and an unresolved initial issue (breach of confidence) that has grown" (page 338). The report also referred to various working environmental factors.

[38]On 11 December 2023, the Claimant received a grievance outcome letter on behalf of the Respondent from a Richard Quirk, Deputy Medical Director. It stated that Carol Spencer had decided not to uphold the Claimant's grievance because:38.1 "there is no evidence that CO's behaviour is not in line with the Trust values or Dignity at Work Policy.

38.2 there is no evidence that CO intended to slander [the Claimant].

38.3 there is no case to answer for this complaint related to the allegation that CO's behaviour has persistently attempted to undermine [the Claimant]."

[39]The Claimant's witness statement reports that: "I was surprised by this outcome". The following day, on 12 December 2023, the Claimant's witness statement states at paragraph 47 that: "I had concluded I could no longer stay in the employ of the Respondent". She also notes that at that stage, she had experienced negative interactions from other members of staff following her sickness absence leave, although she goes into no further details regarding this.

[40]On the suggestion of her trade union representative, the Claimant agreed to attend a meeting with Carol Spencer, to take place on 20 December 2023 to further understand the grievance outcome and recommendations. The Claimant's witness statement says of this meeting that she was very upset by what Carol Spencer said about her evidence not being sufficient to uphold any of the grievance findings and that the Claimant's actions had contributed to the outcome.

[41]On 23 December 2023, the Claimant submitted a grievance appeal which specifically referred to the outcome that there was a lack of evidence of behaviour which was not in line with trust values (pg 496). The appeal referred to the meeting of 20 December 2023 in which CS said such behaviour was acknowledged but was attributed to mitigating factors. In particular, CO's use of foul language was referred to which, the Claimant alleged, was justified by Carol Spencer because it was not directed at the Claimant and was an expression of emotion. The appeal summarised that she felt such mitigation "should not be at the expense of the truth".

[42]On 4 January 2024, CD told the Claimant that she was leaving her job. The Claimant's witness statement at paragraph 54 says that the Claimant had already decided to resign

[43]The Claimant's resignation email (pg 501) dated 5 January 2024, does not contain a clear or unequivocal reason for resignation but states as follows: 43.1 "Unfortunately, the decision to resign has been made easier by the ongoing and currently untenable working relationship between myself and [CO], and the impact of this on others. I don't think it's fair or sustainable for all involved and this action is all that is available to me currently".

[44]She provided 12 weeks notice of resignation.

[45]Magnus Nelson considered the Claimant's grievance appeal. He held meetings with various parties, including the Claimant and Carol Spencer and reviewed relevant documents and correspondence.

[46]The grievance appeal outcome letter (pg 582) dated 18 March 2024 partially upheld the Claimant's appeal. It includes the following:46.1 reference to the Claimant's lack of intention to appeal until the meeting with Carol Spencer on 20 December 2023 which, in the Claimant's view, revealed information which undermined the accuracy of the grievance outcome letter;

46.2 confirmation of the Claimant's focus on a finding that there had been no evidence of behaviour which had been in breach of the trust values and dignity at work policy

46.3 confirmation from the Claimant that she sought an acknowledgement of the differences between the grievance outcome letter and the information revealed in the meeting on 20 December 2023;

46.4 an admission from Carol Spencer that foul language had, in all probability, been used by CO (during the one-to-one meeting on 9 March 2023);

46.5 a record that the overall focus of the investigation report had been to resolve the differences between the Claimant and CO;

46.6 the fact that Carol Spencer had no sight of or input into the grievance outcome letter.

[47]The letter concludes:47.1 "There was a mismatch between the contents of the grievance outcome letter of 7 December 2023, and your meeting with Carol Spencer on 20 December 2023"; and

47.2 "It would appear on the balance of probability there was a single identifiable episode relating to the need to be polite and courteous towards colleagues which wasn't in line with the Trust Value demonstrating Compassion and Respect, this was in relation to the use of foul language".

[48]The Claimant's effective date of termination was 29 March 2024.

[49]The Claimant's evidence given in cross examination and during further questions by the Tribunal about what actually caused her to resign was confused. She said at various times that:49.1 By 4 September 2023, all the alleged breaches of contract on which she relied had occurred;

49.2 That by 5 January 2024, her dispute with CO was affecting the entire Medical Team and that this wider impact caused her to resign;

49.3 That she had decided before the meeting of 20 December 2023 to resign;

49.4 That she decided to resign on receipt of the grievance outcome letter (dated 7 December 2023) on 11 December 2023;

49.5 That she decided definitely on 20 December 2023 to resign.

[50]When she was asked what it was about the grievance outcome letter that made her resign, the Claimant referred to the outcome summary, that there was no evidence to support her grievance grounds; that she felt that there was so much evidence and this made her feel that there was nothing else she could do.

[51]I find on the balance of probabilities that the following events all played a part in the Claimant's decision to resign and that as such, they were all reasons for the Claimant's resignation:51.1 The grievance outcome letter's content that there was no evidence to support her grievance grounds;

51.2 What she was informed in the meeting with Carol Spencer on 20 December 2023:51.2.1 That there was a lack of sufficient evidence to uphold any of the grievance findings and that the Claimant's actions had contributed to the outcome;

51.2.2 The justification of CO's use of foul language;

51.2.3 The inconsistency between the conclusions of Carol Spencer about the use of that foul language and her finding that there was no evidence of the Claimant's grievance grounds;

51.3 The impact of her dispute with CO on her and the wider impact that the dispute was, by 5 January 2024, having on her team.

[52]The reasons for my finding in paragraph 51 are that:52.1 there is reference in the Claimant's ET1 and her witness statement (at paragraph 47) to these events being at least related to the Claimant's resignation; in the grievance outcome letter, she specifically stated that she had concluded the following day she can no longer stay in employment;

52.2 although there was inconsistency in the Claimant's answers in cross examination and other questions, I've taken into account the fact that she was clearly distressed on at least two occasions when recounting these events and I find it credible that such distress affected the clarity of her answers;

52.3 it is consistent and credible for the Claimant to have related her conclusions and feelings on receipt of the grievance outcome letter to the further information which she was given in the meeting on 20 December 2023 about this grievance outcome letter;

52.4 the contents of the Claimant's grievance appeal which is entirely consistent with this finding. Relevant law Constructive and Unfair Dismissal

Relevant law

[53]Section 94 of the Employment Rights Act 1996 (ERA) confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111.

[54]Section 95(1)(c) ERA states that an employee is dismissed if (s)he: "terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct".

[55]The above statutory test has, over the decades, been clarified and refined by cases such as Western Excavating (ECC) Ltd v Sharp [1978] from which this well-known judgment extract is taken: 55.1 "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."

[56]The relevant contractual breach can relate to express or written terms, such as a place of work or those which are implied into every contract of employment, such as the mutual term of trust and confidence. Trust and Confidence

[57]The House of Lords in Malik and another v Bank Of Credit & Commerce International SA (in compulsory liquidation) [1998] explained the effect of the breach of trust and confidence as follows: 57.1 "The employer must not, without reasonable and proper cause, conduct itself in a manner calculated [or]1 likely to destroy or seriously damage the relationship of trust and confidence between employer and employee".

[58]The application of this test should be on an objective basis, that is to say, the question to ask is whether the employer's actions, considered objectively, were likely to destroy or seriously damage the relationship of trust and confidence; its intention is irrelevant. Last Straw

[59]In Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

the Court of Appeal set out a test of five questions that an employment tribunal should ask in order to determine whether an employee has been constructively dismissed:59.1 What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, their resignation? 1 Varma v North Cheshire Hospitals NHS Trust

UKEAT/0178/07

59.2 Has the employee affirmed the contract since that act?

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

59.4 If not, was it nevertheless a part (applying an approach explained in Waltham Forest v Omilaju

[2004] EWCA Civ 1493

) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of a possible previous affirmation, because the effect of the final act is to revive the right to resign.)

59.5 Did the employee resign in response (or partly in response) to that breach?

[60]Where the most recent act or omission is innocuous, a constructive dismissal claim can still succeed if there was earlier conduct amounting to a fundamental breach, that breach has not been affirmed and the employee resigned at least partly in response to it. In other words, if the answer to the above question 59.4 is “no”, it is relevant to ask whether any earlier conduct itself entailed a breach of the Malik term, has not since been affirmed, and contributed to the decision to resign (Williams v. Governing Body of Alderman Davies Church in Wales Primary School

EAT/0108/19

). Causation

[61]The breach does not have to be the only cause of the employee's resignation; the repudiatory breach must have "played a part" and be "one of the factors relied upon" in the employee's resignation (Wright v North Ayrshire Council

UKEAT/0017/13

). Affirmation

[62]If an employee waits too long after becoming aware of the breach of contract before resigning, s/he may be taken to have affirmed the contract. The question is whether the employee has shown an intention to continue in employment, rather than an intention to resign. This will depend on the particular circumstances of the case. Factors relevant to this question include the employee’s conduct, as well as the length of time which has passed since the breach.

