Ms K Breakell v West Lancashire Borough Council: 2413640/2023

EMPLOYMENT TRIBUNALS

Case No 2413640/2023

Between

Ms K BreakellClaimant

West Lancashire Borough CouncilRespondent

Before

Employment Judge Benson

Date 10 October 2025

JUDGMENT

[1]The complaint of unfair dismissal is not well-founded and is dismissed.

[2]The complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed.

[3]All other claims are withdrawn and dismissed. Approved by: JUDGMENT having been sent to the parties on 20 November 2025 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:

REASONS

Summary

[1]The claimant worked part-time as a civic officer for the respondent council from 30 January 2019 until 30 January 2024. In January 2023 she raised issues concerning not being paid for additional hours which she worked when attending council meetings in the evening. Those meetings averaged some 2 to 3 hours per month, and the claimant was permitted to take time off in lieu. Having reviewed one of the respondent's policies she considered that she should be paid for those additional hours and as she was only provided with time off in lieu (“TOIL”) she was losing pension and holiday entitlements. She says that in raising this issue and reiterating it in correspondence in April 2023, she was making protected disclosures. Having made these disclosures the claimant says that she was subjected to bullying by her manager by way of an email dated 13 June 2023. Thereafter she raised a grievance which she alleges was not properly investigated at first instance or on appeal, that her access to the council intranet was removed when she was on a period of sickness and that the respondent delayed in paying her sums due for additional hours and further that the respondent then imposed new working hours upon her unilaterally. The claimant says that this was the last straw and on 30 November 2023 she gave notice to terminate her employment expiring on 31 January 2024.

[2]She brings complaints of constructive unfair dismissal and public interest detriment. Complaints of detriment because of her part-time worker status, and complaints of unlawful deductions from pay in respect of arrears and holiday pay have been withdrawn prior to today's hearing. Judgments have been issued dismissing these complaints.

[3]The respondent disputes all claims and denies that the disclosures amount to protected disclosures within the meaning of section 43B of the Employment Rights Act 1996.

[4]It says that when the claimant raised her concerns about the arrangements for recompensing her for evening work, her managers supported her request that this was clarified and sought advice from HR, and ultimately independent legal advice as to the correct interpretation of her contract. That whilst this process was being undertaken, the respondent confirmed that the claimant should work evening meetings within her normal contracted hours. The claimant did not agree that this was correct, and in June 2023 refused to attend a team meeting in mid-afternoon on the basis that she did not have sufficient available hours. The respondent says that this caused the respondent to take HR advice and the claimant was issued with a letter reminding her of her obligations and referring to possible formal action if she did not comply with the respondent's instructions. The claimant went on sick leave with work-related stress and following her grievance being investigated and rejected and further rejected on appeal, the respondent says that the claimant found new work and decided to resign. It denies that at any stage it imposed new working hours on the claimant.

[5]One of the issues in this case was what were the claimant's contractual hours of work. The respondent refers to the contract of employment which says that the claimant had to work 28.48 hours per week averaged over a month under the respondent’s flexible working scheme, and that her hours included attending council meetings in the evening when required. It says that there were no fixed hours of work as the council operated a flexitime scheme which allowed employees to work flexible hours subject to the needs of the business and what was agreed with their managers. As such the evening hours were part of the claimant's normal hours of work, i.e. included in the 28.48 hours average per week.

[6]The claimant says that she had agreed hours of work separately with her manager of 9am until 5pm but that under the flexible working scheme she could decide to what extent she worked those hours. These were matters upon which we needed to make findings of fact.

[7]A case management hearing had taken place before employment Judge Abbott on 28 May 2024. At that hearing a list of the issues to be determined had been agreed, and subject to one minor alteration that list was attached to the record of that preliminary hearing. It was also agreed by the claimant that there was no freestanding breach of contract complaint, but that she relied upon the breach of the express term relating to her hours as part of the reason for which she resigned. That list, including the amendment is set out below. I clarified with the parties that that list is agreed, and they confirmed that it was. List of Issues Constructive unfair dismissal

List of Issues

[8]Can the claimant prove that there was a dismissal?

[9]Did the respondent do the following things:a. At a team meeting on 14 February 2023, the respondent’s Head of Service Kay Lovelady single out the claimant (and another colleague) for not “stepping up” to help out the department despite her having valid reasons for being unable to cover an evening council planning meeting.

b. By an email of 13 June 2023 from her Manager, bully the claimant by making a number of unfounded and unjustified accusations concerning her behaviour and working practices, complaining about the tone of her emails and threatening to move her to disciplinary action should they be unable to reach a mutual agreement on the claimant’s hours.

c. Deny the claimant access to the council intranet and her office email account shortly after she raised a grievance regarding bullying.

d. Fail to properly investigate the claimant’s grievance regarding bullying (at first instance and on appeal).

e. Fail to pay the claimant in respect of additional hours in a timely manner.

f. Prolong a period of uncertainty and fail to provide clarity surrounding working hours.

g. Unilaterally impose new working hours on the claimant.

[10]Did that breach the implied term of trust and confidence? Taking account of the actions or omissions alleged in the previous paragraph, individually and cumulatively, the Tribunal will need to decide:a. whether the respondent had reasonable and proper cause for those actions or omissions, and if not

b. whether the respondent behaved in a way that when viewed objectively was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.

[11]Further or alternatively, did the alleged act at paragraph 10(g) breach any terms of the claimant’s contract of employment in respect of working hours?

[12]Was the breach (or breaches) a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.

[13]Was the fundamental breach of contract a reason for the claimant’s resignation.

[14]Did the claimant affirm the contract before resigning, by delay or otherwise? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach. Remedy for unfair dismissal

[15]If there is a compensatory award, how much should it be? The Tribunal will decide:a. What financial losses has the dismissal caused the claimant? Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

b. If not, for what period of loss should the claimant be compensated?

c. Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

d. If so, should the claimant’s compensation be reduced? By how much?

e. Did the respondent or the claimant unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures?

f. If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

g. If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?

h. If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

i. Does the statutory cap apply?

[16]What basic award is payable to the claimant, if any? a. Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? Protected disclosures

[17]Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide: What did the claimant say or write? When? To whom? The claimant says she made disclosures on these occasions:a. on 17 January 2023, the claimant and her colleague emailed their Head of Service, Kay Lovelady, to notify her of their concerns regarding nonpayment for additional hours and the consequential loss of pension and holiday accrual.

b. On or around 3 April 2024, the claimant emailed her Manager, then the Head of Service and HR raising concerns about the content of an email from the Manager sent on 3 April 2024 regarding payment for additional hours.

[18]Did she disclose information?

[19]Did she believe the disclosure of information was made in the public interest?

[20]Was that belief reasonable?

[21]Did she believe it tended to show that a person had failed, was failing or was likely to fail to comply with any legal obligation?

[22]Was that belief reasonable?

[23]If the claimant made a qualifying disclosure, was it a protected disclosure? Detriment (Employment Rights Act 1996 section 48)

[24]Did the respondent do the following thing: a. By an email of 13 June 2023 from her Manager, bully the claimant by making a number of unfounded and unjustified accusations concerning her behaviour and working practices, complaining about the tone of her emails and threatening to move her to disciplinary action should they be unable to reach a mutual agreement on the claimant’s hours.

[25]Did the claimant reasonably see that act as subjecting him/her to a detriment?

[26]If so, was it done on the ground that she made a protected disclosure?

[27]Was the detriment claim made within three months (allowing for any early conciliation extension) of the act complained of? If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within such further period as the Tribunal considers reasonable? Remedy for Detriment

[28]What financial losses has the detrimental treatment caused the claimant?

[29]Has the claimant taken reasonable steps to replace any lost earnings, for example by looking for another job?

[30]If not, for what period of loss should the claimant be compensated? What injury to feelings has the detrimental treatment caused claimant and how much compensation should be awarded for that?

[31]Is it just and equitable to award the claimant other compensation? Did the respondent or the claimant unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures? If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

[32]Did the claimant cause or contribute to the detrimental treatment by their own actions and if so would it be just and equitable to reduce the claimant’s compensation? By what proportion?

[33]Was any protected disclosure made in good faith? If not, is it just and equitable to reduce the claimant’s compensation? By what proportion, up to 25%? Evidence and Submissions

[34]The claimant gave evidence on her own behalf. The respondent called four witnesses. These were Mrs K Lovelady, the Chief Legal and Democratic Services Officer, and the claimant’s manager, Mrs C Kelly, Principal solicitor, Ms J Denning, the Democratic Services Manager and Mrs L Jackson, the HR Business Partner. An agreed bundle of documents was available to the Tribunal. The parties made oral submissions, and the claimant also provided written submissions. The Law Constructive dismissal

The Law

[35]To succeed in a claim of unfair dismissal, the claimant has to establish that she was dismissed by the employer. In a case of constructive dismissal, a claimant has to show that she terminated the contract by resigning, whether with or without notice, but in circumstances in which she was entitled to do so by reason of the employer's conduct.

[36]The relevant section of the Employment Rights Act 1996 is section 95(1)(c). The leading case is Western Excavating (ECC) Limited v Sharp

[1978] ICR 221

. In that case the Court of Appeal ruled that for an employer’s conduct to give rise to a constructive dismissal, the employee must establish there was a fundamental breach of contract on the part of the employer, that the employer’s breach caused the employee to resign and that the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.

[37]In order to identify a fundamental breach of contract on the part of the employer, it is first necessary to establish what the terms of the contract are. Individual actions by an employer that do not in themselves constitute fundamental breaches of any contractual term may have the cumulative effect of, for example, undermining the trust and confidence inherent in every contract of employment. A course of conduct can therefore cumulatively amount to a fundamental breach of contract entitling an employee to resign and claim constructive dismissal following a ‘last straw’ incident.

[38]The ‘last straw’ does not by itself need amount to a breach of contract. Lewis v Motorworld Garages Ltd

1986 ICR 157

, CA

[39]The existence of the implied term of mutual trust and confidence was approved by the House of Lords in Malik v Bank of Credit and Commerce International SA (in compulsory liquidation)

1997 ICR 606

, HL. There, their Lordships confirmed that the duty is that neither party will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.

[40]If the claimant establishes that she has been dismissed, the provisions of Section 98 Employment Rights Act 1996 come into play.

[41]Section 98 reads as follows: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) the reason (or, if more than one, the principal reason) for the dismissal and

(b) that it is either a reason falling within sub-section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this sub-section if it: (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee,

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (3) … (4) Where the employer has fulfilled the requirements of sub-section (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case”. Public Interest Disclosure

[42]The relevant statutory provisions of the Employment Rights Act 1996 are as follows: “43A Meaning of “protected disclosure”.(1) In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. 43B Disclosures qualifying for protection. (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) …. (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) … (d) … (e) …. (f) ….

(2) …

(3) …

(4) …

(5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1). 43C Disclosure to employer or other responsible person. (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure — (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to— (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person. (2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.”

[43]The key authorities on what amounts to a “disclosure of information” for the purposes of S.43B are Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] ICR 325

EAT and Kilraine v London Borough of Wandsworth

2018 ICR 1850

CA which establish that the word “information” has to be read with the qualifying phrase “tends to show” and so it must contain sufficient factual content to be capable of tending to show one of the relevant failures. This is a matter for the Tribunal’s evaluation taking into account all the facts of the case and the context of the disclosure.

[44]When assessing whether a worker had a reasonable belief that the disclosure tended to show one of the relevant failures has occurred, is occurring or is likely to occur, the Tribunal must consider:a. what the claimant believed rather than what a hypothetical reasonable worker might have believed in the same circumstances

b. whether the belief was a reasonable belief, not a genuine belief (Korashi v Avertawe Bro Morgannwy University Local Health Board

2012 IRLR 4

, EAT)

c. evidence of whether the claimant’s belief in the implications raised by the disclosure was genuine

d. what, if any evidence there is to establish a reasonable belief

e. the factual accuracy of the claimant’s allegations (Darnton v University of Surrey

2003 ICR 615

EAT)

[45]In terms of the public interest test, the Tribunal should have regard to the guidance in Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work intervening)

2018 ICR 731

CA which identified the following factors which may be relevant:a. The numbers in the group whose interests the disclosure served

b. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed

c. The nature of the wrongdoing disclosed, and

d. The identity of the alleged wrongdoer.

[46]The test of reasonable belief in the context of the public interest test is that set down by the Court of Appeal in Babula v Waltham Forest College

2007 ICR 1026

CA, as confirmed in Chesterton where the point was made that tribunals should be careful not to substitute their own view of whether the disclosure was in the public interest for that of the worker. The necessary belief is simply that the disclosure is in the public interest, the reasons why the worker believes that to be so, are not of the essence. Detriment

[47]The term “detriment” is not defined in the legislation but applying the guidance given by Lord Hope of Craighead in Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

HL (p34-35) it is to be assessed from the viewpoint of the reasonable worker and it is not necessary for there to be physical or economic consequences to the employer’s act or inaction. What matters is that, compared with other workers (hypothetical or real), the complainant is shown to have suffered a disadvantage of some kind. However, an unjustified sense of grievance cannot amount to “detriment” (see Barclays Bank plc v Kapur and others (No 2)

[1995] IRLR 87

) Burden of proof and causation

[48]Section 48(2) ERA 1996, is the relevant statutory provision which says: On a complaint under subsection (1) […….] it is for the employer to show the ground on which any act or deliberate failure to act was done.

[49]This section and the proper approach to drawing inferences in a detriment claim was summarised by the EAT in International Petroleum Ltd and ors v Osipov and ors EAT 0058/17 as follows:a. The burden of proof rests with a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he is subjected is a protected disclosure that he made

b. By virtue of s.48(2), the employer must be prepared to show why the detrimental treatment was done. If it does not do so, inferences may be drawn against the employer.

c. However, as with inferences drawn in any discrimination case, such inferences must be justified by the facts as found.

[50]The mere fact that a “detriment” arises, and that the worker suffers as a result is not enough. To succeed in establishing liability under s.47B the claimant must show that the detriment arises from the act or deliberate failure to act by the employer (Abertawe Bro Morgannwg University Health Board v Ferguson

2013 ICR 1108

EAT).

[51]As to the test of causation in detriment cases, the key authority is Fecitt and ors v NHS Manchester (Public Concern at Work intervening)

2012 ICR 372

CA and the formulation of Elias LJ ,that is whether the protected disclosure materially (in the sense of more than trivially) influences the employer’s treatment of the whistleblower. Findings of Fact concerning the claimant’s hours of work

[52]The claimant in her claim form says that any hours worked after 7pm were worked as additional hours ie in addition to her normal weekly contracted hours and that she was instructed to record these as TOIL. She relies upon this being a term of her contract.

[53]On 26 October 2023, the claimant says that she was told that in the future all evening and weekend meetings allocated to her must be worked within her normal contracted hours and no longer as overtime. She says this was in breach of her contract and was one of a number of reasons why she resigned.

[54]In order to determine this claim, we must decide what were the claimant’s contractual hours of work.

[55]The respondent operated a flexible working scheme. There were no set hours of work. The claimant’s contract of employment required her to work 28.48 hours per week averaged over a month (which everyone seemed to accept was a fourweek period). The claimant had arranged with her manager that she would generally work 9am to 5pm Monday to Thursday. These were preferred hours of work which were in place for the efficient running of the department. The manager needed to organise her team to ensure that there was cover in the department throughout the working week. We find that the claimant did not have contractual or set hours of work of 9am to 5pm and the hours were her preferred hours which assisted in the running of the department. It is clear from the evidence provided to us in the form of flexi sheets that the claimant took full advantage of the benefits of the flexi scheme and regularly chose to work different hours than 9am to 5pm. For example: p518 Thurs 17/6/21 09:25 - 13:09; 13:40 - 15:05 p520 Thurs 29/07/21 09:42 - 13:24; 13:57 - 16:54 p522 Thurs 23/09/21 09:07 - 13:02; 13:34 - 14:35 p524 Thurs 28/10/21 09:01:10:15; 14:08 - 15:22 p543 Wed 8/3/23 08:31 - 13:35 p534 Wed 20/07/22 08:48 - 13:00

[56]The claimant’s duties (described as work allocation), again accepted by her, included working at the evening and on occasional weekends. Between the claimant commencing work and the respondent introducing a new flexi-time system (which was in March 2021), the claimant, and all employees could record time on the flexi system but only hours between 7am in the morning until 7pm in the evening would add to their flexi hours total. As a result, if the claimant attended meetings in the evening, any hours later than 7pm would not carry forward under the flexi time system. As such, there was a local arrangement that the team would initially put their time on the system, but any time after the 7pm cut off was transferred as TOIL to a separate sheet which was kept in the department. The claimant used that TOIL system to recoup her hours.

[57]If the claimant attended a meeting which started at 6pm in the evening and lasted until 8pm, both hours would be therefore recorded on the flexi system but with the agreement of a manager, one hour would be subtracted from the flexi system as an adjustment and put on the TOIL sheet.

[58]Weekend work was not recorded as flexi time or TOIL but paid by way of additional hours or if on a Sunday, by an overtime payment. The claimant only worked one weekend per year on Remembrance Sunday for between 2 and 3 hours. So far as we understand, that was on three occasions during her employment.

[59]In approximately March 2021, after Covid, the flexi system was amended such that under the new Smarter Working scheme staff could record hours they worked at any time up until 12 midnight and have them counted as flexi time. Although from that date the claimant’s team could therefore record and have their time counted as flexi time when they attended evening meetings, it was advantageous to them to continue to record it as TOIL because TOIL was not as restricted as flexi-time as to when the time could be taken back. As such, they continued to reallocated time from the flexi time system to the TOIL sheet by way of an adjustment which was authorised by a manager. In 2022, the claimant attending an average of 1.75 meetings each month and recorded an average of approximately 2.7 hours of TOIL per month.

[60]In January 2023, the claimant raised with the respondent that under the Harmonisation Policy paragraph 5(x) part time staff should be paid for any hours which were worked over the part time staff’s normal hours, and it should not record be recorded as TOIL. The relevant paragraph stated: "The Council’s normal working week for the purposes of calculation of premium rates and enhancements is Monday to Friday 7 am to 7 pm. The premium rates for working outside these hours is set out below. Part time employees will only be entitled to receive overtime payments or (time off in lieu) TOIL when they have completed a full 36 hour week, payments for additional hours worked up to and including 36 hours will be at plain time rates except in the same circumstances as full time employees i.e. bank holidays and weekends as detailed below. Wherever practicable employees should be granted the equivalent amount of TOIL rather than be paid overtime".

[61]This was taken forward by the claimant’s managers to their HR team, who sought independent legal advice.

[62]Whilst waiting for that advice, Ms Denning had obtained the HR department’s view and on 3 April 2023 emailed the team and confirmed that going forward all evening meetings were to be worked within the staff’s current contracted working hours. It confirmed that use could be make of flexi time scheme which was not restricted to 7pm and that the team could also utilise the local team working practice to put the time on the TOIL sheet. The advantage of TOIL was that it could be used over a longer period than 4 weeks which was a requirement of the flexi scheme. This email directed that this was to be followed going forward unless the legal advice they had requested was different than their understanding.

[63]Although the email could have been better worded, the instruction was clear.

[64]In essence, the respondent was reiterating that the evening meetings formed part of the claimant’s normal hours of work of 28.48 hours per week averaged over a month and the work should be completed within that time, The respondent says that this did not therefore alter the position. The Tribunal agrees with that view.

[65]The email also confirmed that weekend work would continue to be paid as overtime.

[66]Legal advice was obtained, and the claimant was provided with a summary in August 2023. That supported the position set out in the email of 3 April 2023. The claimant was unhappy with the advice and raised further queries. The respondent therefore reviewed the information further and took additional legal advice.

[67]On 6 October 2023 Ms Lovelady wrote to the claimant and her colleague with a summary of the advice that had been provided. That again supported the position which had been set out in the email of 3 April 2023 but clarified that the local practice of using TOIL should not have been used, but that as a bank of time had been built up, this time could be taken in the normal way, or Ms Lovelady would look into the claimant being paid for it.

[68]The email set out that going forward all officers were expected to undertake their roles (work allocation) within their contracted hours and subject to the use of the flexi system. It stated that any hours worked over normal contracted hours and up to full time hours (for part time employees) would not attract TOIL nor would attendance at evening meetings. In a couple of places in that email there is reference to evening and weekends. It is understandable that this led to the claimant to understand that weekend work was also to be included in her normal contractual hours. That would have been a change from the normal practice and arrangements which were that overtime was paid for the two or three hours she worked at a weekend each year. Decision and conclusions (and additional Findings of Fact)

[69]Findings of Fact relevant to the specific complaints and allegations are identified as such in the relevant paragraphs. Constructive Unfair Dismissal

[70]We must firstly consider whether the claimant has shown that she was dismissed. To do this the burden is upon her to show that the conduct of the respondent about which she complained occurred. She relies upon the respondent breaching the term of mutual trust and confidence and also that it breached an express term by changing her hours of work.

[71]If she can show that these matters occurred, in respect of the implied term of mutual trust and confidence she must then show that the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant in circumstances where the respondent had no reasonable or proper cause for acting the way that it did.

[72]If the claimant can show that that there was a breach of either the express or the implied term, the Tribunal will need to decide whether the breach was a reason for the claimant’s resignation; and then did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

[73]The respondent does not seek to argue that there was a fair reason for any dismissal. It relies upon there being no dismissal.

[74]Turning to the conduct of the respondent which the claimant says caused her to resign:

[75]Firstly, we consider the claim that the respondent breached an express term of her contract: Did the respondent breach the claimant’s contract by unilaterally imposing new working hours on the claimant?

Conclusion

[76]The claimant did not have set contractual hours of work of 9am to 5pm. She accepted that she was required to cover evening meetings as part of her duties. As explained above, there was no change to that arrangement by the email of 26 October or otherwise.

[77]The claimant had always been required to work an average of 28.48 hours per week. When she attended evening meetings, she may have worked more than 28.48 hours but having recorded that time as flexi time or TOIL she would then work fewer hours in those weeks when she took back that flexi time or TOIL. In her case, she had built up a bank of TOIL which she had not yet used. We consider that the claimant has a different view of what TOIL is. TOIL and flexi time are essentially the same thing. Both require the employee to reduce their working hours sometime in the future such that they average the same number of contracted hours per week. TOIL is not additional hours worked.

[78]As such the respondent did not impose new working hours on the claimant by its requirement that the claimant carry out any evening meeting duties as part of her contractual hours. There was no breach.

[79]In respect of the weekend work, the email of 26 October did refer to weekend working being part of working hours, that was a mistake and not what the respondent intended should happen. It was however a statement which appeared to vary the claimant’s normal arrangements. Potentially therefore it could amount to a unilateral variation.

[80]The claimant however only worked one weekend a year for 2 or 3 hours. From our consideration of the resignation letter and indeed the way this claim has been presented, the weekend work was a minor and insignificant issue and not one which we consider was the reason for the claimant resigning. It was the respondent’s position in respect of the evening meetings which was the key concern and complaint. Did the respondent breach the implied term of trust and confidence?

[81]We move on to consider the individual allegations and where proved, whether these individually or collectively amounted to a breach of the implied term. 1.2.1 At a team meeting on 14 February 2023, the respondent’s Head of Service Kay Lovelady singled out the claimant and another colleague for not “stepping up” to help out the department despite her having valid reasons for being unable to cover an evening council planning meeting.

[82]Findings of Fact: A detailed email was sent to those attending the meeting immediately after the meeting by Ms Lovelady. We accept that this was an accurate summary of what happened. It is not set out here but appeared at paragraph 113 to 117 of the hearing bundle. There was no impression from that email that the claimant was being singled out.

[83]The person due to cover the meeting was ill with Covid. Mrs Lovelady was obviously unhappy with the team generally and their failure to offer to assist. Her complaint was with everyone, but as there were only three people who were suitably qualified to cover the planning meeting her focus was likely to have been upon them. One was the claimant, one was her colleague, Ms Brown and the other person was Ms Ryan. Ms Lovelady explained that Ms Ryan had given up leave and covered a meeting the day before and was picking up the absent employee’s work more generally, including preparing papers for the planning meeting. The claimant had provided reasons why she couldn’t attend some weeks before and from the email appears had made efforts to see if she could accommodate the request by changing her plans. Ms Brown declined to give a reason. As such Ms Lovelady explains in her email that she therefore chose Ms Brown.

[84]It was clear that Ms Lovelady was frustrated that no one had come forward to assist her and the department by covering the meeting. If she did use the words “stepping up” there is no evidence that the claimant was singled out. There was no difference that we can see between Ms Ryan and the claimant’s position. Both had valid reasons why they could not assist. Ms Lovelady accepted those reasons. The particular frustration was with Ms Brown. It may well be that Ms Lovelady singled out Ms Brown, but that has nothing to do with the claimant.

Conclusion

[85]We do not therefore find the allegation proved. In any event, even if we had, there would have been reasonable and proper cause for Ms Lovelady to have singled out the three people who were qualified to attend the meeting and have asked them to step up. There was a business need which needed to be fulfilled, and Ms Lovelady was getting little assistance from her team. 1.2.2 By an email of 13 June 2023 from her manager, bully the claimant by making a number of unfounded and unjustified accusations concerning her behaviour and working practices, complaining about the tone of her emails and threatening to move her to disciplinary action should they be unable to reach a mutual agreement on the claimant’s hours. (p776)

[86]Findings of Fact: The Tribunal has considered the correspondence which led to the telephone call between the claimant and Ms Dennings and the transcript together with the email about which the claimant complains. We find that the claimant’s tone and manner within the emails and the call with Ms Dennings were matters which any manager would need to address. We find that the claimant refused to obey a management instruction to attend the Team meetings on the dates specified, but more importantly going forward. Within the transcript of the conversation with Ms Dennings and the claimant, the claimant was clearly refusing to attend team meetings if there was a council meeting that week unless she was paid for those hours. The claimant’s obstructive and difficult behaviour were matters which Ms Dennings had to deal with. Her response was the email of 13 June 2023. That email raised the issues which she had with the claimant’s behaviour and gave examples. She suggested ways to avoid the situation in the future and provided advice to the claimant as to ways she could improve her communication style. The email was in polite and reasonable language. It did however outline that the management instructions needed to be followed and suggested how the hours might be accommodated. It also explained what would happen if the claimant continued to refuse to attend the meetings or challenge or refuse to obey reasonable management instructions. That was that Ms Dennings would need to look into instigating a more formal approach under the respondent’s policies and procedures, but she stated that she would prefer to reach a mutual agreement. We can understand how the claimant might read that as disciplinary action, but the letter was not a threat as alleged, but an appropriate and reasoned statement of what the next stage may be if the claimant continued in the manner she had to date.

Conclusion

[87]The claimant has not shown that the email of 13 June threatened or bullied her as she alleges. This allegation is not proved. Ms Dennings had reasonable and proper cause for issuing it and raising these issues and the potential consequences with the claimant. 1.2.3 Deny the claimant access to the council’s intranet and her office account shortly after she raised a grievance regarding bullying.

[88]Findings of Fact and conclusion: The respondent accepts that it took this action. It did so when the claimant was signed of work off 18 June 2024. The laptop was for business use only and access to the respondent’s systems was restricted because the claimant was absent because of work related stress. This was normal practice and for example had also been done in respect of an HR person who was also absent with stress. We find that there was reasonable and proper cause in it taking the action it did. 1.2.4 Failing to properly investigate the claimant’s grievance regarding bullying (at first instance and on appeal)

[89]The claimant says that part of the reason she resigned was because the respondent had failed to properly investigate her grievance. Her claim form refers to the investigator failing to address the substance of the grievance, investigating completely separate issues regarding evening/weekend working, accepting false accusations not supported by evidence and including factually incorrect material in the investigation report. The claimant also contended that the investigator relied heavily on the personal opinions of Ms Dennings in the face of evidence to the contrary. The claimant’s resignation letter contained similar criticisms.

[90]The claimant’s witness statement and cross examination during this hearing widened the complaints to include procedural issues in relation to the grievance process itself. These are in respect of the involvement of Ms Lovelady etc when she was also responsible for the investigation, and secondly the failure to have a further meeting with Ms Lovelady after the second meeting which had taken place between the claimant and Ms Jackson. Those did not form part of her claim, nor do they appear in the resignation letter and as such we find that they did not form part of the claimant’s reason for resigning.

[91]Findings of Fact: Turning therefore as to whether the grievance was properly investigated. The grievance made two complaints: (p776) Bullying and coercing the claimant into complying with a requirement to incorporate any evening meetings within her contracted hours; and being threatened with disciplinary action for not attending a meeting when the time of the team meeting had already been changed. Mrs Jackson carried out the investigation. She produced a detailed outcome which we accept reflected her views and conclusions reached at that time.

[92]In respect of the first complaint, we find that a thorough investigation into the relevant issues had been undertaken. It was entirely appropriate for Ms Jackson to review the background to the events which led to Ms Dennings issuing the letter of 13 June 2023. The background was clearly relevant, and Jackson did not go outside her remit in understanding and reporting upon the lead up to the issuing of the letter. The false allegations which the claimant says were not supported by evidence about which the claimant complains about appear, from her witness statement, to refer to Ms Denning’s view of the claimant’s behaviour which led to the letter being issued. As we have said above there was more than sufficient evidence for Ms Dennings to have issued the letter and for Ms Jackson to have concluded as she did.

[93]In respect of the second complaint, that the grievance had failed to properly engage with the claimant’s allegation that the time of the team meeting had been changed from 3pm to 2pm before the letter of 13 June had been issued. It was noted that the only evidence that anybody had about a change in time appeared to come from the claimant herself and no one seemed to know exactly when the change of the time had happened. Mrs Dennings didn’t know whether the meeting time had been changed or indeed whether it had taken place at all as she said there was no record of the meeting in her diary. Ms Jackson didn’t see the issue as the substance of the claimant’s complaint. In cross examination, Ms Jackson explained that she did not consider it vital to know when the time of the meeting had changed. She explained that the complaint raised by the claimant was that she was being threatened with disciplinary action and not that the time of the meeting had changed. This must have come from discussing the matter with the claimant. She explained that her conclusions were based on: “wording, on emails, previous emails and docs that were given that there wasn't a threat of disciplinary action. Miss Denning got to a point where she had to take some action re: behaviour and tone of emails and previous behaviours that’s what I looked at, and whether there was a threat of disciplinary action. My conclusion was that Miss Denning was actually advising C if she continued to behave particularly the tone of her emails she would have no alternative to follow formal procedures, it didn't threaten her with disciplinary action she wanted to come to some mutual agreement or settlement that was cropping up I didn't believe that knowing the date changed would have made any difference to my conclusions.”

[94]The Tribunal found the evidence of Ms Jackson reliable; her evidence was accepted in respect of the second meeting which the claimant suggested was no more than a conversation on the doorstep. We found that the level of detail which Ms Jackson was able to give about the claimant’s home and garden room, and her credibility as an independent professional, was more reliable than that of the claimant.

[95]There was no particular issue in respect of the appeal mentioned by the claimant in cross examination. She makes the same criticisms of the appeal in her claim form as with the grievance itself. Although Mr Twomey’s consideration of the appeal was a review, that is in accordance with the respondent’s processes and his outcome letter was detailed and reasoned.

Conclusion

[96]We find that the claimant has not shown that the grievance was not properly investigated as she alleged. This allegation is not proved. There is no conduct of the respondent in relation to this allegation which can be said to have been calculated or likely to seriously damage or destroy the relationship of trust and confidence 1.2.5 Failed to pay the claimant in respect of additional hours in a timely manner.

[97]Findings of Fact: The claimant first raised concerns about the policy in respect of TOIL hours in January 2023. At that stage, the claimant was not seeking payment for the TOIL hours already accrued but challenging that the policy was being correctly applied. The first occasion that we can see from the documents that the claimant specifically seeks payment of the banked TOIL, which is the subject of this allegation in on 11 August 2023. She asks again on 25 August. Throughout the period from January 2023, the respondent accepts that the policy in respect of payment for additional hours for part time workers is unclear and initially seeks HR advice and upon that being unclear, seeks independent legal advice. In August 2023 that legal advice was provided to the claimant in a summary form. She did not agree with it and raised further queries. Further legal advice was sought on these queries and on 6 October 2023 Ms Lovelady wrote again to the claimant and at that stage confirmed that she should take the accrued TOIL but alternatively she would make enquires about the claimant being paid for it.

[98]The claimant was told on 26 October 2023 that she was to be paid TOIL, before she gave notice of resignation on 30 November 2023 and the payment was made with the claimant’s final salary on 15 January 2024.

Conclusion

[99]Although there was a delay in making a payment to the claimant following her request for payment in August 2023, there was reasonable and proper cause for this. The position was unclear and the respondent needed to take legal advice upon it. That was done in a timely fashion and upon the claimant raising further queries, the final position was confirmed to her prior to her resignation. There was reasonable and proper cause for any delay, and we would also have been of that view if the claimant had made the request in January 2023. Throughout, the claimant’s managers and the respondent have been supportive and sought to understand the correct legal position, and that took time. 1.2.6 Prolong a period of uncertainty and fail to provide clarify surrounding working hours.

Conclusion

[100]The initial issue was raised in January 2023 by the claimant. The respondent’s position that she was to include her evening meetings in her normal working hours and weekends would be claimed for separately was clarified to the claimant by the email of 3 April. This was subject to legal advice which was received in August and the position confirmed to her again. That position did not change. It was accepted in the grievance and appeal that there was some confusion as to the interpretation of the harmonisation policy at paragraph 5(x) but from 3 April 2023 there was no confusion. It was just that the claimant did not agree with it.

[101]There was good reason for any delays and uncertainty, such as existed. We find that the respondent had reasonable and proper cause for its actions during this period. It was itself waiting for final clarification from independent lawyers and it passed on that advice to the claimant when it received it. 1.2.7 Unilaterally imposing new working hours on the claimant.

Conclusion

[102]For the reasons stated above, this allegation is not proved in respect of the evening meetings. There is no conduct of the respondent which can be said to have been calculated or likely to seriously damage or destroy the trust and confidence.

[103]Although the respondent did in that letter refer to weekend working being part of the claimant’s working hours, that was a mistake. It was though a statement which on the face of it varied the claimant’s normal arrangements. The claimant however only worked on one weekend for 2 or 3 hours each year and in no circumstances could it be said that this was so serious as to be likely to destroy or seriously damage trust and confidence. Cumulatively

[104]Although there are a number of allegations which we have found the claimant has not proved as she alleges, we have also considered the events about which the claimant complains as a whole. A constructive dismissal is difficult to show. The test that the conduct of the respondent is so serious that it is calculated or likely to destroy or seriously damage trust and confidence is a high hurdle. Taken both individually and cumulatively, we find that the claimant has not reached that hurdle. She had a firm view on a particular issue which others disagreed with. The conclusion we reach is that the claimant has not shown that the respondent has by its conduct breached the relationship of trust and confidence between them.

[105]A such the claimant has not shown that she was dismissed. This claim fails and is dismissed. Public Interest Disclosure

[106]Turning to the complaint of detriment on the grounds that the claimant has made a protected disclosure.

[107]Conclusions: It is open to us to consider firstly causation and what was the reason that Ms Dennings sent the email on 13 June 2023, which the claimant says (but we have found not to be the case) bullied her in the ways alleged in the list of issues. In doing so, we have considered whether Ms Dennings was materially influenced by two disclosures. Those were the email of 17 January 2023 and a further email on or around 3 April 2023, in which the claimant raises matters in respect of the policy of non-payment for additional hours and consequent pension and holiday accrual for part time employees.

[108]We are reminded of section 48(2) of the Employment Rights Act 1996 and the guidance given in Osipov as to the application of the burden of proof.

[109]All the evidence from when the claimant first raised the issues about the non-payment for additional hours in January 2023 demonstrates that Ms Dennings was entirely supportive of the claimant’s wish to have the position clarified. There was no evidence which suggested that Ms Dennings was unhappy that this issue had been raised.

[110]We have already set out our findings in respect of the email of 13 June 2023 and the justifications which Ms Denning had for sending it. The letter of 13 June was to do entirely with the claimant’s behaviour, i.e. the tone and manner of emails and contact with Ms Dennings and her refusal to obey a management instruction to attend the Team Managers meetings on the dates specified, but more importantly going forward. The Tribunal considered that within the notes of the meetings, i.e. the transcript of the conversation with Ms Dennings and the claimant, the claimant was clearly refusing to attend team meetings if there was a council meeting that week unless she was paid for those hours. This was a matter which Ms Dennings had to deal with. It was the claimant’s obstructive and difficult behaviour which the respondent has shown was the reason for the 13 June email, and there is no evidence or inferences that we can draw which suggests that Ms Dennings’ email was materially influenced by the claimant’s complaint about non-payment for additional hours.

[111]As such it is not necessary for us to consider whether the disclosures were protected within the meaning of section 43B.

[112]Although not necessary in view of our findings we would also have concluded that this claim was presented outside the time limit of three months from the date of the detriment provided for by the Employment Rights Act 1996. The claimant did not provide any evidence as to why it was not reasonably practicable for her to have brought the claim within time. The respondent says that she had previously brought proceedings as set out in their disclosure, and as such she knew what the time limit was and there was no reason why she did not bring the claims within the appropriate time. As such we would have concluded that this claim should be struck out on that basis.

[113]This claim fails and is dismissed.

[114]The Tribunal repeats its apology previously sent to the parties for the delay in providing these written reasons. Approved by: