Miss R Powell v Department for Work and Pensions: 2400245/2024
EMPLOYMENT TRIBUNALS
Case No 2400245/2024
Between
Miss R PowellClaimantDepartment for Work and PensionsRespondent
Before
Employment Judge GreerIn person for claimantDate 25 February 2025
JUDGMENT
[1]The judgment of the Tribunal is that: 1. The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed. JUDGMENT[2]The Judgment of the Tribunal is that: 1. The complaint of unfair dismissal by reason of constructive dismissal is wellfounded. The Claimant was unfairly dismissed.
REASONS
[1]The Claimant, commenced employment with the Department for Work and Pensions (the Respondent) on 5 October 2020. She had previously been employed as a Civil Servant in other government departments since 2014. In her role with the department for Work and Pensions, she was engaged as an Executive Officer (EO). She was initially based in the St Marylebone Jobcentre in London. On 5th October 2022 the Claimant moved to Palatine House in Preston as a Universal Credit Review Agent. On 13th August 2023 the Claimant tendered her resignation.[2]The Claimant started the ACAS early conciliation process on 9th November 2023. The ACAS certificate was issued on 19th December 2023. The claim was presented, in time, on 18th January 2024.
The Hearing
[3]The hearing took place by way of a hybrid hearing over the Cloud Video Platform. I joined the hearing from Alexandra House, Manchester. The other participants joined the hearing by video from remote locations. The Claimant represented herself. The Respondent was represented by Mr Ryan of Counsel. The hearing lasted 5 days.[4]I was assisted by a carefully prepared agreed bundle, which was provided to the Tribunal on day 1 of the hearing. I heard evidence from the Claimant. She was cross examined by Mr Ryan. I then heard evidence from Lauren Whittle and Louise Metcalfe. In accordance with Tribunal Procedure Rule 41 and Chapter 1 of the Equal Treatment Bench Book, I questioned the witnesses as far as was necessary to clarify the issues and elicit the evidence. Mr Ryan did not object to me adopting this approach, and I remained careful not to enter into the arena.[5]After hearing the evidence, I heard helpful submissions from each advocate, which followed the written submissions filed by each side. I gave judgment and reasons on the final day of the hearing. On 18th March 2025 the Respondent requested written reasons.
The Issues
[6]Before me, the parties agreed that the following issues fell to be determined in this matter: Was the Claimant dismissed?1.1 Did the Respondent do the following things:1.1.1 Change the claimant’s working hours retroactively from 42 to 37 without the claimant’s knowledge or consent, resulting in an overpayment and subsequent deductions from their pay.1.1.2 Fail to resolve the pay issue in a timely and transparent manner despite repeated complaints and escalations by the claimant.1.1.3 Provide misleading information about the cause of the pay issue, including attributing the error to SSCL when it originated from the actions of the claimant’s line manager.1.1.4 Fail to provide adequate support to the claimant, including leaving them to resolve the pay issue with SSCL directly despite the stress it caused.1.1.5 Handle the claimant’s complaints and concerns in a way that exacerbated the stress and financial impact of the pay issue. Trust and confidence1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:1.2.1 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, including:1.2.1.1 The mishandling of the pay issue.1.2.1.2 The lack of transparency and accountability about the cause of the issue.1.2.1.3 The failure to address the claimant’s concerns in a reasonable and timely manner.1.2.2 Whether the respondent had reasonable and proper cause for its actions, including: 1.2.2.1. Relying on SSCL as an outsourced payroll provider. 1.2.2.2. Requiring the claimant to liaise with SSCL directly due to confidentiality concerns. 1.2.2.3. Delays caused by the complexity of the issue. Other terms of the contract1.3 Did the respondent breach other terms of the contract? 1.3.1. Specifically, did the respondent breach the claimant’s express contractual right to be paid correctly and on time? Was the breach fundamental?1.4 Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end, considering: 1.4.1. The centrality of pay to the employment relationship. 1.4.2. The financial impact of the deductions. 1.4.3. The stress caused by the respondent’s handling of the matter. Resignation1.5 Did the claimant resign in response to the breach? The Tribunal will need to decide whether the respondent’s breach of contract was a reason for the claimant’s resignation, specifically: 1.5.1. Whether the claimant’s resignation on 13 August 2023 was caused by the cumulative impact of the pay issue and the respondent’s handling of it. 1.5.2. Whether the “final straw” was the claimant’s discovery that Lauren Whittle had retroactively altered their working hours without consultation. Affirmation of contract1.6 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 after the breach, including: 1.6.1. The claimant’s continued attempts to resolve the issue through service requests, emails, and complaints. 1.6.2. The delay between earlier breaches (e.g., April/May 2023 pay issues) and the resignation in August 2023.
The Law
[7]The lead case in respect constructive unfair dismissal is Malik v BCCI [1997] ICR 606; the implied term of trust and confidence is an essential and overarching term of the employment contract. An employer shall not “without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee”.[8]In addition to Malik, the Respondent cited the following authorities in argument: Tullett Prebon plc v BGC Brokers [2011] IRLR 420 Hilton v Shiner Ltd [2001] IRLR 727 Amesty International v Ahmed [2009] ICR 1450 Post Office v Roberts [1980] IRLR 347 White v Reflecting Roadstuds Ltd [1991] IRLR 331 Omilaju v Waltham Forest London Borough Council [2005] ICR 481 Frenkel Topping v King UKEAT/01606/15/LA Working Men's Club and Institute Union Ltd v Balls UKEAT/0119/11 Henderson v Connect (South Tyneside) Limited [2010] IRLR 466 Cantor Fitzgerald International v Callaghan and ors 1999 ICR 639, CA. Achi v GMB [2023] EAT 29 Adams v Charles Zub Associates Ltd 1978 IRLR 551, EAT Wood v WM Car Services Ltd [1982] ICR 666 EAT[9]The general rule is that the employer’s motive for the conduct causing the employee to resign is irrelevant. It makes no difference to the issue of whether or not there has been a fundamental breach that the employer did not intend to end the contract. Even where an employer’s intention, objectively assessed, may be relevant as was exceptionally held in the case of Tullett, whether or not a breach is fundamental is still a question of fact in all the circumstances.[10]When considering whether there has been a breach of the implied term, “the Tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it” (Wood, per Mr Justice Browne Wilkinson).[11]The ET has to consider the balance that has to be struck, as per Lord Nicholls in Malik. In Amesty International it was said that “it is plainly right that conduct on the part of an employer may be for 'proper and reasonable cause' even if there were other options available to him”.[12]In relation to the list of authorities above, the Respondent relied in particular on Frenkel where the EAT chaired by Langstaff P put the matter this way (in paragraphs 12-14): “12. We would emphasise that this is a demanding test. It has been held (see, for instance, the case of BG plc v O’Brien [2001] IRLR 496 at paragraph 27) that simply acting in an unreasonable manner is not sufficient. The word qualifying “damage” is “seriously”. This is a word of significant emphasis. The purpose of such a term was identified by Lord Steyn in Malik v BCCI [1997] UKHL 23 as being: “… apt to cover the great diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.”[13]Those last four words are again strong words. Too often we see in this Tribunal a failure to recognise the stringency of the test. The finding of such a breach is inevitably a finding of a breach which is repudiatory: see the analysis of the Appeal Tribunal, presided over by Cox J in Morrow v Safeway Stores [2002] IRLR 9.[14]The test of what is repudiatory in contract has been expressed in different words at different times. They are, however, to the same effect. In Woods v W M Car Services (Peterborough) Ltd [1981] IRLR 347 it was “conduct with which an employee could not be expected to put up”. In the more modern formulation, adopted in Tullett Prebon plc v BGC Brokers LP & Ors [2011] IRLR 420, is that the employer (in that case, but the same applies to an employee) must demonstrate objectively by its behaviour that it is abandoning and altogether refusing to perform the contract. These again are words which indicate the strength of the term. 13. As also recognised in Frenkel an agreement to pay wages, is a term in an employment contract which goes directly to the substance of the Contract. However, whether or not it constitutes a fundamental breach which entitles the employee to accept the non-payment as a repudiation (either on the basis of the breach of the relevant express terms or as a breach of the implied term of trust and confidence) depends on the circumstances: Cantor. 14. The Respondent also relied upon Achi where there was a failure to pay (or at least a premature termination of) contractual sick pay, which the ET had held to be an honest misunderstanding of the C’s contract; the ET held “We accept that essentially what occurred here was a payroll error. In no way could this have been reasonably interpreted as an action by the respondent indicating an intention no longer to be bound by the contract. Accordingly, in our judgement, there was no fundamental breach of the contract. And, absent a fundamental breach of the contract, there can be no finding of constructive dismissal”. The EAT upheld such reasoning.[15]In Cantor (at para 41), a distinction was made between an employer’sa. inadvertent failure or delay in paying on the one hand, andb. its deliberate refusal to do so on the other.[16]Furthermore, it was held that “Where the failure or delay constitutes a breach of contract, depending on the circumstances, this may represent no more than a temporary fault in the employer’s technology, an accounting error or simple mistake, or illness, or accident, or unexpected events (see, for example, Adams v. Charles Zub Associates Ltd. [1978] I.R.L.R. 551). If so, it would be open to the court to conclude that the breach did not go to the root of the contract. On the other hand if the failure or delay in payment were repeated and persistent, perhaps also unexplained, the court might be driven to conclude that the breach or breaches were indeed repudiatory”. Findings and reasons[17]Where it has been necessary to reach findings of fact over contested matters, I have done so by taking all of the evidence into account and determining what is most likely. Whilst I am bound to be selective in my references to the evidence, I have taken it all into account when reaching my conclusions.[18]As a general observation, I found the Claimant to be a generally reliable witness whose evidence is entitled to significant weight, when taken in the round with the other evidence before the Tribunal. Her answers to questions were direct, and forthright. Her claims were generally consistent with the evidence before the Tribunal. She did not seek to exaggerate and made appropriate concessions under cross examination. For example, when asked to impute a motive upon Ms Whittle, she did not accuse her of malice. Rather, she accepted that she was not being singled out for the treatment that she encountered.[19]By contrast, I found the witnesses called on behalf of the Respondent to be less reliable witnesses whose evidence is entitled to less weight, when taken in the round with the other evidence before the Tribunal. When there was a direct dispute between what the Claimant said, and what the others said, I preferred the Claimant’s account. Having made those general observations, I make the following findings.
Background
[20]The Claimant, commenced employment with the Department for Work and Pensions (the Respondent) on 5 October 2020. She had previously been employed as a Civil Servant in other government departments since 2014. In her role with the department for Work and Pensions, she was engaged as an Executive Officer (EO). She was initially based in the St Marylebone Jobcentre in London. On 5th October 2022 the Claimant moved to Palatine House in Preston as a Universal Credit Review Agent.[21]Her contract of Employment is in the papers before the Tribunal. According to her contract, she was entitled to be paid for 42 hours per week. She was required to work for 37 of those hours. In effect, her contract of employment provided for 5 hours per week to be taken as a paid lunch break. Her contract of employment said, under hours of attendance (bundle, Page 53): You will be paid for 42 hours per week. You will be required to work 37 hours per week after any daily lunch break.[22]The contract contained provisions in respect of the General Data Protection Regulations 2018. That entitled the Respondent to use, retain and process the Claimant’s personal data, including payroll information, for employment purposes. In accordance with the General Data Protection Regulations 2018, as part of your employment with us we will retain and process data for employment purposes relevant to or in connection with your current or any future Civil Service employment. This includes, but is not limited to, human resources and payroll information, personnel records, appraisals, attendance and disciplinary records and training requirements. Both parties acknowledge and agree that the processing of such information is necessary for the performance of your contract of employment with us. Single Operating Platform (‘SOP’).[23]The Respondent operates a Single Operating Platform (‘SOP’). This is a centralized digital system used to manage internal Administrative processes. It can be accessed by workers, by their managers and by Human resources officials. The system records information about individual workers including details related to a workers’ pay and working patterns.[24]The Respondent’s internal intranet contains extensive guidance for the system’s use. Extracts of the guidance have been provided in the papers before the Tribunal. Page 455 contains a note headed, “Managing flexible working”. It says this: Important – before making any changes in SOP the employee must complete the DWP Application to Change Working Pattern Form. SOP changes should not be processed without this step having been completed first. Retrospective changes and/or late notification of working pattern changes could lead to pay issues for the employee such as under or overpayments. To avoid this, check payroll cut-off dates, follow the guidance below and act promptly – you must seek to avoid under or overpayments being made. Your employee must be aware that you are changing their working pattern and that there may be over or underpayment. Employees should be aware that there may be action they need to take in regard to any overpayment.[25]That guidance continues under the heading, “what you need to do”: Before taking any action, discuss your employee’s request to change their working pattern with them.[26]The intranet contains a document headed “working hours and working patterns procedures” (Bundle, Page 462). It says the following at paragraph 6 under the heading, “Manager checks the employee’s existing contract”: Managers may need to determine their employee’s existing contractual working houses and the flexibility their contract provides. Manages who do not know which contract an employee is on should consult: a) An existing working pattern template; b) SOP, which should contain agreed hours for part-time and part-year employees; c) Correspondence between the employee and previous line managers about working pattern changes; d) Shared Services – a SOP service request will produce copies of contracts if any are held on file, although many will not be.[27]That document contains a section headed Updating SOP. It is set out at page 465 of the Bundle. It says at paragraphs 26: 26. Employees and managers must ensure that SOP is updated whenever there is a change to working pattern….[28]It continues: Important – Inaccurate changes to working patterns can cause under or overpayments. You must check the effective date/hours/working days are accurate prior to submitting the change irrespective of whether you submit the change using self-service or via a form. Once any changes to working pattern have been changed it will be processed through payroll. Any changes in pay as a result will show on the next payslip.[29]Prior to March 2023, the Claimant did not have any working pattern recorded on SOP. The Claimant says, and in the absence of any reasoned challenge to her evidence on this point, I accept, that the reason for this is because she enjoyed flexible working and, as such, did not have a working pattern capable of being recorded as a working pattern on SOP. The Change to the Claimant’s SOP Record.[30]In or around February 2023 Lauren Whittle (‘LW’) became the Claimant’s manager. She is an operations manager at the HEO level, having been promoted to that position in January 2023. From March 2023 her team included 9 members. In other words, in addition to the Claimant, LW had 8 other workers under supervision.[31]The Parties agreed before me that it was unnecessary for me to reach any finding of fact as to whether other workers on LW’s team worked under different contractual terms. I have not seen any contract other than the Claimant’s. However, I note that what LW describes as a standardized fulltime contract (at Paragraph 20 of her witness statement) is markedly different to the hours set out in the Claimant’s contract, which I have seen.[32]In March 2023, LW, entered working patterns for all members of her team into SOP. Around that time one of those in her team had a change in their working pattern. This prompted LW to complete a Change of Full or Part Time Work Pattern Form for every member of her team, whether or not they were subject to a working pattern and whether or not their contractual terms or working hours were changing. This included the Claimant. She did so by completing form RMG01 Change of Full or Part Time Work Pattern Form and submitting this to SSCL over SOP.[33]LW accepted, and I therefore find, that she did not inform the Claimant that she was going to do this. She did not ask the Claimant what her contract said about her contracted hours. She did not ask to see the Claimant’s contract of employment. And, whilst she initially said in her witness statement that she consulted guidance on how to complete a Change of Full or Part Time Work Pattern Form, she accepted under cross examination that she did not consult the guidance set out in the DWP intranet prior to submitting Form in respect of the Claimant.[34]LW accepted, and I therefore find, that LW did not tell the Claimant in advance that she was going to do this. She did not ask the Claimant to see the Claimant’s contract. She did not ask the Claimant what hours she was contracted to work. She did not discuss the Claimant’s contractual terms with the Human Resources department. She did not warn the Claimant after she had done this. She did not read the Respondent’s internal guidance note for the operation of the SOP system which warned users of the care that must be taken when making changes to a worker’s record and the potentially severe consequences if a mistake was to be made.[35]On 30th March 2023 LW submitted to SOP a form notifying SSCL a change to the Claimant’s full or part time working pattern. The working pattern inputted for the Claimant was recorded as 37 hours per week, or 7.4 hours per day, retrospectively effective from 5 October 2020. I find this to be the case because I have seen at page 184 of the bundle, a copy of the form completed by LW.[36]I do not accept Lauren Whittle’s claim in her witness statement (at [41]) that it is not possible to input anything other than 7.4 hours per day. This is because she accepted in her oral evidence that it would have been possible to enter a different number, for example 8.4 hours per day. Nor do I accept her claim that a guidance document indicated that she should record 7.4 hours for each working day on SOP in respect of the Claimant. This is because the document referred to in her witness statement says nothing of the sort and I have not been referred to any other document which says that. I do however accept her claim that she entered identical details for each member of her team.[37]I find that there was no requirement for any worker on a standard full time contract to have a working pattern recorded on SOP and there was no requirement for the Claimant to have a working pattern recorded on SOP at that time. LW accepted in her evidence before the Tribunal that there was no such requirement in place at that time. I therefore find that there was no business or other imperative for Lw to do as she did in respect of the Claimant. The Overpayment[38]On 24 April 2023 at 09:36, LW received a notification on the SSCL My Service Requests Portal indicating that an overpayment had been identified in respect of the Claimant. The notification was accompanied by a letter addressed to the Claimant of the same date. It says: I am writing to advise you that an overpayment of salary has been identified amounting to £9,087.31[39]The letter then includes a table describing a series of basic pay arrears, the earliest being October 2020 and the latest being March 2023. They range in value from £8.94 to £322.57. The letter concludes: To ensure this guidance is followed SSCL are therefore compelled to recover any overpayment of salary on behalf of your employer. In this case, the recovery will be taken through an automatic payroll adjustment, over the next twenty-three payroll periods in instalments, and will be detailed on your pay slip.[40]At around midday on 24th April 2023, LW contacted Shared Services Connected Limited (SSCL), the payroll and HR service provider for the Respondent. LW did not first discuss the issue with the Claimant. SSCL advised that the overpayment arose due to the working pattern recorded in SOP.[41]I find that the most likely cause of the overpayment issue was the submission of the Change of Full or Part Time Work Pattern Form. This is because all of the contemporaneous records that I have seen refer to this as having triggered the overpayment. Most significantly, I have seen contemporaneous correspondence from Jamie Dodd of SSCL at page 188 of the bundle. This correspondence says: The issue appears to be that the officer is holding FT 37 Hours but they contract type is held as 42 hours causing the OP to generate. Can you please confirm the officer should have a 37 hour contract all the way through? If so I can raise with the team to correct?[42]The conversation continued: Yes the FT hours are held as 37 but the officer was built with a contract type of 42 hours and so once the work pattern was corrected the system assumes they should be paid 37/42s hence the OP. Can you just confirm that the contract type should be 37 to match the FT hours?[43]Lauren Whittle replied: I don’t work in HR – so I as I never hired this employee I don’t know what her contract is – I just know she is full time and the salary should be the EO national the same as everyone else.[44]From this correspondence, the following is clear. Firstly, LW did not know how many hours the Claimant was contracted to work. Secondly, LW’s amendment to SOP caused the overpayment issue. Thirdly, LW was aware that that the submission of the Change of Working Pattern form is what triggered the overpayment issue. This is the case whether or not the information contained in the Change of Working Pattern form was correct.[45]I therefore reject LW’s claims at the hearing before the Tribunal that she did not know what had caused the overpayment issue. She was told in direct terms in correspondence to which I have referred. Her claim that she believed the overpayment issue was caused by an IT issue, the fact that the Claimant previously worked in London or a mistake by an external payroll organization is irreconcilable with her contemporaneous correspondence on the issue which explained that the overpayment was a result of the change in working pattern.[46]Sometime following her conversation with SSCL, LW contacted the Claimant by telephone. LW said that she did not know what had caused the overpayment. She told the Claimant that she thought that the overpayment issue was in relation to when the Claimant had worked in London and had spoken to somebody in SSCL, who advised that the Claimant would not have any deductions taken from her pay in April 2023. LW’s hypothesis as to what had caused the overpayment was entirely based on supposition and conjecture and had no evidential basis. I find that LW was not entirely honest with the Claimant about what had caused the overpayment issue.[47]On 24th April 2024 the Claimant received several notification summaries from SSCL. One of them related to a retrospective change in her working pattern (bundle, Page 69). At 14:47 on 24th April 2023 the Claimant wrote to LW, asking whether this had caused the sudden change. LW replied at 14:49 in the following terms: Yeah I asked about the addition of the work pattern on the phone – and they confirmed the work patten is correct and should not of affected anything We will see what they come back with this week![48]LW did not tell the Claimant that she had added the work pattern on SOP or that this change had triggered the overpayment notification. By this time, she was aware of both of these things. The Claimant’s Complaints and Sick Leave[49]In the April and May 2023 payroll cycles, the Claimant’s Payslips reflected deductions related to the overpayment. Additionally, her pension contributions increased due to the changes in her pay calculation, resulting in the Claimant receiving less pay overall in those months. The Claimant raised concerns regarding the accuracy of her pay and pension deductions. SSCL informed both the Claimant and LW that the issue had been resolved, but the Claimant continued to contest the deductions and sought further clarification.[50]Throughout this time, LW continued to provide the Appellant with the false impression that the Change of Work Pattern was made by SSCL and not by LW. An example of this is to be found in a transcript of a Teams instant message exchange which is undated but which I am told took place on 3rd of 10th May 2023. In that exchange LW said the following: Inputting the working pattern - I believe they changed your contract to 37 hours instead of 42 - when they should of just put been putting in the 37 hours (7.4 per day) working pattern. Therefore making it look like you worked 'part time' with a weekly drop of 5 hours. Your the only person on the team this happened to - human error. Not a great excuse as obviously put you in tough spot getting underpaid this month and generating the letter for the Overpayment which is wrong and can be quite stressful.[51]I find that this was designed to leave the Claimant with the false impression that a human error by someone working for SSCL had caused the overpayment issue. However, LW was aware all along that she had completed and submitted the Change of Working pattern form and that this is what had triggered the overpayment issue. This is the case whether or not the form was completed correctly.[52]On 25th May 2023 at 13:28 the Claimant wrote to LW to inform her that her wage slip for May was incorrect. On 26th May 2023 at 10:46 LW replied to that email suggesting that the Claimant get in touch with SSCL directly. In an email of 10:57 of the same date LW told the Claimant in an email that this matter related to pensions and should be raised separately. The Claimant then raised a service request with SSCL and at 15:08 informed LW that this is what she had done.[53]On 5th June 2023 the Claimant returned to work after having been on annual leave. Upon her return she saw that on 27th May 2023 her service request had been closed. She brought this to LW’s attention, who agreed to raise the matter with Paula O’Malley, a senior colleague in Human Resources.[54]On 8th June 2023 LW and the Claimant discussed the Claimant’s ongoing concerns about pay. It was here that LW told the Claimant, for the first time, that she had input some hours onto the SOP system, but that she had done it for the whole team and that the hours inputted were correct. LW told the Claimant that she could not raise a grievance about the issue. The Claimant raised a further Service Request with SSCL.[55]The Claimant reported experiencing stress and anxiety due to the ongoing pay issue. On 21 June 2023, she informed Ms. Whittle and others within the Respondent’s management structure that she would be taking sick leave. She attributed her absence to the unresolved pay issue and its impact on her mental health. The Claimant’s Resignation[56]Between her going off work with illness on 21st June 2023 and her tendering her resignation to the Respondent on 13th August 2025 the Claimant failed to receive a satisfactory resolution of her issues relating to pay. Throughout this period she was required to log on to her work email to pursue service requests with SSCL of her own accord. She was repeatedly told that DWP could not pursue the matter on her behalf due to GDPR concerns.[57]On 26 June 2023, the Claimant requested to be transferred to another team, citing a breakdown in her working relationship with Ms. Whittle. The transfer request was approved, and the Claimant was assigned a new line manager, Shamima Rawat. Ms. Rawat handled the Claimant’s day-to-day wellbeing, while pay-related issues were escalated to senior management, including Louise Metcalfe, the SEO, and HRBP Paula O’Malley.[58]On 27th June 2023 the Claimant logged on to her work email to find that the pay issue had not been resolved. This is because the deductions relating to pension had not been corrected.[59]On 29th June 2023 the Claimant contacted LM by telephone. LM indicated that because Payroll was outsourced, and because of GDPR, nothing could be done to assist the Claimant in respect of the pay issue.[60]On 5th July 2023 the Claimant received a telephone call from Shamima Rawat. During this call, SR said that she wasn’t there to discuss anything in relation to the pay issue and that Louise Metcalfe was the person to speak to regarding this. Shamima Rawat arranged weekly calls to discuss the Claimant’s absence and said that the Claimant was due to have an informal absence meeting. This meeting was scheduled for 14th July 2023 at 11:30am via Microsoft Teams.[61]On 7th July 2023 the Claimant raised a formal complaint with SSCL about the handling of her service requests and requested copies of the service requests raised by LW on the Claimant’s behalf.[62]On 20th July 2023 the Claimant wrote to Louise Metcalfe. She indicated that she found the onus being placed upon her to pursue matters with SSCL directly was exacerbating her stress. The Claimant continued to have weekly meetings with her line manager. In early August 2023 LM sent an email to the Claimant containing attachments related to the service requests made by LW in April and May 2023. From this information, the Claimant inferred that it was a change to her working pattern submitted to SOP that triggered the overpayment issue and all that followed. From this, she inferred, that her managers had not been entirely truthful with her throughout.[63]In August 2023, SSCL confirmed that the pay issue was resolved in August 2023. The Claimant received reimbursement for overpaid pension contributions in her August payroll, amounting to £323.07.[64]On 13 August 2023, the Claimant resigned with immediate effect. She stated that her resignation was due to the stress caused by the handling of the pay issue and her loss of trust in the Respondent.[65]Following her resignation, the Respondent offered the Claimant an opportunity to rescind her resignation. This included a cooling-off period until 31 August 2023. The Claimant did not accept this offer. Analysis 1.1.1 Did the Respondent change the claimant’s working hours retroactively from 42 to 37 without the claimant’s knowledge or consent, resulting in an overpayment and subsequent deductions from their pay?
Analysis
[66]No.[67]As Mr Ryan argued, and I accept, the Claimant was not, in fact, required to work fewer hours and she was eventually repaid following the unjustified deduction from her wage. To this extent, the Respondent did not change the substance of the Claimant’s contract.[68]However, LW did make changes to the Claimant’s records without justification. As I have found, there was no good reason for LW to submit changes to the Claimant’s working pattern on SOP. There was no business or administrative reason for her to have done this. LW was not following a reasonable or proper course in making changes to the Claimant’s working pattern when, and in the manner, that she did.[69]Moreover, she did this in a way that was contrary to internal guidance in respect of such matters. Most significantly, she did not tell the Claimant in advance that she was doing this.[70]It has not been necessary for me to determine whether the Claimant worked under contractual terms different to anyone else on her team. Nor has it been necessary to reach any finding as to whether the form that LW submitted was completed incorrectly. However, as I have found, whether the mistake was LW’s or someone else’s, the submission of this form was the trigger for the pay issues that followed. Had this form not been submitted, there is no reason to suspect that the issues surrounding the incorrect notification of overpayment would have occurred.[71]Although the Claimant is not correct to say that LW changed her contract, the Claimant’s concerns that someone from DWP was making changes to her payroll records without her consent was ultimately proved to be correct. 1.1.2 Did the Respondent fail to resolve the pay issue in a timely and transparent manner despite repeated complaints and escalations by the claimant?[72]Yes.[73]The Claimant spoke to LW about the overpayment issue on a number of occasions between April 2023 and her request to transfer teams in June 2023. On each occasion LW was less than transparent with the Claimant about her actions and about her role in the overpayment coming about. Moreover, when corresponding with other managers about the topic, including LM and Paula O’Malley, LW provided an incomplete picture.[74]This meant that the Claimant and others within the Respondent were less well equipped to seek a resolution in their dealings with SSCL because their service requests were not informed by what LW already knew.[75]After the Claimant changed her line manager, her new line manager was not fully apprised of the Claimant’s circumstances. In my judgment, this created a buffer between the Claimant and those with responsibility for the pay issue, leading to further confusion and frustration for the Claimant. There was no reasonable and proper course for this arrangement to be put in place.[76]After LW’s initial attempts to resolve the overpayment issue in April and May 2023, The Claimant’s managers made no meaningful attempt to resolve the issue and, in effect, left the Claimant to resolve the matter by herself. Any reasonably competent manager would have made greater efforts to resolve the issue on the Claimant’s behalf. There was no reasonable and proper reason for the Respondent’s failures in this regard. 1.1.3 Did the Respondent provide misleading information about the cause of the pay issue, including attributing the error to SSCL when it originated from the actions of the claimant’s line manager?[77]Yes.[78]On the facts, as I have found them to be, the cause of the pay issue was LW making a change to the Claimant’s details on the SOP system. LW and other managers misled the Claimant as to the cause of the overpayment issue by suggesting that it was human error or some other error at SSCL and entirely unrelated to the submission of a change of working pattern. Plainly, there was a link between the 2, and it was wrong of the Respondent not to be candid with the Claimant at the earliest possible opportunity. 1.1.4 Did the Respondent fail to provide adequate support to the claimant, including leaving them to resolve the pay issue with SSCL directly despite the stress it caused?[79]Yes.[80]The Claimant was off sick due to stress associated with the pay issue. The Claimant’s managers left the Claimant to pursue a resolution with SSCL independently. This is in spite of the Claimant repeatedly telling her managers what impact this was having on her mental health and in spite of the Claimant repeatedly asking for their support in pursuing a resolution with SSCL.[81]The Respondent says that it was unable to correspond directly with SSCL on the Claimant’s behalf because of concerns over GDPR. I reject this explanation for the following reasons.[82]Firstly, neither LM nor LW were able to justify their belief by reference to a documentary evidence before the Tribunal.[83]Secondly, LW did, in fact, correspond with SSCL on the Claimant’s behalf when the Claimant was first notified of the overpayment issue. This is a strong indication, in my judgment, that SSCL would have corresponded with the Claimant’s managers about the claimant’s case.[84]Thirdly, the evidence before the Tribunal is that SSCL did, after the Claimant’s resignation, and following escalations by the Claimant’s managers, correspond with the Claimant’s managers about the Claimant’s situation.[85]There was no reasonable and proper course for the Respondent not to pursue a resolution on the Claimant’s behalf. 1.1.5 Did the Respondent handle the Claimant’s complaints and concerns in a way that exacerbated the stress and financial impact of the pay issue?[86]Yes.[87]The Claimant sought to raise a grievance over the matter. Whilst superficially supportive, LW told the Claimant that she could not raise a grievance and she should seek the help of her Union Representative and pursue further complaints with SSCL. That she was less than candid in her dealings with the Claimant suggest that she was providing the Claimant less than her full support.[88]The Respondent arranged weekly keep-in-touch meetings. The Claimant signalled to the Respondent through her union representative that she objected to this frequency of meetings. There was no reason to make contact with the Claimant with this level of frequency while the pay issue remained unresolved. The frequency of the meetings was oppressive.[89]The meetings were to be held with a manager who had no information about the progress of the Claimant’s complaints about her pay. Given that the Claimant’s concerns resolved entirely around pay, it ought to have been obvious to any reasonably competent employer that this would cause the Claimant further frustration and stress. 1.2 Did that breach the implied term of trust and confidence?[90]Yes.[91]The pay issue went to the heart of the relationship between employer and employee.[92]I reject the submission that the changes to the Claimant’s pay were minimal, and were promptly corrected, and therefore not capable of undermining the implied term of trust and confidence. This is because the shortfall was not, on any view, minor. It was a significant portion of the Claimant’s income.[93]Most significantly, the deductions and the cause of them were largely unexplained, and were persistent over a lengthy period of time. This was not a one off payroll error which was easily explained. In the absence of any clear explanation, the Claimant could not have had any confidence that the issue had, in fact, been resolved at the point of her resignation.[94]The pay issue must be viewed in the context of a situation in which the claimant’s managers were not transparent about the initial cause of the overpayment issue and in which they generally declined to assist the Claimant in obtaining a resolution from the external payroll provider. The Claimant could have had no confidence that her managers would conduct themselves with transparency or that her concerns would be taken seriously in future.[95]Taking all of these matters in the round, the Respondent’s actions went beyond a simple payroll error and represented a fundamental breach of the implied term of trust and confidence. 1.2.2 Whether the respondent had reasonable and proper cause for its actions[96]No.[97]As I have found there was no reasonable and proper cause for the Respondent’s actions.[98]In particular, there was no reasonable and proper cause for the Respondent to make changes to the Claimant’s working pattern on SOP. The Respondent ought to have been aware of the risks of this causing overpayments, given that this risk was documented in internal guidance.[99]There was no reasonable and proper cause to refuse to assist the Claimant in pursuing a resolution with SSCL while the Claimant was off sick with stress related to the pay issue. As I have found, the concerns in respect of GDPR were not well founded.[100]There was no reasonable and proper cause for the Claimant to insist upon weekly meetings while the claimant was off sick and no reason for her to be assigned to a line manager who was not prepared to discuss the pay issue. 1.5 Did the claimant resign in response to the breach?[101]I find that the Claimant’s discovery that LW had submitted a change of working pattern on SOP and that this was the catalyst for the overpayment issue arising was the final straw. Until that point the claimant had shown every intention of returning to work.[102]This is evidenced by the fact that she continued to seek a resolution of the pay issue up until she uncovered LW’s involvement with the change of working pattern. There is no reason to suggest that anything other than the pay issue, and the Respondent’s handling of it contributed to the Claimant’s resignation and I find that this is what caused it.[103]I reject the suggestion that the Claimant overreacted. Looking at matters objectively, anyone in the Claimant’s circumstances would have regarded the Respondent’s actions, taken together, as designed or likely to destroy the implied term of trust and confidence. The Claimant could not have been expected to put up with it any longer and she acted entirely reasonably.[104]As I have found that the Claimant resigned immediately, the question of affirmation does not arise. For all the reasons above, I find that the Claimant was constructively dismissed. The claim is therefore upheld It follows that the claim succeeds.