Mrs H Grier v St Matthew’s Catholic Primary School Governing Body: 2400211/2022
EMPLOYMENT TRIBUNALS
Case No 2400211/2022
Between
Mrs H GrierClaimantSt Matthew’s Catholic Primary School Governing BodyRespondent
Before
Employment Judge Horne
Members
Mr A ClarkMr J MurdieIn person for claimantMr D Tinkler (instructed by counsel) for respondentDate 10 July 2024
JUDGMENT
[1]The claimant was not constructively dismissed; and so[2]Her complaint of unfair dismissal is not well founded and is dismissed.
REASONS
[1]The process of providing these reasons has taken considerably longer than we had hoped. This was due to our employment judge prioritising a long hearing, which began after the hearing in this case had concluded, and then reaching a judgment in that case. We are sorry that the parties have been kept waiting.
Issues
[2]By a claim form presented on 13 January 2022, the claimant raised a number of complaints which included unfair constructive dismissal.[3]It is common ground that, if the claimant was constructively dismissed, her dismissal was unfair. The respondent does not put forward any potentially fair reason for fundamentally breaching the claimant’s contract. The issue is whether the claimant was constructively dismissed at all.[4]The claimant says that the respondent fundamentally breached the term known as the implied term of trust and confidence.[5]Where it is alleged that term was breached, it is important to establish what conduct the employee is saying was calculated or likely to destroy or seriously damage the trust and confidence relationship.[6]That conduct explored in some depth by Employment Judge Warren at a preliminary hearing on 18 November 2022. Following the preliminary hearing, a case management order was sent to the parties on 9 February 2023. In an annex to that order, EJ Warren listed the alleged conduct. We reproduce the list here, with some formatting changes: “
Issues
[1]The Clerk to the Governors opened a letter of parental complaint and [shared it] with staff members prior to the Chairman of the Governors seeing the letter. Case No. 2400211/2022 3[2]Amending the claimant’s contract in April/May of 2021 to give a different description in her job role. This was not discussed with the claimant before it was implemented.[3][The claimant was] Forced to attend school at 9.00am when there were no children in the school due to Covid. As a foster carer she asked to come in later and was refused.[4]She had had to choose between the care of her foster child and her role. She asked to reduce her working hours and was refused. She was told to give her foster child up. The foster child was due to become part of her “forever family” and this caused the claimant such stress that she went off sick.[5]At an attendance review meeting she was intimidated and shouted at and asked to provide her medical records.[6]When given her employment records on her request, dates, times and reasons were noted to be wrong.[7]She made a subject access request [SAR] which was not fully complied with. 7. On the fourth day of the hearing, it became apparent that the claimant wished to allege that she had resigned in response to additional conduct of the respondent. We gave the permission to pursue that allegation. We explained our reasons orally on that day. Neither party requested written reasons for that decision.[8]The additional conduct was: 8. The e-mail from Mrs Sime to Miss Oldham on 9 November 2020; and[9]The e-mails between Mrs Sime and Mrs Latham in January and February 2021. 9. The claimant discovered both of these e-mails when she received the response to her SAR.[10]The issues we had to decide were: 10.1. Did the conduct happen? 10.2. Did the respondent have reasonable and proper cause? 10.3. Was the conduct calculated or likely to destroy or seriously damage the relationship of trust and confidence? 10.4. Did the claimant resign in response to the breach? 10.5. Did the claimant affirm the contract before resigning?
Evidence
[11]We considered documents in a 791-page agreed bundle and a 94-page supplemental bundle.[12]The claimant gave oral evidence on her own behalf and was recalled on the final day. She called Sarah Rawnsley, Lindsey Ann Bligh and Mr Williams as witnesses. The respondent called Clare Sime, Cathy Sergeant, Lynn Evans and Case No. 2400211/2022 4 Clare Oldham. Mrs Sime and Miss Oldham were recalled on the final day of the hearing.[13]All these witnesses confirmed the truth of their written statements and then answered questions.
Facts
[14]St Matthew’s Catholic Primary School is a voluntary aided school funded by Liverpool City Council. At the times with which this claim is concerned, the Chair of the Governors was Mr Frank Vaudrey, and the Vice Chair was Cathy Sergeant. At the times with which this claim is concerned, Mr Vaudrey was unwell. He has since sadly died.[15]The Governing Body was supported by the Clerk to the Governors, Mrs Tracy Latham, whose role was also known as School Business Manager. Until the end of December 2019, the Head Teacher was Mrs Loftus. The Head Teacher was supported by a Senior Leadership Team, which included the Special Educational Needs Coordinator (SENCO), Mrs Rawnsley.[16]The claimant was employed by the respondent from 7 July 2008 until 15 September 2021 when she resigned without notice. Her role was Pastoral Care Manager. Everybody agrees that she was very good at her job. She had built up a good rapport with parents and students.[17]In October 2019, the school received a complaint from Parent A, the mother of a boy at the school (“Child A”). Child A had been refused a place in the school choir. Parent A thought the decision was unfair and assumed that it had been made by Mrs Loftus. In fact, the decision had been made by Mrs Latham. Parent A wrote her complaint on paper and put it into a sealed envelope. She addressed the envelope to the Chair of the Governors. On 7 October 2019, Parent A handed the envelope to the claimant and said it was a complaint. The claimant gave the envelope to Mrs Latham in the presence of Mr Edwards, Child A’s class teacher. Mrs Latham took the envelope and opened it in front of Mr Edwards and the claimant.[18]The claimant thought it was inappropriate of Mrs Latham to open the envelope. She knew that, generally, part of the role of the Clerk to the Governors was to open the Governors’ post. But, in the claimant’s view, certain correspondence was off limits. The claimant believed that Mrs Latham knew that she was opening a complaint specifically about herself. As the claimant saw it, the letter should have been handed unopened to Mr Vaudrey.[19]Mrs Latham wrote a reply to Parent A’s complaint. Essentially, her response was to confirm her original decision to exclude Child A from the choir. Mrs Latham gave the letter to the claimant and asked her to hand it to Parent A, which the claimant did. When Parent A opened the letter, she was upset, but also suspicious. The letter was purportedly written in the name of the Chair of the Governors, but Parent A correctly believed that Mr Vaudrey was too unwell to have written such a letter. Parent A voiced her suspicions to the claimant, who felt she had been put in an impossible position. When the claimant told Mrs Latham that Parent A had been upset, Mrs Latham laughed. She followed the Case No. 2400211/2022 5 claimant along a corridor and told the claimant that if Parent A was unhappy she could put her complaint in writing.[20]Following this incident, the claimant went on sick leave. Her GP fit note stated that the reason was stress at work.[21]At the start of January 2020, a new Head Teacher started in post at the school. Her name was Mrs Claire Sime. Her first day in post was 7 January 2020.[22]Mrs Sime was disappointed with the lack of information available to her, in particular about the teaching staff.[23]Monday 7 January 2020 was an INSET day. The children arrived the next day for the start of term. So did the claimant. One of the claimant's responsibilities was Safeguarding Lead. Confidential materials relating to safeguarding were kept in a locked cabinet. Nobody could find the keys to the cabinet. Mrs Sime asked the claimant if she had them. The claimant said that she did not. The claimant arranged with Mrs Sime that they would have a return to work meeting the following day.[24]When the claimant arrived at work on 9 January 2020, she discovered the keys had mysteriously appeared on on her desk. The claimant had an idea of who was behind the mystery. She thought that Mrs Latham had been trying to get her into trouble.[25]The claimant and Mrs Sime met in private. There is a dispute about precisely what was discussed. In particular, there is a dispute about the level of detail with which the claimant raised her concerns.[26]Our findings are as follows. The claimant said she wanted to meet with the Chair of Governors. She said it was about Tracy Latham. She explained that Tracy Latham had opened an envelope in front of her knowing that the envelope contained a complaint from a parent and that the envelope was addressed to the Chair of the Governors. She described this as a breach of confidentiality. She said she had evidence to show what had happened. Mrs Sime offered to look at the evidence, but the claimant said that she would wait until the Chair of Governors was well enough to consider it for himself.[27]Our reasons for resolving the clash of evidence in this way are: 27.1. It is more likely in our view that Mrs Sime has forgotten some of the details than it is that the claimant has made up her account of having mentioned them. 27.2. It is true to say that the claimant's witness statement does not say how much or how little detail she went into during this conversation, but her grievance letter and grievance interview both gave a full account of the events of the autumn of 2019 and both state that the claimant told Mrs Sime the full account on 9 January 2020. 27.3. Mrs Sime would have had no particular reason to remember the detail. She was keen to make a fresh start. It was not a priority for her to resolve disputes about what had happened under the previous Head Teacher.[28]On 5 February 2020, the claimant and Mrs Sime were driving together to the Toxteth Annex. The claimant told Mrs Sime that she was a therapeutic foster Case No. 2400211/2022 6 carer. In passing, she asked Mrs Sime when her complaint against Mrs Latham would be put in front of the governors. Mrs Sime replied that Mr Vaudrey was still unwell.[29]This is a convenient opportunity for us to record our findings about what the claimant believed when she spoke to Mrs Sime on 9 January 2020: 29.1. The claimant did not think that the information that she was disclosing tended to show any breach of a legal obligation. She had a strong sense that it was not “appropriate” for the clerk to the Governors to open a letter addressed to the Chair of the Governors if she knew that it was about a complaint involving her, but the claimant did not think of that as any legal obligation. She did not think that confidentiality was a legal obligation. This was her oral evidence to us. 29.2. The claimant did not think that she was making her disclosure in the public interest. She did not tell us that she considered the public interest at any point during the conversation. Not in her witness statement, not in her oral evidence. The first time she mentioned the public interest was when the Employment Judge prompted her during closing submissions. By that stage the evidence was complete. 29.3. The absence of oral evidence from the claimant about belief in the public interest is not necessarily fatal to her contention that she made a protected disclosure. Sometimes, the very nature of the information disclosed is such that the Tribunal can readily infer that the worker making the disclosure had the public interest in mind. Even where the information itself does not support the inference of a belief in public interest, the context may well support such an inference. In this case, we cannot conclude from the information or the context that the claimant believed that she was making her disclosure in the public interest. 29.4. During the conversation between the claimant and Mrs Sime on 9 January 2020, the claimant also mentioned the way in which she believed she had been treated by Mrs Latham: that included being put in an uncomfortable position having to hand a letter to a parent, being laughed at and being told to tell the parent to put a complaint in writing. She mentioned that this had caused her to be absent on sick leave. Without some evidence from the claimant about her actual belief in the public interest, the most probably conclusion from the information in its context was that the claimant was thinking purely about her own private dispute with Mrs Latham. 29.5. The claimant did not raise the issue of the breach of confidentiality or the requested meeting with the Chair of Governors about Mrs Latham between 5 February 2020 and March 2021.[30]By early 2020, the claimant had taken on a foster placement for a girl we have come to know as FC. FC had complex needs and challenging behaviour. Because of her history before being taken into care, a risk assessment stated that it was unsafe for FC to be at home in the company of a lone adult male. FC attended a local primary school. With a combination of breakfast club and after school provision, the claimant was able to balance her foster caring responsibility for FC with her role. Case No. 2400211/2022 7[31]The claimant’s experience with FC also gave her some creative ideas for interventions at school. One intervention that she planned was described as “sitting like a frog”. For this exercise, the claimant had a soft toy frog, a mat and a book. She brought these materials into school to show Mrs Sime to discuss the intervention. Mrs Latham saw these materials and said to the claimant “you can’t just bring things in you do at home into school without it being agreed”. The claimant felt deflated by this conversation. There is a dispute about when it happened. The claimant says that it was during the first half of the winter term in 2020. Mrs Sime’s recollection was that the claimant discussed this intervention in approximately September 2020.[32]We did not find it necessary to resolve this dispute. The claimant did not mention anything to do with this incident in her grievance or her resignation letter. She did not explain to us any reason why it would not have been reasonably practicable to present a claim to the Tribunal about this incident either by May 2020 or by December 2020. She cannot have been expecting the school governors to deal with the issue, because she never mentioned it to them.[33]In March 2020, the Prime Minister announced that schools were required to close as an emergency measure in response to the Covid-19 pandemic. Children of essential worker (keyworkers) and vulnerable children continued to be offered school places. These school places were in “hubs”, which pooled the resources of clusters of primary schools. Teachers at St Matthew’s were placed on a rota to work at their local hub. The claimant was rostered to work 20 days at the hub between 23 March 2020 and the end of the summer term. On the days when the claimant was rostered to work, she arrived after 9.00am and left at about 2.30pm. She was needed at home to look after FC. The claimant could not place FC into the same hub as St Matthew’s, because a member of FC’s family was also at school in the hub.[34]On 5 June 2020, the claimant asked Mrs Sime if she could arrive at school at 9.10am. Mrs Sime replied, “yes, that is fine at this point if you have no other option”. To our minds, this reply is telling. Mrs Sime was continuing to be accommodating, but starting to indicate to the claimant that coming into school after 9.00am should be considered a last resort. It also shows that Mrs Sime was starting to think that late arrivals were not sustainable. Nevertheless, the working arrangement of starting after 9.00am and leaving early continued until the end of term.[35]The claimant's contractual working hours were 40 hours per week, to be worked between 7.30am and 5.30pm. It was not physically possible for the claimant to work those hours with a half hour break each day unless she started by 9.00am at the earliest. Before the start of the pandemic, the claimant usually arrived at school at 8.00am. Pre Covid, her morning responsibilities included answering the telephone when parents telephoned the school to report a pupil absence. It also included being a visible presence in the playground before 9.00am as parents and students arrived. Parents would be able to have a short conversation with the claimant in the playground. These conversations were not wholly private, but they could stand apart from other parents and students to achieve a sufficient level of privacy to enable parents to discuss welfare issues. Once the children were in their classrooms, the class teacher would take the register. A short Case No. 2400211/2022 8 window of time was allowed for latecomers. At approximately 9.30am, the register would close. The claimant would check the registers and ensure that all absences had been properly notified. Unexplained absences were then followed up.[36]The school reopened in September 2020. Strict social distancing measures were in place to attempt to limit the spread of infection. These included a one way system for parents and students at the start of the school day. The children would arrive with their parents at the front gate. They were required to keep moving. Once inside the front playground, the students would enter the school and the parents would keep walking towards the back gate near the car park. There was only limited opportunity for any discussion between parents and teachers at this time. Nevertheless, Mrs Sime thought it important to keep a visible presence outside the school. The Deputy Head Teacher, Lynn Evans, stood at the front gate. Mrs Sime also wanted the claimant to be present outside the school. As Mrs Sime saw it, the claimant's presence in the playground would enable parents to speak to the claimant as they passed, albeit very briefly. Parents were encouraged to telephone a member of staff if they had any pastoral issues. Absence monitoring continued to take place over the telephone. Prior to September 2020 certain members of staff had been given landline phones to take home. Calls were automatically diverted to those phones. If a particular member of staff was required, they would be contactable on their personal mobile phones. The claimant was not provided with a fixed landline phone. It is unclear whether any member of staff had a fixed landline after September 2020.[37]As Mrs Evans stood at the gate during the mornings in September, parents occasionally asked where the claimant was and whether they could speak to her. When this happened, Mrs Evans waited for the claimant to arrive in school and informed her that a parent wished to speak to her. It is unclear whether Mrs Evans ever escalated the issue to Mrs Sime.[38]In September 2020 the claimant continued to experience difficulties balancing her role and her foster caring responsibilities. Some aspects of her caring role had become easier. During August 2020, Children’s Services had carried out a further risk assessment on FC and determined that FC was no longer at risk if left at home unsupervised with the claimant's husband. (It should be added that there was never any suspicion that the claimant's husband had himself behaved inappropriately towards FC at any stage). The new risk assessment meant that the claimant no longer needed to leave school at 2.30pm. There was, however, still a significant problem in the mornings. Breakfast clubs were still closed because of the pandemic. The Coronavirus vaccine had not yet been licensed and nobody knew for certain when breakfast clubs would reopen. The earliest that the claimant could make it to school was 9.15am. She had to drop FC at school first. This meant that claimant was unable to work productively in her role, even from home, for a portion of the morning before 9.15am.[39]The claimant took up the issue with Liverpool City Council. Her main points of contact were Carolyn Lawler, Head of Virtual School (with responsibility for educating looked after children within the city; and Steve Reddy, Director of Children and Young People Services. The claimant explored with them whether it would be possible for Liverpool City Council to pay her an additional fostering Case No. 2400211/2022 9 fee. From the claimant’s point of view, the purpose of the fee was to make it financially viable for the claimant to reduce her working hours for the respondent temporarily. No additional fostering fee was forthcoming. On 15 July 2020, the claimant informed Ms Lawler that she may have to give up her foster placement.[40]On Friday 18 September 2020, the claimant and Mrs Sime discussed the claimant's working hours. Mrs Sime explained to the claimant that she required the claimant to be at school before 9 o’clock in the morning in particular so that she could be a visible presence outside the school. She told the claimant that she had two jobs. She did not say to the claimant that she had to choose between those two jobs or that the claimant would have to give up her foster placement. She did, however, make it clear to the claimant that she was expected to prioritise the children at the school. In so many words, Mrs Sime told the claimant that she could not have it both ways. If she wanted a paid fostering caring role, that did not justify the claimant working fewer than her contractual hours whilst receiving a full salary for her role at the school.[41]The claimant did not see it that way at all. She was emotionally attached to FC and hoped that FC might one day become a long-term member of the family. Looking after FC was, to the claimant, not just a job but a “vocation”. The claimant did not understand why it was so important for her to be at school before 9.00am. From the claimant’s perspective, there was little for her to do until all the children were in their classrooms. Our own view, objectively, differs from both the claimant and that of Mrs Sime. Contrary to the claimant's evidence, there was work that she could usefully have done in her role before 9.00am. Had she been at school, she would have been on the end of a fixed landline phone to take calls relating to student absences before the students and parents started to arrive on the playground. Whilst students and parents circulated around the one way system, the claimant would have been available for snatched conversations from parents that could initiate a longer discussion on the telephone later on. We do not, however, accept that the claimant's presence at the school before 9.00am was as important as Mrs Sime was telling us. In particular, it is noteworthy that neither Mrs Sime nor Mrs Evans could recall whether or not Mrs Evans had escalated any particular concern about the claimant being unavailable on the playground. Mrs Evans was able to pass on requests from parents to speak to the claimant when she arrived. The register could not be completed until all the children were in school. In September and October 2020, arrival times were staggered, which meant that the last of the classes did not arrive until 9.15am. By that time, the claimant would generally be at her desk. The claimant would have been available to take calls relating to absences before she set off to drop FC at FC’s school. This could have been achieved by giving the claimant a fixed landline phone from the school, or alternatively diverting calls to the claimant’s mobile phone.[42]Over the weekend of 19 and 20 September 2020 the claimant continued to worry about how she could balance her foster placement and her working hours. Her anxiety was increased by a pending court hearing in the Family Court to discuss FC’s care plan. She was unsure whether the placement would continue. On Monday 21 September 2020 the claimant telephoned Mrs Sime and explained that she could not come into work that day. The claimant told Mrs Sime that she Case No. 2400211/2022 10 was still struggling to arrive at school before 9.00am whilst keeping her foster placement. Mrs Sime was frustrated. She took the call as she was driving to work. She did not think that anything had changed over the weekend. She told the claimant that she should come to work, discuss the issue again, and if she needed to leave work early she could then do so. There is a dispute about whether Mrs Sime shouted during this conversation. We find that she did not shout. She may well have spoken louder than normal, because she was driving.[43]The claimant drove to school. When she arrived, she was visibly upset. She went into a classroom and spoke to Mrs Evans. Mrs Sime arrived. The claimant asked for Mrs Evans to remain in the classroom because she did not want to be alone in a room with Mrs Sime. Mrs Sime was taken aback by this stance but agreed to allow Mrs Evans to remain present. They spoke calmly and professionally. During the course of the conversation, Mrs Sime agreed that the claimant could continue arriving after 9.00am for the time being as a short-term measure.[44]On 2 October 2020, the claimant arrived at work to find that Mrs Sime was accompanied by a Human Resources adviser. Mrs Sime asked to meet with the claimant to discuss her working hours. She explained that the school could no longer sustain an informal arrangement whereby the claimant could work less than her contracted hours and arrive consistently after 9.00am. The situation would have to be formalised, said Mrs Sime. One possibility was for the claimant to reduce her working hours. This would have resulted in a reduction in her pay. (We find that this was a genuine suggestion. Mrs Sime had already asked payroll to calculate what the claimant's pay would be if the claimant arrived after 9.00am.) Another alternative was for the claimant to make a formal flexible working application. (This would have resulted in a permanent change to the claimant's contract. There would be no going back, unless both the claimant and Mrs Sime agreed.) The claimant was encouraged to write down what productive work she thought she could do if she arrived at school after 9.00am and continued working later into the afternoon. The claimant said that she thought she may have to give up her placement. This was a comment initiated by the claimant. We find this because we accept the version of the conversation contained in an email sent by Mrs Sime almost immediately after it took place.[45]On 5 October 2020, the claimant went on sick leave and never returned to work.[46]On 12 October 2020, the claimant provided a General Practitioner fit note stating that the cause of her absence was “a stress related problem”. The fit note stated that she would be unfit for work for four weeks, but did not specify the actual dates. The claimant added the dates by hand. In her handwriting, she gave the end date as 16 November 2020. That was more than four weeks after the start date. Mrs Sime became suspicious. She had heard anecdotally that the claimant was planning to go to Poland. She thought that the claimant might be fabricating the dates on the fit note so that they could cover her intended trip abroad. She sought advice from Clare Oldham, Senior HR Adviser at Liverpool City Council. Miss Oldham gave suggestions for how the authenticity of the fit note might be investigated. Ultimately, no disciplinary action was taken. Case No. 2400211/2022 11[47]On 19 October 2020, Mrs Sime sought advice from Miss Oldham again. This time the advice included an Occupational Health referral for the claimant and some advice about a staff restructure.[48]Some of the e-mails that followed are missing. It is clear that they discussed the claimant’s situation.[49]On 9 November 2020, Mrs Sime emailed Miss Oldham again. She thanked Miss Oldham for advice about the restructure. She added, “At what point can we make her a settlement offer? I know it may be a way off but I think that is what we may have to do”.[50]Miss Oldham suggested that there would be an opportunity to have a “without prejudice” discussion with the claimant's union representative once an Occupational Health report had been obtained and a sickness absence meeting arranged. Mrs Sime accepted that advice. By the date of this conversation, the claimant had been absent for 20 school days.[51]The claimant attended an Occupational Health appointment on 24 November 2020. Following that appointment, a report was prepared. The report stated that the claimant did not want to have to deal with Mrs Sime in relation to her sickness absence. It is common ground that from 1 December 2020, the claimant stopped engaging with Mrs Sime at all for any purpose.[52]On 3 December 2020, Mrs Sime enquired of Suzanne Denner at Liverpool City Council whether the claimant had yet given permission for the release of her Occupational Health report. An update was provided on 9 December 2020 by Mr Humphreys of Occupational Health. According to Mr Humphreys, the report was being amended and the claimant's consent for release had not yet been sought. This caused considerable frustration to Mrs Sime.[53]On 11 December 2020, Mrs Sime emailed Miss Oldham stating: “I know what you are saying about [the claimant] but because it happened last year I would not be surprised. Still no OH report. I have a feeling she is going to send something like a complaint on the last day of the term as my happy Christmas gift.”[54]Here, then, Mrs Sime was demonstrating gallows humour at what appeared to be an intractable situation.[55]At the beginning of the new term, Mrs Sime attempted to arrange a sickness absence review meeting with the claimant. She still did not have the Occupational Health report. The claimant saw Occupational Health again on 5 January 2021, and that report was released to the respondent. On 12 January 2020, Mrs Sime enquired of Mrs Latham whether she would be able to support Mrs Sime at the sickness absence meeting, adding “do I have to tell her?”. Miss Oldham replied, stating that there would be no need for Mrs Latham to attend, as Miss Oldham herself would be present at the meeting. Mrs Sime accepted her advice. (The claimant never got to see the last e-mail in the thread in which Mrs Sime accepted the advice, but she knew following the meeting on 25 January 2021 that neither Mrs Sime nor Mrs Latham attended the meeting.) Case No. 2400211/2022 12[56]This was a genuine enquiry about the procedure to be followed in advance of the meeting and not part of a plot to spring a nasty surprise on the claimant. Mrs Latham after all was the school Business Manager and part of her role was to attend formal meetings between members of staff and the Head Teacher. Mrs Sime was keen to ensure that she was well supported at what was certain to be a difficult meeting.[57]The date of the sickness absence meeting was set for 20 January 2021. On 18 January 2021, the claimant emailed Mrs Sime to say that her union representative would not be available on 20 January 2021. She explained that her union representative, Mr Williams, would be in touch with his available dates. Privately, Mrs Sime emailed Mrs Latham to state that she was “fuming”. Mr Williams later emailed on 20 January 2021, offering a very limited selection of available dates and times. He added: “I do have to enquire though who the meeting will be with, as within [the claimant’s] report she has detailed that she outlined to the OH doctor that she has felt victimised and bullied by management due to the above issues.”[58]On receipt of this email, Mrs Sime emailed Mrs Latham stating, “Fuming is not the word at this point X. She wants someone with her”.[59]In our view, it is not surprising that Mrs Sime was angry when she read this email. This was the first time she had seen in black and white that the claimant was saying that she had felt victimised and bullied. Up to that point, she had not received the Occupational Health report to which Mr Williams was referring. Later that day, she emailed Mrs Latham again asking her to write “a bit of a report” on the claimant, adding “I literally need to be prepared for this meeting if she is going bullying – I need to have all the ducks in a row, if you like. X”. The “report” that Mrs Sime had in mind was a report on sickness absence history, occupational health, previous sickness absences, the kind of report that would commonly be provided to a manager in advance of a sickness absence meeting.[60]The sickness absence review took place on 21 January 2021. Mrs Latham emailed Mr Williams to explain that Mrs Evans would attend the meeting instead of Mrs Sime. The claimant agreed to provide a copy of her November 2020 Occupational Health report. She said that the referral contained some discrepancies in her attendance record. She requested a large quantity of documentation relating to her job and job description. Noone shouted at the claimant.[61]The claimant received a copy job description in response to her request. She noticed that some of the references in the job description appeared to be out of date. She compared the roles and responsibilities to a grid which she had in her possession listing what she understood her responsibilities had been before the start of the pandemic. There were some minor differences. The claimant thought that Mrs Sime had deliberately manufactured a job description. That belief was misplaced. We cannot see why Mrs Sime would have wanted to do what the claimant thought she had done. There was no advantage to the school in fabricating a set of out of date responsibilities. It was plainly intended to be a different kind of document from the claimant's grid. Unlike the grid, the claimant’s Case No. 2400211/2022 13 job description contained the usual statement of expectations and requirements to be commonly found in a public sector job description. The differences between the responsibilities in the grid and those in the job description were minor and had no impact on the claimant's day-to-day work. The job description was obviously an out-of-date document. Any reasonable person in the claimant's position looking at it objectively would have come to the same conclusion.[62]The claimant made a data subject access request. The request was referred to the respondent’s outsourced data services provider, Judicium. They appointed Lynn Evans as the person at the school responsibility for collating the information. On 8 March 2021, the claimant was provided with a written response and a large file of information.[63]When the claimant read the data file, she discovered a large number of emails including those between Mrs Sime and Miss Oldham about the possibility of a settlement offer, and the emails between Mrs Sime and Mrs Latham in which they had both given vent to their emotions while dealing with the claimant.[64]The claimant also noticed some additional email addresses within the emails about her. She thought there might be additional material to which she might be entitled access under data protection legislation. She made a further subject access request on 9 March 2021. This request was for her personal data across 13 different data sources. Judicium acknowledged the SAR on 29 March 2021. This time, Tracy Latham was appointed to collate the data. This was because the respondent did not want to place Lynn Evans in any position of conflict between her role as SAR coordinator and the manager of the claimant's sickness absence. At this point, the working relationship between the claimant and Lynn Evans was still constructive.[65]The 29 March 2021 letter indicated what searches the respondent proposed to carry out in response to the request. There is no evidence at all about what the final outcome of the second SAR was. The respondent has not told us what, if any, additional personal information was provided to the claimant. The claimant for her part has not told us about any inadequacies in the response. She did not tell us about any effect of those shortcomings, if any, on her decision to resign. Nor did she tell the respondent any such reason in her resignation letter.[66]In July 2021 the claimant made at least one further SAR. It is common ground that that SAR was refused, and that the reason given to the claimant was that a further search for information would be disproportionate. Plainly, that decision must have been correct. The claimant had already been provided with a large quantity of personal information in response to her first SAR and extensive further searches had been carried out in response to her second SAR.[67]When the claimant read the emails uncovered from her first SAR she found them hurtful. Moreover, she thought that they were evidence that Mrs Sime and Mrs Latham had been trying to get rid of her from the start of her sickness absence.[68]On 29 March 2021, the claimant sent a formal grievance to the Chair of Governors. He also sent a formal whistleblowing complaint dated the same date. Both documents were sent to the secure email address to which only Mr Vaudrey and Ms Sergeant had access. Case No. 2400211/2022 14[69]The grievance was investigated by Clare Lewis. The whistleblowing complaint was investigated by Ms Ellis. It is something of a mystery precisely how the claimant's documents came to land on their desks. Clare Lewis was asked to take on the investigation either by her line manager or by Clare Oldham. The grievance complaint itself was forwarded to Liverpool City Council by Mrs Sime. We do not know how Mr Vaudrey or Ms Sergeant enabled Mrs Sime to get access to a document that had been in their secure email accounts. The most likely explanation is that one of them forwarded it to Mrs Sime. Ms Sergeant was not asked about it whilst giving her evidence.[70]There is no suggestion in this case that the way in which Clare Lewis carried out her investigation or the content of the grievance outcome was part of the conduct of the respondent that breached the implied term of trust and confidence. We therefore do not set out in these reasons the steps that Clare Lewis took.[71]On 23 July 2021, Ms Lewis delivered the grievance outcome to the claimant. The claimant's grievance was not upheld. The claimant appealed against the decision. She sent her appeal by email on 30 July 2021. She asked for two governors to be excluded from the appeal committee. On 2 August 2021 Ms Lewis asked the claimant why she was asking for those two governors to step down and what she thought their involvement had been in the original grievance process. On 2 September 2021 Ms Lewis emailed the claimant about arrangements for an appeal hearing. On 6 September 2021 Mrs Evans attempted to arrange a new sickness absence review meeting. The claimant’s reply was that she wished the grievance appeal to run its course before any consideration of absence management should arise.[72]In early September 2021, the claimant happened to be in a supermarket when she spoke to a former member of staff at the school. That person told her that they had raised their own issues with the governors and had received no response. The claimant believed that her appeal to the governors would get her nowhere. She decided to resign.[73]On 15 September 2021, the claimant emailed the respondent indicating that she was resigning with immediate effect. Her letter explained why she was resigning: “I feel that I am left with no choice but to resign in light of my experiences regarding a total lack of accountability from all avenues that I considered needed thorough investigation, and a breach of trust and confidence has taken place. You should be aware that I am resigning in response to a fundamental breach of Trust and Confidence, consisting of harassment, humiliation, hostility, offensiveness and intimidation – which violated my dignity in the workplace. … It is clear that evidence I have in relation to a breach of confidentiality has been ignored and dismissed with an “I didn’t know” attitude – which is plainly untrue. No other members of staff were interviewed relating to the breach so therefore the confidential complaint which was opened by Mrs Latham, and then scanned by Miss Stephanie Johnstone, was Case No. 2400211/2022 15 shared with various members of staff, one of which was myself which I have on record and will now consider making this a public matter. Relating to my Grievance, which was not upheld, it is clear that false statements have been made. If I relate to the specific question that was – I asked as to why Mrs Claire Sime would discuss with Clare Oldham (HR) how I could be “paid off” after only 3 weeks absence from work, with appropriate sick notes being provided. It was made clear that Mrs Sime responded to this question that the reason for this was that I had stopped engaging with her. However, I engaged fully with Mrs Sime right up until the 1st December 2020 and it was only after my first OH report that I requested another form of communication other than Mrs Sime (a clearly established untruth). Again I have evidence to provide this and obviously will consider if this could be of interest to the public domain. After 14 years of loyal service to the school this is not the way I wanted to end my time at the school but feel I have no other option due to the treatment I have received from the Head Teacher, the Business Manager, the school’s HR and the Governors. This is a fundamental breach of trust and so my contract. … I have lost all trust and confidence in the Governing Body of St Matthews. This is not only relating to my treatment, but also to the fact that I have been informed by various members of St Matthews’ staff that the Governing body have dismissed any requests or complaints regarding Mrs Sime, and the management structure of the school… It is also clear that the grievance I put forward with regard to my treatment has also been dismissed, once again ignoring evidence of unprofessional practice…”[74]Mrs Sime emailed the claimant on 16 September 2021 suggesting that her resignation may have been in haste and asking if she would reconsider. The claimant did not think that this email was sincere. She replied on 20 September 2021. She stood by her decision to resign. Amongst the reasons she gave were, “…since November 2020 it is clear that you considered terminating my contract (after a 3 week absence). On the 18th January 2021 you asked your business manager how a termination payment could be made to me as you “couldn’t see any way forward”. You also made it clear that you were “fuming” and on the same date you made it very clear that you were very “angry with me””.
Relevant law
[75]Section 95 of the Employment Rights Act 1996 (“ERA”) relevantly provides: 95 Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if (and… only if)— … (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is Case No. 2400211/2022 16 entitled to terminate it without notice by reason of the employer’s conduct. …[76]An employee seeking to establish that he has been constructively dismissed must prove: 76.1. that the employer fundamentally breached the contract of employment; and 76.2. that he or she resigned in response to the breach. (Western Excavating (ECC) Ltd v. Sharp [1978] IRLR 27).[77]It is an implied term of the contract of employment that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee: Malik v. BCCI plc [1997] IRLR 462, as clarified in Baldwin v Brighton & Hove CC [2007] IRLR 232.[78]The serious nature of the conduct required before a repudiatory breach of contract can exist has been addressed by the EAT (Langstaff J) in Pearce-v-Receptek [2013] ALL ER (D) 364. “12. ...It has always to be borne in mind that such a breach [of the implied term] is necessarily repudiatory, and it ought to be borne in mind that for conduct to be repudiatory, it has to be truly serious. The modern test in respect of constructive dismissal or repudiatory conduct is that stated by the Court of Appeal, not in an employment context, in the case of Eminence Property Developments Limited v Heaney [2010] EWCA Civ 1168: "So far as concerns of repudiatory conduct, the legal test is simply stated ... It is whether, looking at all the circumstances objectively, that is, from the perspective of a reasonable person in a position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract." 13. That has been followed since in Cooper v Oates [2010] EWCA Civ 1346, but is not just a test of commercial application. In the employment case of Tullet Prebon Plc v BGC Brokers LP [2011] EWCA Civ 131, Aikens LJ took the same approach and adopted the expression, "Abandon and altogether refuse to perform the contract". In evaluating whether the implied term of trust and confidence has been broken, a court will wish to have regard to the fact that, since it is repudiatory, it must in essence be such a breach as to indicate an intention to abandon and altogether refuse to perform the contract.”[79]Where a fundamental breach of contract has played a part in the decision to resign, the claim of constructive dismissal will not be defeated merely because the employee also had other reasons for resigning: Wright v. North Ayrshire Council [2014] IRLR 4 at paragraph 16. See also Abbey Cars (West Horndon) Ltd v. Ford UKEAT 0472/07 at paragraph 34 and 35. Case No. 2400211/2022 17[80]An employee may lose the right to treat himself or herself as constructively dismissed if he affirms the contract before resigning.[81]An employee is entitled to a reasonable period of time in which to resign before being taken to have affirmed the contract: Air Canada v. Lee [1978] ICR 1202, EAT. The length of that period is not fixed. Relevant factors include the consequences to the employee of losing their job and their prospects of finding alternative work: Chindove v. William Morrison Supermarkets EAT/0201/13.[82]A fundamental breach of contract cannot be “cured”, but if an employer takes corrective action, the employer may prevent conduct from developing into a breach of the implied term of trust and confidence: Assamoi-v-Spirit Pub Co Ltd [2012] ALL ER (D) 17.[83]Where a fundamental breach of contract has played a part in the decision to resign, the claim of constructive dismissal will not be defeated merely because the employee also had other reasons for resigning: Wright-v-North Ayrshire Council [2014] IRLR 4 at paragraph 16. See also Abbey Cars (West Horndon) Ltd v Ford UKEAT 0472/07 at paragraph 34 and 35.[84]An employee who remains in employment whilst attempting to persuade the employer to remedy the breach of contract will not necessarily be taken to have affirmed the contract. All depends on the circumstances of the particular case: W E Cox Toner (International) Ltd v Crook [1981] IRLR 443,[85]Where an employer has made amends for the breach, and the employee has not not made their position clear, the employee may be allowed only a very limited time to remain in employment before losing the right to be treated as constructively dismissed: Buckland v. Bournemouth University Higher Education Corporation [2010] EWCA Civ 121.[86]It is not uncommon for an employee to resign in response to a “final straw”. In Omilaju v. Waltham Forest London Borough Council [2005] EWCA Civ 1493, [2005] IRLR 35, CA the Court of Appeal held that where the alleged breach of the implied term of trust and confidence constituted a series of acts the essential ingredient of the final act was that it was an act in a series the cumulative effect of which was to amount to the breach. It followed that although the final act may not be blameworthy or unreasonable it had to contribute something to the breach even if relatively insignificant.[87]A failure of the alleged final straw to meet this test is not necessarily fatal to a constructive dismissal. Where the act which finally tips the employee into resigning is incapable of being a “final straw”, in the sense that it could not contribute to a breach of the trust and confidence term, the employee may still be able to argue that he also resigned in response to an earlier breach of contract: Williams v. The Governing Boy of Alderman Davies Church in Wales Primary School UKEAT 0108/19. Conclusions Was there a fundamental breach of contract?
Conclusions
[88]We must decide whether the respondent breached the implied term of trust and confidence. Case No. 2400211/2022 18[89]Our first step is to examine the individual allegations of undermining conduct separately, to assess their effect on the relationship of trust and confidence, and their influence (if any) on the claimant’s decision to resign, and to ask ourselves whether the respondent had reasonable and proper cause or not.[90]The next step is to step back and examine the cumulative effect of all the conduct for which there was no reasonable and proper cause. Allegation 1 – opening the letter[91]Mrs Latham did not not have reasonable and proper cause to open the envelope, which was not addressed to her. Her conduct in opening it part of the background to the claimant’s decision to resign two years later. Its influence on the decision to resign was only minor. So was its effect on the relationship of trust and confidence. By March 2021, it was part of the background, but little more than that. In particular, important things had happened in the intervening two years to start to repair the harmful effects of Mrs Latham’s behaviour on the relationship of trust and confidence. Mrs Sime had declared her intention to make a fresh start. More than 12 months had gone by without the claimant once raising as an issue her wish for the matter to be put before the Chair of the Governors. The claimant and Mrs Sime had a good working relationship throughout the pandemic up to the beginning of September 2022. Allegation 2 – amending the claimant’s contract[92]The content of the claimant's job description sent to her in March or April 2021 was completely innocuous. It was obviously an out of date document. No reasonable person could have thought of it as damaging the relationship of trust and confidence in any way Allegation 3 – forced attendance at at 9.00am[93]The claimant was not forced to attend at 9.00am. The respondent did not refuse her request to come in later. It was granted as a temporary measure.[94]The respondent did insist on formalising the claimant’s working arrangements, including her start time. This happened in in September and October 2022. The claimant was reminded that she was not working her contractual hours. The respondent had reasonable and proper cause for that approach. By that stage, the claimant had relied on the respondent’s flexibility for approximately six months. She had not been working her full contractual hours.[95]The options presented to the claimant all involved permanent changes to her contract. The flexible working request would, if granted, be incapable of being undone unless all parties agreed. Mrs Sime did not have reasonable and proper cause to present the options in that way. In insisting on the permanency of the arrangements going forward, the respondent failed to recognise the exceptional circumstances of the pandemic. In particular, they failed to recognise the short-term closure of pre-school childcare settings. Nobody knew when they would reopen, but it was likely that they would reopen once the coronavirus was under control. The respondent also failed to recognise that FC’s continued placement with the claimant was itself of uncertain duration. It was subject to the decisions of the courts and the claimant's ability to manage FC’s complex needs successfully. The respondent also failed to recognise that the impact of the Case No. 2400211/2022 19 claimant's absence before 9.00am was easier to manage than they were telling us.[96]There was some effect of this conduct on the relationship of trust and confidence. The effect was not nearly as damaging as the effect would have been of forcing the claimant’s attendance. Allegation 4 – foster placement[97]The claimant was not told to give up her foster child. She was told, “You’ve got two jobs”, implying that she may have to choose between them if they could not be made to work alongside each other. The respondent did not have reasonable and proper cause for that comment. Mrs Sime failed to recognise that one of these “jobs” was caring for a child whom the claimant was hoping to become a long-term member of the family. This was harmful to the relationship of trust and confidence. It would have been considerably more harmful if the claimant had been directly told to give up her foster child. When assessing the magnitude of the damage, an objective observer would have regard to the fact that the claimant herself was raising the emotional stakes by saying that she might have to give up her placement. They would also have to have regard to the fact that the claimant was not being presented with a binary choice between her caring responsibilities and her role. The permanent options presented to her were unattractive for the reasons we have given, but they were not as stark as the claimant portrayed them to be. Any objective assessment of the damage to trust and confidence would also have to take account of the fact that the respondent had some genuine business advantage if the claimant could be persuaded to be present on the playground before 9.00am. An objective person would know that parents wanted to speak to the claimant, which was a vital part of her role. Allegation 5 – attendance review meeting[98]We take this to be an allegation about the meeting on 21 January 2021. Noone shouted at the claimant. She was asked for her occupational health report. The respondent had reasonable and proper cause for that. There had been a long delay in the report being released. Allegation 6 – errors in the employment records[99]We did not hear evidence about the precise detail of the errors in the claimant’s employment records. We are not satisfied that they were such as to contribute objectively to any damage to the relationship of trust and confidence. In any case, they did not influence the claimant’s decision to resign. She did not mention these errors in her detailed resignation letter or her follow-up letter. Allegation 7 – failure to comply with SAR fully[100]The claimant has not proved to us that the first SAR response omitted any information to which she was entitled under data protection legislation. Even if she overcame that hurdle, and we were to find that some information was left out of the first SAR response, the absence of that information did not have any serious effect on the relationship of trust and confidence. Nor did it influence the claimant’s decision to resign. She did not mention these things in her two letters at the end of her employment. Case No. 2400211/2022 20[101]To the extent that there were any deficiencies in compliance with the third SAR, the respondent had reasonable and proper cause for the reasons we have given in paragraph 66.[102]As for the second SAR, there was no evidence as to what (if any) inadequacy there was in the response. All we know is that it was acknowledged and that the respondent evidenced an intention to carry out substantial further searches. Allegation 8 – 9 November 2020 e-mail[103]We turn to Mrs Sime’s e-mail of 9 November 2020 to Miss Oldham. The claimant’s discovery of this e-mail was highly influential on the claimant’s decision to resign.[104]The e-mail showed Mrs Sime seeking advice on when to begin discussions to end the claimant’s employment on mutually acceptable terms. There was a harmful effect on the relationship of trust and confidence by Mrs Sime reaching for this advice at this time. The way it would have appeared objectively would be that Mrs Sime had already made up her mind that the employment relationship should not continue. The first thought of a manager who has trust and confidence in an employee who has recently gone on sick leave would be, “how can I support my employee to get back to work”, not, “when I can I pay them to leave?” The timing of the advice, and the wording of the subsequent e-mails, gave the impression, objectively, that Mrs Sime had decided to prioritise the latter at an early point in the claimant’s sick leave.[105]We concluded, nevertheless, that the respondent had reasonable and proper cause for the email exchange between Miss Oldham and Mrs Sime on 9 November 2020. The question of whether the advice was premature has to be judged objectively. One factor tending towards an absence of reasonable and proper cause was the fact that the claimant had only been absent from work for 20 teaching days. But the reasonableness of the timing has to be judged objectively, and in its context. The e-mail was never intended for the claimant to read. All Mrs Sime was doing was taking advice. Any objective reader of the emails, when disclosed to the claimant through a SAR, would have had to have appreciated that point. This was not a straightforward sickness absence. These included that the claimant had previously been absent from work citing stress at work following dispute with her Head Teacher. They would also include the fact that the claimant had cited a stress-related problem as the reason for absence this time, and that her absence had begun three days after a conversation in which they had failed to reach agreement on the issue of the claimant's working hours. An objective reader would have realised that Mrs Sime was seeking advice on potential settlement in circumstances where either she would have to back down or the claimant was likely to remain off work for the foreseeable future. Allegation 9 – Sime-Latham e-mails January-February 2021[106]The emails between Mrs Latham and Mrs Sime, we all found, went beyond the kind of emails that the respondent had reasonable and proper cause to send. The language was acknowledged by Mrs Sime to be unprofessional at times. Headteachers will rarely have reasonable and proper cause to behave unprofessionally at work, even if it is in a private e-mail. Phrases such as Case No. 2400211/2022 21 “beyond fuming” and the gallows humour about the Christmas gift went beyond what senior leaders had reasonable cause to say about colleagues, even in private.[107]We have to assess the impact of these emails on the relationship of trust and confidence. The assessment must be objective. Any objective reader on seeing the SAR response would realise that Mrs Sime and Mrs Latham needed a safe private space in which to discuss how to manage the claimant's sickness absence, the unfolding allegations of bullying and victimisation against Mrs Sime, and the seemingly intractable problem of trying to obtain information about the causes of the claimant’s absence. An objective reader would also realise that it would be quite legitimate for Mrs Latham and Mrs Sime to talk about these things privately in a room and occasionally to share with each other how they felt about the situation. Objectively, putting these comments in a private email discussion should make little or no difference to the impact on trust and confidence. The only difference was that the claimant got to find out about them.[108]Bearing these things in mind, we find that the comments between Mrs Latham and Mrs Sime in January and February 2021 had some harmful impact on the relationship of trust and confidence which was capable of adding to the cumulative damage, but by themselves were nowhere near calculated or likely to destroy or seriously damage the relationship. Cumulative effect[109]We have now established what conduct was without reasonable and proper cause, and which did some harm to the relationship of trust and confidence, and which had some influence on the claimant’s decision to resign. This was the handling of the claimant's working hours and foster care placement problem, combined with the 5 e-mails in December 2020 to February 2021, against the background of Mrs Latham’s unwarranted conduct towards the claimant in November 2019.[110]What we must now do is step back and assess the cumulative effect of that conduct on the relationship of trust and confidence.[111]Even taken together, the conduct for which there was no reasonable and proper cause could not be said to have been calculated or likely to damage the relationship seriously. The respondent was not demonstrating any intention to abandon the contract.[112]The respondent did not therefore breach the claimant’s contract. She was not constructively dismissed. Resignation in response[113]Strictly speaking, we do not need to consider the remaining issues, because the claimant has already lost. We nevertheless set out our conclusions, in case of any challenge to our primary finding. It is proportionate to set them out briefly.[114]Had there been a fundamental breach of contract, we would have found that the claimant resigned in response to it. We have eliminated from our analysis the repsondent’s conduct which did not materially influence the decision to resign. Affirmation Case No. 2400211/2022 22[115]We have considered whether the claimant affirmed the contract between 8 March 2020 and 15 September 2020. Our view is that she did not affirm the contract. In coming to this view, we have acknowledged that the claimant remained employed for over six months between the breach of contract and her acceptance of the repudiation. During this time, she did not do anything to indicate to the respondent that she was prepared to let the contract continue. She remained on sick leave. Her continued employment on sick leave until 23 July 2021 would have been understood by any objective person as being conditional on the respondent remedying the breach of contract through the internal grievance procedure. It did nothing to indicate to the respondent that she was prepared to continue with the contract despite the breach. The claimant's continued employment on sick leave between 23 July 2021 and 15 September 2021 was explicable to any objective observer solely by the fact that the claimant wished to remain on sick leave while she pursued her appeal. Significantly, when presented with an opportunity to do something affirmatory, namely engage with the sickness absence process, the claimant indicated that she was not prepared to do so until the appeal had been resolved.
Disposal
[116]For the reasons we have given, however, our conclusion is that the claimant was not constructively dismissed.[117]Her complaint of unfair dismissal therefore fails.