[63]Quilter Private Client Advisers Ltd v Falconer

[2020] EWHC 3294 (QB)

considered the question of whether, by serving a period of notice before termination, an employee may have affirmed the contract of employment. The court in that case held that, provided the employee makes their objection to what has been done by the employer "unambiguously clear", they are not necessarily to be taken to have affirmed the contract; it would depend on the facts of each case and whether the employee has accepted the repudiation "unambiguously and with sufficient dispatch". Therefore, the length and circumstances of the delay in termination would need to be examined in each case.

Conclusions

[64]Having considered the above principles I apply them to the facts in this case and come to my conclusions as follows:

[65]The alleged contractual breaches on which the Claimant relied were that the Respondent did: a) Permit an unreasonable delay pf over 3 months in the facilitation of an informal facilitated discussion, compared to the recommendation of 7days from the issue being raised as outlined by the organisations grievance policy (11.3). b) Introduce confusion into the process by using the terms ‘facilitated discussion’ and ‘mediation’ interchangeably for two distinct processes (examples in email correspondences from the 13th July 2023 and 19th July 2023). c) Fail to act with the fairness and transparency recommended by the Acas Code of Practice on disciplinary and grievance procedures (2), and in accordance with the organisation's dignity at work policy (12.1) by failing to provide an outcome of the initial investigation after the informal grievance was filed on the 8th June 2023 when concerns of harassment and upward bullying were raised (also detailed email correspondence from the 19th July 2023). d) Fail to maintain third-part impartiality in line with the organisations grievance policy (12.2 & 12.4) on the 17th July 2023 by proposing mediation co-chaired by the complainee’s trade union representative. e) Fail to behave in a supportive manner and maintain a psychologically safe environment with the mediation proposal on the 17th July 2023. f) Fail in their duty of care to take the complaint seriously on their lack of conflict resolution suggestions throughout the process, with particular failings in taking over 15 weeks from the issue being raised to facilitate a singular informal discussion between the parties. g) Issue a grievance outcome letter that stated that: i. There is no evidence that CO's behaviour is not in line with the Trust values or Dignity at Work Policy. ii. There is no evidence that CO intended to slander [the Claimant]. iii. There is no case to answer for this complaint related to the allegation that CO's behaviour has persistently attempted to undermine [the Claimant] Trust and Confidence

[66]As directed, I will adopt the recommended reasoning in Kaur by asking its questions.

[67]What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, their resignation? 67.1 This was the grievance outcome letter as stated above and its contents therein.

[68]Has the employee affirmed the contract since that act? 68.1 The Claimant served notice of resignation on 5 January 2024. Her effective date of termination was 29 March 2024. She continued to work during this 12 week period. The Respondent has argued, amongst other things, that this delay amounted to an affirmation of the contract. In all the circumstances, I do not agree with this submission for these reasons:68.1.1 The Claimant was in a role of significant responsibility. Her contractual notice was 12 weeks.

68.1.2 Her resignation email made clear the reasons for the termination of her employment as a result of the untenable working relationship between her and CO and was unambiguous in its intention.

68.1.3 Despite her grievance appeal, no conduct of the Claimant during her notice period was consistent with affirmation.

68.1.4 At that point, she was no longer working with CO. In those circumstances, and in her senior role, a period of 12 weeks was not a significantly lengthy period.

[69]If not, was that act (or omission) by itself a repudiatory breach of contract?69.1 I do not find that, of itself, the content of the grievance outcome letter amounted to a repudiatory breach of contract.

69.2 The Respondent was at fault in issuing a grievance outcome letter stating that there was no evidence that CO's behaviour was not in line with Trust values or the DW Policy. This policy, as set out at paragraph 12 states that "offensive or abusive personal remarks" may amount to bullying. Carol Spencer, as part of her grievance investigation, had concluded that foul language had been used by CO during the one-to-one meeting with the Claimant on 9 March 2023. Specifically, CO had stated of the Claimant: "basically what you're saying is I do f**k all".

