K Jubb v A Mercer, T/a Little Acorns Day Nursery: 2406828/2023 and 2407206/2023
EMPLOYMENT TRIBUNALS
Case No 2406828/2023, 2407206/2023, 2410913/2023
Between
K JubbClaimantAnnette Mercer, trading as Little Acorns Day NurseryRespondent
Before
Employment Judge BattenC Bonifai (instructed by Counsel) for claimantL Bronze (instructed by Counsel) for respondentDate 9 September 2025
JUDGMENT
[1]the claim of constructive unfair dismissal and for notice pay and holiday pay is well-founded and succeeds;[2]the employer’s contract claim is not well-founded and is dismissed;[3]the parties have been afforded 28 days in which to resolve matters of remedy between themselves, failing which a remedy hearing shall be listed on a date to be fixed. The parties must therefore write to the Tribunal by no later than Friday 31 January 2025 to indicate whether a remedy hearing is required.
REASONS
[1]On 10 August 2025, the respondent made an application for reconsideration of the liability Judgment, reasons for which were sent to the parties on 16 April 2025.[2]The respondent’s application was made well beyond the 14 days provided for by Rule 69. However, having received lengthy written submissions from Counsel for the respondent as to IT difficulties in his chambers, the Tribunal has extended time so as to permit the application to proceed. The Tribunal considered this was in the interests of justice given the circumstances of the IT failure in chambers which led to the liability judgment not being effectively received for several months.[3]The Tribunal has taken the contents of the respondent’s application into account and also the rebuttal submitted by the claimant on 11 August 2025. In addition, the respondent produced a bundle of documents in respect of its reconsideration application. Both parties also addressed the Tribunal in oral submissions at this Case Nos. 2406828/2023 2407206/2023 2 hearing, on all points of the respondent’s reconsideration application, which was refused.
The relevant law
[4]Rule 70(4) of the 2024 Rules directs a Tribunal to convene a reconsideration hearing unless it is not considered necessary. The Tribunal has considered that, not least because of the issue of the timing of the respondent’s application, a hearing was necessary.[5]The test for reconsideration is set out in Rule 68, being whether it is necessary in the interests of justice to reconsider the judgment. Broadly, it is not in the interests of justice to allow a party to reopen matters heard and decided unless there are special circumstances such as a procedural mishap depriving a party of a chance to put their case. or where new evidence has come to light that could not reasonably have been brought to the original hearing, or a matter where the Tribunal made an error of law, or that the conclusions on the facts were perverse and matters which could have a material bearing on the outcome.[6]Achieving finality in litigation is part of a fair and just adjudication. The importance of finality has been confirmed by the Court of Appeal in Ministry of Justice v Burton and another [2016] EWCA Civ 714. It has also been the subject of comment from the then President of the Employment Appeal Tribunal in Liddington v 2Gether NHS Foundation Trust UKEAT/0002/16 at paragraph 34: “A request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated or to re-argue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was not previously available being tendered.” The respondent’s application[7]The claimant succeeded in her claim of constructive unfair dismissal. The respondent’s application for reconsideration disagrees with the Tribunal’s conclusions on liability. The application refers to the List of Issues section 1, items 1.1, 1.2, 1.3 and 1.4, which set out 4 matters which the claimant relied on as fundamental breaches of the implied term of trust and confidence in response to which she resigned – see the list of issues set out in the judgment at paragraph 5. The respondent’s application contends that the Tribunal did not follow the list of issues in that it reached a conclusion on a fifth breach, or a ‘last straw’, being the respondent’s 2 letters of 17 March 2025. The respondent contends that the Tribunal was not permitted to reach such a conclusion because the said ‘last Case Nos. 2406828/2023 2407206/2023 3 straw’, the respondent’s 2 letters of 13 March 2023, was not included in the List of Issues.[8]The Tribunal has reviewed its findings of fact about the claimant’s resignation, at paragraph 36 of the liability judgment. The Tribunal found that the claimant composed her resignation letter on 17 March 2023, having received 2 letters from the respondent that day, and she delivered her resignation letter to the respondent on 20 March 2023. The claimant’s letter of resignation, expressed to be with immediate effect, appears in the liability bundle, at pages 208-210. On the second page of that letter, the claimant listed all the reasons why she felt she could no longer work for the respondent.[9]The reasons given in the resignation letter were not confined to the 2 letters which the respondent had sent the claimant on 17 March 2023. The reasons the claimant set out in her resignation letter were:• Failing to provide itemised payslips in accordance with the Employment Rights Act 1996;• Discrimination;• Bullying and threatening behaviour;• Failing to respond to [the claimant’s] formal grievance letter dated 21 July 2022;• Failing to follow the company confidentiality and data protection guidelines;• Failing to provide a contract of employment;• Mismanagement of company and employee pension contributions;• Refusing a request for flexible working without consultation,• Discrimination in recruitment, by reference to the Equality Act 2010.[10]At paragraph 37 of the liability Judgment, the Tribunal noted that a number of the matters listed above had gone unresolved for a very long time and could be said to be historic, such as: failing to provide itemised payslips albeit there were still some outstanding payslips; bullying and threatening behaviour, which was found to be a reference to actions including the respondent’s 2 letters of 17 March 2023; failing to respond to the claimant’s grievance; and mismanagement of company and employee pension contributions, some of which remained outstanding. The Tribunal considered that those matters, whether individually or cumulatively, breached the implied term of trust and confidence. In addition, in the liability judgment, the Tribunal described the respondent’s 2 letters of 17 March 2023 as the ‘last straw’.[11]The Tribunal accepts that the list of issues does not specifically permit a finding that the 2 letters were the ‘last straw’ – they are not an alleged breach relied upon by the claimant. Nevertheless, the Tribunal found that the matters listed in the claimant’s resignation letter, taken individually or cumulatively, breached the implied term of trust and confidence, a conclusion not limited to the 2 letters of 17 March 2023 which the Tribunal found were referred to as “Bullying and threatening behaviour” in the claimant’s resignation letter in any event. Further, Case Nos. 2406828/2023 2407206/2023 4 the Tribunal found that the contents of the respondent’s second letter of 17 March 2025 were menacing – see paragraph 35 of the liability judgment. The Tribunal considered that, once the claimant received the respondent’s 2 letters, it became clear to the claimant that the respondent was not going to deal with her grievance (breach allegation 1.3) nor respond to her request for an update (breach allegation 1.4). That realisation led the claimant to resign[12]A breach of trust and confidence is a fundamental breach. In the liability judgment, at paragraph 59, the Tribunal concluded that the respondent’s continuing actions and/or lack of action undermined trust and confidence between employer and employee. Upon reconsideration, the Tribunal considered that, even if the finding of a ‘last straw’ is removed, the Tribunal nevertheless considered that the 4 breaches set out in the list of issues were operative reasons for the claimant’s resignation, as set out in her resignation letter.[13]The last of these, breach allegation 1.4 in the list of issues, is a failure to respond to or acknowledge the claimant’s letter of 13 March 2023. That failure by the respondent must have taken place after 13 March 2023, within a period of less than a week prior to the claimant’s resignation. The claimant formed her final view in any event upon receipt of the respondent’s 2 letters of 17 March 2023 and in the context of her ill-health and distress at her circumstances.[14]The claimant resigned with effect from 20 March 2023 and the Tribunal considered that she did not delay in so doing. Even if the respondent had acknowledged the claimant’s letter of 13 March 2023 promptly, which it did not do, any delay by the claimant was over a period of less than a week. In those circumstances, the Tribunal considered that the claimant’s actions in no way amounted to any affirmation nor acceptance of the respondent’s breaches of contract.[15]At the liability hearing, the respondent had suggested it had reasonable and proper cause for its actions. Such suggestion was rejected by the Tribunal, having particular regard to the matters of the respondent’s continuing failure to provide itemised payslips and also the respondent’s failure to pay the claimant’s pension contributions over to the pension scheme promptly or at all – see paragraph 59 of the liability judgment. The Tribunal considered that the respondent’s contentions amounted to saying that an employer could have reasonable and proper cause to deny an employee their statutory right to receive itemised payslips, and to deny an employee the right to have deductions made by it from their wages, for pension contributions, paid over to the relevant pension scheme on time, or at all, thereby delaying and/or frustrating the proper investment of pension monies. The Tribunal rejected the respondent’s contentions and in particular rejected the suggestion that statutory rights somehow expire by the effluxion of time and/or that the necessity to comply with a legal obligation to account for pension contributions collected can be extinguished similarly, particularly where contributions remain unpaid.[16]At paragraph 60 of the liability judgment, the Tribunal concluded from all the evidence that the claimant had resigned in response to the respondent’s Case Nos. 2406828/2023 2407206/2023 5 repudiatory breaches of the claimant’s contract and/or breaches of the implied terms of trust and confidence. The Tribunal also found that, having effectively ignored the claimant for months, the respondent had embarked on a campaign to intimidate the claimant in March 2023, with a sudden flurry of correspondence. The respondent seized upon a single e-mail from the claimant to its administrative assistant and commenced threatening the claimant with disciplinary action and solicitors. The issue of a last straw does not therefore affect the Tribunal’s conclusions. It was apparent that trust and confidence had broken down between the parties in any event, in circumstances where the claimant was entitled to resign and to consider herself constructively dismissed.
Conclusion
[17]The Tribunal accepts that, as the respondent rightly contends on reconsideration, the claimant had not pleaded a ‘last straw’ nor included such in the list of issues, and she had not pleaded that the respondent’s 2 letters of 17 March 2023 were the cause of her resignation. As a result, on a reconsideration, the Tribunal has confirmed that the claimant had in any event established that the 4 breaches set out in the list of issues were the causes of her resignation, amounting to a constructive dismissal. The last of them (breach allegations 1.3 and 1.4) were realised on or after 17 March 2023, very shortly before the claimant’s effective resignation. The respondent’s application for reconsideration must therefore fail insofar as the judgment of the Tribunal, that the claimant was constructively unfairly dismissed, still stands, albeit that the Tribunal’s findings on the breaches of contract are clarified and confirmed to be in accordance with the list of issues.[18]The Tribunal’s decision on reconsideration is to accept the respondent’s contention that the findings as to a ‘last straw’ cannot not be taken into account because the matter was not a pleaded cause of the claimant’s resignation. Upon reconsideration, the respondent’s ‘last straw’ letters have been found not to be causative of the claimant’s resignation. The claimant’s reaction is therefore not a matter to be taken into account. This in turn affects the reduction in compensation which the Tribunal had decided arose from the events surrounding the respondent’s 2 letters, as the ‘last straw’. In the liability judgment at paragraph 60, the Tribunal drew a conclusion that one of the respondent’s 2 letters of 17 March 2023 was in response to an intemperate email from the claimant to the respondent’s administrative assistant. The respondent’s letter, which threatened disciplinary action in light of the claimant’s communication to the administrative assistant, formed part of the ‘last straw’. The Tribunal had considered that the claimant’s conduct in response, merited a reduction of 25% in the awards due.[19]Section 123(6) of the Employment Rights Act 1996, provides that a reduction in a compensatory award for contributory fault is to be made where the Tribunal finds that dismissal was to any extent caused or contributed to by any action of the claimant. Absent the ‘last straw’ letters and the claimant’s reaction to such, the Tribunal considers that there shall be no reduction to the compensatory award – see paragraph 63 of the liability judgment. The 25% reduction in the compensatory award for contributory fault is therefore revoked. Case Nos. 2406828/2023 2407206/2023 6[20]On reconsideration, the Tribunal is satisfied that the claimant has made out the reasons for her resignation, in accordance with the list of issues, points 1.1 to 1.4. The findings as to a ‘last straw’ and in respect of the respondent’s 2 letters of 17 March 2023 are therefore not relevant for the reasons set out above and shall have no effect on the liability decision.[21]In contrast, in respect of the basic award, section 122(2) of the Employment Rights Act 1996 has no such requirement for causation and provides that, where the Tribunal considers that any conduct of the claimant before dismissal was such that it would be just and equitable to reduce the amount of the basic award to any extent, the Tribunal shall reduce the amount accordingly. In those circumstances, the 25% reduction in the basic award stands.
Conclusion
[1]Both parties produced a bundle of documents on remedy for the Tribunal’s consideration. The claimant gave evidence in paragraphs 134 to 143 of her witness statement on liability and tendered an updated schedule of loss. The Tribunal heard oral evidence from the claimant who was subject to cross-examination by the respondent.[2]Both parties tendered oral submissions and the respondent relied on the case of GAB Robins (UK) Limited v Triggs [2008] EWCA Civ 17 and IDS commentary about employees’ health and constructive dismissal. Decision on remedy[3]The judgment of the Tribunal is that the claimant was constructively unfairly dismissed when she resigned without notice. The claimant is also entitled to payment for accrued unused holiday entitlement due at the termination of her employment. Factual findings[4]The claimant worked for the respondent for a little over 11 years. Her gross weekly pay at the effective date of termination of her employment was the agreed figure of £402.50 and her net weekly pay was the agreed figure of £342.62.[5]Between August 2022 and 20 March 2023, the claimant was absent from work, off sick. The claimant resigned with immediate effect from 20 March 2023. It is not disputed that the claimant had accrued untaken holiday entitlement due at the termination of her employment.[6]On 18 March 2023 and in May 2023, the claimant wrote to the respondent indicating that she was intending to work part-time and needed a reference. The claimant gave evidence that she continued to suffer from symptoms of ill health Case Nos. 2406828/2023 2407206/2023 7 symptoms until August 2023, a fact which is confirmed in the claimant’s witness statement at paragraph 134.[7]On 4 September 2023, the claimant started working at ‘A Stars’ nursery on slightly less money and shorter hours than those worked for the respondent albeit that the claimant was able to and did work overtime on occasions. However, on 30 November 2023, the claimant stopped working at A Stars because of her ill health.
Conclusions
[8]The Tribunal considered that the commencement of the claimant’s employment at A Stars breaks the chain of causation on remedy. The claimant was therefore out of work for a period of 23 weeks, from 21 March 2023 to 3 September 2023.[9]The case of Triggs provides guidance, in paragraphs 34, 37 and 39, on the situation where a claimant has suffered ill health and is constructively dismissal. The Court of Appeal in Triggs reminded itself that losses claimed must flow from the dismissal. Where the subsequent earnings capacity is reduced for example due to ill-health, the Court of Appeal held that to be a result of the employer’s conduct prior to the resignation and not as a consequence of the constructive dismissal. An employer’s repudiatory conduct is an essential condition of constructive dismissal; however, it is not that conduct but the employee’s acceptance of the breach which brings the employment to an end by constructive dismissal. The effect is that damages and losses arising, due to the claimant’s anxiety and depression in this case, have been caused by the repudiatory conduct prior to resignation. An employee such as the claimant has therefore accrued a cause of action at common law which does not fall within the remit of the Employment Tribunal. The result is that, if an employee resigns and claims constructive dismissal whilst in receipt of sick pay where the evidence shows that he or she already intended to resign, for example once the sick pay entitlement had become exhausted or for her own reasons, it would be wrong for a Tribunal to award a sum for losses beyond the date the employee resigned.[10]The Tribunal considered that the position in Triggs reflects the position in this case and the Tribunal considered itself bound to follow Triggs. The claimant’s losses post-employment do not flow from her resignation/constructive dismissal but from the respondent’s conduct before dismissal. The claimant was already off sick as a result.[11]In those circumstances, the Tribunal has made no award for losses of earnings. The compensatory award is therefore limited to a nominal award for loss of statutory rights. Unfair dismissal basic award[12]The claimant worked for the respondent for 11 years and was aged 66 at the date of termination of her employment. Her gross weekly pay was the agreed figure of £402.50. Applying the formula for calculation of a basic award: Case Nos. 2406828/2023 2407206/2023 8 11 years’ service x 1.5 age multiplier x £402.50 = £6,641.25 Less 25% reduction for contributory conduct (£1,660.31) Basic award = £4,980.94 Compensatory award[13]Following the judgment in Triggs, the claimant is not entitled to an award for losses of earnings post dismissal – see paragraphs 9 and 10 above. Compensatory award for loss of statutory rights = £500.00 Holiday pay[14]In the liability judgment, at paragraph 34, the Tribunal found that the respondent did write to the claimant about her holiday entitlement in March 2023, before the claimant resigned. On 6 April 2023, the claimant sent a letter to the respondent about her holiday entitlement, the money and the figures. Since then and in the course of these proceedings, both parties have made efforts to resolve the matter.[15]The Tribunal noted that the outstanding holiday pay was now an agreed figure of £1,426.93 gross. In the circumstances, and in light of the parties’ efforts to resolve this aspect between themselves, the Tribunal considered that it was not appropriate to make any adjustment to the agreed figure in respect of an ACAS uplift despite being invited to do so by both parties, albeit in opposite directions. Notice pay[16]The claimant resigned with immediate effect; she did not give any notice. The claimant’s sick pay entitlement had all but been exhausted. In light of the judgment in Triggs, the claimant cannot be compensated for any losses in the period following her resignation. In those circumstances, the Tribunal declined to make any award for notice pay. Approved by: