Mrs E Bennett v The Chief Constable of Merseyside Police: 2401552/2019

EMPLOYMENT TRIBUNALS

Case No 2401552/2019

Between

Mrs E BennettClaimant

The Chief Constable of Merseyside PoliceRespondent

Date 10 November 2021

JUDGMENT

The judgment of the Tribunal is that the claimant’s complaint for unlawful age discrimination claim and disability discrimination brought under section 15 of the Equality Act 2010 are dismissed upon withdrawal by the claimant. All other remaining claims of constructive unfair dismissal, failure to make reasonable adjustments and victimisation will be heard at the final hearing listed for 6 days commencing on the 20 July 2020. JUDGMENT The judgment of the Tribunal is that the claimant’s complaint of sex/disability discrimination brought under section 26 (victimisation) of the Equality Act 2010 is dismissed upon withdrawal by the claimant. JUDGMENT The judgment of the Tribunal is that:

[1]The claimant met the criteria in Section 6 of the Equality Act 2010 as a disabled person, commencing at the date of the outcome of her grievance appeal on 1 October 2018.

[2]The claimant’s first two claims for a failure to make reasonable adjustments fail and are dismissed, as those incidents occurred before the claimant’s mental impairment had either lasted for twelve months or was likely to last for twelve months. At the time of those incidents, the claimant was not disabled within the meaning set out in section 6 of the Equality Act 2010.

[3]The claimant’s third claim for a failure to make reasonable adjustments has little prospect of success and is therefore subject to the payment of a deposit of £300 to allow it to continue. The terms of the claimant’s deposit order are contained in a separate order of the Tribunal but the reasons for this are set out below.

[4]The claimant’s claim for constructive unfair dismissal may proceed to a final hearing without the payment of a deposit.

[5]The case is set down for a further Case Management Hearing to be conducted by telephone in private with an estimated duration of one hour to take place at 11.30 am on 26 October 2020. At this hearing, Case Management Orders will be made to prepare the case for a final hearing and a date for that final hearing will be fixed.

REASONS

[1]The claimant was employed as a security guard by the respondent from July 2010 until her resignation at the expiry of one month’s notice on 11 December 2018.

[2]The claimant brings claims for disability discrimination, constructive unfair dismissal and breach of contract.

[3]The respondent alleges that the claimant was not a disabled person within the meaning set out in section 6 of the Equality Act 2010 at the time to which the alleged acts of discrimination relate.

[4]In particular, the respondent says that at the time the alleged incidents of discrimination occurred, the claimant’s mental health condition had not lasted for twelve months, nor was it likely to last for twelve months as per Schedule 1, paragraph 2(1) of the Equality Act 2020. It is accepted that in this context, “likely” means that “it could well happen”.

[5]It is settled guidance on this issue that when assessing the likelihood of an impairment lasting for twelve months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood. (as per the “Guidance on the Definition of Disability 2011” issued under s6(5) of the Equality Act 2010). What is required is an assessment of whether, at the time to which the allegations relate (and therefore at the time when the claimant says the employer was under a duty to make reasonable adjustments), the claimant was a disabled person. It is not relevant to consider whether the claimant has since fulfilled the definition of a disabled person.

[6]Furthermore, an employer is only under a duty to make reasonable adjustments if at the date of the alleged failure to do so, the employer knew or ought to have known that the person was a disabled person.

[7]At this hearing the respondent applies for the following two issues to be determined by the Tribunal:a. For a ruling that the claimant was not a disabled person at the time to which the allegations of discrimination relate; and

b. That deposit orders to be made against the claimant to be allowed to continue with all of her claims against the respondent. It is the respondent’s case that the claimant’s claims have little prospects of success. Even if it is accepted by the Tribunal that the claimant is a disabled person within the meaning of Section 6 of the Equality Act 2010, it is the respondent’s case that her claims have little reasonable prospects of success and therefore that the Tribunal ought to make an order requiring her to pay a deposit as a condition of continuing to advance these allegations as per Rule 39 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1.

[8]The Tribunal was grateful for the written and oral submissions of both the claimant’s representative Mr Clark and the respondent’s representative Mr Tinkler. The Tribunal was also grateful for the evidence given by the claimant herself Mrs Bennett, both in the form of a witness statement, a disability impact statement, and in answer to questions under oath.

[9]This hearing was a hearing in person under conditions of social distancing in accordance with the provisions in place as a result of the Covid 19 pandemic. Findings of Fact When did the alleged incidents of disability discrimination take place and was the claimant a disabled person at that time?

Findings of Fact

[10]It was apparent from the evidence before the Tribunal that the claimant did not have an underlying mental health condition prior to an incident at work on 22 December 2017 that the claimant alleges was the starting point of her issues with the respondent and also her mental health issues.

[11]I accept her evidence that prior to 22 December 2017 she enjoyed hobbies and an active life and good relationships with friends and family and was not taking medication for any mental health conditions. She had suffered ongoing back problems in the form of sciatica prior to that date, but her evidence to the Tribunal was that she managed this through medication and had not taken time off from work as a result. The claimant’s sciatica is not an “impairment” for the purposes of her disability discrimination claim in these proceedings.

[12]On 22 December 2017 the claimant was in work with her line manager David McGurk. On the respondent’s case, the claimant and Mr McGurk had a disagreement and both raised their voices, but the respondent accepts that the claimant was spoken to in an unprofessional manner by Mr McGurk.

[13]The claimant’s evidence is that Mr McGurk screamed in her face and that she was physically bullied by him. When recalling the incident while giving evidence, the claimant became highly distressed. It is apparent that this incident was the trigger for a collapse in the claimant’s mental health. The claimant left work on the same day of the altercation and did not return thereafter. She resigned on 11 November 2018 with one month’s notice which expired on 11 December 2018. Between 22 December 2017 and the date of her resignation, the claimant was signed off work with “workplace stress” for the entire period.

[14]The claimant’s case is that her stress was severe enough to amount to a disability within the meaning of section 6 of the Equality Act 2010 and was solely caused by her treatment by the respondent during the period from 22 December 2017 onwards. Her case as to when she ought to be classed as disabled according to s6 Equality Act 2010 is, as understood by the Tribunal, as of the commencement of her sickness absence and therefore 22 December 2017.

[15]It is the respondent’s case that the claimant at no point during her employment with the respondent fulfilled the definition of a disabled person. She resigned less than twelve months after 22 December 2017 and at none of the times to which the allegations of a failure to make reasonable adjustments relate, could it be said that it was “likely” that her illness would last for 12 months. What was “likely”, in the respondent’s case, was that the matter would be resolved by the respondent and the claimant would return to work.

[16]The claimant’s evidence as to the adverse effect and mental health difficulties was clear in that, as noted above, she suffered an almost immediate and significant adverse effect on her mental health following the altercation with Mr McGurk on 22 December 2017. The claimant’s medical notes show that she visited her GP shortly afterwards on 29 December 2017 and was given a diagnosis of work related stress and certified as not fit for work and agreed to medication.

[17]Having no previous history of depression and no underlying diagnosis of depression, the altercation at work plunged her almost immediately into severe difficulties with mood, concentration and sleep and on the claimant’s account exacerbated her sciatica to the extent that she was at times severely sleep deprived. The Tribunal accepts the claimant’s evidence in this regard.

[18]The Tribunal notes that although the claimant’s sciatica could be said to be an exacerbating factor, the “Guidance on the Definition of Disability (2011)” at Section A gives clear guidance to the Tribunal that it is not necessary to consider how an impairment is caused and that whether a person is disabled is generally determined by reference to the effect that an impairment has on a person’s ability to carry out normal day to day activities. It is not necessary for an impairment to have a clearly identifiable diagnosis and paragraph A8 of the 2011 Guidance in particular states that there are many conditions which are not immediately obvious to identify.

[19]The claimant visited her GP on a regular basis throughout 2018 and was referred for counselling. Eventually, in May 2018, she agreed to commence anti-depressant medication which she stopped after a few days because of side-effects but resumed other medication in October 2018 which she continued to take past the date of her resignation from work and was still taking on 26 February 2019, which was the date of her last medical evidence in the bundle.

[20]It is therefore accepted that in terms of the definition in section 6 of the Equality Act 2010 that the claimant had a mental impairment that had a substantial adverse effect on her ability to carry out normal day to day activities.

[21]However, section 6 also requires that an impairment be “long term”. As set out above this means that it has lasted for twelve months or, at the time when the discrimination occurred, that it is likely to last for a period of twelve months. “Likely” is defined as meaning that it “could well happen” that the impairment would last for twelve months or more.

[22]It is necessary, given that the three allegations of a failure to make reasonable adjustments occur at different dates, to consider whether the claimant was a disabled person in connection with each separate allegation.

[23]Taking the first claim for a failure to make reasonable adjustments, which is a failure to allow the claimant to be accompanied by Mr Clark at a hearing in connection with her grievance, the respondent’s case is that the relevant date is 22 May 2018 only. The claimant’s case is that the relevant dates commence on 22 May but continue until the outcome of the grievance appeal.

[24]Having considered the submissions and evidence of both parties, the Tribunal finds that the relevant period commences on 22 May 2018 and lasted until the outcome of the claimant’s grievance, which was 14 August 2018. This is because in relation to the grievance appeal which was commenced on 28 August 2018, the claimant was permitted to be accompanied by Mr Clark and so there can be said to have been no failure to make reasonable adjustments in relation to this stage of the grievance process. Therefore the relevant period for the first failure to make reasonable adjustments is 22 May 2018 to 14 August 2018.

[25]In relation to the second failure to make reasonable adjustments, the relevant period is said by the respondent to be the date on which the claimant was placed on half pay, which is 23 June 2018. It is the respondent’s case that this was a single act with ongoing consequences as opposed to an ongoing series of discriminatory acts. It is the claimant’s case that the discrimination continued for the entire period of the claimant’s employment until she resigned.

[26]I find this is a single act with ongoing consequences rather than a series of ongoing acts. The action to move the claimant to half pay was taken once and no further action was taken by the respondent in this regard thereafter. Therefore, the alleged act of discrimination took place on 23 June 2018, even though the consequences of that act were felt by the claimant until the termination of her contract in December 2018.

[27]The third alleged failure to make reasonable adjustments relates to the respondent’s actions in attempting to get the claimant to return to work. The Tribunal accepts the claimant’s evidence that this alleged failure continued up until the date of the email to her from Ms Baccino on 9 November 2018.

[28]In terms of when it can be said that an assessment of the claimant’s mental health condition would have revealed that it was likely to happen that her mental impairment would last for at least twelve months, having considered the evidence of both parties the Tribunal concludes that this would not have been clear until the outcome of the grievance appeal on 1 October 2018. By 1 October 2018 there was an indication that the claimant’s mental health issues were likely to last for twelve months or more. By this point it would have been clear to the respondent that the conclusion of the grievance process and the grievance appeal would not resolve the claimant’s issues, as they had expected.

[29]Prior to 1 October 2018 the Tribunal finds on the balance of probabilities that there was a reasonable expectation that the claimant would be able to return to work if her complaints were dealt with. All of the evidence from the claimant was that her mental health problems were caused by the ongoing issues at work and a proper conclusion of the grievance or the grievance appeal would have resolved her problems and allowed her to return to work. There was no evidence whatsoever available either to the respondent during the grievance process or to the Tribunal during this hearing that there was any underlying issue or diagnosis of depression, therefore there was no underlying condition present to indicate that the claimant’s reaction to her problems at work would last longer than a resolution of those problems by the respondent.

[30]After 1 October 2018, although the claimant had not been suffering for twelve months with her mental health condition at that point, it would have been clear to the respondent that its internal processes would not assist the claimant to return to work and that it “could well happen” that the problems would persist past the 12 month period.

[31]The claimant was a disabled person within the meaning of section 6 as of 1 October 2018. Therefore, only the third allegation of a failure to make reasonable adjustments can proceed to a final hearing, as only this allegation took place when the respondent ought reasonably to have known that the claimant’s mental health issues were likely to last for twelve months or more. Although the claimant’s case was that this ought not to matter, and that what was more important was that the claimant was now disabled, this is not (as explained above) how the disability provisions of the Equality Act work in relation to an employer’s responsibility during the employee’s employment.

[32]The first two claims for a failure to make reasonable adjustments fail, as the claimant was not a disabled person within the definition of Section 6 at the time when those allegations arose. They are hereby dismissed. Deposit Order – Failure to Make Reasonable Adjustments

[33]The claimant’s third allegation of a failure to make reasonable adjustments is that the respondent failed to grasp and properly deal with the seriousness of the issues that were causing the claimant’s workplace stress before pressing her to return to work. For the reasons set out below, this allegation has little reasonable prospects of success.

[34]The provisions of the Equality Act 2010 in relation to a failure to make reasonable adjustments are: “S20: Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.”

[35]From the citation above it is clear that an employer has a three-fold duty to consider making reasonable adjustments as set out in sections 20(3) to 20(5). From the claimant’s pleaded case is would seem that she is not complaining about a physical feature of her workplace (s20(4)) or the lack of an auxiliary aid (s20(5)). Therefore, the failure to make reasonable adjustments must relate to a “provision, criterion or practice” of the respondent’s in accordance with s20(3).

[36]The respondent’s counsel said that he struggled to understand what the provision, criterion or practice could be, in relation to the allegations that were made. I also struggled to understand the claimant’s case in this regard.

[37]I raised the issue with the claimant and her representative during the hearing and explored with Mr Clark whether a failure to make reasonable adjustments was the correct “label” to be attached to the claimant’s allegations.

[38]Mr Clark told the Tribunal that the issue was not one of direct discrimination, in that he was not saying that the claimant was pressed to return to work because she was a disabled person.

[39]The claimant also did not appear to be saying that this was an issue arising out of the claimant’s disability. Unusually, the claimant’s case is not that she had an underlying mental health complaint that the respondent had failed to address, but that the respondent’s actions caused and then exacerbated her mental health complaint and had the respondent acted properly and resolved her complaints adequately that her health issues would have been resolved.

[40]There was no suggestion of harassment because of her status as a disabled person and no suggestion of victimisation.

[41]It was acknowledged by the claimant when asked by me that the issues that are in the third allegation are covered by the constructive unfair dismissal complaint. Mr Clark conceded that it was difficult for him to be clear on the claimant’s behalf how this claim should be formulated under the ambit of a disability discrimination complaint.

[42]At the conclusion of the discussion, it was still not clear as per s20(3), what “provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter”. It is for a claimant to first identify what the respondent’s provision etc is that has put her at a disadvantage as a disabled person and then state what adjustments could have reasonably been taken to avoid the disadvantage. It is not currently apparent.

[43]It is not for the Tribunal to plead a party’s case for it. It is appropriate to explore the nature of a party’s complaint if they do not have legal representation and this was done during the hearing. However, no clear conclusion was reached.

[44]The claimant says that the respondent’s “continuous attempts to get the claimant to return to work … were made without addressing the cause of the claimant’s mental impairment and therefore her absence”.

[45]If “getting the claimant to return to work” is the taken to be the “practice” envisioned by s20(3), and if it can be said that the “adjustment” involved the imposition of a more stringent punishment for Mr McGurk and an absence of any reference in the grievance outcome to any culpability on the part of the claimant, it is difficult to see how this is connected to the claimant’s disability specifically. The “adjustment” also appeared to involve addressing the alleged failures to investigate her complaint against Mr McGurk earlier. Again, it is difficult to see how this is not an issue that would apply to all employees irrespective of any disability.

[46]Furthermore, the claimant’s allegations appear to be contrary to the evidence currently available of the respondent’s conduct of the claimant’s grievance and appeal. The respondent, later than the claimant wished and not to the standard that she wished, still conducted a lengthy and detailed grievance investigation and grievance appeal. Mr McGurk was found to have behaved inappropriately and was spoken to informally. The claimant was found to have had some culpability during the argument on 22 December 2017. Mediation was offered to the claimant and Mr McGurk was noted to have offered to apologise. There was discussion of a temporary new role away from Mr McGurk.

[47]The claimant told the Tribunal that the punishment given to Mr McGurk fell far short of what his behaviour required and that the respondent’s conduct of her grievance and grievance appeal exacerbated her mental health problems because it was so badly handled, and the relocation offered was inadequate. She took gross exception to the offer of an apology because the offer of it referred to Mr McGurk offering to apologise “again”. By the claimant’s account, the first offer of an apology was never made, and she takes this as improper conduct by the respondent.

[48]However, I find that the evidence at this stage does not allow any inference that the respondent failed to grasp or address the cause of the claimant’s mental impairment. On the basis of the information before the Tribunal at this hearing, the respondent did address the cause of the claimant’s mental health difficulties and therefore her absence, but reached a conclusion that the claimant did not agree with. Solutions were offered to the conflict with Mr McGurk, but they were not acceptable to the claimant. That is not the same as a failure to address the issue. The allegation that the actions taken by the respondent were inadequate does not appear to be based on an allegation that the respondent did so due to the claimant’s disability, (and indeed for much of the duration of the grievance process the claimant was not a “disabled person” as per s6), but it is suggested that this was due to negligence and/or incompetence.

[49]It is also difficult to envisage how a claimant could succeed in persuading a future Tribunal that it was a “reasonable” adjustment to require her employer to increase the severity of the disciplinary sanctions on those she considered responsible as a prerequisite to requiring her to consider a return to work.

[50]Therefore, on the basis of the information before me, the claimant’s claim for a failure to make reasonable adjustments in relation to the respondent’s attempts to get her to return to work appears to have little prospects of success. To continue with this claim at the final hearing the claimant is required to pay a deposit of £300.

[51]I have considered whether it would be more appropriate to direct the claimant to provide written clarification of this complaint as an alternative to an order for the payment of a deposit. However, there have been previous case management discussions and a considerable amount of correspondence in this matter, and a discussion was held on this occasion also. The claimant has therefore been given a reasonable opportunity to present her claims and to ask for clarification of any legal or procedural issues that she may find unclear. It is therefore not appropriate to direct her to address this issue a further time.

[52]The claimant was given the opportunity to present evidence as to her means but declined to do so. Her representative Mr Clarke informed the Tribunal that the claimant did have means to pay for a deposit but that she is retired and in receipt of a pension. The Tribunal can order a deposit to be paid of up to £1,000 per complaint, but I have taken her status as a pensioner into account and have reduced the sum accordingly. Deposit Order – Constructive Unfair Dismissal

[53]The claimant’s constructive dismissal case is that there were a series of breaches of the implied duty of trust and confidence by the respondent in handling her sickness absence and her complains against Mr McGurk, in addition to poor management and mishandling of both her grievance and her grievance appeal and her return to work. This culminated in the “last straw” being the email received from Ms Baccino on 9 November 2018: “Hello Eileen How are you now feeling? Can we please arrange a time to meet next week as we have not met since 13 September 2018. Can I please take this opportunity to remind you that as a Merseyside Police Staff Member you have obligations to adhere to the Attendance Management Policy and I draw your attention to the following points:-• Remain contactable during absence and maintain regular contact with managers, contact must be either by face to face or by telephone, text or email contact is not acceptable.

• Attend meetings with managers during sickness absence and return to work as required. I look forward to hearing from you. Kind regards Belinda”

[54]The claimant will say that she interpreted this email as a threat that she had to attend work or be in breach of the respondent’s attendance management policy with adverse consequences for her, particularly given the history of her dealings with Ms Baccino and what the claimant alleges were repeated insistences from Ms Baccino that the claimant be required to meet her.

[55]It is the respondent’s case that when viewed in the appropriate context of what the claimant ought reasonably to have believed, it could not have been interpreted as being a threat of sanctions being applied and therefore was not a further breach of the implied duty of trust and confidence. As there has been no “last straw”, her claim has little prospects of success and she should be ordered to pay a deposit as a condition of being allowed to continue.

[56]The claimant’s constructive unfair dismissal claim does not in the opinion of this Tribunal at present appear to have only little reasonable prospects of success. It is the claimant’s case that the “last straw” email of 9 November 2018 ought reasonably to be considered in context of her previous dealings with Ms Baccino. From the evidence of the case presented at this hearing the Tribunal accepts that there may be evidence that could be presented on behalf of the claimant at a final hearing that supports the claimant’s contention that a reasonable consideration of Ms Baccino’s email of 9 November was a further breach of the implied duty of trust and confidence.

[57]Therefore, it cannot be said that the claimant’s constructive unfair dismissal claim has little reasonable prospects of success such that an order to pay a deposit is appropriate as a condition of continuing to advance that allegation. Further Case Management Hearing

[58]The original agenda for this hearing included that following the determination of the application for deposit orders and the claimant’s status as a disabled person that the Tribunal would conduct a case management hearing to list the matter for a final hearing and set down further orders to enable the good preparation of the case for that final hearing.

[59]However, time was not available to do so and the parties are therefore instead directed to attend a one-hour telephone case management discussion on 26 October 2020 at 11:30 am, further details will be sent to the parties in this regard by the Tribunal administration.

[60]The grievance form provided no additional detail. Ms Baccino received the grievance and contacted the claimant on 4 June 2018 to discuss it. The claimant said she would not discuss it and wanted all communication about the grievance to be in writing. Ms Baccino sent a text on 4 June 2017 to say that she had not yet finalised the questions to be sent to the claimant and that she was asking HR to allow an extention of times under the grievance process because she was having to communicate with the claimant solely in writing.

[61]Ms Baccino wrote to the claimant on 6 June 2018 seeking additional information. She attached to her letter a list of questions for the claimant to answer. She also said in the letter: “As you have requested all communication in relation to your grievance to be in writing I’ve attached a number of questions which clarify your grievance and allow me to investigate further. As you will appreciate your response may generate further questions and is this is via correspondence it will take me longer to fully review all circumstances. In order for me to investigate your grievance would you be agreeable to an initial extension of timescales to 17 August 2018, please?” 11 June 2018

[62]On 11 June 2018 the claimant replied acknowledging receipt of the letter and saying that she would reply in due course but that she needed copies of minutes from the following meetings before she could reply:  with Mr Thomas and Ms Luther in December 2017;  with Ms Baccino, Ms Donlon, Ms Pennie in February 2018;  with Ms Baccino and Miss Hunter in April 2018;  on 4 November 2017 regarding contract changes.

[63]The claimant also requested a copy of the answers to her list of concerns about the fire marshall duties.

[64]On 26 June 2018 Miss Baccino replied with notes for the first three meetings, notes about the contract changes and a copy of the answers to a list of concerns.

[65]The claimant showed the notes to Ms Pennie and met with Ms Pennie for them each to prepare their own note of the 19 February meeting on 5 July 2018.

[66]On 5 July 2018 the claimant replied to Ms Baccino’s list of questions. Her letter said: Q: Is this your first grievance? A: Yes. Q: In relation to the incident with your line manager, state the date and time the incident occurred, location, names of witnesses. A: You have been aware of various elements of my grievance since the outset and particularly as a result of the OH reports when the nurse states that before I can return to work I have workplace stressors which need to be addressed. Incident took place late morning on my last working day 22 December 2017 and the gatehouse headquarters. The witnesses were Bob Plummer and Andy Shiels. Q: Did you have any further contact with your line manager following the incident? A: When Mr McGurk came back into the main room in the gatehouse and loudly told the three people on duty not to shit stir I asked him not to shout at me. Mr Shiels said who do you think you are talking to at which point Mr McGurk went out. I later saw Mr McGurk and asked about a collection for another employee. Q: Did your line manager apologise to you? A: He did not apologise to me but he did apologise to other colleagues. Q: Is this the first incident of this nature you had with your line manager? A: No, but this is by far the most aggressive. Q: How would you describe your working relationship with your line manager prior to the incident? A: I never thought I was his favourite person but until this time I didn’t know how much he disliked me. Q: How would you describe your relationship with the line manager since the incident? A: No relationship with the line manager since. Q: In relation to physical impairment, provide detail of when you feel you’ve been victimised. A: I have been asking for a chair that wasn’t broken since September 2017 to no avail. In November 17 after further prompting my line manager finally told me that I needed a doctor’s letter before I would be considered for a new chair. I called OHU to ask what they needed in the letter to be told they didn’t require a letter and that it was Neil Thomas who wanted this. I later discovered that Mr Thomas was aware of my request. Q: Provide a detailed account of the incident or incidents. A: See above. I believe I should not have had to wait two months for this. This was an act of victimisation. Coincidentally action was only taken the day after the fire marshall meeting. Q: Have you sought support from your line manager in relation to your physical impairment? A: I asked Mr McGurk on many occasions for chair, with lower back support. Q: Why do you feel you have not been supported in relation to physical impairment? A: I had to request action over a two month period during which time I was in a great deal of pain and taking painkillers constantly. No action was taken until I raised the health and safety issues. Q: What action has the organisation taken to support you? A: Assuming you refer to my physical impairment since going off sick I’ve had ,,,,,,,,,,,,,which is ongoing but before this nothing. Q: In relation to being victimised, refusing to being bullied into becoming a fire marshall, can you please state the date and time the incident occurred, the location and names of witnesses? A: I believe the incident of 22 December 2017 resulted from my health and safety and personal wellbeing concerns. For the meeting of the afternoon of 15 November 2017 I worked with my line manager all morning and he didn’t mention the meeting. As soon as the other attendees arrived he went into the kitchen area with two of them to talk about the meeting. Another person had a meeting with him at his time to discuss what would be said at the meeting. I was left out of all this talking. After this meeting everyone came back to the gatehouse and my line manager spoke to everyone except myself, so much so I had to ask for someone to take the window as my shift had finished. Q: Who did you raise concerns with in relation to fire marshall duties? A: My line manager, my union representative and Mr Thomas. Q: What meetings have you attended where you’ve raised concerns in relation to security officer working practices and who was present? A: Specifically the meeting on 15 November 2018 following which I submitted numerous written concerns to Mr Thomas [to] which he later responded in writing. I’d also spoken on a regular basis to Mr McGurk. Q: What was the result of those actions you raised? A: I was taken aside by Mr McGurk and he took me through the reply from Mr Thomas. I wasn’t happy with some of the answers as they contravene government guidelines. I also still have concerns about the lack of fire drills, muster points and fire doors which were open all day.

[67]The claimant also said that she wanted it noted that she did not accept the meeting notes that had been provided were necessarily a true and accurate reflection of those meetings. The claimant made a request that her friend be able to attend any grievance meetings, failing which she said she would consider any further refusals an act of discrimination. On 17 July 2018 Ms Baccino texted the claimant to say: “Hi Eileen, thank you for sending the answers to my questions. I am conscious that I am dealing with your grievance I’ve not contacted you regarding your welfare. Happy to meet you and discuss this …. please provide dates when you are free, Many thanks, Belinda.”

[68]After 17 July 2018 Ms Baccino spoke to John Fleming, David McGurk, Neil Thomas, Mark Durnell and Bob Plum, Andy Shiels, Kerry Brown, Rod Grundy and had an email exchange with Phil Parkinson in the course of the grievance investigation. Ms Baccino had notes of those conversations but they were not a verbatim transcript and not a witness statement and she did not have the consent of the people with whom she had spoken to disclose those notes to the claimant.

[69]The grievance policy had the following aims:  to resolve issues of concern at the earliest opportunity;  to provide a mechanism which allows staff at all levels to raise issues of concern Its objectives are:  to provide a speedy and effective resolution to workplace disputes at the lowest possible management level;  to provide a facility that contains options for staff to use when they raise issues of concern;  to improve working relationships at all levels within the Force.

[70]The policy provides that staff that invoke the policy have the right to be accompanied at any meeting by a member of the staff Association, trade union, support network colleague of Merseyside police. Volunteers do not have any employment rights and support that is available is limited to their role as a volunteer and not as an employee.

[71]Paragraph 5 of the policy deals with informal resolution and provides: “Managers and staff must in all suitable cases make every effort to resolve issues informally through dialogue with an appropriate line manager, or any suitable person whom they feel may be capable of achieving an informal resolution to the grievance. When issues are raised informally it is important to note that most kinds of dispute can be mediated provided that those involved want to find a way forward. Mediation is especially suitable when the aim is to maintain the employment relationship and can be used at any stage but is often most effective if used early on. The fairness at work grievance policy and procedure should be invoked only after normal and healthy dialogue including mediation where appropriate, has failed to resolve the issue.”

[72]Paragraph 5.2 deals with formal resolution and provides strict time limits.

[73]Paragraph 6.1 provides that normal management procedure will be by local line manager and should be completed within 14 days of receipt of the grievance form. It provides that any extention to timescales must be agreed in writing.

[74]The normal management process is for the manager to receive the grievance form, and consider the relevant parties required to address the grievance. The manager should arrange to meet with those parties, the purpose of the meting being to allow the grievance to be discussed in an open manner with a view to bringing about a satisfactory resolution, to agree outcomes and to agree any further action required. The structure of the grievance meeting should be flexible and it may be necessary to hold a further meeting. If following the meeting it is apparent the matter cannot be resolved consideration may be given to the use of additional mediation. Following completion of the meeting and any mediation the line manager will confirm in writing to the appropriate parties the outcomes of the grievance including the proposed resolution. The manager must inform the claimant of the right to appeal.

[75]The policy describes mediation as an aid to grievance resolution. Welfare meeting

[76]On 31 July 2018 Ms Baccino conducted a welfare meeting with the claimant. The claimant was accompanied by Mr Clarke. Ms Baccino wanted to talk about the back to work plan and the claimant said that her work stressors had not been addressed. Ms Baccino again asked the claimant if she had completed the stress risk assessment. The claimant had not. Ms Baccino offered to provide them again.

[77]Ms Baccino said that she was investigating the grievance but had been hindered by the fact that she had not been allowed access to the claimant's Occupational Health reports. The claimant clarified that she had allowed BB to have sight of the reports. Ms Baccino also gave an update on progress in the grievance hearing that it should be completed by 17 August but that there had been delays because she had been unable to interview Rob Grundy as he was on leave. Otherwise, Ms Baccino had interviewed all of the other witnesses that she was planning to interview.

[78]Ms Baccino said there would be a grievance meeting. The claimant asked if Mr Clarke could attend and Mr Clarke said that if he was not allowed to attend it could be seen as an act of disability discrimination.

[79]On 9 August 2018 Ms Baccino wrote to the claimant and invited her to a grievance meeting at 2.00pm on 17 August 2018. She addressed the point about who the claimant could bring with her by saying: “In accordance with the fairness at work grievance policy and procedure you are welcome to be accompanied by members of staff association, trade union, support network or colleague of Merseyside policy. I would be grateful if you could confirm your attendance at this meeting by writing to the address.” Claimant declines invitation to grievance outcome meeting

[80]The claimant replied by email on 13 August 2018, saying: “I have to say I’m surprised and disappointed at your request that I attend a grievance hearing when asked for the matter to be dealt with by way of correspondence as I am too upset to attend such a hearing and this has added greatly to my stress, particularly as you continue to refuse my reasonable adjustment request to bring the person of my choice if I did feel able to attend. I therefore request that you provide me with the outcome of my grievance as soon as possible and to communicate in the future by either post or email and not by text. For the record I feel unable to attend any grievance hearing, even should this matter go to an appeal, without the support of my choice, in the light of my mental impairment.” Written grievance outcome

[81]On 14 August 2018 Ms Baccino sent her grievance outcome report to the claimant. On the issue of the previous informal grievance launched on 19 February 2018 Ms Baccino concluded: “The evidence gathered by the adjudicator shows that during the February 2018 welfare visit Eileen Bennett was asked regarding the associated work-related stress and detail of those work-related stressors was not provided or shared during the welfare visit. Although colleagues’ names were stated, events and cause of the stressors were not. In addition both the stress risk assessment and wellbeing action plan had not been completed.”

[82]The grievance outcome was that there were no grounds for an apology or explanation for failing to address the grievance which the claimant says she had raised informally, verbally, on 19 February 2018.

[83]In relation to the allegation that the claimant had been victimised for seeking reasonable adjustments of physical impairment and victimised for refusing to be bullied into becoming a fire marshall, Ms Baccino concluded that there were no grounds to confirm that Dave McGurk had victimised or bullied the claimant due to her raising her physical impairment or for refusing to become a fire marshall.

[84]The grievance report covered the 22 December 2017 incident. The report found that there was evidence of a loud disagreement between the claimant and Dave McGurk which focussed on John Fleming. The report found that comments had been made by both the claimant and Mr McGurk, for example that Mr McGurk had said, stating rumours about JF and the claimant had accused Mr McGurk of colluding with JF in the office. The report concluded that both parties had been upset during the altercation. The report found that the claimant had refused to work with John Fleming. The report found that Dave McGurk had self-reported to his line manager Neil Thomas and agreed to arrange a meeting between JF, the claimant and himself to build relationships. The report found that Mr McGurk had also told Mr Thomas that he would return to the gatehouse and apologise. The report found that the claimant said that she had not received an apology.

[85]The report acknowledges that the actions of Dave McGurk on 22 December 2017 were that he acted without the proper duty of care to his staff but the report found that this was an isolated incident and that Mr McGurk had already apologised to the two other officers involved. Ms Baccino did not reach a conclusion as to whether or not Mr McGurk had apologised to the claimant.

[86]The sanction imposed on Mr McGurk was that he was to be provided with management advice regarding his conduct. Mediation was to be arranged between Dave McGurk and the claimant to resolve issues and improve the working relationship. Mediation was to be arranged between JF and the claimant to resolve issues and create a positive working relationship. Grievance appeal lodged

[87]The claimant was dissatisfied with the outcome and lodged an appeal on 22 August 20918. She emailed Ms Baccino saying: “I refer to your letter dated 14 August 2018 about the outcome of my grievance. I am not satisfied that this grievance is resolved and I will appeal. Details of the appeal to follow.”

[88]The claimant provided a three page grounds of appeal document to Ms Baccino on 28 August 2018.

[89]The claimant said that (1) Ms Baccino had ignored the fact that she had been aware that the claimant was aggrieved at Mr McGurk’s conduct from the outset. The claimant says: “This was reinforced during various meetings/discussions and in my Occupational Health reports. My failure to submit a formal grievance does not negate your legal obligation to deal with my informal grievance. Consequently, you have clearly failed to address my informal grievance. This has resulted in the matter going on for longer than it should, causing me further stress and loss of income which in the circumstances I see as an unlawful deduction of wages.”

[90]The claimant stated (2) : “You have ignored that I requested a change of chair in September 2017. Mr McGurk failed to take any action until November 2017. This exacerbated my physical impairment. You’ve ignored that Mr McGurk told me that I would need to provide a GP note which was clearly untrue.”

[91]The grounds of appeal (3) provided detail of the 22 December 2017 incident and reiterated the claimant's position that Mr McGurk had failed to apologise to her and that Mr McGurk had been shouting at her.

[92]The grounds of appeal included an argument that (4) the grievance had failed to consider the claimant's earlier statements or failed to explain why they had not been accepted or preferred to those of Mr McGurk.

[93]The claimant said that she was (5) bemused at mediation proposals as she was unable on medical redeployment grounds to return to the formal role with her colleagues.

[94]The claimant also raised the issue of (6) confidentiality of her Occupational Health report of 17 January 2018.

[95]The claimant requested copies of all the evidence upon which grievance decision was based. The claimant requested that her friend Mr Clarke, a former magistrate, was allowed to accompany her at an appeal hearing by way of a reasonable adjustment for her mental impairment. Welfare meeting

[96]On 13 September 2018 the claimant attended a welfare meeting with Ms Baccino and Mr Clarke at Alder Hey coffee shop. Ms Baccino raised the issue of return to work and again offered the role at Eaton Road. The claimant told Ms Baccino that she had been granted medical redeployment and would not be returning to work at the gatehouse. Ms Baccino asked the claimant when she would be fit for work and the claimant said she did not know. The claimant raised the grievance outcome, and Mr Baccino said that they should not talk about that at that meeting and it was a welfare meeting. Ms Baccino asked the claimant if she required any further support. The claimant said that she did not. The agreed that would be a further welfare visit in four weeks’ time at the same venue. Grievance appeal investigations underway

[97]Ms Coates conducted the appeal. She contacted the claimant on 6 September 2018 because the claimant had been critical of the lack of transparency in the handling of the grievance. Ms Coates decided to reopen the matter and reinvestigate. She anticipated this would take an additional amount of time and therefore achieved the claimant's consent to an extension of the timescales and the grievance policy. She spoke to the relevant witnesses and obtained their consent to share her notes of her meetings with them with the claimant.

[98]Ms Coates reconsidered the Fairness at Work policy and the rights to representation and decided to allow Mr Clarke to accompany the claimant to her grievance appeal hearing even though this fell outside of the policy. Ms Coates decided to depart from the policy so as to assist the claimant who was suffering from a mental impairment at the time. The meeting was arranged for 12 September.

[99]Ms Coates re-interviewed everyone. She allowed Mr Clarke to attend and represent the claimant. Appeal meeting with the claimant

[100]The claimant met with Mr Clarke and Ms Coates on 12 September 2018 to clarify the mattes in issue. Ms Coates confirmed the terms of her grievance appeal remit to the claimant and agreed with the claimant that she would consider the original grievance form including the claimant's responses to the questions, Ms Baccino’s outcome report, relevant job description questionnaires and the claimant's terms and conditions of service, and it was agreed that she would speak with the following people: Belinda Baccino, Dave McGurk, Neil Thomas, Rod Grundy, Jeff Sheerin from GMB, Bob Plum, Andy Shiels, Mary Donnellan and Fiona Pennie.

[101]Ms Coates conducted those meetings and prepared her report. She shared her findings with the claimant on 1 October 2018. Appeal outcome

[102]Ms Coates looked at the issue of (1) whether or not there was a grievance disclosed informally and verbally during the meeting on 19 February 2018. She concluded that there was not. She had spoken to Ms Donnellan, Ms Baccino and Ms Pennie and had looked at the claimant's account of the incident, and she concluded on balance that the claimant had not said enough to amount to a grievance. She concluded that the first time the claimant lodged a grievance was in the G1 form submitted on 21 May 2018. Ms Coates felt that (3) what Ms Baccino had done to address Mr McGurk’s conduct was appropriate action in view of the incident of 22 December 2017 and she found that this had been properly communicated to the claimant at stage one.

[103]In relation to the allegation of victimisation as a result of seeking adjustment (2), Ms Coates found this was unfounded. She could see the confusion had arisen as to the reason that Mr McGurk had requested a GP note. She concluded that he had done this so as to ensure that the correct chair was bought by way of consultation whereas the claimant had perceived this to be motivated by malice. Ms Coates found that there was no malice or victimisation.

[104]In respect of the victimisation suffered by the claimant as a result of refusing to become a fire marshall, this was outside the grounds of appeal but part of the reinvestigation of the first grievance, Ms Coates found that there was a lack of information about this allegation. She found no corroborative evidence to support the allegation that Mr Thomas had told her that she had to stand outside the gate following the meeting. This allegation was unfounded.

[105]Ms Coates looked in detail at the incident of 22 December and found that both the claimant and Mr McGurk had acted unprofessionally. It was unprofessional of the claimant to refuse to work with Mr Fleming and unprofessional of her to challenge her line manager about this, and that Mr McGurk had been unprofessional in reacting to the challenge by shouting. Ms Coates found that she was unable to make a definitive decision about whether or not Ms McGurk had apologised because his perception was that he had. The claimant’s perception was that he had not. Ms Coates obtained firm assurance that he was willing to give an apology again.

[106]Ms Coates presented her appeal outcome in a way that focussed on moving forward. 9 November email

[107]Ms Baccino sent an email to the claimant. It said: Hello Eileen, How are you now feeling ? Can we please arrange a time to meet next week ? As we have not met since the 13th September 2018, can I please take this opportunity to remind you that as a Merseyside police staff member you have obligations to adhere to the attendance management policy and I draw your attention to the following points:.:  remain contactable during absence and maintain regular contact with managers. Contact must be either face to face or by telephone, text or email contact is not acceotable.  attend meetings with managers, during sickness absence and on return to work as required I look forward to hearing from you Kind regards Belinda Resignation

[108]On 11 November 2018 the claimant resigned in an email to Ms Baccino giving one month’s notice. The claimant said I am resigning in the light of the way I have been treated since September 2017.

[109]The claimant brought her claim on 7 January 2019.

The Law

[110]The claimant’s unfair dismissal claim was brought under Part X of the Employment Rights Act 1996. Section 95(1)(c) provides that an employee is dismissed by his employer if: “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

[111]The principles behind such a “constructive dismissal” were set out by the Court of Appeal in Western Excavating (ECC) Limited v Sharp

[1978] IRLR 27

. The employee is entitled to treat himself as constructively dismissed only if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.

[112]The term of the contract upon which the claimant relies in this case was the implied term of trust and confidence. In Malik and Mahmud v Bank of Credit and Commerce International SA

[1997] ICR 606

the House of Lords considered the scope of that implied term and approved a formulation which imposed an obligation that the employer shall not: “…without reasonable and proper cause, conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”

[113]The test is an objective one in which the subjective perception of the employee can be relevant but is not determinative. Lord Nicholls said at page 611A: “The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances.”

[114]The objective test also means that the intention or motive of the employer is not determinative. An employer with good intentions can still commit a repudiatory breach of contract. In Frenkel Topping Limited v King

UKEAT/0106/15/LA

21 July 2015 the EAT chaired by Langstaff P put the matter this way (in paragraphs 12-15): “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 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 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.

[115]In some cases, the breach of trust and confidence may be established by a succession of events culminating in the “last straw” which triggers the resignation. The decision of the Court of Appeal in London Borough of Waltham Forest v Omilaju

[2005] IRLR 35

demonstrates that the last straw itself need not be a repudiatory breach as long as it adds something to what has gone before, so that when viewed cumulatively a repudiatory breach of contract is established. However, the last straw cannot be an entirely innocuous act or be something which is utterly trivial. The Court of Appeal affirmed these principles in Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

[116]In 2020 Auerbach HHJ in the Employment Appeal Tribunal in Williams v The Governing Body of Alderman Davies Church in Wales Primary School applied Omilaju and Kaur: “28. The starting point is that there will be a constructive dismissal, that is to say an dismissal within the meaning of section 95(1)(c) of the Employment Rights Act 1996 where a) there has been a fundamental breach of contract by the employer b) which the employee is entitled to treat us terminating the contract of employment and c) which has materially contributed to the employee’s decision to resign. As to the first element, the fundamental breach may be a breach of the Malik term. That may come about either by a single instance of conduct, or by conduct which, viewed as a whole, cumulatively crosses the Malik threshold. As to the third element, the conduct amounting to a repudiatory breach does not have to be the only reason for resignation, or even the main reason, so long as it materially contributed to, or influenced the decision to resign. 30. If there has been conduct which crosses the Malik threshold, followed by affirmation, but there is then further conduct which does not, by itself, cross that threshold, but would be capable of contributing to a breach of the Malik term, can the employee then treat that conduct, taken with the earlier conduct, as terminating the contract of employment? The answer comes at paragraph 34. 34. .. so long as there has been conduct which amounts to a fundamental breach, the right to resign in response to it, has not been lost and the employee does resign at least partly in response to it, constructive dismissal is made out. That is so, even if other, more recent conduct has also contributed to the decision to resign. It would be true in such a case that in point of time it will be the later conduct that has “tipped” the employee into resigning: but as a matter of causation, it is the combination of both the earlier and the later conduct that has together caused the employee to resign..

[117]A resignation in response to the employer’s conduct must be made in unambiguous words. The words can be informal or imperfect and can be taken at their face value without the need for analysis of the surrounding circumstances. Section 95(1)(c) provides that the employee must terminate the contract by reason of the employer’s conduct. The question is whether the repudiatory breach played a part in the dismissal. It need not be the sole factor but can be one of the factors relied on. If, however, there is an underlying or ulterior reason for the employee’s resignation, such that he or should would have left anyway irrespective of the employer’s conduct, then there has not been a constructive dismissal.

[118]ACAS Code of Practice 1: Disciplinary and Grievance Procedures 2019 provides the following keys to handling grievances in the workplace  let the employer know the nature of the grievance  hold a meeting with the employee to discuss the grievance  allow the employee to be accompanied at the meeting  decide on appropriate action  allow the employee to take the grievance further if not resolved  In relation to deciding on appropriate action the code provides that a decision should be communicated to the employee, in writing, without unreasonable delay and, where appropriate, should set out what action the employer intends to take to resolve the grievance. The employee should be informed that they can appeal if they are not content with the action taken. Applying the Law to

The Facts

[119]I have used the issues from the list of issues as subheadings. 1.1 On 22 December 2017 did the claimant's line manager, Dave McGurk, breach the claimant's contract by putting his face close to the claimant's face and shouting at her?

[120]There was factual agreement that there had been shouting on 22 December 2017. In the round I prefer the evidence of Mr McGurk about this incident to that of the claimant because his conduct at the time is consistent with his position at tribunal. He went straight to his line manager and reported himself. He told his line manager that he had shouted and he told him why. I accept his evidence that the claimant was also shouting.

[121]It does not matter whether Mr McGurk and the claimant were sitting across a table or side by side, or he was “in her face” or a few feet apart. He acted unprofessionally in shouting at her, he accepted that and offered an apology.

[122]This was a heated altercation, initiated by the claimant, who had gone in to challenge her line manager (she accused him of having colluded to get JF a job in the gatehouse) about something that she had heard (that JF was coming to work in the gatehouse) and to make it clear that she would not work with JF.

[123]In looking at the incident in context and applying the law I asked myself was there anything that was likely to destroy or seriously damage the relationship of trust and confidence (breach the contract) in this incident. In the context of a police headquarters gatehouse and robust and long serving security staff, I find that the claimant does not establish that anything Mr McGurk did that day was likely to seriously damage or destroy the relationship of trust and confidence. It is a high test. There was no breach of contract. 1.2 The respondent breached the claimant’s contract by failing to inform her that she should raise a grievance in respect of the incident on 22 December 2017.

[124]The claimant had a welfare meeting with Mr Thomas on 28 December 2017 in December and spoke about the chair issue but not the shouting issue. I find it implausible that if Mr Thomas had been told about the shouting incident by the claimant at this meeting and the claimant wanting to bring a grievance about it, that he would not have provided her with the grievance procedure or directed her to it. He knew about the incident on the day it occurred because Mr McGurk had told him about it. If he had heard that the claimant was still concerned about it on 28 December 2017, or that she had not had the apology Mr McGurk had said he would give for it, then there is no reason to suggest he would not have acted on it. He gave the claimant stress risk assessment forms at that meeting.

[125]Seen in context, Mr Thomas failing to inform her to bring a grievance, is not a breach of contract. The claimant was a forceful and resourceful lady, she went to her union on the day of the incident. She did not need Mr Thomas to tell her how to bring a grievance. She could have done that for herself at any point. She had told Mr McGurk that if she did have to work with JF she would bring a grievance about his treatment of her. She clearly knew of the existence of the grievance process. Her failure to bring a grievance about Mr McGurk shouting in December 2017 suggests that it was not the shouting itself that was troubling her but the prospect of having to work with JF.

[126]Similarly, at occupational health meetings on 17 January 2018 and 15 February 2018 the claimant did not raise the shouting incident. On 17 January 2018, her first occupational health meeting, the claimant asked for redeployment. This corroborates the view that it was not the shouting incident that was concerning her but the prospect of having to work with JF in the gatehouse.

[127]At the welfare meeting on 19 February 2018 meeting the claimant did say that there were issues with staff in the gatehouse but did not say enough for her words to put the respondent on notice of a grievance. She said there were stressors and she named her colleagues but she did not say that it was stressful because of the 22 December incident. The claimant did not submit her grievance until 21 May 2018 and only gave detail of it when she answered Ms Baccino’s 19 questions on 5 July 2018. She does not establish a breach of contract in Mr Thomas failing to inform her that she could bring a grievance .

[128]The claimant suggested that the respondent ought to have known from her meeting with Ms Denner of OH on 26 April 2018 that she had already lodged a grievance. I reject that submission. I prefer the evidence of Ms Denner, even though it was not challenged in cross examination, because the form from that meeting is signed by the claimant, and because if Ms Denner discussed a grievance with the claimant, and achieved detail of the shouting incident which the claimant says caused her stress, then it is implausible that Ms Denner would not have recorded those details and the fact of the claimant feeling aggrieved, in her report. I also find it implausible to suggest that if this information had been given to Ms Denner she would not have acted on the claimant's complaints. Ms Denner showed in her report that she was someone who would take steps to achieve necessary outcomes in that she liaised with the wellbeing team to support the claimant in completing stress risk assessment forms. I find it implausible that if she had been told about the shouting incident and the claimant wanting to bring a grievance that she would not have obtained the claimant’s consent and liaised with other colleagues in support of the claimant. 1.3 The respondent breached the claimant's contract by failing to vary the claimant's contract so as to entitle her to full pay during sickness absence for more than six months?

[129]I accept the respondent’s submission that the standard for breach of contract in relation to exercise of a discretion is a high test. I have had regard to the contract and the terms for exercise of the discretion and I saw the letter from Elaine Wilson set out above inviting the claimant to write and say if she thought she fell within the categories for exercise of the discretion. She did not write a letter. The respondent had told her the categories and circumstances in which it might exercise its discretion and invited her to write to put her case in those categories. She did not. Her complaint is that she did not get something that she did not ask for. If she didn’t ask for it how can she say that the respondent’s failure to exercise discretion in her favour seriously damages or destroys the relationship of trust and confidence between them. She cannot. The claimant does not establish a breach of contract.

[130]The claimant submitted that the way the respondent treated her made her ill and that therefore she should not lose pay. Her argument was inviting me to look at what and who caused her to be off sick, rather than whether or not the failing to exercise a discretion in her favour amounted to a breach of contract. I understand her submission and her perception of a causal link but I reject her submission because(i) it is not the right question in law and

(ii) if it had been, she would not have established that the shouting incident had caused her to be off. She formed an early view (based at the time on rumour only) that she would be required to work with JF. For reasons of her own this was not acceptable to the claimant and she went off sick and did not return to work. Her failure to complete SRA forms, share her stressors, communicate fully with her employer about what had happened, engage in mediation with JF, and her failure to agree a return to work and insistence on permanent medical redeployment, together with not mentioning the shouting incident in the December and January meetings but asking for medical redeployment away from the gatehouse at the first OH meeting, all show that she was off sick because of her reaction to the prospect of having to work with JF, and not the shouting incident itself. 2. Did the respondent’s grievance procedure have contractual effect?

[131]During the course of the hearing it was accepted by the claimant that the procedure was not part of her contract. I did not have to determine this issue. If I had determined the issue, I would have found it did not. The policy outlines what the respondent might consider Best Practice, it is not contractually binding. 3.1 Did the respondent breach the claimant's contract in the manner in which it dealt with the claimant's grievance?

[132]The claimant’s first point is about whether or not the claimant lodged a grievance, verbally on 19 February 2018. The claimant said that she had told Belinda Baccino and Mary Donnellan on 19 February 2018 at a meeting at Alder Hey coffee shop, in the presence of her witness Fiona Pennie, about the incident on 22 December 2017. She said this amounted to her lodging a grievance. I found her evidence of the 19 February 2018 meeting less reliable than the respondent’s witness evidence because:(1) it is not plausible to suggest that if the claimant told the respondent’s witnesses at this time about the shouting incident that they would not have made a full note of the allegation that she made;

(2) If the claimant had told the respondent about it so that she believed she had raised a grievance on 19 February 2018, that she would have done nothing in writing to chase up that grievance thereafter

(3) the claimant is a forceful lady who had raised concerns about fire marshalling, raised the issue of her chair, gone in to see Mr McGurk about the rumour that JF was coming to work in the gatehouse, challenged her manager about colluding to get JF the job, went on to refuse to return to work at her place of work, to insist on medical redeployment, to suggest that medical redeployment had been agreed when it had not, to reject offers of a temporary alternate place of work, work with her doctor and OH to increase the scope of a phased return to work and has since gone on to allege age, disability and sex discrimination and accuse the respondent of “blatant lies”. If she had raised the shouting incident there would have been no ambiguity and yet the claimant’s witness Ms Pennie was unclear about the point. Ms Pennie could not be sure if it had been raised or not.

[133]Further, I note that the claimant used different language each time she described the meeting so that her account was not consistent but alternated between saying that she had raised the incident and that Belinda Baccino had raised the incident. On page 194 of the bundle which is the claimant's own note of the meeting (not a contemporaneous note as it was made in July 2018) the claimant says that Belinda Baccino raised the incident, saying “I had had a little run-in with Dave”. In oral evidence under cross examination the claimant said that she had raised the incident herself and that Belinda Baccino had replied, “yes, you had a little tiff with Dave”. Later in the same cross examination the claimant said that Belinda Baccino had said, “you had a little disagreement with Dave”. I make no criticism of her for that, as I have said there can be slippage when recounting events from a long time ago, and events which you have gone over in your mind many times. What I say is that the claimant herself was not sure who had raised the shouting incident on 19 February 2018.

[134]The claimant admitted that she wished with hindsight that she had fully recounted what had happened in the Dave incident on 22 December 2017 to Belinda Baccino at the 19 February 2018 meeting. This admission that she had not fully recounted the event supports a view that it had not been raised. The claimant accepted that she did not use the words “bullying” or “grievance”, that she “assumed that they knew what had gone on and stupidly thought that because they knew what had gone on something should have happened”. The claimant could not say what she had said on that date. Mrs Pennie could not say. The respondent said she had not raised it. It was not in the respondent’s note. For those reasons I preferred the respondent’s evidence as to the content of the 19 February 2018 meeting.

[135]I also preferred the respondent’s evidence because I found Ms Baccino credible when she described the meeting as a welfare meeting and said that she was there to offer support to the claimant and that in a welfare meeting it is for the claimant to raise things.

[136]The respondent’s evidence was corroborated by Belinda Baccino’s note of the meeting at page 357 of the bundle. It also seems implausible to me that Belinda Baccino, faced with an employee who was off sick for stress, and in the context in which she was chasing that employee to complete stress risk assessment forms, and the context in which she was denied access to the Occupational Health report, would hear about the 22 December 2017 shouting incident from the claimant on 19 February 2018 and then not act on it.

[137]The meeting on 19 February touched on tension at work with colleagues but centred largely on physical adjustment issues. That is corroborated by page 357. Belinda Baccino made notes in her diary that issues were with DM, JF and NT and issues surrounding work environment, chair and barrier button.

[138]Ms Pennie’s notes of that meeting were made in conjunction with the claimant on 5 July 2018. Ms Pennie later stated to Ms Coates that she could not recollect the shouting issue having been raised. I attach little weight to Ms Pennie’s notes and more weight to the direct oral evidence of Ms Coates that Ms Pennie had told her that she could not be sure, could not recollect the shouting incident having been raised.

[139]The claimant also submitted that Ms Baccino should not have investigated the part of the grievance that related to whether or not the content of the 19 February meeting was sufficient to amount to the lodging of an informal verbal grievance. That is because she was present at that meeting. It was far from best practice to have Ms Baccino investigate that point. However, even if the procedure had been contractual in effect and notwithstanding the apparent bias of Ms Baccino self investigating in this limited regard, I find that would not have been sufficient amount to a breach of contract because there were other people present at that meeting and because Ms Baccino looked at the claimant's grievance on this point, the response to the 19 questions on this point, spoke to Ms Donnellan on this point and looked at Ms Pennie’s notes on this point. It was not simply her word against the claimant’s. Ms Baccino told me that she reported her own concern at being asked to investigate a meeting at which she had been present and was instructed to continue. It is a shame that her employer did not have regard to her legitimate concern on this point. Even if there had been a breach of contract here the claimant went on beyond this date to appeal and to request more time for appeal so that she would have affirmed any breach on this point.

[140]The Force grievance policy was available to the claimant at all times. I do not accept her oral evidence that she endeavoured to obtain details on how to raise a formal grievance between 8 May and 14 May 2018. I reject that evidence because:(1) The claimant had threatened raising a grievance on 22 December 2017 against JF so had shown herself to be aware of the grievance process

(2) On 22 December 2017 immediately after shouting incident the claimant had gone straight to her union for support

(3) In November 2017 the claimant had written about her concerns in relation to security and fire marshalling to her line manager.

[141]I conclude that if she had been wanting to bring a grievance at that time that she was a capable and professional person, was undoubtedly suffering from stress, but who was still capable either with or without support from the wellbeing team of completing the stress risk assessment forms and writing in the box that said “causes of stress” simple words such as “Dave McGurk shouting at me on 22 December 2017” or “John Fleming coming to work in the gatehouse”. The claimant did neither of these things because at that time the shouting incident was not the reason that she was refusing to go back to work. Further, if the claimant had been wanting to bring a grievance at that time she could have written a simple email to Ms Baccino or any member of the HR Department, any Occupational Health professional she had seen or to her union and sought their support. Again, I find that she did not do those things because it was not the shouting incident that was preventing her return to work. 3.1 In respect of the time taken to determine the claimant's grievance (being 31 May 2018 until 14 October 2018)

[142]This relates to the claimant’s submission that there was delay. Ms Baccino had to arranged to interview witnesses, compile notes, reach a decision, attempt to meet with the claimant to share the decision and then finally communicate the decision in writing. During that period she was separately meeting with the claimant in her role as welfare manager. She had expressed her view that there would need to be the extension of time under the policy and she gave the claimant an update as to her progress at the welfare meeting at the end of July. It was the claimant’s insistence that the matter be dealt with in writing and I accept that added time.

[143]In any event I do not find that taking from 31 May 2018 until 14 October 2018 to complete the first stage grievance which had wide-ranging allegations involving a number of witnesses was an excessive amount of time and was not so excessive as to amount to a breach of contract. 3.2 by failing to permit the claimant to be accompanied by Mr Clarke, on the basis that he was neither a colleague of the claimant nor a trade union representative.

[144]Ms Baccino was applying the grievance policy when she refused to allow Mr Clarke to attend. Mrs Coates later exercised a discretion to allow Mr Clarke to attend but there was nothing requiring her or Ms Baccino to do that. There was no breach of contract. 3.3 by refusing to provide to the claimant the statements obtained in the course of the grievance investigation.

[145]Much has been made by Mr Clarke of the fact that the claimant did not get to see the notes of the meetings that Ms Baccino had had with the witnesses during the course of her grievance investigation. I found nothing in the grievance policy that requires her to provide them. She gave a legitimate reason for not providing them in that they were not statements, were not verbatim notes of the meetings and that she had not obtained the consent of the individuals during this meeting to be able to share their content. I accept Mr Jones’ submission the first stage grievance investigation is not a criminal trial and not even a disciplinary investigation in which there might have been a legitimate request that the person who was being dismissed should see the case against them before a decision is reached – that is not the scenario here.

[146]The claimant lodged a grievance in writing. The respondent sought detail about the grievance from the claimant and sought to identify people who might have relevant information to share. Ms Baccino spoke with those people, recorded the content of those meetings, formed a view on the grievance and provided a grievance outcome which informed the claimant of the process that had been undertaken, the evidence she had obtained and the decision she had reached.

[147]At appeal Ms Coates decided not to rely on those witness notes made by Ms Baccino but to reinterview everyone herself, which she did. Ms Coates did not share the first stage interview notes nor her own notes of interviews at appeal stage with the claimant.

[148]I find nothing in the refusal to provide the first stage grievance witness interview notes to the claimant, either at the first stage or on appeal, that amounts to a breach of contract. The ACAS Code of Practice on Discipline and Grievance has a section called Keys to Handling Grievances in the Workplace. There is nothing there requiring the respondent to share its grievance interview notes with the claimant. The respondent was entitled within its policy to investigate the grievance. It gave a detailed outcome at each stage showing how the outcome had been arrived at. Its investigation of the grievance and decision not to disclose the notes of the grievance investigatory interviews did not amount to conduct that was likely to destroy or seriously damage the relationship of trust and confidence. 3.4 Preferring the evidence of Mr McGurk over that of the claimant.

[149]This is essentially an allegation that the grievance outcome was so perverse that no reasonable employer could have reached it and that therefore it amounts to a breach of contract. I cannot see that Ms Baccino did prefer the evidence of Mr McGurk to that of the claimant. On the essential points of the incident of 22 December 2017, there was agreement. The claimant said Mr McGurk shouted at her, he agreed that he did. His conduct in doing so was inappropriate. The detail as to whether or not they were seated beside each other or across from each other, whether or not he was in her face and screaming at her, whether she accused him of colluding or not, whether he swore or not, whether she shouted or not, was peripheral.

[150]The only point on which it might be central that the respondent preferred the evidence of Mr McGurk to that of the claimant might be on the apology point. On this point Ms Baccino found that she could not reach a conclusion as it was his word against her’s. Mr McGurk thought that he had apologised to her, the claimant said he had not. The respondent did not prefer the evidence of Mr McGurk over the claimant. It acknowledged that each of them had a genuinely held belief that there had or had not been an apology. There was no witness, no corroborating documentation, just two strongly held views.

[151]I find that Mr McGurk did not apologise. Mr McGurk had told his line manager that he would apologise. He should have gone straight back to the claimant that day and asked to talk to her and given her his full and clear apology. He might also have committed it to writing and with her permission copied it to Mr Thomas. He did not. The question for me is whether Ms Baccino not reaching an outcome on this point amounted to a breach of contract. I find there was no breach of contract in the outcome that Ms Baccino reached. 3.5 withdrawn 3.6 by seeking a conciliatory outcome of the claimant's grievance appeal and/or by failing to resolve the claimant's grievance appeal.

[152]The claimant argued that in seeking to conciliate the respondent was failing to properly investigate her grievance appeal and that the outcome was predetermined. She said this amounted to a breach of contract. The respondent submitted that its procedures for grievance handling embed a conciliatory approach. It seeks to have grievances resolved at the earliest possible stage as informally as possible, and at as low a management level as possible.

[153]I find it was the claimant who took up an intransigent position that she would not engage in mediation with either Mr Fleming or Mr McGurk. The respondent could not insist that she did as it is a central tenet of successful conciliation that the parties consent to it. The respondent did not impose conciliation on her. It was offered and rejected. The respondent had tried to get the claimant back to work. It was seeking to restore positive working relationships so that she could recover and return to work.

[154]The standard in law is that the respondent must have done something to seriously damage or destroy the relationship of trust between the parties. Insofar as the grievance policy and the efforts made by the respondent in welfare meetings, Occupational Health meetings, offers of the provision of support to complete stress risk assessment forms and the wellbeing action plan and the return to work plan are concerned, it was doing all it could to reinforce and improve the relationship between the parties. Conciliation, mediation were legitimated attempts to do that. It must have been frustrating for the respondent to have so little engagement in that process from the claimant. There was no breach of contract. 3.7 by refusing to provide to the claimant at the appeal the statements obtained in the course of the first stage grievance investigation.

[155]I have dealt with this point above. 3.8 by failing to investigate the claimant's grievance appeal and/or by failing properly to question witnesses when investigating the claimant's grievance appeal.

[156]The suggestion here is that the witnesses were not questioned properly. The claimant did not see the first stage interview notes nor Ms Coates notes on reinvestigation at appeal. I have found that there was nothing to compel the respondent to share the investigatory interview notes and I find no breach of contract in them failing to do so. I accept the respondent’s submission that this was not a disciplinary process where it would be an essential part of the fairness of a dismissal that a claimant knew the case against her.

[157]I have had regard to the first stage grievance, the grounds of appeal documents, the statements taken at appeal stage, the notes of the first stage interview meetings, the claimant's timeline and the claimant's List of Issues which we agreed put “meat on the bones” of the allegations that she makes. Ms Coates reinvestigated the grievance. She went beyond the grounds of appeal in her questioning to look at everything the claimant had raised at first stage and at appeal. In effect, she reopened each of the issues the claimant complained about. She reinterviewed relevant witnesses and prepared a written outcome. I can find no breach of contract by the employer in the way in which the grievance appeal was handled. 3.9 by telling the claimant during the grievance process that she was obliged to keep in touch with the respondent.

[158]This was a legitimate requirement of the contract of employment and again part of the respondent’s efforts to maintain and improve working relationships. The claimant was resistant to contact and found the reminder that she was required to keep in touch upsetting. It would have been remiss of the respondent not to make efforts to keep in touch. The respondent is to be commended in this case for the number and regularity of the welfare meetings that took place, and for the efforts that it went to to find alternate roles, to agree with the claimant, her GP and Occupational Health an appropriate phased return to work pattern, to adjust that in response to feedback from the claimant's GP and Occupational Health and to keep that offer open throughout the claimant's sickness absence period. The respondent was not acting in a way that would seriously damage or destroy the relationship of trust nor signalling that it thought the relationship had come to an end, quite the contrary. It was trying to get her back to work, if not at the gatehouse then at Eaton Road or elsewhere. 3.10 The email from Belinda Baccino sent to the claimant on 9 November 2018 contributed something to the preceding breaches (if preceding breaches are proven).

[159]The email of 9 November 2018 is entirely innocuous. I have looked at it in context. It is a routine, friendly communication from the person who has been managing the claimant’s absence and is well-versed with the history of the case. It is from someone who has been involved throughout the process to the claimant who had:(1) taken up an intransigent position about working with JF;

(2) refused mediation with JF and Dave McGurk;

(3) failed to respond to stress risk assessment forms;

(4) failed to provide detail of what was causing her stress at numerous Occupational Health and welfare meetings;

(5) made aggressive assertions about discrimination and litigation from as early as May 2018;

(6) required that she should be communicated with in writing only;

(7) refused to attend a grievance outcome meeting;

(8) required provision be made for her outside of policy so that Mr Clarke could attend.

[160]In those circumstances, I commend the respondent on its ongoing efforts to keep in touch with the claimant and on the kindly tone of its letters. The 9 November 2018 email contained nothing new, the claimant had been reminded of those provisions of the attendance management policy previously and it is part of a chain of communications between the claimant and Ms Baccino, some in letter form by email and some in text message form throughout all of which Ms Baccino had remained polite and kind.

[161]I find no breach of contract in the 9 November email either alone or taken together with all that had gone before. 1. If proven, did the breaches collectively amount to a repudiatory breach of contract such that the claimant was entitled to resign in response to the said breaches (the last straw being the email from Belinda Baccino which is proven)?

[162]No breach has been established, either collectively nor individually, so the claimant’s complaint must fail. I remind myself that in establishing a breach of contract the test has been an objective one. There is nothing in this case, looked at objectively, that the respondent has done that can be said to seriously destroy or damage the relationship of trust between the parties. 2. Did the claimant in fact resign in response to a series of breaches which collectively amounted to a repudiatory breach of contract?

[163]If the claimant had established a breach of contract, either individually or collectively, I would have gone on to consider what caused the claimant to resign. I looked carefully at the timeline of events provided by the claimant and I mapped this against documents in the bundle and the witness evidence from the respondent. I am not satisfied in this case that the claimant resigned in response to all or any of the alleged breaches.

[164]I noted that she did not lodge a grievance until May 2018 when she was about to go on to half pay and was facing mounting pressure to accept a return to work in the role at Eaton Road. In around May 2018 when Mr Clarke came on board there were threats of litigation. I would have found that the claimant was increasingly unlikely to return to work from May 2018 onwards and that this is evidenced by her requests to have everything done in writing and her refusal to attend a grievance outcome meeting, and her requests for more time during the grievance appeal.

[165]If I had had to determine this point I would have found that the claimant resigned because she believed that she would have to work with JF and she refused to do so and not because of any or all of the allegations above.

Conclusion

[166]For the above reasons the complaint of constructive unfair dismissal fails.