69.3 Magnus Nelson, as grievance appeal manager agreed that there was an inconsistency between this outcome and the above language which CO was found to have used at the meeting with the Claimant.

69.4 To state that there was "no evidence" that this was not in line with Trust values or the DW Policy was inaccurate. On objective evaluation, it implied that the evidence that the Claimant offered about this incident was not believed; and this was clearly not the case.

69.5 Despite this however, I do not feel that this outcome, of itself, went to the root of the employment contract, demonstrating that the Respondent no longer intended to be bound by the implied term of trust and confidence. Further, it did not amount to conduct calculated or likely to destroy or seriously damage this relationship.

69.6 I have taken into account the entire context of the grievance investigation report and outcome.

69.7 The investigation was thorough. Carol Spencer interviewed the Claimant and CO who clearly felt great mistrust, hurt and resentment towards each other. Further, she interviewed seven other witnesses. The outcome of findings were against this complex background and were focused, at least in part, understandably, towards a resolution of the situation.

69.8 I do find it significant that the remark made by CO, while it was not appropriate and used foul language, was not said to the Claimant as an aggressive term of abuse about her. Rather, it was a general description of what CO thought that the Claimant thought about her performance and was said in a context of general heightened emotion.

69.9 As such, I find that the grievance appeal outcome of Magnus Nelson was a more accurate reflection of the facts and evidence from the investigation. That was that there is a single episode of foul language as set out above. In all the circumstances however, I feel that stating that there was no evidence in line with Trust values or the DW Policy was not sufficient to undermine the entire employment relationship. The examples given in the DW Policy at paragraph 12 only state that they may amount to bullying. It is self-evident that context will be relevant as will all the relevant facts. I do not consider that a finding that CO had used this language, in the manner and context in which she had used it, would be consistent with a clear conclusion of bullying the Claimant or other misconduct.

69.10 The effect of the grievance outcome was to say that CO had done nothing wrong. This was incorrect because she should not have sworn in front of the Claimant as she did. However, in all the circumstances it was not an outcome which was so inaccurate or misleading that, objectively viewed, it undermined the relationship of trust and confidence with the Claimant. I accept that the Claimant, subjectively, may have perceived it in that manner for a number of genuine reasons but that is not the correct legal test which I must apply.

[70]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 the implied term of trust and confidence?70.1 Breach a) Permit(ing) an unreasonable delay pf over 3 months in the facilitation of an informal facilitated discussion, compared to the recommendation of 7 days from the issue being raised as outlined by the organisations grievance policy (11.3).

70.2 As set out at paragraphs 10 and 12 above, the Policies required consent of both parties for mediation and/or facilitated discussions to take place. The Claimant's informal grievance was submitted on 8 June 2023. As set out in paragraph 24 above, CO did not consent to this process and the facilitated discussion meeting which had been arranged for 14 June 2023 was cancelled that day.

70.3 I do not consider that the Respondent was at fault regarding this.

70.4 Breach b) Introduc(ing) confusion into the process by using the terms ‘facilitated discussion’ and ‘mediation’ interchangeably for two distinct processes (examples in email correspondences from the 13th July 2023 and 19th July 2023).

70.5 There was no evidence before the Tribunal that the Respondent behaved in this way as alleged. As set out above, the facilitated discussion which was arranged for June 2023 had to be cancelled. As set out in paragraph 26 above, Monica Collins sent to the Claimant some guidance regarding mediation on 13 July 2023.She did not confuse it with facilitated discussion interchangeably or otherwise.

70.6 Breach c) Fail(ing) to act with the fairness and transparency recommended by the Acas Code of Practice on disciplinary and grievance procedures (2), and in accordance with the organisation's dignity at work policy (12.1) by failing to provide an outcome of the initial investigation after the informal grievance was filed on the 8th June 2023 when concerns of harassment and upward bullying were raised (also detailed email correspondence from the 19th July 2023).

70.7 The GP (page 57) states that it does not apply to: "Complaints about bullying and harassment, discrimination or victimisation (please refer to Bullying and Harassment (Dignity at Work) Policy)." The DW Policy has two means of resolving complaints: one is "Informal Resolution" via "timely dialogue with [their] manager" and indicates that there could be several options for resolution including speaking to the alleged harasser, arranging a meeting, facilitated discussions or mediation. Formal resolution indicates that a request should be made via the Grievance Policy (which would appear to be contradictory with the assertion that the Grievance Policy does not apply to complaints which should be made under the DW Policy).

70.8 Despite the fact that the Claimant's complaint was made on a "Grievance Notification Form", all parties clearly understood that this was an informal complaint at that stage (until it was escalated by the Claimant with effect from 11 October 2023). As the DW Policy contained no requirement to provide an outcome to an informal grievance, there was no breach of this policy by the Respondent, as alleged.

70.9 Paragraph 2 of the Acas code states that “Fairness and transparency are promoted by developing and using rules and procedures for handling disciplinary and grievance situations. These should be set down in writing, be specific and clear”. I consider that the Respondent's rules and procedures for resolving grievances via the Policies were fair, transparent, specific and clear. Furthermore, paragraph 32 of the ACAS Code makes it clear that it the ACAS Code applies to formal and not informal grievances. Breaches d) and e) Failing to maintain third-part impartiality in line with the organisations grievance policy (12.2 & 12.4) and failing to behave in a supportive manner and maintain a psychologically safe environment on the 17th July 2023 by proposing mediation co-chaired by the complainee’s trade union representative.

70.10 I do not believe that it was appropriate for Tim Widdowson to propose that mediation should be co-chaired by CO's trade union representative. In circumstances where Claimant had raised a grievance about CO's behaviour towards her and CO's interests were represented by her trade union rep, this would have reasonably given the Claimant the impression that any such mediation may not be impartial. It was reasonable for the Claimant to refuse to participate in any such mediation. I have taken into account however the fact that:70.10.1 the Claimant appeared to be shocked and concerned just as much about the sudden involvement of Tim Widdowson in the mediation process as his suggestion for co-chair; and

70.10.2 the Claimant had the opportunity to consider the proposal and taken advice from her trade union representative about the offer; and

70.10.3 the response of Tim Widdowson to her refusal, explaining his reasoning and stating that "I understand and respect that you feel uncomfortable with that approach"; and

70.10.4 the fact that shortly thereafter, the Claimant had a further, informal discussion with Tim Widdowson during which she appears to have been sufficiently reassured and happy thereafter to have engaged in mediation with him as chair.

70.11 None of the above facts are consistent with the assertion that the Respondent failed to maintain impartiality or to provide a supportive or psychologically safe environment for the Claimant. Further, none of the above facts are consistent with a conclusion that this conduct amounted to a fundamental breach of trust and confidence.

70.12 Breach f) Fail(ing) in their duty of care to take the complaint seriously on their lack of conflict resolution suggestions throughout the process, with particular failings in taking over 15 weeks from the issue being raised to facilitate a singular informal discussion between the parties.

70.13 There was insufficient evidence that there was a lack of conflict resolution suggestions from the Respondent in circumstances in which, based on the above facts, CO refused to participate in a facilitated discussion or mediation until September 2023. Further, there is no evidence that any such lack amounted to a failure in the Respondent's (unspecified) duty of care to the Claimant. On the facts, as soon as the Claimant raised a grievance about CO, CO's representative also complained about the Claimant by way of the email set out at paragraph 24 above, thereafter making conflict resolution extremely difficult. The mediation which finally took place on 4 September 2023 was unsuccessful, clearly as a result of the reluctance of CO to meaningfully participate.

70.14 I do not consider that any lack of conflict resolution suggestions throughout the process evidenced a failure to take the Claimant's complaints seriously but rather, the difficulty of resolving the dispute in circumstances which comprised cross-complaints and a breakdown of working relationship between the Claimant and CO. The Claimant stated her desired resolution form her grievance was: "I would like the poor behaviour to stop and a professional, workable relationship to be maintained." Ultimately, this outcome was not one which the Respondent was easily able to enforce.

70.15 I therefore conclude that the breaches alleged by the Claimant at paragraph 65 a) to f) above, viewed cumulatively with that stated at paragraph 67.1 above (the grievance outcome letter: breach g) do not amount to a repudiatory breach of the implied contractual term of trust and confidence. The Respondent clearly made mistakes. And this was undoubtably a very distressing and difficult situation for the Claimant. The Respondent should not, via Tim Widdowson, have suggested mediation with a co-chair of CO's trade union representative as this was not appropriate and was likely to have concerned the Claimant and led her to have less trust in the mediation process, whatever the intention behind it. Further, the grievance outcome letter stating that there was no evidence of the Claimant's allegations was not accurate. It appears that this conclusion was copied almost directly from the report of Carol Spencer but more care should have been taken by the Respondent in checking this assertion against the evidence of the investigation. Despite that, these acts, in my view, either by themselves, or taken together, do not amount to a course of conduct calculated or likely to destroy or seriously damage the relationship of trust and confidence. This is a high legal burden to prove and for the reasons stated above, the Claimant has not fulfilled this.

70.16 I therefore conclude that the Claimant did not resign in response to a repudiatory breach of her contract of employment and find, therefore, that the Claimant was not dismissed by the Respondent as defined by section 95 of the Employment Rights Act 1996. Her claim fails and is dismissed. Employment Judge Othen 23rd July 2025 Judgment sent to parties on 8th August 2025 Case No. 2303430/2024 IN THE LONDON SOUTHEAST EMPLOYMENT TRIBUNAL BETWEEN MISS. C CHILESHE Claimant -and- SOUTH EAST COAST AMBULANCE SERVICE NHS FOUNDATION TRUST Respondent

LIST OF ISSUES

[1]Did the Respondent do the following things: a) Permit an unreasonable delay pf over 3 months in the facilitation of an informal facilitated discussion, compared to the recommendation of 7days from the issue being raised as outlined by the organisations grievance policy (11.3). b) Introduce confusion into the process by using the terms ‘facilitated discussion’ and ‘mediation’ interchangeably for two distinct processes (examples in email correspondences from the 13th July 2023 and 19th July 2023). c) Fail to act with the fairness and transparency recommended by the Acas Code of Practice on disciplinary and grievance procedures (2), and in accordance with the organisation's dignity at work policy (12.1) by failing to provide an outcome of the initial investigation after the informal grievance was filed on the 8th June 2023 when concerns of harassment and upward bullying were raised (also detailed email correspondence from the 19th July 2023). d) Fail to maintain third-part impartiality in line with the organisations grievance policy (12.2 & 12.4) on the 17th July 2023 by proposing mediation co-chaired by the complainee’s trade union representative. e) Fail to behave in a supportive manner and maintain a psychologically safe environment with the mediation proposal on the 17th July 2023. f) Fail in their duty of care to take the complaint seriously on their lack of conflict resolution suggestions throughout the process, with particular failings in taking over 15 weeks from the issue being raised to facilitate a singular informal discussion between the parties. g) Issue a grievance outcome letter that stated that: i. There is no evidence that [CO]'s behaviour is not in line with the Trust values or Dignity at Work Policy. ii. There is no evidence that [CO] intended to slander [the Claimant]. iii. There is no case to answer for this complaint related to the allegation that [CO]'s behaviour has persistently attempted to undermine [the Claimant].

[2]Did that 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.

[3]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.

[4]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.

[5]If the Claimant was dismissed, what was the reason or principal reason for dismissal (i.e. what was the reason for the breach of contract)? Was it a potentially fair reason?

[7]Did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the Claimant?

[8]The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case.

[9]Remedy for unfair dismissal a) Does the Claimant wish to be reinstated to their previous employment? b) Does the Claimant wish to be re-engaged to comparable employment or other suitable employment? c) Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just. d) Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just. e) What should the terms of the re-engagement order be? f) If there is a compensatory award, how much should it be? The Tribunal will decide: i. What financial losses has the dismissal caused the Claimant? ii. Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? iii. If not, for what period of loss should the Claimant be compensated? iv. Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? v. If so, should the Claimant’s compensation be reduced? By how much? vi. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? vii. Did the Respondent or the Claimant unreasonably fail to comply with it by permitting unreasonable delay in facilitating meetings following the initial complaint, and demonstrating an inability to maintain fairness and transparency in the initial decision making? viii. If so is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%? ix. If the Claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct? x. If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion? xi. Does the statutory cap of fifty-two weeks’ apply? g) What basic award is payable to the Claimant, if any? h) Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent?