Ms S Doyle and Mrs K Dowd v City of Liverpool College: 2402751/2022 and 2404798/2022
EMPLOYMENT TRIBUNALS
Case No 2402751/2022, 2404798/2022
Between
Ms S Doyle and Mrs K DowdClaimantCity of Liverpool CollegeRespondent
Before
Employment Judge BarkerIn person for claimantMs Skeaping (instructed by solicitor) for respondentDate 20 February 2025
JUDGMENT
The unanimous decision of the Tribunal is(1) The complaints of constructive unfair dismissal are well-founded. The claimants were unfairly dismissed.(2) Mrs Dowd’s complaint of harassment related to disability is not well-founded and is dismissed.(3) Mrs Dowd’s complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed. Case numbers: 2402751/2022 2404798/2022 2
REASONS
[1]By claim forms presented to the Tribunal on 24 April 2022 (Ms Doyle) and 16 June 2022 (Mrs Dowd) and having completed ACAS Early Conciliation, the claimants commenced proceedings against the respondent. Ms Doyle’s claim is for constructive unfair dismissal. Mrs Dowd’s claims are for constructive unfair dismissal and disability discrimination, being discrimination arising from disability and harassment (ss15 and 26 Equality Act 2010).[2]Mrs Dowd’s claim was the subject of a preliminary hearing on 24 August 2022 before Employment Judge Whittaker and a further preliminary hearing took place on 24 January 2023 for both claimants before Employment Judge Whittaker. A preliminary hearing before Employment Judge Horne on 28 April 2023 took place at which the list of issues was clarified. Employment Judge Horne, having discussed the narrative of the claims with the claimants, compiled a list of 45 alleged breaches of the duty of trust and confidence from September 2019 until the dates of the claimants’ resignations in January 2022.[3]Mrs Dowd had also initially presented a claim for automatic unfair dismissal due to trade union activities. At a preliminary hearing on 3 November 2023, Employment Judge Shotter was not able to determine any of the issues before the Tribunal on that occasion as Mrs Dowd wanted to seek legal advice on the respondent’s strike out application of the automatic unfair dismissal claim, and also the respondent’s solicitor was ill with Covid.[4]There was a fifth and final preliminary hearing listed for 23 April 2024. However, prior to this Mrs Dowd withdrew her trade union claim, which was dismissed in a judgment dated 9 February 2024. The preliminary hearing was therefore vacated by Employment Judge Allen in a letter to the parties dated 22 April 2024.[5]The List of Issues was discussed on day one of this hearing and further clarified by the Tribunal on day three of the hearing by agreement with the parties, and the list of breaches of trust and confidence was reduced from 45 to 25 allegations. The respondent was given time following this to revise its cross-examination questions.[6]On day 3, both parties made applications to introduce new documents in evidence. The claimants’ application was refused as the Tribunal was not persuaded that the new issue that the documents dealt with was part of the Case numbers: 2402751/2022 2404798/2022 3 existing claims, nor that the balance of prejudice was in favour of allowing the claimants to introduce them.[7]The respondent’s application was to introduce documents which were emails from 2018 between the respondent’s principal, Ms Bowker, and the headteacher of her child’s school, which contained a detailed report from Ms Bowker of her assessment of the child’s special educational needs and difficulties experienced by the child in the school environment. These emails had been forwarded by the respondent’s principal to Ms Doyle afterwards, the respondent said, to assist Ms Doyle in advocating for her own child. The respondent applied for them to be introduced in evidence due to, it was said, Ms Doyle having given evidence the previous day that she had not known that the child, who is referred to as “X” in these proceedings, was dyslexic. The Tribunal noted that the emails which the respondent wished to disclose were not an official statement of X’s needs, but Ms Bowker’s report of the same. The respondent said that a formal statement of X’s needs was in existence but it had not been disclosed, and the respondent’s representative said they were looking for it on an ongoing basis during the hearing. It was not found by the conclusion of the hearing.[8]The respondent acknowledged that these emails had no input from an educational psychologist and were from September 2018, a year before X began to be educated at the respondent, in the claimants’ Digital Academy, which is part of the respondent’s college. Given the age of X in 2018, as a Key Stage 3 pupil, the Tribunal noted that it would be expected that his needs would be the subject of review and reassessment and what may have been relevant in a school environment in 2018 may no longer have been relevant in the respondent’s Digital Academy a year later.[9]Moreover, we were concerned about the highly personal nature of the information disclosed in the emails in relation to X and asked whether, given that X was (at the time of this hearing) an adult, he had consented to this information being used in public proceedings. The respondent’s representative told the Tribunal that his consent was not necessary as the documents were relevant to the proceedings. Given the paucity of information about X’s educational needs in the Tribunal bundle and given that this was already an issue between the parties, the emails were allowed to be admitted in evidence.[10]However, of our own volition we considered it necessary under Rule 50 of the ET Rules of Procedure 2013 that a Restricted Reporting Order be put in place specifically in relation to the content of these emails from 2018, given X’s age, his vulnerability and the highly personal information that the emails disclosed. The parties were given full reasons for this, which have been recorded in the Order itself. However, having considered the emails which are the subject Case numbers: 2402751/2022 2404798/2022 4 of the Order in the context of our deliberations , we have not found it necessary to refer to their contents in this judgment. They were not sufficiently relevant to the issues that we had to decide. This reserved judgment is therefore not, itself, covered by any privacy or restricted reporting order. We have taken the pragmatic decision to refer (as was agreed with the parties) to the child in question as “X” throughout this judgment and reasons to safeguard his privacy and having formed the view that it is not contrary to the principle of open justice to do so.[11]The Tribunal heard evidence from both claimants, from Mr Hussain for the claimants and the following witnesses for the respondent: Mr Harrop, the respondent’s HR director, Mr Tavernor, a member of the respondent’s board of governors, Ms Gooch, who replaced Ms Doyle as head of the Digital Academy, Mrs Leyden, an HR Business Partner and colleague of Mr Harrop, Mr Kilkenny, Ms Williams, Director of Personal Development and Progression, Ms Banks, the deputy principal, Mr Waldron, Director of Education, Ms Schofield, head of faculty and Ms Bowker, the principal of the respondent. The claimants had proposed to call further witnesses, namely Mr Smith and Ms Doran, but Ms Doran was not available and Mr Smith’s evidence was not required due to the reduction in the List of Issues.[12]Following the adjournment between day 8 and day 9 of the hearing, the respondent applied to introduce two more new items of evidence. The first was WhatsApp and text messages between Ms Doyle and Ms Bowker, which were allowed, but were not found to be of relevance to the issues we had to decide.[13]The second was Ms Schofield’s notes which she presented to Ms Banks as evidence which contributed to the claimants’ suspension in January 2022. Given the importance of these notes to the proceedings, and the presence of both Ms Banks and Ms Schofield as witnesses who provided significant evidence to the Tribunal, we were surprised and concerned that these had not been disclosed until Ms Banks happened to mention in her answers to cross-examination that they existed. Ms Schofield had seemingly not thought them relevant to her evidence. They were five pages of handwritten notes. They were first provided to the claimants and the Tribunal on day 9. The respondent’s application to introduce them in evidence was considered on day 9 and refused, due to the delay in disclosing them, and the balance of prejudice to the claimants in having to respond to them at very short notice and having already finished giving their own evidence many days earlier. We also took into account that Ms Schofield’s witness statement and oral evidence as to what she says she uncovered in relation to the claimants’ conduct was already before the Tribunal.[14]The parties agreed to provide their closing statements in writing. The Tribunal offered the claimants guidance on the law of constructive dismissal and Case numbers: 2402751/2022 2404798/2022 5 disability discrimination. Mrs Dowd confirmed that guidance on disability discrimination was not needed, and the Tribunal reminded her that the allegations were as agreed at the case management hearings and recorded in case management orders (as listed above). However, Mrs Dowd’s closing submissions were in relation to claims for a failure to make reasonable adjustments, not the claims she had previously agreed were before the Tribunal. We consider this to have been a mistake on her part. The Tribunal considered at the time those submissions were received, whether taking Mrs Dowd’s case at its highest, any or all of those claims would have succeeded, and found they would not for the reasons set out below. As had been explained to the claimants, there is no obligation for a party to make closing submissions. Had we been in any doubt about the prospects of success of the disability discrimination claims, we would have contacted Mrs Dowd for further submissions.[15]The Tribunal was surprised and concerned to note that the respondent’s closing submissions contained documents which had not been introduced in evidence previously. There was no accompanying application to introduce such documents. The claimants were not given any notice that such new information would be included and therefore have had no opportunity to consider it and comment on it. Such action is inappropriate and improper. The additional evidence has not been considered by the Tribunal.[16]The respondent commented on a number of occasions during the hearing that the claimants’ case was not the case that had been pleaded or raised at case management stages. We do not agree with that submission. We agree that the list of issues narrowed considerably in number and scope during the hearing, but that is encouraged by the Tribunal as part of our case management duties. However, we find that the rest of the claimants’ case was consistently argued with what had been discussed at earlier stages of the proceedings. It may be that the respondent interpreted their arguments differently, but that does not mean that the basis of the claims themselves had changed, in our view.[17]The respondent’s closing submissions also contained a lengthy section which was said to note where the respondent’s evidence was “not challenged” by the claimants. In particular, the closing submissions contain lengthy reference to much of Ms Bowker’s statement that was “not challenged” by the claimants. We do not accept that the respondent’s account of the claimants’ cross-examination of the respondent’s witnesses is completely accurate. Furthermore, some of the statements made by the respondent’s witnesses were undermined by other of the respondent’s witness evidence elsewhere. The claimants are litigants in person and the Tribunal is not bound by strict rules of evidence in any event. We proceeded on the basis that the claimants’ case was clear and was understood, as evidenced by a list of issues. The respondent may have placed a different interpretation on the claims from us, but that does not mean that the Case numbers: 2402751/2022 2404798/2022 6 claims were not clearly put. If the claimants have not challenged every single point put by the respondents in evidence, we do not consider that it follows that those points were not disputed by them, if their lack of agreement was clear and consistent from other aspects of their evidence and submissions.[18]The Tribunal may direct that evidence that does not address the issues we had to decide need not be heard, and we provided the claimants with direction that, given the reduction in the list of issues, that they did not need to cross-examine Ms Bowker on much of her statement. Given that their primary case is that Ms Bowker was purposefully not involved in a professional capacity in matters concerning her child, we were not entirely clear why her witness statement was so long, or why so many of the respondent’s witnesses provided paragraphs in their witness statement to say what close associates or close personal friends they were of Ms Bowker, and to provide commentary on her good character and good deeds. This included Mr Tavenor, who is a member of the board of governors of the respondent and therefore part of the group of individuals whose role is to challenge and supervise the actions of the senior leadership team including the principal. It is part of the claimants’ case that the senior leadership team are all close friends and associates of Ms Bowker and that this led to impartial and inappropriate decisions being taken, some of which were breaches of the respondent’s duty of trust and confidence to the claimants themselves.[19]We also noted that some of the respondent’s witnesses appeared to be unusually stressed when giving their evidence. In our experience, it is highly unusual for witnesses to visibly shake, perspire, and flush bright red in response to being asked a question, particularly mid-way through their evidence. Witnesses may be nervous at the start of giving their evidence, but it is unusual for them to suddenly become visibly nervous in response to a particular line of questioning.[20]On the respondent’s case, Mr Harrop was key in the decision to suspend the claimants on the terms set out in the suspension letter. He is the respondent’s HR Director. He was therefore a key witness in these proceedings as to the reasons why he considered such suspension terms were appropriate. However, we found he was not a reliable witness. His evidence and his testimony were contradictory. He gave evidence that the safeguarding concerns about registers raised against the claimants were both serious but also not serious, that the respondent uncovered widespread issues with register inaccuracy across the Digital Academy and also that register inaccuracies were not widespread, that the respondent had always had a conflict of interest policy but that Ms Bowker was right when she said there wasn’t one when asked about it in October 2021. We find that he appeared to have regrettably given very little Case numbers: 2402751/2022 2404798/2022 7 thought to his evidence and did not appear to notice the extent to which his answers were contradictory.[21]The claimants and Mr Hussain provided straightforward and credible answers to cross-examination questions. We generally found their evidence to be reliable and consistent with the contemporaneous documentation in the bundle. Findings of Fact
Background
[22]A number of the claimants’ allegations of breaches of trust and confidence were withdrawn during the course of the hearing. We make findings of fact on that matters that make up the background and context of the claimants’ resignations in so far as is necessary to determine their complaints. Therefore, this judgment and reasons may be silent in relation to some of the matters that were before the Tribunal. This is not because those facts were not considered by us, but that we did not consider them to be sufficiently relevant to the issues that we had to decide to include a discussion of them in this judgment.[23]The respondent is a very large further education college and is the only general further education college in Liverpool. It is a college comprised of a number of individual “schools” or “academies” and approximately 12,000 students study there each year. The Digital Academy (“DA”) had 280 to 300 students and 12 staff at the relevant time. Ms Doyle and Mrs Dowd were the head and deputy head of the DA at the time to which these claims relate. The DA provides a variety of courses from short and entry-level to longer, degree-level courses.[24]The respondent’s evidence is that X, who is the child of Ms Bowker, the principal of the respondent, has multiple diagnoses of neurodiversity and at the time had some associated behavioural issues. There appears to have been an agreement with his secondary school that X would transfer to the respondent to continue his studies, as so-called “alternative provision”, in September 2019 when X was 14 and in year 9. As the respondent is an FE college, X was one of a small minority of students under the age of 16 who were in attendance with those aged 16-18 and those who were adults.[25]The email exchanges before us in evidence between Ms Bowker and X’s headteacher in 2018 show, we find, that X’s headteacher did not agree with Ms Bowker about the extent to which further adjustments would need to be made for X at his secondary school, with the headteacher remarking that he did not consider that some of the adjustments being requested would benefit X. We Case numbers: 2402751/2022 2404798/2022 8 have taken judicial notice of the fact that , in the absence of an Educational and Healthcare Plan (“EHCP”), which X did not have at the time to which these proceedings relate, this is a common part of discussions between parents and professional and experienced educators, such as X’s former headteacher, about providing reasonable adjustments. It is part of a process of negotiation and agreement about what adjustments are reasonable and possible for a particular student. In that sense, it is an analogous process to making reasonable adjustments in the workplace.[26]The claimants’ complaints about Ms Bowker’s conduct in relation to X’s transfer to the respondent’s DA is that they were never provided with any formal assessment or formal statement of X’s needs. There was no opportunity for a two-way discussion between educator and parent/guardian about the adjustments that they would be able to make for X. They submit that this was contrary to the respondent’s normal procedure for special needs students. We accept the claimants’ assertions and evidence in this regard for the following reasons.[27]The respondent’s own witnesses gave evidence that the usual process for assessing and then meeting the special educational needs of a student was for the respondent’s team, which was led by Aamir Butt, to carry out a formal assessment once the student concerned had identified that he or she had special needs. Ms Bowker’s evidence was that she had given Mr Butt full information about X’s needs. This is not, however, the sum total of the process, but only the start of it, we find.[28]Ms Banks gave evidence that “the normal practice is if the student ticks the box, a statement of assessment of needs is carried out by Aamir Butt.” This is clearly distinct from a parent, in this case Ms Bowker, simply telling Mr Butt what her child’s needs are.[29]Mr Waldron gave evidence that students with special needs had assessments and that the respondent has a team of specialist advisors available to assess students’ needs if no EHCP is available.[30]Ms Williams, whose witness statement notes that her role includes ensuring that all of the respondent’s students have the “wrap around support and care they deserve”, including via “additional learner support”, admitted that “nothing was drawn up to share with the staff” about X’s needs and that there was no formal documentation on the respondent’s Promonitor systems. Possibly because of this lack of formal documentation, despite noting in her statement (at paragraph 20) that X had “many disabilities”, when asked under cross-examination what those disabilities were, Ms Williams was unable to recall anything more than two discrete issues. Nevertheless, in her witness statement Case numbers: 2402751/2022 2404798/2022 9 she was highly critical of the claimants for a “lack of consideration of X’s specific needs”, which consideration we find would be challenging given the lack of any formal statement in line with the usual procedure.[31]It was put to Ms Banks, who was the deputy principal of the respondent at the time, and who took the decision to suspend the claimants, that the claimants had been unable to understand X’s needs as there were no official statements of such for them to refer to. Ms Banks’ reply was “I can’t answer that.”[32]There is no evidence that Ms Bowker used the respondent’s facilities to have X’s needs assessed except in her witness statement, at paragraph 24 “X did however have an Assessment of Needs which had been carried out for X as is the normal practice, by Aamir Butt and his team at the College. This set out the support and adjustments that X required at college to successfully participate in the course and also in respect of how X would be assessed.”[33]We do not accept that this statement, which was confirmed by her in her answers to cross-examination, is correct. We find on the balance of probabilities that no such assessment was ever carried out either by Aamir Butt or any of his team at the respondent. No copy of such an assessment was before us in evidence. We requested that it be disclosed on several occasions and were told that the respondent was looking for it. It was never found. The claimants’ evidence was that no such statement was ever shown to them and also that no proper statement on the respondent’s systems as to what X’s needs were.[34]Perhaps most notably, none of the documents we were referred to that discussed X at the time make any reference to any assessment of needs or any formal statement recording the same, despite the contemporaneous documents which we were referred to specifically discussing his needs. The respondent’s witnesses make no reference to any statement of needs in their witness statements. When Ms Bowker called a meeting of the senior members of the respondent’s management team, on 22 October 2021, to complain that X’s needs were not being met, no reference was made to any formal statement of his needs and what adjustments the respondent was supposed to make for him. Ms Banks accepted that Aamir Butt was not invited to that meeting.[35]We do not accept the respondent’s submissions that the fact that the claimants knew of X’s conditions, including by seeing the emails to and from X’s former headteacher in 2018, was sufficient for their purposes as educators of X with an obligation to make adjustments for him in a new college environment a year later. The respondent’s submissions are that the claimants had the obligation if they were unsure about X’s needs to seek clarity from Mr Butt. Case numbers: 2402751/2022 2404798/2022 10 However, given that we have found that Mr Butt did not undertake such an assessment, he would have been in no position to assist the claimants. This is also entirely contrary to the normal procedure as we understand it.[36]What appears instead to have been expected of the claimants (and other members of the senior leadership team such as Ms Banks) is that they would simply respond to instructions Ms Bowker gave them regarding X’s requirements, in private messages or otherwise. While we accept that any parent or guardian would ordinarily have input into a discussion of a student’s requirements, this would not be the sole determination of what should be provided for that student. In the absence of a formal EHCP, there would be a process by which the staff of the organisation would be able to comment on what could be reasonably provided or what they, in their professional opinion, consider would assist, as was done with X’s former headteacher. There was no opportunity for staff to have such a discussion in X’s case and seemingly no expectation by Ms Bowker that there would be such a discussion. This, we find, adversely impacted the claimants’ ability to plan, including to plan to meet X’s needs. Ms Bowker in her own witness statement admitted (in paragraph 22) that she did give ad hoc instructions directly to members of staff, for example, for someone to check in with X if he was “struggling mentally or finding a situation particularly challenging”.[37]As these messages came directly from the principal, we find that this was received as an instruction that it was expected staff would carry out. This contrasts with the situation that any other parent would find themselves in, which is that requests could be made but there would be no guarantee that they would be actioned. We accept that X had no EHCP at the time, but Ms Bowker as principal understood the process in her own institution and the facilities available such as provided by Aamir Butt’s team, but we find she chose not to use them. Instead, her expectation was that the claimants would respond to any instruction from her that was given in relation to X.[38]We find that there was no day-to-day delegated authority regarding communications about X’s needs, as Ms Banks confirmed that she was the delegated authority for Ms Bowker about X but she only carried out this role on two discrete and short-term occasions. Day-to-day it was Ms Bowker who communicated with the claimants about X both as his parent and as Principal of the respondent and therefore we find gave instructions which were received by the claimants in the context of that authority. That the respondent had provision for delegated authority is confirmation that the respondent understood that Ms Bowker’s contact as X’s parent could be interpreted in this way. However, as we have noted, day to day the delegated authority was not used and Ms Bowker did communicate directly with the claimants about X. Case numbers: 2402751/2022 2404798/2022 11[39]The claimants have told the Tribunal that they considered themselves to be under considerable pressure because of these circumstances as they had no opportunity to discuss the adjustments, as they were received by them as a direct management instruction. We accept their evidence in this regard. However, we note that the claimants did comply with these instructions, despite their misgivings, to the best of their ability from when X arrived at the respondent.[40]X’s education at the respondent began in September 2019 and continued until autumn 2021, the disruptions for Covid notwithstanding. There were submissions made by the parties about the X’s enrolment on various courses, the help and support he was given during this time and the provision of “Centre Assessed Grades” and “Teacher Assessed Grades” for X in the academic years 2019/2020 and 2020/2021. If there were any breaches of trust and confidence by the respondent as alleged by the claimants, we find and the claimants accept that they took no action in respect of them, as they remained in employment until January 2022 and raised no grievance or other complaint during that time.[41]The complaints to which these proceedings relate (following the revised list of issues) began in May 2021. The respondent’s quality management team carried out a Quality Assurance visit to the DA in May 2021. We accept that this was a lengthy process, involving quality assessment over the course of a week and involved an in-depth examination of all areas of the claimants’ academy. The conclusion of the visit and the report noted that broadly, there were areas for improvement but also several complementary comments about the DA and the claimants’ performance as senior leaders. There is evidence that the respondent was aware that the DA struggled to recruit suitable teaching staff and that they were short-staffed, particularly in relation to several courses.[42]Ms Doyle applied for promotion at the respondent at about the same time in 2021 and was unsuccessful. The respondent’s evidence, which we accept, was that she was disappointed with this and met Ms Bowker for some feedback. However, we find no evidence that Ms Doyle began to look for jobs outside the respondent at this point. We accept her evidence that she did not want to leave the respondent, as she had great affection for the college, having been a student there herself. September and October 2021[43]Due to their staffing difficulties, the claimants submitted “staffing requests” to the respondent’s senior leadership (Mr Kilkenny) in May and September 2021, but we find these were not approved by Mr Kilkenny in good time. Mr Kilkenny was then absent due to sickness and the staffing requests were not approved by Ms Banks until after the 2021-2022 academic year had already started. The claimants therefore struggled to recruit staff, as the usual recruitment window for the new academic year had closed. Consequently, we Case numbers: 2402751/2022 2404798/2022 12 accept the claimants’ evidence that they faced significant issues timetabling staff and even had to find time in their working week to cover classes themselves.[44]Mr Waldron, who was the respondent’s Director of Education at the time, gave evidence that Mr Kilkenny and others in the respondent’s executive team made decisions around course closures at the start of each course if there were fewer than 5 students enrolled on those courses. In September 2021, one of these was the course that X intended to study.[45]Ms Bowker’s evidence was that she was told by Mr Kilkenny that several courses would not run, including the one X was registered on. While Ms Bowker agreed that X’s course was not financially viable, and should not run, her evidence in her witness statement was that she was unhappy on X’s behalf that this cancellation was going to be communicated so close to the start of term. We find that this was a decision that was not taken by the claimants but by the respondent’s executive team.[46]She said that she was concerned whether other students with disabilities were affected by these cancellations. However, the respondent’s evidence was, we find, that such cancellations were always possible at the start of an academic year and so there would, in theory, always be the possibility that students with disabilities could be affected by them. The difference on this occasion, we find, was that one such student was her child.[47]She asked Mr Kilkenny what was being done to minimise the impact on such students and meet their needs. We note that Mr Kilkenny did not disagree with the claimants that there were two other students originally enrolled on that course, but there is no evidence that any investigations were done as to the impact on them. There is no evidence of investigations being done as to whether any other students, with disabilities or without, were affected by cancellations that year. This, we find, was to be expected, as courses were commonly reviewed where student numbers were low. We therefore find that carrying out such an investigation for X would have been contrary to normal practice at the respondent.[48]Ms Bowker’s evidence is that “it was agreed that X would attend a number of classes as an infill student to enable X to gain the Coding qualification, as the units required were included as content within other full-time courses.” We do not accept that this is what happened for X, as set out below.[49]Agreement as to what would be done for X was reached between her and Mr Kilkenny, on Ms Bowker’s own evidence, with only her and Mr Kilkenny in that meeting. We note that the claimants were not involved in this decision. Case numbers: 2402751/2022 2404798/2022 13[50]It is the claimants’ evidence, which we accept, that on 3 September 2021 Ms Doyle was telephoned by Mr Kilkenny to discuss that the Level 3 course which X was due to study, was not financially viable as it did not have enough students registered on it. Mr Kilkenny asked Ms Doyle to meet Mr Waldron to discuss arrangements for X and they met in early September.[51]Whether Mr Waldron gave a direct instruction to Ms Doyle or not, we find that she understood that an individual plan of learning had to be done for X. The fact that Mr Waldron called a meeting at which the problem with X’s course was highlighted and personalisation of study was discussed was sufficient for the claimants to know that personalised arrangements were required for X. As we have already noted, we find that no discussion took place and no concerns were raised for other students who may have been in a similar position to X.[52]Ms Doyle arrived at the office for the meeting, and we accept her evidence that Mr Waldron said “I’ve just come off the phone with Elaine [Bowker]” and that she had given him an instruction regarding alternative courses being ensured for X. Mr Waldron, in his evidence, could not recall giving Ms Doyle an instruction to keep X on the Level 3 course, or what was discussed beyond that. Mr Waldron said that the decision to close courses was made by Mr Kilkenny at executive level, so we find that Ms Doyle did not have any authority to keep a course running herself, but despite this Mr Waldron repeatedly also gave evidence that any decision on courses was with the head of school, which we find is evidence that is inconsistent with that given by other witnesses of the respondent.[53]Therefore, in this instance, as X continued with Level 3 Coding as the only student, this created a bespoke provision for this student which the claimants say was unique to him in the school. We accept the claimants’ evidence that he was on a unique register code. The instruction to allow this, we find, came from the respondent’s executive. The claimants understood they had to ensure this was done.[54]Ms Bowker’s evidence was that X struggled in the first half of the autumn term. Her witness statement notes “one issue…was with regard to confusion over the course X was studying” However, we find that this course was what had been agreed between her and Mr Kilkenny and implemented by Ms Doyle with considerable difficulty, including a unique register code. It is not surprising that X found these arrangements confusing, as the DA was not, we find, set up to provide such arrangements for students and moreover, as they were short-staffed, this was particularly challenging that year.[55]We find that the claimants and Ms Doyle in particular, began to understand in October 2021 that they were falling out of Ms Bowker’s favour. They were struggling to staff the classes in the DA. As discussed above, the Case numbers: 2402751/2022 2404798/2022 14 course on which X had enrolled in September had not run due to low student numbers and the DA struggled to compensate for this with bespoke provision for X. The evidence before us was that in the autumn term of 2021, X was unhappy and did not want to continue to attend College. Ms Bowker, both as X’s parent and as Principal, was unhappy with the claimants’ provision for X and of his experience in the DA.[56]The DA staffing difficulties or the different treatment given to X when compared with other students in the DA do not appear to have been considered by Ms Bowker when, on 22 October 2021 she emailed Ms Williams and other members of the senior leadership team with a complaint about X’s experience in the DA. By this stage X’s attendance was poor and Ms Bowker told the senior leadership team that X was unlikely to return to college after the October half term. This email was sent from her college email account and signed off with her signature as “Principal”. We consider this to be an instruction from the principal and not a complaint from a parent. We accept Ms Doyle’s evidence that there was a formal complaints process for parents and guardians that was not followed here.[57]The email she wrote on 22 October 2021 to Gill Banks and other members of the SLT issued what we find was an instruction to investigate the circumstances in the DA at the time. She wrote “I have set out some questions that need investigating for me as a parent”. She requested a meeting early after the return from half term as X was thinking of not returning to college. We find that it would be highly unlikely that a parent of another student would have had a list of complaints investigated by such a senior group of people without any initial consideration of whether any of those complaints were reasonable. They understood this to be a direct management instruction from the principal.[58]The meeting was attended by some of the most senior members of the respondent, such as Ms Williams, Mr Waldron and Ms Banks. We note that Aamir Butt was not invited to this meeting. There is no reference in the email of 22 October, or the evidence of the respondent’s witnesses, about any agreed statement of X’s needs, which we find is noteworthy given that the meeting arose out of a complaint that the needs of X were not being met. We find that this was because, as noted before, there was no agreed statement of X’s needs for the respondent’s staff to meet. X’s needs were met based on Ms Bowker’s instructions, which the respondent’s staff were expected to comply with. Ms Banks’ evidence during cross-examination was that she considered that this meeting constituted Ms Bowker giving the senior staff her instructions, and that Ms Banks divided up the list of issues for investigation to other staff who were present. Case numbers: 2402751/2022 2404798/2022 15[59]Ms Doyle’s evidence was that immediately after this meeting, Ms Williams spoke to her. Ms Doyle’s evidence, which we accept, was that Ms Williams told her that Ms Bowker was “incredibly unhappy” with X’s experience in the DA and that Ms Williams also said to her “I just need Elaine to forget about this, Steph”. Ms Williams flatly denied having said this, and Ms Doyle said that she did. On the balance of probabilities, we find that Ms Williams did say this to Ms Doyle. It is clear from the tone of Ms Bowker’s email of 22 October that she was, indeed, “incredibly unhappy” and clear from the tone of her email and her staff’s response to it (and Ms Banks’ evidence of what she did afterwards) that an immediate and high-level response was expected by Ms Bowker. None of the respondent’s senior leadership appear to have felt able to speak openly to Ms Bowker about this, to inform her about the staffing challenges in the DA, to remind her of the low numbers on X’s chosen course, to discuss the absence of an agreed statement of adjustments to be provided for X, or of the correct procedure for filing a complaint as a parent.[60]Ms Doyle’s evidence was that such an issue would ordinarily go through the respondent’s complaints procedure and that other parents of SEN students were not able to exert such influence for one student. She also said that the progress leader Kate McFarlane would pick up with the parent of the student if there was a pattern of absence that caused concern. This did not happen on this occasion, we find. Her evidence was that she lost trust in the respondent’s leadership at this point. She said that Ms Bowker’s behaviour was unfair and unethical and added to the pressures that were already on the DA. The pressure was applied after Ms Bowker’s intervention to create a personalised timetable for X of one-to-one tuition despite chronic staff shortages based on what Ms Doyle referred to as “bespoke requests” in the weeks and months that followed. November 2021[61]It is an allegation of the claimants that, in addition to two “deep dive” quality visits, they were subject to a proposed “curriculum transformation” in November 2021 which would have taken up further time and resources and taken the management of the school further out of their hands. They say this curriculum transformation was proposed by Mr Waldron. In Ms Bowker’s email of 22 October discussed above, there is reference to a transformation programme involving the DA being already underway. There was some dispute during Mr Waldron’s cross-examination as to whether he ever met the claimants in November 2021 to discuss this transformation. His evidence was that the email was not referring to the transformation programme that he was involved in, which was started of his own volition on the back of seeing a report by Ellie Kerr which praised the DA and highlighted its future potential, including in relation to projects and collaboration with employers. However, whether Mr Waldron did this as he describes, there was a meeting with the claimants regarding some form of transformation with him on 1 November 2021 which they Case numbers: 2402751/2022 2404798/2022 16 interpreted as putting them under yet more pressure and which would result in more interference with their ability to deliver the curriculum. He accepted that there was such a meeting when cross-examined about it.[62]Following her conversation with Ms Williams, Ms Doyle sent an email to her on 4 November 2021 to set out X’s personalised plan of learning. The email shows that Ms Doyle provided extensive 1-2-1 teaching for X when the DA was so short-staffed that other students did not have staff to assist them at all. We find that Ms Doyle did this as she understood that the consequences for her of falling out of favour with Ms Bowker would have been significant. X appears to have had 3 out of his 4 contact sessions per week from 8 November 2021 as one to one sessions with members of DA staff, one session was fortnightly for 3 hours. As the DA only had 10-12 members of staff when fully staffed and at the time they were at least 2 members of staff short and experiencing significant absences and difficulties obtaining agency staff, this was a considerable time commitment to meet for the needs of one student.[63]The respondent’s timetabling department were asked to action these changes by Ms Doyle on 4 November 2021 and she chased again on 10 November, but there is no evidence before us that these changes were ever made. In any event X failed to attend these sessions and stopped attending college. This would, we find, have caused the claimants to waste staff time having provided sessions for one student that were not attended. It also meant, we find, that the official version of the DA timetable was not the one that the claimants tried to put into place in November 2021. When the claimants were subsequently criticised for timetabling and resourcing issues in January 2022, this does not appear to have been taken into account.[64]Despite the quality visit in May 2021 that was positive and constructive, the claimants were presented with a further quality visit of the same length and depth which took place for 5 days from 8 -12 November 2021. We accept the claimants’ evidence that this was unusual and caused them to feel under considerable and ever-increasing pressure by the respondent’s senior leadership. The feedback from the report was good and the report was signed off on 18 November 2021. The claimants allege that this was instigated by Ms Bowker to find further fault with the DA, but there is no evidence on which we could conclude on the balance of probabilities that she was involved as described. However, we note that this was a disruptive and time-consuming event that put the DA under further pressure in circumstances when they were already in considerable difficulties.[65]Both claimants were absent from work from 7 December 2021 onwards. Ms Doyle had Covid and Mrs Dowd was shielding from Covid as she was clinically vulnerable. We accept that there was no-one put in to manage the DA Case numbers: 2402751/2022 2404798/2022 17 in their absences. We accept that they tried to manage matters remotely and that this caused them difficulties. As noted above, they had tried to implement significant timetable changes to accommodate the requests for X, which do not appear to have been formally changed by the respondent’s timetabling team. X had also stopped attending college. We find that, understandably, this will have caused management and organisational issues in the DA that the claimants were struggling to deal with and which were made worse by their absences. The claimants’ sickness absences, January 2022[66]Mrs Dowd did not attend work at the start of term on 4 January, as she said she was feeling ill and had arranged cover. She was very ill from 6 January onwards with tonsillitis. Although the respondent was already aware, she notified Ms Schofield for the first time on 6 January 2022 about her disability, that being ulcerative colitis, and how it affected her and was affecting her at that time.[67]Mrs Dowd now alleges that Ms Schofield unreasonably contacted her and asked her to work after she informed her that her disability had flared up again. However, we note that after her email notifying Ms Schofield of her disability, Mrs Dowd volunteered to screen job applicants without being asked to do so by Ms Schofield, in reply to a message from Ms Schofield on 6 January 2022 at 13.53. Mrs Dowd wrote “If Rachel wants to forward any CVs from the agency over to me I’m happy to have a look”. It is therefore unreasonable to assert that Ms Schofield should have known that she was too unwell to work given that she volunteered to do so without being asked to.[68]Ms Doyle was sick from 3 January 2022 with a positive PCR test and so was also not able to return in January 2022.[69]The respondent’s evidence to this Tribunal was that the claimants committed a number of acts of misconduct and mismanagement of the DA before they resigned. Their witness, Ms Gooch who took over management of the DA after their resignation, provided evidence of what she found which the respondent says demonstrates the extent of their failings. However, by the time Ms Gooch took over the school at the end of January 2022, neither claimant had been in work for almost two months, and they had been struggling for the whole of the previous term with the issues detailed above. Furthermore, Ms Doyle had a one-to-one management meeting with Ms Banks every two weeks during the autumn term in 2021, at which Ms Banks confirmed in her evidence that none of these issues were raised.[70]We also note that there is no evidence of any serious concerns being raised with the claimants by anyone from 18 November 2021, the date of the Case numbers: 2402751/2022 2404798/2022 18 report providing the outcome of the second “deep dive” and 7 December 2021, when both started their sickness absences.[71]After the Christmas holidays, as both claimants were still absent, Ms Schofield was tasked with managing the DA from 4 January 2022. The evidence is that she made a number of calls and sent a number of messages to both claimants in the days after 4 January, which the claimants say were breaches of trust and confidence, and in Ms Dowd’s case, disability discrimination, but we find that she had an urgent need to manage the start of term in the claimants’ absence, and so had no alternative but to contact them as she did. Ms Schofield told the Tribunal that during the ten days between 4 January and 14 January when she met with Ms Banks, she uncovered several acts of misconduct and mismanagement on the part of the claimants, and a potential safeguarding breach. She met with Ms Banks on 14 January, and they discussed what she had found. They telephoned Mr Harrop the same day, who agreed that the claimants should be suspended.[72]Ms Schofield admitted that the claimants were not given an opportunity to provide any information to her before being suspended. She did not wait until the claimants were able to have a meeting with her after their return from sickness absence before taking any decision to suspend. The reason she gave for this was that they were off sick. However, Ms Schofield was able to contact the claimants for other DA business while they were absent. Also, Ms Doyle was suspended on her first day back at work so could have had a conversation with the respondent on that day prior to any decision to suspend her being taken.[73]The claimants were suspended on 19 January 2022. None of the respondent’s witnesses were able to explain why there was a delay of 5 days in the claimants’ suspension. We find that it is a relevant fact that Ms Doyle attended a job interview on 17 January 2022, and verbally accepted the job the same day. She had attended the interview without informing her manager while off sick. We find that this is highly likely to have been communicated to the senior executive and the principal, although this was not the respondent’s witnesses’ evidence.[74]The claimants’ suspension letter dated 19 January 2022 was, we find, dictated to Ms Leyden by Mr Harrop. It stated: 1. “I am writing to inform you of the decision to suspend you from duty with immediate effect until further notice…. 2. Your suspension is pending the outcome of a full and thorough investigation into the following allegations: Gross negligence, including but not limited to: Case numbers: 2402751/2022 2404798/2022 19• Noncompliance and monitoring of quality standards• Inaccurate approval of bank/agency work• Inaccurate registers which could lead to safeguarding concerns• Breach of trust and confidence”[75]The letter also informed the claimants that they would be invited to an investigation meeting and then a decision would be made to refer the matter to a formal hearing in line with the respondent’s Disciplinary Policy and Procedure.[76]The respondent’s witnesses gave evidence that there were student exams a few weeks away and a need to ensure that those students would have members of teaching staff available to help with their preparation. However, given how short-staffed the digital academy was in January 2022, we find it was counter-intuitive to suspend from duty the Head and the Deputy Head of School in order to achieve this aim. Ms Schofield said her primary aim was to ensure that those students had members of staff available to teach them, but we consider that depriving the DA of two experienced members of staff would undermine precisely those aims.[77]Also, the evidence from the suspension letter was that the claimants were suspended for gross negligence in relation to quality standards and bank/agency work and inaccurate registers. This would not, we find, automatically preclude a return to the classroom for the claimants.[78]Finally, we note that the respondent seems to have failed entirely to differentiate between the claimants and consider whether the allegations were relevant to either of them or both.[79]The respondent’s closing submissions were that the claimants were suspended on the basis of the concerns uncovered by Ms Schofield. However, the Tribunal has been presented with almost no contemporaneous evidence of what she found. She said she received a number of complaints from parents about inadequate feedback and a lack of progress reports during the autumn term but none of these were before us in evidence and we were given no explanation as to why these did not come to Ms Banks’ attention during that term. We were directed to what were described as “complaints” in the bundle, but we find that these were enquiries from students about the course start date in January 2022.[80]There was no evidence of a failure to update the VLE. Ms Schofield considered there had been mismanagement by the claimants, as there was no data on the Virtual Learning Environment (VLE). The claimants had an Case numbers: 2402751/2022 2404798/2022 20 explanation that the y could have offered to her had she asked, namely that due to a digital transformation earlier in the year there were two VLEs for the DA and it was likely that she was looking in the wrong place. Ms Schofield accepted in cross-examination that she was not aware of this transformation having taken place.[81]There was no evidence of timetabling issues, no evidence of the claimants’ actual or projected utilisation or that of other members of the DA. Matters that would be straightforward to substantiate such as Mrs Dowd’s actual and projected teaching hours have not been put in evidence before the Tribunal. As noted above, we find that on the balance of probabilities the DA timetable will have been in something of a mess, given the lengths the claimants had gone to in order to accommodate X, who had then stopped attending college.[82]Also, the issue of overpayment of bank staff was confirmed by Mr Harrop under cross-examination to be something that was easily rectified by recovering the money, and that overpayments did occasionally happen and were handled by HR to recover or manage as a deduction from the next month’s payments. Mr Harrop was asked what volume would warrant suspension, he said 2 or 3 overpayments by the same person. Mr Harrop said he would accept 92% accuracy, which allows for an 8% inaccuracy. The allegation against the claimants was for 7 hours of overpayments. Mr Harrop said that one overpayment was not sufficient to suspend. Mr Harrop accepted there was no evidence actually shown to him of overpayments and accepted that Ms Banks and Ms Schofield could have missed some mitigating evidence. Mr Harrop relied on what Ms Banks told him without seeing any evidence himself.[83]There was no evidence of genuine safeguarding concerns. The respondent’s evidence on the issue of register inaccuracies was highly inconsistent; Mr Harrop said in answers when giving evidence that there were widespread inaccuracies across the whole school and that he was told this. He said it wasn’t that Mrs Dowd did the register in question but only that she was responsible for it. We find it highly unlikely that the head of HR was told that the issue was widespread across the school and was a potential safeguarding matter but that no follow-up investigation was done after the claimants left.[84]The Tribunal is left with one of two possible options in this regard; the first is that the respondent has a cavalier attitude towards safeguarding and possible areas where a safeguarding risk may exist, in that it is made aware of such issues and fails to follow up with any investigation. Alternatively, the respondent never genuinely believed that there was a real risk of safeguarding failures and only included this to threaten and frighten the claimants. Mr Harrop said that he knew there was no risk of safeguarding needing referral in the claimants’ cases, so this was why there was no referral to the Local Authority Designated Officer. Case numbers: 2402751/2022 2404798/2022 21[85]We conclude that it is therefore the second option, that is, that the respondent never genuinely believed that there was a real risk of safeguarding failures and that HR included this in the suspension letter in order to put pressure on the claimants to resign.[86]This is self-evident when it is considered that none of the professional educators who knew of this so-called safeguarding matter took any steps to properly investigate it at the time or afterwards, contrary to what their statutory duty would be had they had genuine concerns. Ms Schofield said that the falsification of register marks was a safeguarding concern in her professional opinion as an OFSTED inspector, but despite this she made no enquiries as to the ages of the students to see if any were adults, which would have made a significant difference to the safeguarding concerns. She accepted that she never asked the claimants for their account of what happened, and she accepted that she relied on information from an unqualified teaching assistant. Neither she nor Ms Banks reported this matter further or ensured that there was any proper investigation into it.[87]Ms Schofield’s evidence was that there were a number of areas of concern. She said that four members of staff hadn’t returned to work after the Christmas holiday, and she was not sure where they were. She discovered that two had been given permission to work from home. She told the Tribunal that she was fully aware of the staffing issues at the start of the term in January. However, we note that these additional areas of concern were not set out in the suspension letter as reasons for the suspension. If they are said by the respondent to be covered under the very general heading of “gross negligence”, we do not consider this to be sufficiently clear. Ms Doyle’s Job Application and the claimants’ resignations[88]As noted above, Ms Doyle applied for a job at another FE college. We find that the job application was likely to have been submitted in December or January.[89]She attended an interview on 17 January 2022. The respondent alleges that this was an act of misconduct as she was off sick at the time. This was not a relevant consideration for us as even if it was, the respondent took no action, and this was not one of the grounds for the suspension Ms Doyle. In any event, Ms Doyle did not return to work and so was not given the opportunity to amend her attendance or sickness record.[90]Ms Doyle accepted the job offer verbally on 17 January 2022. She told the Tribunal that although she accepted it, “I was really concerned with the pay Case numbers: 2402751/2022 2404798/2022 22 and £10,000 a year less. I didn't think I could make it work on that salary and further away from my child in Warrington.”[91]We find that Ms Doyle would have returned to work after her sickness absence and would not have resigned immediately, if at all. She had not given her notice at this stage. If she had resigned, we find she would have worked her notice period. As noted above, as well as being on a higher salary at the respondent, she had long-standing affection for it, having studied there herself. After the suspension letters were received[92]Both claimants were given the suspension decision on 19 January 2022 after 11am.[93]Ms Doyle was suspended by Mr Waldron and given a letter later, then spoke to Ms Leyden on the same day by telephone. Ms Leyden’s evidence was that Ms Doyle had two conversations with her, but we find on the balance of probabilities that Ms Doyle had one conversation with her and note that Ms Doyle’s resignation email refers to their “discussion,” singular.[94]Ms Doyle’s evidence was that the final straw that prompted her resignation with immediate effect was the threat of safeguarding being on her reference as she knew she would never get a job in education again. Her evidence, which we accept, was “After I received the suspension letter, I contacted Ms Leyden and she said I had 24 hours to resign as the investigating manager had not been assigned to this investigation. I told her I had a job offer and I was very concerned about allegations of safeguarding. She said I had 24 hours to resign and college would give me a clear reference.”[95]We therefore find that Ms Leyden must have had prior authority to disclose that, if the claimants resigned before the letter inviting them to an investigation was sent, they would receive a clean reference. We find that Ms Leyden communicated this to the claimants in their single phone call with her.[96]Mrs Dowd received a phone call from Mr Waldron and Ms Leyden and was suspended. As with Ms Doyle, Mrs Dowd’s email refers to “telephone call” singular. Mrs Dowd sent her resignation by email the following day before 8am.[97]Mrs Dowd’s resignation was, she said, prompted by the perceived threat from Ms Leyden that if she didn’t resign straight away, her reference would refer to an “ongoing safeguarding investigation” which Mrs Dowd says would have ruined her career in education. Case numbers: 2402751/2022 2404798/2022 23[98]Mrs Dowd said “I believe the college weaponised the term “safeguarding concerns” to scare me into resigning when they had no real or plausible concerns. If they in fact did have these concerns, yet we're happy to offer a clear reference, then they're admitting that they were happy to falsify a reference in breach of safeguarding laws.”[99]We accept the claimants’ evidence as to the reasons for their resignations. The respondent submits that the issue of safeguarding was never raised by the claimants as a specific aspect of their suspensions which caused their resignations. However, we find that when the claimants’ claims are considered as a whole, and with an understanding of the catastrophic consequences of a safeguarding allegation on a teacher’s reputation and career, this was self-evidently a primary factor in their resignations.
The Law
[100]Sections 95(1)(c) and 136(1)(c) Employment Rights Act 1996 provide that there is a dismissal when an employee terminates their contract, with or without notice, in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct.[101]In Western Excavating (ECC) Ltd v Sharp 1978 ICR 221, CA, the Court of Appeal ruled that the employer’s conduct which gives rise to a constructive dismissal must involve a repudiatory breach of contract: ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.’ (Lord Denning MR)[102]In order to claim constructive dismissal, the employee must establish that:a. there was a fundamental breach of contract on the part of the employer that repudiated the contract of employmentb. the employer’s breach caused the employee to resign, andc. the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.[103]Once an employment tribunal has established that the relevant contractual term exists and that a breach has occurred, it must then consider whether the breach is fundamental, that is, whether it repudiated the whole contract. This is a question of fact and degree for the Tribunal. Case numbers: 2402751/2022 2404798/2022 24[104]A key factor for the tribunal to take into account is the effect that the breach has on the employee concerned. An example is that a £5 pay cut is a more serious matter for an employee earning £100 per week than it is for an employee earning £500, and is therefore more likely to constitute a fundamental breach with regard to the former.[105]The employer’s motive for the conduct causing the employee to resign is irrelevant. The circumstances that induced the employer to act in breach of contract have no bearing on whether a fundamental breach has occurred. (Wadham Stringer Commercials (London) Ltd v Brown 1983 IRLR 46, EAT).[106]The law implies a term into all contracts of employment that employers (and employees) will not, without reasonable or proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties. (Courtaulds Northern Textiles Ltd v Andrew 1979 IRLR 84, EAT). ‘[T]he tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it’ (Woods v WM Car Services (Peterborough) Ltd 1981 ICR 666, EAT).[107]Where the employee waits too long after the employer’s breach of contract before resigning, he or she may be taken to have affirmed the contract and thereby lost the right to claim constructive dismissal.[108]Chindove v William Morrison Supermarkets plc EAT 0201/13 - what matters is whether, in all the circumstances, the employee’s conduct has shown an intention to continue in employment rather than resign. The employee’s own situation should be considered as part of the circumstances.[109]An employee who is the victim of a continuing cumulative breach of contract is entitled to rely on the totality of the employer’s acts, notwithstanding a prior affirmation. Kaur v Leeds Teaching Hospitals NHS Trust, CA, if the last straw incident is part of a course of conduct that cumulatively amounts to a breach of the implied term of trust and confidence, it does not matter that the employee had affirmed the contract by continuing to work after previous incidents which formed part of the same course of conduct. The effect of the last straw is to revive the employee’s right to resign.[110]Causation: Whether the employee left employment in response to the employer’s breach of contract is a question of fact for the tribunal. The employee does not have to inform the employer as to why he or she is resigning (Weathersfield Ltd v Sargent 1999 ICR 425, CA).[111]There may be more than one reason why an employee leaves a job. In Jones v F Sirl and Son (Furnishers) Ltd 1997 IRLR 493, EAT, the claimant had been subjected to a number of fundamental breaches of contract in the space Case numbers: 2402751/2022 2404798/2022 25 of a few months. Three weeks after the last of these breaches, she resigned, having been offered another job. A tribunal held that, since the employee’s departure had been prompted by the offer of alternative employment, the employer’s breach had not caused her resignation. The EAT held that the correct approach was to ask what was the effective cause of the resignation. The tribunal had not found that in the absence of the job offer J would have stayed and the EAT held that, considering J’s long service (30 years) and the fact that she took another job only three weeks after her contract was fundamentally breached, the breaches and not the job offer were the effective cause of her resignation.[112]Discrimination arising from disability (s15 Equality Act 2010 – “EQA”)(1) A person (A) discriminates against a disabled person (B) if: (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[113]According to Lady Hale in Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15; [2012] ICR 704, paragraph 22 for a measure to be “proportionate”, it: “… has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so.”[114]It is for the ET to reach its own judgment as to whether a measure is “proportionate” for these purposes, except that it is to do so: “… upon a fair and detailed analysis of the working practices and business considerations involved. In particular, it must have regard to the business needs of the employer …” (Hensman v Ministry of Defence [2014] UKEAT/0067/14.)[115]In relation to an employee’s absence, the evidence that will need to be adduced to demonstrate the impact relied on by an employer, at paragraph 45 O’ Brien V Bolton St Catherine’s Academy [2017] ICR 737 Underhill LJ observed: “…. What kind of evidence is appropriate will depend on the case. Often, no doubt, it will be so obvious that the impact is very severe that a general statement to that effect will suffice; but sometimes it will be less evident, and the employer will need to give more particularised evidence Case numbers: 2402751/2022 2404798/2022 26 of the kinds of difficulty that the absence is causing. What kind of evidence is needed in a particular case must be primarily for the assessment of the tribunal”[116]Harassment (s26 EQA) (1) A person (A) harasses another (B) if: (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of: (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. [………………………….] (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.[117]The conduct can be “related to” a relevant protected characteristic without the alleged harasser intending to harass a claimant on that basis. Application of the Law to the Facts Found Constructive Dismissal[118]The claimants have provided the Tribunal with a list of allegations of breaches by the respondent that the claimants say individually and/or collectively amount to breaches of the duty of trust and confidence by the respondent, and that they resigned in response to that breach/those breaches. That list was refined during the hearing and comments on it were provided by the respondent as part of their closing submissions. The Tribunal has numbered each allegation for ease of reference, and the table is attached to this judgment as an Appendix.[119]Having considered the evidence provided to the Tribunal on behalf of the claimants and the respondent, we find that on the balance of probabilities there is insufficient evidence to substantiate the allegations numbered 2, 4 and 10-15. They are as follows: Case numbers: 2402751/2022 2404798/2022 27• “Mr Kilkenny was dismissive when the Claimants "diplomatically" raised concerns about X's academic ability.” This allegation was not substantiated. There was evidence in the bundle, some of it from the claimants, that X was academically able.• “On 8 September 2021, SD met with EB and SD describes EB as “rude”.” There was insufficient evidence provided for us to conclude that Ms Bowker had been “rude” as alleged.• “Mrs Bowker ordered a "deep dive" on the pretext of high Teacher Assessed Grades, but actually motivated by her concern about X's grades” and “Miss Bowker decided that there should be a second deep dive. She was motivated by X's performance and a desire to find fault within the leadership of the school.” We did not have sufficient evidence to conclude on the balance of probabilities that Ms Bowker ordered the second ‘deep dive’.• “The school was targeted by Mrs Bowker for curriculum transformation.” Again, we did not have sufficient evidence to conclude on the balance of probabilities that Ms Bowker ordered the curriculum transformation.• “Miss Doyle was targeted by having Ms Schofield appointed as her line manager, despite the heads of school being line managed by Mr Waldron and Miss Doyle specifically requesting for him to be her line manager.” There was insufficient evidence to substantiate this as being a breach of trust and confidence.• “Instructing Hill Dickinson to carry out a whistleblowing investigation into concerns about favouritism towards X” and “Inviting the claimants into a meeting with solicitors as part of that investigation for the purpose of intimidating Miss Doyle into stating on record that she did not have concerns”. The claimants have not established on the balance of probabilities that the commissioning of such an investigation or inviting the claimants to a meeting as part of that investigation was a breach of the duty of trust and confidence that the respondent owed towards them. The allegations of favouritism towards X that prompted the investigation were not made by either of them. Mrs Dowd accepted that she was not personally interviewed about the allegations.[120]We find that the following allegations have been substantiated, on the balance of probabilities, but we do not accept that they are breaches of the mutual duty of trust and confidence, as we consider that the respondent had reasonable and proper cause to take these steps, in the management of the school in the circumstances of both claimants’ sickness absence. We accept that the actions of the respondent were unwanted and unwelcome to the claimants, but we also accept that the respondent was struggling to manage the DA at the time and needed to act for the benefit of the students and the remaining Case numbers: 2402751/2022 2404798/2022 28 members of staff. Therefore, we do not accept that the following incidents are breaches of trust and confidence (allegations number 16-22 in the annexed table):• Failure to appoint a manager to be physically present at the school to manage it in Miss Doyle's absence.• Ms Schofield sent the Claimant work-related texts whilst they were absent on sick leave• Whilst Miss Doyle was absent on sick leave, Ms Schofield asked her to intervene in the sickness absence of a colleague, Mr Gibson Black.• Contacting Miss Doyle whilst she was absent on sick leave.• Asking Miss Doyle for the achievement predictions for the school whilst she was on sick leave.• Asking Miss Doyle to work whilst on sick leave.• Sending texts and e-mails to Mrs Dowd on 6 and 7 January 2022[121]The remaining allegations which are numbers 1, 3, 9, 24, 25 and 26 in the attached table, constitute a course of conduct that cumulatively amounts to a breach of the implied term of trust and confidence for both claimants. Those allegations are:• “Mrs Bowker asked the Claimants to check on X throughout X’s college day, which amounted to preferential treatment”. Our findings of fact above record that we accept that the claimants were provided with ad-hoc instructions to check on and attend to X when he was in the DA, instructions which were not issued for other students in the same way.• “Mrs Bowker asked for X to have an individualised timetable, causing other students to complain of preferential treatment.” This is reflected in our findings of fact above.• “Ms Williams insisted to Miss Doyle that X must have a personalised scheme of work, that scheme to be completed by the following day, despite Mr Hussain being vocal about the pressure that this was causing. Our findings of fact above record that we accept on the balance of probabilities that Ms Williams did insist that this be done and that this did place the DA staff under considerable additional pressure.• “Suspending the claimants• “Ms Leydon of Human Resources told Mrs Dowd over the telephone that if she resigned before the suspension letter was sent, her reference would not refer to the fact that she was suspended• The day after Miss Doyle was suspended, Ms Leydon had a similar conversation with her.” Our findings of fact above record that we accept the claimant’s evidence in relation to their suspension on the balance of probabilities. Case numbers: 2402751/2022 2404798/2022 29[122]As in Kaur v Leeds Teaching Hospitals NHS Trust, CA, if the last straw incident is part of a course of conduct that cumulatively amounts to a breach of the implied term of trust and confidence, it does not matter that the employee had affirmed the contract by continuing to work after previous incidents which formed part of the same course of conduct. The effect of the last straw is to revive the employee’s right to resign. Therefore, it does not matter that the claimants continued to work for the respondent after the breaches that occurred prior to their suspension and resignation. These breaches were part of a course of conduct that cumulatively amounted to a breach of trust and confidence.[123]We find that for Ms Doyle, her conversation with Ms Williams on 22 October 2021 was the start of Ms Doyle seriously considering her future relationship with the respondent, on her evidence. This direct instruction regarding X’s individualised timetable, at a time when the DA was under significant staffing pressures was considered by Ms Doyle to be particularly unfair and unreasonable. It undermined her authority and restricted her ability to use the resources of her school to the best of her ability and for the benefit of all of the students.[124]We consider that this undermining of Ms Doyle’s authority and misallocation of college resources prompted her to look for alternative work. We do not accept that she would have looked for and accepted another job otherwise. We accept her evidence that she had great affection for the respondent college, having been a student there, and that also her new job was a considerable pay cut, and she was a single parent.[125]For both claimants, the act of suspension was a further breach of trust and confidence. We find that they both knew, as experienced managers, that there were no grounds for such action to be taken by the respondent. There had been two “deep dive” inspections in the previous nine months that uncovered no such failings, and Ms Doyle had regular one-to-one meetings with Ms Banks for supervision, that had also not identified anything irregular. The so-called curriculum transformation was on the basis of the tremendous potential of the DA, and we find would not have been initiated if the DA was being run in the ruinous manner suggested now by the respondent.[126]Furthermore, both claimants will have known that there were not any safeguarding issues uncovered by the respondent, and that the inclusion of this in their suspension letters was to apply pressure to them. The fact that they were allowed to resign with no mention of the safeguarding allegations being reported on any reference and with no investigation, confirmed that this was a fabrication, and was a further breach of trust and confidence. We find its inclusion was viewed by the claimants as a last straw on which to resign. Case numbers: 2402751/2022 2404798/2022 30[127]We find that the respondent had no reasonable or proper cause for these breaches. They have not demonstrated that their insistence that X receive such personalised attention was a reasonable and proper use of the DA’s resources, having provided no formal assessment of X’s needs from the time to which the allegations relate, and the claimants have provided evidence, which we accept, that the DA was severely understaffed. Despite the respondent attempting to persuade us during this hearing, we do not accept that there was reasonable and proper cause to suspend the claimants for poor performance, misconduct or any safeguarding (or “potential” safeguarding) concerns, and we do not accept that the respondent acted reasonably, having raised the safeguarding concerns in the suspension letter, in them promptly dropping them and any investigation, once the claimants agreed to resign.[128]For Ms Doyle, as per Jones v F Sirl and Son (Furnishers) Ltd 1997 IRLR 493, EAT, the effective cause of her resignation was not her new job offer, but the respondent’s conduct. We find that, even if she had resigned, she would have given notice and worked it in full, had her notice period not been cut short by the suspension letter.[129]For Mrs Dowd, she had not sought alternative employment. She showed no intention whatsoever of leaving the respondent’s employment until she was suspended. We accept her evidence that she was also very fond of the respondent college and her students. We accept that she had taken on a recent and significant personal financial commitment and was not in a position to resign, but she was forced to do so. We find that she was horrified at the prospect of a safeguarding allegation tainting her professional reputation and resigned as a result of that threat being made to her. Disability Discrimination[130]We accept that Mrs Dowd felt that she was being harassed by Ms Schofield’s actions in contacting her when she was absent due to sickness, in the period after she had told Ms Schofield of her disability. However, as we have noted above, Mrs Dowd volunteered to take on extra work of her own volition. We also note that the respondent needed to take action to secure the continuing education of its students and Ms Schofield had little alternative but to contact the claimants, including Mrs Dowd. We therefore do not accept that it was reasonable for the contact from Ms Schofield to have that effect, given that Mrs Dowd, we find, led her to understand that she was able to take on work at that time by volunteering to carry out extra duties.[131]For the complaint of discrimination due to something arising in consequence of disability, we accept that Mrs Dowd was absent due to something arising in consequence of her disability. We accept that she Case numbers: 2402751/2022 2404798/2022 31 considered the contact from Ms Schofield to be unwanted and intrusive. However, we find that the respondent had a legitimate aim, which was to ensure the continued running of the DA courses for the benefit of the respondent’s students. Ms Schofield’s contact was a proportionate means of achieving that aim, as Ms Schofield did not and could not reasonably have understood that her contact was unwanted, as Mrs Dowd responded in detail to her messages and volunteered to take on further tasks.[132]Therefore, the claims of disability discrimination fail and are dismissed. However, the claimants were unfairly constructively dismissed, and these claims succeed. The parties will be provided in due course with case management orders and a date for a remedy hearing, to determine the compensation payable to them.