Miss R Adegunle v N Brown Group plc and J D Williams & Co Ltd: 2401557/2019
EMPLOYMENT TRIBUNALS
Case No 2401557/2019
Between
Miss R AdegunleClaimant(1) N Brown Group plc (2) J D Williams & Co LtdRespondent
Before
Judge Brian DoyleIn person for claimantDate 16 December 2021
JUDGMENT
(1) The claimant’s complaints of disability harassment contrary to section 26 of the Equality Act 2010 were presented in time so far as those complaints relate to acts or omissions falling after 30 June 2018.(2) The claimant’s complaints of disability harassment contrary to section 26 of the Equality Act 2010 were not presented in time so far as those complaints relate to acts or omissions falling on or before 30 June 2018. It is not just and equitable to extend time. The Tribunal does not have jurisdiction to hear those complaints.(3) In any event, the claimant’s complaints of disability harassment contrary to section 26 of the Equality Act 2010 claim are struck because they have no reasonable prospect of success.(4) The claimant’s sole remaining complaint of constructive unfair dismissal may proceed to a final hearing. Case Number: 2401557/2019 2 of 11
REASONS
[1]I conducted today’s preliminary hearing in public via the Cloud-based Video Platform (CVP). We experienced some initial difficulty with the claimant’s audio participation, which was resolved without disadvantage to her. The hearing commenced at 11.55am rather than at 10.00am and concluded at 2.10pm with a 30 minutes break for lunch. I reserved my judgment.[2]I had provided to me by the parties a hearing bundle in PDF format comprising 378 pages. This was backed up by a MS Word version of the same document. I refer below to the relevant pages of the PDF bundle in square brackets.[3]I did not take witness evidence. I have made no findings of fact (other than in respect of time limits). The respondent presented its application in respect of time limitation and strike/out deposit in sections. I permitted the claimant to respond to that application in sections. Both parties were given a further opportunity to put any additional material or submissions before me.
The claim
[4]This claim arises from an early conciliation notification made by the claimant to Acas on 23 November 2018, which resulted in an early conciliation certificate being issued on 20 December 2018 [1]. A claim on form ET1 was then presented to the Employment Tribunal by the claimant on 25 January 2019 [2-13]. The claimant provided further particulars on 14 February 2020 [19-21]. The respondent responded to the claim on 8 March 2020 [32-45] and amended its response on 29 January 2020 [123-133]. As the hearing bundle reveals, the claimant at various subsequent times has added to or clarified her claim in correspondence with the respondent and the Tribunal.[5]Following an earlier preliminary hearing for case management purposes held by Employment Judge Warren on 14 June 2019 [57-62], the claim was subject to further case management by Employment Judge Dunlop at a preliminary hearing on 25 September 2019 [101-110] and by Employment Judge Holmes at a preliminary hearing on 3 February 2020 [134-139]. As a result, the Tribunal has identified the claimant’s claim as containing two broad complaints:(1) constructive unfair dismissal and(2) unlawful harassment based upon the protected characteristic of disability contrary to section 26 of the Equality Act 2010.[6]The disability expressly relied upon by the claimant is anxiety. The respondent concedes that this is a disability for present purposes. There is also at various points reference to perceived disability and/or associated disability based upon the perception of her as having a psychosis and/or the mental health history of members of her family. The claimant does not expressly rely upon a disability other than anxiety and indeed she contests any suggestion of any other diagnosis. It does appear that she relies upon how she has been allegedly Case Number: 2401557/2019 3 of 11 treated based upon the perception of her by others and her association with others, although that has not been pleaded with any legal sophistication.[7]The complaint under the Equality Act 2010 and the basis upon which a constructive unfair dismissal complaint is advanced rely upon allegations of bullying and/or harassment at work and outside the workplace. There are said to be two periods of such alleged conduct or behaviour towards the claimant:(1) the period 2014 to the end of 2015 and(2) the period from December 2017 to 5 November 2018 when the claimant resigned her employment summarily. The preliminary issues[8]The issues for today's preliminary hearing were first identified by Employment Judge Dunlop at the case management hearing held on 25 September 2019 and later refined by Employment Judge Holmes at the case management hearing on 3 February 2020.[9]The preliminary issues are:(1) whether any of the claims were presented out of time;(2) if so, whether the Tribunal should exercise its discretion to extend time for their presentation on the grounds that it would be just and equitable to do so;(3) whether any of the claims should be struck out on the grounds that they have no reasonable prospects of success; and(4) whether the claimant should be ordered to pay a deposit as a condition of continuing any of her claims on the grounds that they have little reasonable prospects of success. It is also apparent to me that consideration arises of whether there was any conduct extending over a period of time and/or a series of similar acts or failures.[10]For the avoidance of doubt, the claim of constructive unfair dismissal does not give rise to any preliminary issues and will be allowed to proceed to a final hearing in any event. The relevant complaints[11]At the case management hearing on 25 September 2019 Judge Dunlop identified 8 specific allegations relating to the second period since December 2017 and these are set out in paragraph 10 of her case management summary. The respondent has presented amended grounds of response in respect of those 8 specific allegations. The claimant provided further particulars of her claim dated 13 December 2019 and those further particulars advanced 10 further allegations, to which the respondent has responded in its amended grounds of response.[12]Those complaints are most helpfully set out by the respondent in Appendix A to its strike out application [150-158]. Submissions[13]The respondent’s case is set out in its application to strike out [143-149] and its schedule of the complaints and its response to those complaints in terms of both time limitation and prospects of success [143-158]. The claimant Case Number: 2401557/2019 4 of 11 responded to those matters during the hearing and in pre-hearing correspondence seeks to support her claim in general terms, particularly by reference to the history of her employment, her health and events at large.
The relevant law
[14]I gratefully adopt in summary form the respondent’s submissions as to the relevant law that I must apply, as follows.[15]Rule 37 of the Employment Tribunals Rules of Procedure 2013 sets out the relevant basis upon which the Tribunal may make an order striking out all or any part of a claim. At any stage of the proceedings a Tribunal may strike out all or part of a claim on the ground that it has no reasonable prospect of success.[16]The authorities establish that a litigant has a right to have her claim litigated provided that it is not frivolous, vexatious or an abuse of process (Ashmore v British coal Corporation [1990] IRLR 283). What may constitute such conduct must depend on all the circumstances of the case. The categories are not closed and considerations of public policy and the interests of justice may be very material.[17]It is accepted as a general principle that cases will not ordinarily be struck out on the grounds of no reasonable prospect of success where the central facts are in dispute (see North Glamorgan NHS Trust v Ezsias [2007] EWCA Civ 330. Only in exceptional circumstances will this be appropriate, such as where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation.[18]It is also open to me, where I am satisfied that the conditions of rule 37 are not met, to make an order under rule 39 that the claimant should pay a deposit as a condition of continuing to advance her claims if I find that they have little reasonable prospect of success. That is subject to the Tribunal making reasonable inquiries to ascertain the ability of a person to pay such a deposit and to take account of any information so ascertained in determining the amount of the deposit. I have that information before me. [198-199]. The case law establishes that the test of little prospect of success is not as rigorous as the test that the claim has no reasonable prospect of success. See Jansen van Rensburg v Royal Borough of Kingston upon Thames UKEAT/0096/97.[19]The question of time limitation in respect of the Equality Act 2010 complaint also arises for decision at this preliminary hearing. Section 123 of the Equality Act 2010 provides that Employment Tribunal proceedings may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates or such other period as the Employment Tribunal thinks just and equitable. For the purposes of that section, conduct extending over a period is to be treated as done at the end of the period and failure to do something is to be treated as occurring when the person in question decided on it. Case Number: 2401557/2019 5 of 11[20]The case law establishes that the Tribunal should consider the same factors as would be considered by the civil courts where there is an application to extend limitation under section 33 of the Limitation Act 1980. See British Coal Corporation v Keeble [1997] IRLR 336. The Tribunal is required to consider the prejudice which each party would suffer as a result of the decision to be made and also to have regard to all the circumstances of the case. In particular, that includes the length of and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued had cooperated with any request for more information; the promptness with which the claimant acted once she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate professional advice once she knew of the possibility of taking action.[21]In Robertson v Bexley Community Centre [2003] IRLR 434 it was held that it was also of importance to note that the time limits are exercised strictly in employment cases. When Tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. A Tribunal cannot hear a complaint unless the claimant convinces it that it is just and equitable to extend time. The exercise of discretion is the exception rather than the rule. In Accurist Watches Ltd v Wadher UKEAT/0102/09 it was said that it is always necessary in the exercise of the discretion to extend time on the basis that it is just and equitable to do so for a Tribunal to identify the cause of the claimant’s failure to bring the claim within the primary time limit.[22]It is the respondent’s position that it would not be just and equitable to extend time for presentation of the majority of the claimant’s complaints under the Equality Act 2010 as the respondent is likely to be prejudiced for reasons that it identifies in its submission. Discussion and decision[23]I turn first to consider the time limitation questions in respect of each of the complaints made by the claimant under section 26 of the Equality Act 2010.[24]The first group of complaints are contained within the claimant’s further particulars dated 13 December 2019 as follows.(1) In April 2013 an unnamed individual allegedly made “hair gestures” towards the claimant and acted oddly towards her. The claimant’s view was that the matter could have been dealt with better by her line manager as opposed to reporting the concerns to HR.(2) The claimant alleges that she felt under pressure to raise her concerns by way of a formal grievance by Janet Williams and was more or less told that she was a liar. The claimant alleges that she had been pre-judged on a perceived family characteristic and felt insulted when she was advised to make contact with her GP.(3) In April 2013 onwards Chris Smith allegedly read aloud the first few letters of the claimant’s surname and then repeatedly stated the word “fraudster” for “a fair while”.(4) The claimant alleges that on a lot of occasions her login details when she started were revoked as other team members were trying to access her system.(5) The claimant alleges that her coat was slashed Case Number: 2401557/2019 6 of 11 after returning from lunch. The claimant has not identified any likely named perpetrators and refers to “the usual people were in”.(6) The claimant alleges that the “old security man” would do the same old (hair) gesture as she left and did not do this towards any other individual who entered or left the building. The claimant does not know the individual perpetrator’s name and alludes to him having dark hair and being European-looking.(7) In 2013 the claimant alleges that there was intimidation outside the workplace and confirmed the individuals looked like “plain clothes police officers” and that “she shouldn't have to pass a bunch of men i.e. more than six”.(8) The claimant alleges that on “a strange day” Sarah Mayfield, Chris Smith and unnamed others “started going out of their way to show the claimant their new mobile telephones and she suspects that these were stolen goods as her partner advised that there's been a fire at the warehouse next door to his works”;(9) The claimant alleges that her private life was spun into conversation between Sarah Mayfield, Cathy Brotherton and Kathryn (no surname) and was indirectly informed of things she can and cannot do. The claimant felt that this was an attempt to test her mental health.(10) The particulars of this allegation are the same as allegation (2) above.[25]These ten complaints or allegations were identified as part of the case management order dated 25 September 2019. The claimant was required by the Tribunal to provide specific details of the allegations upon which she sought to rely and which were said to have occurred between April 2013 and December 2015. It is the respondent’s understanding, with which the Tribunal agrees, that the second group of complaints, to be set out further below, refers to a period commencing after 31 December 2015 and occurs from December 2017 onwards. See the case management order dated 25 September 2019. It appears to the Tribunal, as the respondent also submits, that there is a gap of approximately 2 years during which the claimant has made no allegations or complaints against the respondent under the Equality Act 2010.[26]The Tribunal accepts the respondent’s submission that it does not have jurisdiction to hear any of the 10 allegations in the first period above brought under the Equality Act 2010 and relating to the period from April 2013 to December 2015. The claimant presented those claims outside of the primary limitation period of three months specified in section 123 of the 2010 Act. The conduct of which the claimant complained ceased on or about or before 31 December 2015. The appropriate limitation period would have expired on 30 March 2016.[27]The claimant contacted Acas under the early conciliation scheme on 23 November 2018. The Acas early conciliation certificate was sent on 20 December 2018. The claim was presented to the Tribunal on 25 January 2019. Accordingly, these complaints are almost three years out of time.[28]The Tribunal explored with the claimant whether there were any grounds to support a finding that this group of 10 complaints were part of a course of conduct extending over a period of time for the purposes of section 123 of the Equality Act 2010. The time gap is a significant one between the first group of complaints, which ceased in December 2015, and the second group of complaints, which began at the end of 2017 and onwards. Case Number: 2401557/2019 7 of 11[29]The claimant was also asked directly by the Tribunal for an explanation of why she had not acted on those complaints previously. She explained that she had not been in such a situation before. She agreed that she had had contact and advice from Acas in respect of other employment in which she was engaged. She said that she had been a trade union member (USDAW) at the relevant time, but was no longer a member and had no representative. Nevertheless, that is the extent of her case as to why she did not deal with the matter sooner.[30]I am not satisfied that the two groups of complaints amount to a course of conduct, separated as they are by a sizeable gap of 2 years and having been dealt with under internal procedures at the relevant times. I am also not satisfied that the claimant has provided an adequate explanation to explain the delay in presenting her claim to the Tribunal.[31]I do not consider that this is an exceptional case in which it would be just and equitable to extend time for presentation of this group of complaints. I accept that the respondent is very likely to be prejudiced in its ability to respond to the complaints because they relate to incidents said to have occurred over four years ago; a number of key individuals employed by the respondent at the relevant time have since left the respondent’s employment; and the vast majority of the allegations in this first group of complaints were investigated internally by the respondent at the time and were found not to be upheld as part of the original grievance hearing and two subsequent appeal stages.[32]Accordingly, the complaints or allegations in this first group have not been presented to the Tribunal in time and, there being no just and equitable basis to extend time, the Tribunal does not have jurisdiction to hear them. Those complaints are therefore dismissed.[33]Strictly speaking, it is not necessary for me to consider whether this first group of complaints or allegations might be struck out as having no reasonable prospect of success. However, should I be wrong on the question of time limitation, I will now also consider the strike out application (and whether alternatively a deposit order would have been appropriate).[34]This group of 10 allegations or complaints variously suffers from a combination of a number of common defects which lead me to conclude that they have no reasonable prospect of success. Many of them are expressed in generalisations or in vague or non-specific terms. They lack the detail that would be necessary to allow the respondent properly to respond to the complaints. It is often difficult to identify the dates on which these allegations are said to have arisen and in some of the complaints the individuals concerned are not properly identified. Many of these matters had already been considered within the internal procedures of the respondent and found to be without substance.[35]Perhaps most importantly, it is unclear in these complaints to what extent the claimant says that the matters alleged amounted to disability harassment for the purposes of section 26 of the Equality Act 2010. That section, so far as relevant to the present claim, provides that a person(a) (A) harasses another(b) (B) if A Case Number: 2401557/2019 8 of 11 engages in unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. A relevant protected characteristic for this purpose is disability. Accepting the claimants asserted case at its highest, and assuming for present purposes that she might be able to establish the factual basis of it, the connection with or relation to the claimant’s disability of anxiety (or so far as her hair is concerned, a possible disability arising from Lupus, as yet not conceded) is simply not established on a proper basis that can be responded to.[36]Finally, a number of these complaints relate to events said to have occurred outside the workplace; are concerned with so-called third parties; and do not appear to have anything to do with the actions or omissions of the respondent employer.[37]Accordingly, and in the alternative, I would have struck out these complaints as having no reasonable prospect of success or I would have made them the subject of a deposit order as having little reasonable prospect of success.[38]That takes me to the second group of complaints or allegations as set out in the claimant’s further particulars and referred to in paragraphs 10.1 to 10.8 of the case management order dated 25 September 2019.[39]Those complaints or allegations are as follows.(1) The claimant’s line manager, Mark Wilson, refused to provide a letter for the claimant’s GP in relation to a dispute with her GP over the accuracy of her medical records. This is said to have occurred first in December 2017 and then again in March 2018.(2) On several occasions in Spring and Summer 2018 two of the claimant’s co-workers arrived on shift dressed in similar clothing to the claimant that day. She perceived this to be behaviour that was targeted at her and designed to make her paranoid. The claimant was unsure of the identity of the two employees involved, but believes that they were temporary workers who no longer work for the respondent. One may have been called Lucy and worked as a temporary member of staff in the respondent’s fraud section.(3) In a conversation with a colleague, Megan Woods, regarding mental health issues, Ms Woods made the comment “you have schizophrenia, don't you”. This is alleged to have occurred in mid-2018. The claimant states that she does not have that condition and found the comment offensive.(4) In October 2018 the claimant attended a well-being meeting related to some sickness absence. The notes of that meeting subsequently produced by the respondent’s HR Department refer to her as being “delusional” when the word used in the meeting was “delirious”. The claimant considered this to be inappropriate.(5) In October 2018 the claimant discovered that password-protected documents she had saved on the respondent’s IT system had been accessed by another user and the passwords had been changed. The claimant explained that she believes her documents were being accessed by an external third party person or persons rather than by the respondent itself. She complains, in respect to the respondent, that its IT Department should have notified her of this breach and advised her of appropriate steps.(6) In October 2018 an incident occurred in the respondent’s car park in which the claimant saw a woman with children gain unauthorised Case Number: 2401557/2019 9 of 11 access to the car park. The claimant viewed this as potentially part of the third party campaign against her. As a result of her concerns, it was agreed with Mr Wilson, she alleges, that a supervisor (Jade) would meet her in the car park when she next arrived at work. Jade did not meet the claimant as planned and this failure is the issue complained of.(7) On 4 October 2018 a particular song (“Sit Down” by the singer James) was playing on the radio when the claimant arrived at the office. The claimant found the song upsetting (because as part of her return to work after sickness absence related her health condition she was working apart from others). She clarified that she did not believe that any of the individuals present in the office had caused the song to be played. Rather it is offered as an example of 3rd party manipulation of her environment, which she experiences both in and out of work. She asserts that the respondent had a duty to protect her from harassment in those circumstances.(8) The claimant also complains about the alleged failure on the part of the respondent to allow the claimant to retract her resignation in November 2018.[40]I shall deal with the time limitation questions first.[41]The respondent accepts that the complaints or allegations numbered (4) to (8) provide the Tribunal with jurisdiction and have been presented within the appropriate time limitation period. It is the complaints or allegations numbered (1) to (3) on which the time limitation point is taken.[42]I accept the respondent’s submission that the Tribunal does not have jurisdiction to hear any of those three allegations. The claimant has submitted her claim containing those three complaints outside the primary limitation period specified in section 123 of the Equality Act at 2010 (that is, the period of three months from the date of the act to which the complaint relates).[43]Taking those three allegations together, the date on which the conduct complained of ceased is no later than 30 June 2018. The primary limitation period expired on 29 September 2018. Acas was notified under the early conciliation scheme on 23 November 2018 and issued a relevant certificate on 20 December 2018. The claimant presented a claim in which those three allegations or complaints were a part on 25 January 2019. It follows that those three complaints are over four months out of time.[44]Are there any grounds to support a finding that these allegations or complaints are part of a course of conduct extending over a period of time for the purposes of section 123 of the Equality Act 2010? I accept the respondent’s submission that there are no such grounds given that there is a gap of some three months from that conduct ceasing in June 2018 until the next group of alleged incidents occurs in October and November 2018. In addition, the claimant has provided no adequate explanation in support of her delay in presenting a claim to the Tribunal in respect of those three incidents.[45]I also accept the respondent’s submission that it would not be just and equitable to extend time for the presentation of those particular complaints. The respondent has already investigated the large majority of those complaints, Case Number: 2401557/2019 10 of 11 which were not upheld, as part of an original grievance hearing and two subsequent appeal hearings.[46]Accordingly, the first three complaints or allegations in the second group have not been presented to the Tribunal in time and, there being no just and equitable basis to extend time, the Tribunal does not have jurisdiction to hear them. Those complaints are therefore dismissed.[47]It is necessary for me to consider whether this second group of complaints or allegations might be struck out as having no reasonable prospect of success. I will now also consider the strike out application (and whether alternatively a deposit order would have been appropriate).[48]This second group of 8 allegations or complaints also variously suffers from a number of common defects, as before, which leads me to conclude that they have no reasonable prospect of success.[49]As already discussed above, many of them are expressed in generalisations or in vague or non-specific terms. They lack the detail that would be necessary to allow the respondent properly to respond to the complaints. It is often difficult to identify the dates on which these allegations are said to have arisen and in some of the complaints the individuals concerned are not properly identified. Many of these matters had already been considered within the internal procedures of the respondent and found to be without substance.[50]Perhaps most importantly, it is unclear in these complaints to what extent the claimant says that the matters alleged amounted to disability harassment for the purposes of section 26 of the Equality Act 2010. That section, so far as relevant to the present claim, provides that a person(a) (A) harasses another(b) (B) if A engages in unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. A relevant protected characteristic for this purpose is disability. Accepting the claimants asserted case at its highest, and assuming for present purposes that she might be able to establish the factual basis of it, the connection with or relation to the claimant’s disability of anxiety (or so far as her hair is concerned, a possible disability arising from Lupus, as yet not conceded) is simply not established on a proper basis that can be responded to.[51]Finally, a number of these complaints relate to events said to have occurred outside the workplace; are concerned with so-called third parties; and do not appear to have anything to do with the actions or omissions of the respondent employer.[52]Accordingly, and in the alternative, I would have struck out these complaints as having no reasonable prospect of success or made them the subject of a deposit order as having little reasonable prospect of success. Case Number: 2401557/2019 11 of 11[53]In conclusion, the complaints in the second group may not proceed either because they have not been presented in time (and time may not be extended) or because they have no reasonable prospect of success.
Conclusion
[54]To put the matter another way, all the complaints under the Equality Act 2010, in both groups, may not proceed further. They are either out of time and/or (while not vexatious) are misconceived or ill-judged (in that they spring from the claimant’s concerns about her health, in her private life or outside of the workplace). The complaint of constructive unfair dismissal may proceed to a final hearing. The claimant is not prejudiced in this outcome as many of the matters alleged as amounting to disability harassment may be relevant as part of the background to or context of the constructive unfair dismissal complaint.[55]I shall now direct that the complaint of unfair dismissal be listed for a 1 day final hearing with standard case management orders. ________________________________ Judge Brian Doyle DATE 3 November 2020
Introduction
[1]The second respondent is the entity which employed the claimant. All references below to the respondent are to the second respondent.[2]The claimant was employed by the respondent between 2001 and 6 November 2018 when she resigned in circumstances which she claims amount to a constructive dismissal.
The issues
[3]At a preliminary hearing on 25 September 2019, following discussions with the claimant, the following were identified as the reasons the claimant says she resigned.3.1 The claimant’s line manager, Mark Wilson, refused to provide a letter for the claimant's GP in relation to a dispute with her GP over the accuracy of her medical records. This refusal is said to have first occurred in December 2017 and been repeated in March 2018. (Issue 1)3.2 On several occasions in spring/summer 2018, two of the claimant's co-workers arrived on their shift dressed in similar clothing to the claimant's outfit on the same day. She perceived this to be behaviour that was targeted at her and designed to “make me paranoid”. The claimant was unsure of the identity of the two employees involved but believes they are both temporary workers no longer working at the Respondent. One may have been called ‘Lucy' and worked as a temporary member of staff in the Respondent’s fraud section. (Issue 2)3.3 In a conversation with a colleague, Megan Woods, regarding mental health issues, Ms Woods made the comment “you have schizophrenia, don't you?". This is alleged to have occurred in mid-2018. The claimant states that she does not have that condition and found the comment offensive. (Issue 3)3.4 In October 2018 the claimant attended a well-being meeting related to some sickness absence. The notes of that meeting subsequently produced by the respondent’s HR department refer to her as being "delusional” when the word used in the meeting was "delirious". The claimant considered this to be inappropriate. (Issue 4)3.5 Also, in October 2018 the claimant discovered that password-protected documents she had saved on the respondent’s IT system had been accessed by another user, and the passwords had been changed. The claimant explained that she believes her documents were being accessed by an external '3rd Party' person or persons rather than by the respondent itself. She nonetheless complains, in respect of the respondent. that its IT department should have notified her of this breach and advised her of appropriate steps. (Issue 5)3.6 Also, in October 2018, an incident occurred in the respondent’s car park in which the claimant saw a woman with children gain unauthorised access to the car park. The claimant viewed this as potentially part of the ‘3rd party' campaign against her. As a result of her concerns. it was agreed with Mr Wilson that a supervisor (‘Jade’) would meet her in the car park when she next arrived at work. Jade did not meet the claimant as planned and this failure is the issue complained of. (Issue 6)[4]The claimant’s witness statement listed 11 paragraphs under the heading “October /November 2018 reason for leaving.” There was some overlap with the 8 reasons identified above. Other paragraphs were more by way of background; issues that the claimant says occurred during the last 4 weeks of her employment with the respondent even though the matters described were not all acts of the respondent and therefore not part of her constructive dismissal claim. An example of this is paragraph 9 at page 6 of the claimant’s statement. “Another incident not reported were vans with R Noon and Son on, timely arrive at the same location as I, timed perfectly on my lunch or on way home etc.” The claimant explained in her evidence that the sight of a van with “R Noon & Son” written on the side was distressing to the claimant due to a previous experience but, whilst the claimant had concerns that someone was arranging for these vans to be on the road purposefully at times and places which meant that the claimant would see them, she was not making this allegation against the respondent.[5]It is also important that I note that, whilst the Judge at the preliminary hearing on 25 September 2019 had set out clearly the reasons the claimant claims she resigned, the claimant stated in her evidence at this final hearing that these were only the most recent examples in a long campaign of harassment by the respondent and that this went back to 2013 when she was detained under the Mental Health Act 1983 (MHA).[6]The claimant’s position is that this detention was an unlawful act on the part of the NHS and possibly the police. Since then, the claimant claims that the respondent had refused to believe her account on various matters, the most recent examples being those provided by her at the Preliminary Hearing.[7]I decided that it was appropriate that I focus on the reasons set out in the preliminary hearing. They were the recent allegations and, if true, potentially very serious.
The Hearing
[8]Following initial reading, I heard the claimant’s evidence between approximately 11.15 and 15.00 on the first day.[9]We then heard from one of the claimant’s witnesses, Ms Petrie.[10]One day was not sufficient to hear and conclude the case and, following discussions and agreement with the parties, we were able to identify 19 November 2021 to continue with the hearing.[11]Towards the end of the first day, the claimant noted that she wanted transcripts of recorded discussions to be considered by me and was concerned they had been removed by the respondent from the bundle of documents. Ms Gould referred me to transcripts of various discussions in 2013 at pages 338 to 352 of the bundles. The claimant confirmed that these were the recordings she wanted to refer me to. I agreed that I would read these transcripts.[12]The claimant had sent to the tribunal office some additional documents for me to consider. These were sent by the claimant on 28 October 2021 and 1 November 2021. I informed the claimant that I would look at these but, once I had done so, made clear that a number of documents attached to these emails were unreadable and provided the claimant with an opportunity to send in readable copies.[13]The claimant also, late in the afternoon of day one, told me that she had written to the tribunal asking for the tribunal to make contact with the police as the respondent had committed the crime of perjury and for the response to be struck out on these grounds. I had not seen or read this correspondence from the claimant. I informed the claimant that orders striking out a response, particularly part way through a final hearing, were rare and I did not at that stage see any grounds to strike out the response in this case. I noted that we were part way through the evidence and my focus was on reaching a decision based on the merits of the case. However, should the claimant wish to proceed with an application then I would consider it.[14]I also informed the claimant that I would not write to the police, explaining again that my focus was on hearing the evidence and reaching a fair decision. The claimant is aware that she is able to report a matter to the police if she considers that a crime has been committed.[15]The claimant emailed the Tribunal on 18 November 2021 setting out reasons why the response should be struck out. I read this written application at the start of day 2. I decided that I could reach a decision on the claimant’s strike out application without first inviting a response. I refused the application. My reasons are below.[16]We then proceeded to hear the 3 remaining witnesses, being Mark Wilson (the claimant’s manager), Jessica Dytham (HR Manager) and Julie Ives of USDAW.[17]At all relevant times, the claimant was a member of USDAW. In her witness evidence the claimant was critical of the standard of representation and service provided by USDAW.[18]Julie Ives (JI) was at the time the local USDAW representative. The claimant had asked JI to be a witness for her but she had declined. JI had however provided a statement and was called by the respondent. That provided the opportunity to hear the evidence of JI (which the claimant had wanted) and for the claimant to ask questions of JI (which she did).[19]As for the claimant’s criticisms of USDAW, I noted:-19.1 they did not form part of the claimant’s reasons for resigning;19.2 they were between the claimant and USDAW, they were not issues between claimant and her employer. I had no jurisdiction over the claimant’s complaints against USDAW and I would not make any findings about them.[20]I heard the parties closing submissions at the end of day 2 and reserved my decision. Application to strike out the response.[21]I summarise the reasons why the claimant said that the response should be struck out and my response to each of these.[22]I took these to be reasons put forward under Rule 37(1)(a) and/or (b) of the Employment Tribunal Rules of Procedure 2013 (Rules); that the response itself and/or the manner in which the respondent has conducted the proceedings is scandalous, unreasonable or vexatious[23]Reasons and response:-23.1 Reason: that the respondent’s witnesses have lied. Response: I need to hear from those witnesses and make my own assessment and finding of facts.23.2 Reason: that there had been misuse of the MHA in 2013. Response: concern about the actions of public authorities is not a reason to strike out the response in these proceedings.23.3 Reason: there have been actions to discriminate, bully, harass, manipulate documents, mistreat personal data. Response: to the extent that these matters are relevant to the claim of constructive dismissal, the evidence needs to be considered.23.4 Reason: there has been a breach of contract, breach of trust and confidence and negligence by the respondent, Response: as 3 above. Finding of Fact[24]The claimant was employed by JD Williams and Company Limited (the second respondent). I make this finding having been referred to the claimant’s contract of employment (in the form of an offer letter and terms and conditions) at pages 225-231 as well as various items of correspondence throughout the claimant’s employment. I note that more recent letters state “JD Williams and Company Limited[25]The claimant was employed in the respondent’s credit control department between 2001 and 2018. This was not the claimant’s only employment. She worked during weekends for the respondent and had other, unrelated, employment during the week.[26]In 2013 the claimant was absent due to sickness for a considerable period and for part of this period, was detained under the MHA. The claimant’s position is that she should not have been detained, that she had been misdiagnosed and that her detention amounted to false imprisonment.[27]Also, in 2013 and 2014, the claimant made allegations about colleagues in the workplace. The detail of these is not relevant to this case, except that through those allegations, investigations and outcome there was some awareness amongst colleagues that the claimant may have had mental health issues.[28]The claimant had further sickness absence in 2017 and 2018. In 2018 the claimant was absent due to sickness over a two-week period in late April and early May 2018 and for a longer period between 16 June 2018 and 13 October 2018.[29]At all relevant times, the claimant’s supervisor was Jade Petrie (JP). JP worked full time for the respondent and her work pattern included working every other weekend, when she would see the claimant. The claimant’s manager was Mark Wilson (MW). As with JP, MW was a full-time employee of the respondent whose work rota required that he work on some but not all weekends. MW has been employed by the respondent since 2003.[30]The standard of the claimant’s work was good during her employment with the respondent. Claimant’s medical records[31]On 10 February 2018 the claimant told MW that she had recently reviewed her medical records and had seen a note on there which said that the employer was not happy with her. She asked MW to arrange for someone from the respondent to contact her doctor and tell them that this entry was not correct.[32]MW was faced with an unusual request from the claimant. He contacted HR who told him that the respondent would have had no involvement with entries on an employee’s medical records. Two weekends later (on 23 February 2018) MW met with the claimant to tell her this. The claimant told him that the entry had been made by a nurse but she said that that the respondent could provide a statement for review by the Information Commissioner’s Office (ICO) in order for her records to be corrected. She asked MW to arrange this.[33]Understandably MW again asked for guidance from the respondent’s HR team. Following this he told the claimant that the business would provide a statement but only if asked to do so by the ICO. MW also suggested to the claimant that she could obtain legal advice from the respondent’s recognised union - USDAW. He also wanted to know whether the claimant had enough time off (he was aware that the claimant had other employment) and reminded the claimant of internal support services.[34]As her manager, MW had some awareness of the claimant’s medical history including her detention in 2013. Alleged comments by Ms Woods[35]In their discussions on 23 February 2018, the claimant told MW that a colleague, Megan Woods (Ms Woods) had asked her if she suffered from schizophrenia. There were no witnesses to this comment having been made.[36]MW spoke with Ms Woods about this when he next worked with her. She denied that she had said what had been alleged. MW decided that he was unable to reasonably take matters further. He spoke with MW in general terms about the importance of treating colleagues with respect. He then updated the claimant, telling her that he felt he could not take the matter further but told her to let him know if she had any future concerns about colleagues’ behaviour towards her.[37]I note that this incident is not mentioned at all in the claimant’ witness statement. it is not referred to under the heading “October/November 2018 Reason for leaving” or under the heading “Reason for leaving”. It is one of the reasons for leaving identified at case management stage. Absence in late April/early May 2018.[38]The claimant was absent for two weeks. On 21 April 2018, just before her absence, the claimant contacted MW to tell him that she had been a victim of fraud and that she was concerned that her house was being taken from her.[39]A few days after this the claimant provided a doctor’s fit note, stating she was not fit to work due to anxiety. Following receipt of this, MW referred the claimant to occupational health providers who provided a report dated 3 May 2018. This report supported the diagnosis in the GP’s fit note. It recorded that the claimant had no issues at work but that she did have personal issues which were impacting greatly on her emotional wellbeing. It recommended a course of counselling therapy and ongoing management support.[40]The respondent, through arrangements with its OH providers, was willing to support the claimant by providing counselling sessions although these were run on Wednesday afternoons and would have required the cooperation/consent of her main employer. The claimant did not access the therapy sessions offered.[41]MW met with the claimant on 26 May 2018, following her return to work when she informed MW that she was using self-help methods. She was reminded about the availability of the OH support services. Unfortunately, some two weeks later, the[42]MW maintained contact with the claimant during this long period of absence. I make the following relevant findings in relation to this ongoing contact:-42.1 It was done in order to be supportive of the claimant.42.2 MW reminded the claimant about support services available via the respondent.42.3 The claimant told MW that she was accessing a course of counselling therapy sessions through her main employer.42.4 In a discussion on 26 June 2018, the claimant told MW that she was considering leaving her role with the respondent (as well as with her main employer). MW discouraged this – saying to the claimant that she should have a supportive employer during this time of sickness.42.5 On 22 August 2018 MW met with the claimant for a welfare meeting. Jessica Dytham (JD) an HR manager, also attended this meeting. Notes of the meeting are at pages 253-257. I find these to be an accurate summary account of the meeting.42.6 During the meeting:42.6.1 The claimant made references to incidents which had been investigated in 2013.42.6.2 She told MW and JD that her phone and email accounts were being hacked but the police were not doing anything about it.42.6.3 She said that she did not trust doctors.42.6.4 She told MW and JD that she was accessing support through the OH services of her main employer.42.6.5 JD and MW asked the claimant about any recent concerns at work. The claimant raised her concern about Ms Woods (above) and this was discussed.42.6.6 The claimant told MW and JD that she was too scared to come back in to work although it was not work that was the issue but rather matters outside work.42.6.7 MW assured the claimant that there was no pressure for her to return to work, it was important to remove what he called the “blockers” first.[43]MW met with the claimant on 9 October 2018 to discuss her return to work. At this meeting the claimant said that her doctor had recommended a phased return to work. The claimant also mentioned moving to another department. MW suggested to the claimant that on her first day back at work, she could just attend for an hour to see how things were. He also said that the claimant could choose to sit in another part of the office floor to her usual location should she prefer. A further welfare review meeting took place on 16 October 2018 which was positive and the claimant returned to work on 27 October 2018.[44]MW met with the claimant on 27 October 2018, her first day back at work. I find that MW was supportive and sympathetic. He was prepared to support a phased return to work (on the basis of reduced hours) in the coming weeks, he noted concerns about the length of absences to date and the possibility of further absence but made clear that he/the respondent would not take any action about this. The focus was on trying to support the claimant’s return to work. My findings are supported by MW’s evidence and the return to work form (pages 271-3). Car Park Incident[45]The claimant raised concerns when working on the Sunday of the following weekend (4 November 2018). MW was not working over that weekend but the claimant called him on Monday 5 November 2018.[46]JP was working with the claimant over that weekend. The claimant and JP exchanged text messages on Friday 2 November. I have seen various text messages between JP and the claimant and from what I have seen JP has been a supportive colleague to the claimant. The messages of 2 November are an example of this: Claimant: Hi Jade r u on shift tomorrow? JP: I am. How’s things?[47]The claimant did not send a text to JP on the morning of 3 November. JP did not therefore go and meet the claimant in the car park as she had offered but saw the claimant following her arrival in the office.[48]MW had not told the claimant that JP would meet her (as suggested by the claimant’s version of events in the list of issues- but not by her evidence in her witness statement or at the Tribunal). The suggestion of a meeting was JP’s. She suggested it to be supportive.[49]JP’s evidence (which I accept) was that when the claimant arrived at work on 3 November 2018, she informed JP that she was being followed by a plain clothes police officer who had accessed the respondent’s car park. The claimant said that she spoke with the security guard who told her that the person in question was an employee of the respondent who worked during the week but was using the respondent’s car park that weekend so that she could go shopping in Manchester city centre. However, the claimant was not satisfied with that explanation. The claimant also asked JP if the security guard had put the radio on in the workplace that morning. JP informed the claimant that it was she who had switched the radio on.[50]The security guard also spoke with JP to ask if the claimant was OK. He said that the claimant had told him she would report him for a security breach. JP’s account of these discussions (which I find to be accurate) is in a file note at page 274.[51]On 5 November 2018 the claimant called MW to make him aware of this incident. MW’s evidence ( which I accept) is that he understood the claimant did not feel safe at work but he did not understand her concerns. He asked the claimant to put her account of events and her concerns down in an email. The claimant replied that her emails were being intercepted and she would not be comfortable doing this. MW therefore asked the claimant to put down her account in writing in a letter to him. The claimant’s resignation[52]On the evening of 5 November 2018, the claimant sent an email to MW (received by MW on 6 November 2018) which said as follows:- Dear Mark[53]MW saw the email on 6 November 2018. He was not surprised by the claimant’s resignation. He was aware that this was a second job, that the claimant’s health remained a concern and that she had told him in recent meetings that she was considering resigning.[54]MW forwarded the claimant’s email to JD in HR who recommended that the claimant’s resignation be accepted. It was also decided to offer the claimant a further (final) meeting to discuss her harassment allegations.[55]JD telephoned the claimant to confirm the respondent’s acceptance of the resignation. The claimant’s evidence is that, whilst on the phone with JD she heard a voice in the background shout that her resignation should be accepted. I find that no such background comment was made. It didn’t need to be. In so far as the respondent needed to accept the resignation at all, that decision had already been made. I also find that the claimant did not ask to withdraw her resignation during this call (or at any other stage).[56]On 7 November 2018, the claimant emailed JD in the following terms:- Dear Jessica Further to my call, in regard to bullying and harassment in the workplace still continuing, I would just like highlight the issues I endured during the last weekend. As mentioned, and as agreed I was working away from other members of staff, as I walked into the office they played on the radio, which was a blue radio on a chair, oh sit down, oh sit down, sit down next to me. I asked [JP] before I sat down, had the security man been on the floor and he had. On Saturday, the security man was lurking in the underground car park at the roller shutter doors where they let cars. I have given a more detailed description to facilities as the occupant of the re-emerged 3 hours later when i was leaving. Also, my password had been changed on a protected document. The user iD 238151. That is just a few isolated incidents.[57]MW and a senior HR manager called Martin McKee (MM) arranged to meet with the claimant. The purpose of the meeting was to listen to the claimant’s concerns.[58]The notes of this meeting are at pages 289 to 292. They were taken by a junior, temporary employee in the HR Department. I also heard the evidence from the claimant and MW about this meeting which I considered when reaching my findings of fact about the meeting.[59]Part of the meeting was taken up by the claimant referring back to events in 2013. The claimant provided more details about a change in the computer password. She explained that when she logged on to the computer she used in the workplace, there was another username appearing. Whilst the respondent had not been made aware of this concern immediately on the incident happening, MW explained to the claimant that it was likely that this was because someone else had been using the computer during the claimant’s absence and therefore logged on with their username. I agree that this is the most likely explanation. I do not find that the respondent was engaged in anything sinister (as the claimant has alleged) concerning her data.[60]I make the following additional relevant findings as far as this meeting is concerned.60.1 The claimant told MW and MM that her colleagues had specifically arranged for a radio station to play a song called “Sit Down” at a time when the claimant had chosen to sit in a separate part of the respondent’s office.60.2 The claimant referred again to the issue she had with the security in the car park on the weekend of 3/4 November 2018. She provided additional information about security guards “stalking” the claimant. The claimant was asked for further details (name and/or description of the[61]It is important that I note here that the claimant’s account of the meeting is that she used the term “delirious” rather than “delusional.” The record of the meeting notes shows the word used was “delusional” Whilst the notes are not in any way a complete record of the meeting, it is hard to envisage an employee taking this note, making a record that this word was said if it was not. Further, the notes show this word (delusional) was used twice by the claimant. The other time was when the claimant referred back to events in 2013. She said that someone had put something in her drink which made her feel delusional. I am satisfied that this word was used by the claimant in the meeting and that is why it appears in the note of that meeting.[62]Whichever word was used however, the claimant alleged that others were purposefully (and maliciously) creating events or situations that were making her unwell. Colleagues wearing the same clothes as the claimant[63]Neither party provided any evidence about this allegation. There is no detail in the claimant’s witness statement; it was not referred to in the claimant’s letter of 7 November 2018 (above). There is no evidence that colleagues purposefully wore the same or similar clothes as the claimant in order to target her and make her feel paranoid and I find that they did not. Music in the workplace[64]JP gave evidence (which was not challenged) that the respondent workplace often had music playing which was usually a local radio station. There was a TV in the workplace through which employees could play radio stations. However, at the relevant time, the TV remote control had been lost and employees were using a portable radio.[65]As employees played music by tuning in to a radio station, they had no control over the music being played. Submissions[66]I do not try to repeat all submissions made by each party here.[67]Ms Gould’s submissions included the following:-67.1 The claimant’s remaining claim is one of constructive dismissal, relying on a breach of the implied term of trust and confidence.67.2 The respondent, particularly through the actions of MW and JP, has acted reasonably throughout and been very supportive to the claimant.67.3 A review of the eight allegations identified at the case management hearing and in the List of Issues. The final alleged breach (a refusal to allow the claimant to withdraw her resignation) occurred after the claimant’s resignation and therefore should not be taken into account in deciding whether the claimant had been constructively dismissed.67.4 At various stages during the hearing, the claimant referred to a complaint of disability discrimination, yet these complaints were dismissed at the preliminary hearing in 2020.[68]The claimant’s submissions included the following:-68.1 That she is not a legal professional;68.2 That she is not a liar and would not make anything up;68.3 That she did try to retract her notice;68.4 That she has worked since she was 14 years old and knows when she is being bullied;68.5 That the claimant has various procedures to deal with including this Tribunal claim and that it is having a severe adverse effect on her;68.6 That the claimant has not provided all details as we would be “here all day”;68.7 That she had no support from any of her colleagues; all she was offered was another referral to OH;68.8 That there has been a lack of understanding of her claim and it has not been given due consideration;68.9 That she was not ill (in that she did not have a disability) when employed by the respondent but people perceived she was disabled (they perceived that she had a mental impairment) and at all times, dismissed her complaints because of that perception.
The Law.
[69]The claimant claims(1) that her resignation amounted to a constructive dismissal and(2) that this dismissal was unfair under s98 of the Employment Rights Act 1996.[70]Dismissal for the purposes of s98 includes the circumstances stated at s95(1)( c). “ …..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.”[71]In considering the issue of constructive dismissal, an Employment Tribunal is required to consider the terms of the contractual relationship, whether any contractual term has been breached and, if so, whether the breach amounts to a fundamental breach of the contract (Western Excavating (ECC) Limited v. Sharp [1978] QC 761).[72]It is an implied term of every employment contract 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. I refer to this term as “the Implied Term.”[73]In considering the Implied Term, Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Limited [1981] ICR 666, said that the tribunal must “look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.”[74]A course of conduct can cumulatively amount to a fundamental breach of contract entitling an employee to resign and claim constructive dismissal following a “last straw” incident, even though the “last straw” is not, by itself, a breach of contract: Lewis v Motorworld Garages Limited 1986 ICR 157 CA.[75]In the judgment of the Court of Appeal in Omilaju v Waltham Forest London Borough Council 2005 1 All ER 75. Dyson LJ stated as follows in relation to the last straw. “A final straw, not in itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase “an act in a series” in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach although what it adds may be relatively insignificant.”[76]The Court of Appeal decision in Kaur v Leeds Teaching Hospitals NHS Trust [2018] IRLR 833 (Kaur) commented on the last straw doctrine. The judgment included guidance to Employment Tribunals deciding on constructive dismissal claims. At paragraph 55 of the judgment, Underhill LJ states:- In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:[77]Once a repudiatory breach of contract has been established, it is necessary to consider the part it played in the claimant’s decision to resign. The following passage from the judgment of the Court of Appeal in Nottinghamshire County Council v. Meikle [2004] IRLR 703, is helpful. 33. It has been held by the EAT in Jones v Sirl and Son (Furnishers) Ltd [1997] IRLR 493 that in constructive dismissal cases the repudiatory breach by the employer need not be the sole cause of the employee's resignation. The EAT there pointed out that there may well be concurrent causes operating on the mind of an employee whose employer has committed fundamental breaches of contract and that the employee may leave because of both those breaches and another factor, such as the availability of another job. It suggested that the test to be applied was whether the breach or breaches were the 'effective cause' of the resignation. I see the attractions of that approach, but there are dangers in getting drawn too far into questions about the employee's motives. It must be remembered that we are dealing here with a contractual relationship, and constructive dismissal is a form of termination of contract by a repudiation by one party which is accepted by the other: see the Western Excavating case. The proper approach, therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract of employment as at an end. It must be in response to the repudiation, but the fact that the employee also objected to the other actions or inactions of the employer, not amounting to a breach of contract, would not vitiate the acceptance of the repudiation.[78]In the event that an Employment Tribunal decides that the termination of a claimant’s employment falls within s95(1) the employer must show the reason for
Discussion and Conclusions
[79]The claimant’s constructive dismissal case is that there was a series of events which, individually and/or cumulatively amount to a breach of the Implied Term. It is appropriate to apply the decision-making process set out in Kaur. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?[80]In addressing this first question, I disregard issue 8 (refusal to allow withdrawal of resignation). It might have been appropriate to consider whether the claimant said anything to withdraw from the words of resignation in her email of 6 November 2018 had the complaint been that there had been a resignation in the heat of the moment. On the basis of the facts as found, this was not a “heat of the moment” resignation. The claimant had mentioned on previous occasions that she considered resigning; she was plainly unhappy in her role; she had been supported by MW who told her previously to think carefully before handing in her resignation as it may be better for her to have employment with a supportive employer and that she may regret it.[81]Further and in any event, I have not found that the claimant did try to withdraw her resignation.[82]Other than this, the most recent issue was either the behaviour of JP not meeting the claimant in the car park and/or the playing of the song “sit Down” on the radio (issues 6 and 7) Did she affirm the contract since that act?[83]No, those alleged acts took place in the few days before the claimant’s resignation email sent on the evening of 5 November 2018. If not, was that act by itself a repudiatory breach of contract?[84]No. I refer to my findings of fact on these matters:-84.1 The respondent’s employees played music from a radio station. A particular song may well have been played by a radio station and heard by the claimant. The respondent had no control over the music being played, other than selecting a radio station. Playing a radio in the workplace was something that the respondent employees, in that part of the workplace, habitually did. There was no breach of contract.84.2 As for JP, she offered to support the claimant by meeting her in the car park and accompanying her in to work. The claimant thanked her for the offer but did not take her up on it.[85]No. I have already set out my conclusions about issues 6 and.7. As for the other issues, I refer to my findings of fact:- Issue 1 – I have no criticism of the respondent’s reluctance to become involved in correcting a medical record that it had not seen and had not influenced. Issue 2 – there was no evidence that colleagues of the claimant were wearing similar clothes to the claimant. Issue 3 – I have no criticism of MWs actions in addressing this issue. If Ms Woods had asked the claimant whether she was schizophrenic then it would have been upsetting to her. It could have formed part of a course of conduct which, when viewed cumulatively amounted to a repudiatory breach. However, it was not. If it did happen at all then it was a one-off incident that happened many months before the claimant’s resignation. It was not the reason (or even a reason) the claimant resigned. Issue 4 – I find that the word delusional was used by the claimant and accurately recorded. Issue 5 – I find that another employee of the respondent used the computer generally used by the claimant during her absence. When the claimant turned on the computer, it asked for the log in details of the user who had used the computer last. (5) Did the employee resign in response (or partly in response) to that breach?[86]There was no breach by the respondent. Employment Judge Leach Date: 16 December 2021