Ms E Farrow v LTE Group: 2417094/2018 and 2405412/2019
EMPLOYMENT TRIBUNALS
Case No 2417094/2018, 2405412/2019
Between
Ms E FarrowClaimantLTE GroupRespondent
Before
Employment Judge SherrattIn person for claimantMr T Wood (instructed by Counsel) for respondentDate 28 May 2021
JUDGMENT
[1]The unfair dismissal claim brought in case number 2417094/2018 is dismissed on withdrawal.[2]The claims under the Equality Act 2010 brought in both cases are dismissed on the basis that they have no reasonable prospect of success.
REASONS
Introduction
[1]The claimant was ordered to pay a deposit of £25.00 following a preliminary hearing held on 6 December 2019. The Order was sent to the claimant on 31 January 2020. The claimant failed to pay this deposit by the deadline specified in the Order. The remaining complaint of constructive unfair dismissal is therefore struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013.[2]The hearing fixed for 20 and 21 April 2020 will not take place.[3]If the claimant has not sought reconsideration of this judgment within 14 days the deposit paid late will be returned to her.[1]The “Code V” in the heading indicates that this was a hearing conducted by way of video conference call using the HMCTS Cloud Video Platform.[2]The claimant resigned from her employment as a Clinical Supervisor with the respondent in March 2019. On 8 May 2019 she presented a claim form bringing complaints of unfair dismissal and of disability discrimination. A response form of 30 August 2019 defended the claims.[3]The case was considered by Employment Judge Sherratt at a preliminary hearing on 6 December 2019. He struck out the disability discrimination complaints because they had no reasonable prospect of success. He made a deposit order in relation to the unfair dismissal complaint because he considered it had little reasonable prospect of success. The deposit order required payment of a deposit of £25 by 31 January 2020. The judgment and deposit order were sent to the parties by email on 3 January 2020.[4]The claimant did not pay the deposit by 31 January 2020. Her payment was received on 4 February 2020. Following correspondence between the parties this resulted in my judgment of 2 April 2020 confirming that the claim had been struck out because the deposit had not been paid within the time ordered.[5]The claimant applied for reconsideration of that judgment the same day. She provided further information in support of her application on 25 May. The respondent provided details of its objection to the application in a letter of 8 June 2020. The case was listed for a two hour reconsideration hearing before me today.[6]I had read the file prior to the hearing, including the written submissions made in advance by both parties. I heard oral evidence on affirmation from Ms Farrow. She answered my questions and those from Mr Wood. The respondent did not call any evidence but relied on its written submissions and additional oral submissions made by Mr Wood. Ms Farrow also summarised her case at the conclusion of the hearing. Relevant Legal Framework[7]The application for reconsideration was made under rule 70. That provides for a judgment to be reconsidered: “Where it is necessary in the interests of justice to do so.”[8]An application for reconsideration is an exception to the general principle that a decision of an Employment Tribunal is final. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton [2016] EWCA Civ 714.[9]The power to extend time arises under rule 5. Rule 5 confirms that time can be extended even if it has expired.[10]The powers under rule 70 and under rule must be exercised in accordance with the overriding objective in rule 2. That is to deal with cases fairly and justly. That includes, so far as is practicable, avoiding unnecessary formality and seeking flexibility in the proceedings, and avoiding delay, so far as compatible with proper consideration of the issues.[11]The Employment Appeal Tribunal confirmed in Sodexho Ltd v Gibbons [2005] ICR 1647 that if a judgment striking out a claim for non payment of a deposit order is revoked upon reconsideration, the Tribunal can then exercise its case management power to extend time for payment retrospectively. Relevant Findings of Fact[12]I found the relevant facts to be as follows.[13]The claimant suffers from a range of conditions which affect her ability to deal with these proceedings. She has dyslexia and post traumatic stress disorder. She also has problems with her hip and spine which affect her mobility. She is unable to afford legal advice or representation and is reliant on state benefits.[14]The claimant attended the preliminary hearing on 6 December 2019 and was aware that she had to pay the deposit of £25 by 31 January 2020. She made a diary note of that deadline.[15]The claimant received the email of 3 January 2020 which had the deposit order attached as a pdf document, but was unable to open it at the time. I accepted her evidence that she has difficulties with attachments because both her computer and mobile phone are relatively old devices. I noted that she made this point in her email of 22 January 2020 (see below).[16]The claimant was intending to pay the deposit during January 2020 but sadly her mother became ill and died on 18 January 2020. Her mother lived in the Middle East. The claimant flew to Dubai on 22 January. She returned back to the UK on 30 January, arriving at Manchester Airport in the early evening of Thursday 30 January 2020.[17]During that period the claimant sent some emails to the tribunal and to the respondent. On 22 January she emailed to say that she was currently out of the country and would not be returning until 30 January. Her email mentioned her dyslexia and her difficulty in understanding legal protocols. She said that her PTSD had been exacerbated by recent events. Her email concluded with the following: “Any monies due and documentation required will be sent after my return and when I can open the attachment sent in your last email.”[18]The respondent’s solicitor, Ms Guilding, responded on 23 January expressing her condolences and offering an extension for the Schedule of Loss which was due on 17 January. Her email ended with a reminder of the deadline for payment of the deposit.[19]The claimant sent a brief response on 25 January saying that she did require an extension. That email was copied to the Tribunal and referred for judicial consideration. It was seen by Employment Judge Holmes on 3 February 2020, and he granted an extension of time for the Schedule of Loss to 10 February 2020. That was confirmed in a letter to the parties of 13 February 2020.[20]Having arrived at Manchester Airport on the evening of 30 January the claimant had to stay there overnight before travelling to her home in Southport the next day. On Friday 31 January she rang the Employment Tribunal. I accepted her evidence that she formed the impression from that telephone call that she had until midnight that day to pay the deposit and, crucially, that it could be paid online. She returned home and later that day during working hours sought to make payment of the deposit online. She found that she was unable to do so and that the deposit could only be paid by means of cheque or postal order.[21]The claimant went to her local Post Office either on Saturday 1 February or Monday 3 February and sent off the payment which was received by the Finance Department in Bristol on 4 February 2020. That same day she sent an email to the Tribunal and the respondent which had attached a letter dated 31 January 2020. The letter explained the family emergency in January which led to her going to the Middle East, and reiterated that she had not been able to open any documents on her phone. She said that she had rung the Tribunal and asked for her file to be updated as a record of the communication and that she had been told that a payment could be made up until midnight that day. She only saw once she opened the attachment that this was not the case. Submissions[22]On behalf of the respondent the written submission of 8 June 2020 drew attention to some issues about the chronology but submitted that the claimant had had the opportunity to make payment during January. It was submitted that it was not necessary in the interests of justice to revoke the judgment. That offended against the public interest in the proceedings being final. In oral submissions Mr Wood developed these points and emphasised that this was a case with very limited merit and a very low value financially. The costs of defending it for the respondent would outweigh its value. There had been no procedural failure here which would justify revoking the judgment striking out the claim: the claimant had had a fair opportunity to pay the deposit on time and had not done so.[23]In her oral submission the claimant emphasised the merits of her case and said that she considered that Employment Judge Sherratt had misunderstood the case when he made the deposit order. She also submitted that the case had value to her beyond its mere financial value because of its impact upon her professional career. She reiterated the factors which had caused her difficulty in paying the deposit when she had intended to, and the fact that she had been told that it would be possible to pay it online and only found out on the very last day this was not so.
Conclusions
[24]There had been no application for reconsideration of the Judgment of Employment Judge Sherratt dismissing the discrimination complaints, nor any appeal against or application for variation of his deposit order. I considered that I was not in a position to depart from his view that the complaint of unfair constructive dismissal had little reasonable prospect of success.[25]I noted what the respondent said about the need for finality in litigation. However, the power to reconsider judgments is one which should be exercised where it is necessary to do so in order to do justice between the parties, entirely consistent with the overriding objective of dealing with the case fairly and justly. In my judgment it would not be just to treat these provisions as simply mechanical exercises whereby any claimant who fails to pay a deposit on time loses any prospect of pursuing the case. It must depend in part on the reason for the delay, the length of the delay and any other relevant factors.[26]Looking at the underlying reality of this case I was satisfied that it was in the interests of justice to revoke the Judgment. The claimant had intended to pay the deposit. She had diarised the date from the preliminary hearing. She had ample time to do so in January, and in my judgment would have done so had it not been for the unfortunate personal circumstances which intervened. The death of her mother and the consequent need for her to travel to the Middle East, getting home only on the very last day for payment, were factors which were outside her control.[27]Further, her difficulties were exacerbated by her dyslexia and problems understanding exactly what was required. I also found as a fact that she had not been able to open the attachments to the Tribunal email until her return to the UK. It was only then that she realised that she was not able to make payment online on the very last day, and despite her mobility issues she made arrangements for the deposit to be paid by post as soon as she could.[28]I also took into account the length of the delay. The deposit was paid within four days, two of which occurred at the weekend. This is not a case where the passage of time between the last date for payment and the date of payment could be thought to create any additional difficulties for the respondent. The fact that this application was being heard in October 2020 was attributable to delays on the part of the Tribunal resulting from the pandemic.[29]Further, I had no doubt that if the claimant had contacted the Tribunal and explained her difficulties in January and sought an extension of time to pay the deposit, it would have been granted.[30]Putting all these matters together I was satisfied that it would be unjust to deprive the claimant of the chance of pursuing her claim where she had been hampered by some difficult personal circumstances from making payment within the time limit, and where she had misunderstood the process. To achieve justice between the parties it was necessary to revoke the judgment striking out her claim and to extend time for payment of the deposit by four days to 4 February 2020.[31]The unfair constructive dismissal complaint will now proceed and is the subject of a Case Management Order which will be sent to the parties separately.
Facts
[32]The claimant said on 31 May that she would think about the alternative role. She did not agree to the change in role. She was not given a management instruction to perform other specific duties. There was no dispute that both the claimant and Mr Atkins intended to meet again following the claimant’s return from leave, to discuss the proposed alternative role and its suitability for the claimant. In the light of subsequent events and, in particular, the claimant’s ill health absence, that meeting never took place.[33]As the subsequent meeting never took place, there was no genuine discussion with the claimant about the role of Placement Co-ordinator, nor was there any discussion about the reasons she had for not wishing to take up the role. The previous post-holder had been a supervisor who was retiring. Mr Sivori’s evidence was that he ultimately took on the responsibilities himself. However, for both the previous co-ordinator and Mr Sivori, this was a part of their responsibilities, undertaken alongside other teaching and/or supervision. For the claimant, what was being proposed was a move away entirely from a clinical or educational role, into a role which was more administrative in nature and neither clinical nor genuinely educational. There was no dispute between the parties that it was a significant role which was important to the students and which somebody needed to undertake. Alongside not wishing to accept a different role of this nature, the claimant also said she did not wish to undertake the role because of her disabilities, which she clarified to mean that: she had difficulties with remaining in one place for the length of time required for the administrative tasks; had limited mobility which inhibited her ability to visit placements; and had dyslexia which impacted upon her ability to undertake a role which was entirely about paperwork, documentation and record-keeping. For these entirely understandable reasons, the claimant did not wish to undertake the role. She never agreed to do it and, because there was never a follow up meeting to the discussion on 31 May, there was never any exploration with the claimant about alternatives or why she did not wish to undertake the role. She was never actually assigned any duties as such.[34]Following the 31 May meeting, the claimant was on pre-booked annual leave during which she travelled abroad. She was not due to work on 14 June 2018, which was the last potential working day before she was to cease supervision. The claimant was not therefore able to hand over her supervisees or speak to them about the changes. Mr Sivori’s evidence was that she was given two weeks notice of the cessation of her involvement in the course, which in his view provided sufficient time to ensure that supervisees were not adversely affected and that the cessation of supervision did not adversely impact upon the claimant herself. In the light of the claimant’s annual leave, the limited amount of time she worked each week, and the fact that she was not told of the date in her meeting on 31 May, the claimant was not given time to ensure a smooth transition of students and responsibilities and I do not accept Mr Sivori’s evidence in this respect.[35]On 14 June 2018, while the claimant was away on leave, she was emailed by Mr Sivori (320) and provided written “confirmation” that from Friday 15th June she was not to work with students for supervision. There were subsequent emails exchanged about who had been informed about this. The claimant’s evidence was that a number of students contacted her as they had attended at the time of appointments which had not been cancelled.[36]On 27 June (325) the claimant emailed Mr Sivori and a colleague to say that she would not be attending work on 28 June as she felt too ill. She said she would be submitting a fit note. Mr Sivori responded in an email on 28 June (323) and addressed issues about contact with students. He also reiterated that the claimant was not to hold supervision sessions with students.[37]On 28 June 2018 the claimant commenced a period of leave on ill health grounds, from which she never actually returned. There was limited evidence available, but the claimant accepted that she continued to receive pay for a period during her sickness absence. The claimant provided fit notes to the respondent to cover her absence.[38]On 19 July 2018 the claimant raised a grievance (331). A grievance hearing took place on 16 August 2018. An outcome was sent in a letter of 26 September 2018 (374). The decision was made by Ms Galston. The claimant’s grievance related to two issues: the BACP process and her change in role; and Mr Silvari’s management of, and communication with, the claimant. The element of the grievance about the directives from the respondent regarding the BACP and not following process, was not upheld. The grievance that there had been poor management of the claimant and communication with her, by Mr Silvari, was upheld. The grievance outcome recommended that the claimant and Mr Silvari should enter into mediation to reach an agreement to work together effectively and build on the identified fractured working relationship. The claimant made clear during the Tribunal hearing that she had no issue at all with the outcome regarding Mr Silvari and the mediation recommendation. The recommendation was never in practice actioned, as the claimant did not return to work due to ill health and her subsequent resignation.[39]The claimant appealed against the outcome of the grievance on 3 October 2018. The claimant did not attend the appeal hearing, but it was heard on 25 October 2018. An appeal outcome was provided in a letter of 16 November 2018 (398). It was considered by Ms Connor, Head of Facilities, from whom I did not hear evidence. The appeal outcome agreed with the findings and recommendations of Ms Galston. The decision letter made clear that the outcome of the grievance appeal was final and there was no further right of appeal under the respondent’s grievance procedure. Accordingly, the respondent’s grievance procedure (including the appeal) concluded on 16 November 2018.[40]During her absence, the respondent did make contact with the claimant and asked her to attend meetings to discuss her ill health and role. The claimant’s evidence was that she was unable to do so. This was because of her health, but also a number of life events which she explained in evidence (including that the claimant had needed to relocate some distance from the respondent’s premises). One other reason given in evidence by the claimant was that meetings were arranged at too short notice, however for at least one of the meetings arranged she was given two weeks notice. Letters were sent to the claimant which explained why a meeting was being arranged and which invited the claimant to such a meeting with Mr Atkins. These included letters on: 17 January 2019 (439); 30 January (449); 14 February (454); 21 February (459); and (in an email) 5 March (477). It is not necessary for me to reproduce the content of those letters, as the claimant did not raise any complaint about them or address them at all in her witness statement. The content was entirely appropriate. Mr Atkins’ evidence, which I accept, was that had a meeting been arranged he would have discussed with the claimant: the placement co-ordinator role; her disabilities; and what other options or opportunities there were within the College. The letters emphasised to the claimant that she remained employed (477).[41]Shortly before the claimant’s resignation, Mr Atkins did exchange letters with the BACP (461 and 462). His letter to the BACP of 25 February 2019 sought information about whether the claimant had met the sanctions imposed and, if she had, whether she could now return to supervising attendees on the BACP accredited level 5 course. He also asked about the timescale if she had not yet met the requirements of the BACP sanctions. The BACP response dated 1 March 2019 identified where Mr Atkins could see the information about whether the claimant had met the sanctions. As the claimant quite rightly identified in the course of the hearing, this particular letter from the BACP appeared to be written in terms which demonstrated a greater concern about data protection issues and confidentiality than the earlier BACP correspondence which was provided to the Tribunal.[42]The claimant entered an Employment Tribunal claim on 23 November 2018. There was a preliminary hearing (case management) in that case heard by Employment Judge Robinson conducted in Manchester Employment Tribunal on 4 March 2019 (39). The hearing was attended by the claimant. The case management order recorded that the claimant had stated that she no intention of going back to the College to work. It also stated (40) that Employment Judge Robinson explained what a constructive unfair dismissal claim was and that he could not advise the claimant to resign, as that was a matter for her. From the evidence it appeared that this was the first time that the claimant became aware that she needed to resign in order to be able to claim constructive dismissal.[43]The claimant resigned in an email on 5 March 2019, with immediate effect (481). She stated in that email she had resigned because she could not return to the current situation. She said that the respondent had been given every opportunity to resolve issues, but this had not occurred. She referred to the fact that she believed that the respondent had stopped her working and outlined that she believed the alternative role was not appropriate for a clinician or someone with her longstanding disabilities. The resignation email went on to address various issues, including the claimant’s criticism of the BACP accreditation process and the change in her role.[44]The claimant’s witness statement did not expressly explain what triggered her resignation. When asked about this at the start of the hearing, she made it clear that she resigned because the respondent forced her into another role or pushed her into another role (which she went on to explain she believed to have been with no rationale and was a decision which made no sense). In answer to a question about why she resigned in March 2019 when the role was changed in June 2018, the claimant referred to being absent with stress, and also that she was hopeful that these things would be resolved, but they weren’t. When asked why she did not resign after the grievance appeal outcome in November 2018, the claimant said that, at the end of the day, she still hoped the College would see that what it had done was inappropriate, whilst also referring to her ill health and PTSD and explaining that, because her life was in turmoil, it was very low on her list of priorities. She emphasised that she always remained hopeful that the respondent would change its decision. When asked why she did not meet with Mr Atkins before she resigned, the claimant explained that, in her view, trust had broken down.
The Law
[45]The unfair dismissal claim was brought under Part X of the Employment Rights Act 1996.[46]An unfair dismissal claim can be pursued only if the employee has been dismissed as defined by Section 95. Section 95(1)(c) provides that an employee is dismissed by her employer if: “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[47]The principles behind such a constructive dismissal were set out by the Court of Appeal in Western Excavating (ECC) Limited v Sharp [1978] ICR 221. The statutory language incorporates the law of contract, which means that the employee is entitled to treat herself as constructively dismissed only if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.[48]Lord Denning said in that case (at 226B): “the conduct must … be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded to have elected to affirm the contract.”[49]One term of the contract is the implied term of trust and confidence. In Malik and Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606 the House of Lords considered the scope of that implied term and the Court approved a formulation which imposed an obligation that the employer shall not: “…without reasonable and proper cause, conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”[50]It is also apparent from the decision of the House of Lords that the test is an objective one in which the subjective perception of the employee can be relevant but is not determinative. The objective test also means that the intention or motive of the employer is not determinative. An employer with good intentions can still commit a repudiatory breach of contract. Not every action by an employer which can properly give rise to complaint by an employee amounts to a breach of trust and confidence. The formulation approved in Malik recognises that the conduct must be likely to destroy or seriously damage the relationship of confidence and trust.[51]In some cases, the breach of trust and confidence may be established by a succession of events culminating in a “last straw” which triggers the resignation. In such cases the decision of the Court of Appeal in London Borough of Waltham Forest v Omilaju [2005] ICR 481 demonstrates that the last straw itself need not be a repudiatory breach as long as it adds something to what has gone before, so that when viewed cumulatively a repudiatory breach of contract is established. However, the last straw cannot be an entirely innocuous act or be something which is utterly trivial.[52]If an individual delays too long in resigning, they will have affirmed the contract and waived the breach. In W. E. Cox Toner (International) Ltd v Crook [1981] ICR 823 Browne-Wilkinson LJ in his Judgment emphasised that continued performance of the employment contract is evidence of affirmation. He summarised the position by saying: “there must be some limit to the length of time during which an employee can continue to be employed and receive his salary at the same time as keeping open his right to say that the employer has repudiated the contract under which he is being paid”[53]The list of issues identified the authority of Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1. In Kaur Underhill LJ said: “In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?(2) Has he or she affirmed the contract since that act?(3) If not, was that act (or omission) by itself a repudiatory breach of contract?(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reasons given…)(5) Did the employee resign in response (or partly in response) to that breach?”[54]Kaur is also authority for the fact that an employee does not become unable to accept a repudiation because she chooses to seek a resolution by means of a grievance procedure before resigning. Whether or not an employee has waived or accepted a fundamental or repudiatory breach of contract, depends upon all the facts of the case. However, an employee is able to pursue an internal grievance and to endeavour to resolve matters through an employer’s internal procedures, without necessarily waiving or accepting a breach whilst doing so.[55]The respondent also relied upon the contended fair reasons for dismissal of capability and/or some other substantial reason. The respondent bears the burden of proving, on a balance of probabilities, that the reason for the dismissal was capability or SOSR. If the respondent does persuade the Tribunal that it held the genuine belief and that it did dismiss the claimant for that reason, the dismissal is only potentially fair. The Tribunal must then go on and consider the general reasonableness of the dismissal under section 98(4) of the Employment Rights Act 1996.[56]Section 98(3)(a) of the Employment Rights Act 1996 provides that ““capability” in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality”.[57]Section 98(1)(b) provides that the employer must show the dismissal is for “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”.[58]The correct starting point in relation to the question of whether the dismissal is fair in the circumstances is section 98(4) of the Employment Rights Act 1996, which provides as follows: “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.”[59]It is not the Tribunal’s function to determine whether or not the Tribunal itself would have dismissed the claimant.[60]The Employment Tribunal is also required to, and did, take into account the ACAS Code of Practice on Disciplinary and Grievance Procedures.[61]In Polkey the House of Lords held that the fact that the employer can show that the claimant would have been dismissed anyway (even if a fair procedure had been adopted) does not make fair an otherwise unfair dismissal. However, such evidence (if accepted by the Tribunal) may be taken into account when assessing compensation and can have a severely limiting effect on the compensatory award. If the evidence shows that the employee may have been dismissed properly in any event, if a proper procedure had been carried out, the Tribunal should normally make a percentage assessment of the likelihood and apply that when assessing the compensation. In applying a Polkey reduction the Tribunal may have to speculate on uncertainties to a significant degree. Hill v Governing Body of Great Tey Primary School [2013] IRLR 274 is authority for how Polkey should be applied and that the Tribunal must make the decision based upon the actions of the employer who is before the Tribunal, on the assumption that the employer would this time have acted fairly though it did not do so beforehand. The onus is on the respondent to adduce evidence to show that the dismissal would (or might) have occurred in any event. However, the Tribunal must have regard to all the evidence when making that assessment, including any evidence from the claimant.[62]Section 122(2) of the Employment Rights Act 1996 provides that the basic award shall be reduced where the conduct of the employee before dismissal was such that it would be just and equitable to do so. It is important to note that a key part of the test is determining if it is just and equitable to do so. Section 123(6) of the Employment Rights Act 1996 provides that if the Tribunal finds that the claimant has, by any action, to any extent caused or contributed to her dismissal, it shall reduce the amount of the compensatory award by such amount as it considers just and equitable having regard to that finding. This test differs from the test which applies to the basic award. The deduction for contributory fault can be made only in respect of conduct that persisted during the employment and which caused or contributed to the employer's decision to dismiss. There are three factors required to be satisfied for the Tribunal to find contributory conduct: the conduct must be culpable or blameworthy; it must have cause or contributed to the dismissal; and it must be just and equitable to reduce the award by the proportion specified (Nelson v BBC (No 2) [1979] IRLR 346). Conclusions – applying the Law to the Facts Other issues[63]It is important to highlight that the issues which I have been able to determine, are limited to: those things which fall within the jurisdiction of the Employment Tribunal; and the issues identified in the claim which I have heard. A constructive dismissal claim is a claim brought against the claimant’s former employer. I have determined only claims brought against this respondent (LTE Group).[64]I have not determined any complaints which the claimant has against the BACP. I have not heard evidence from anyone from the BACP. Much of the claimant’s questioning during the hearing was directed at demonstrating her view of the BACP’s accreditation requirements as imposed on the respondent. She believed those requirements were inconsistent with the sanction applied, illogical, and, broadly speaking, unfair. It was not my role to determine the claimant’s complaints about the BACP’s accreditation decisions, nor did I need to do so to decide the claim which I have heard. It may be that those issues are raised by the claimant in other proceedings. I have not determined any claims against the BACP.[65]However, there are two important things which relate to the BACP accreditation decision, which it is appropriate for me to address in this Judgment: 1. I can fully understand the claimant’s grievance with the actions of the BACP in relation to the accreditation of the respondent’s level 5 counselling course. The BACP had imposed a sanction on the claimant which did not restrict her practice. I can entirely understand why the claimant believed that it was inequitable for the BACP to impose a requirement on the respondent that, if it wished to have its course accredited by the BACP, the claimant must not have a supervisory role with anyone on the course. I agree that the requirement imposed by the BACP on the respondent if it wished to receive BACP accreditation, appeared (based on the evidence which I heard) not to be consistent with the sanction applied to the claimant and I can see why she believed it effectively amounted to a further sanction being imposed on her by the BACP without fair process; and 2. The evidence which I have seen proved that the BACP made very clear to the respondent that, for the course to receive BACP accreditation, the claimant must not be involved in supervision of those undertaking the course. That was a requirement imposed by the BACP, which the respondent needed to meet if it wished to obtain BACP accreditation.[66]The claimant referred in her submissions and during the hearing to the correspondence between the respondent and the BACP amounting to a breach of data protection obligations. I have no jurisdiction to determine issues relating to data protection or breach of any data protection legislation (including GDPR). The claimant did not identify any specific breach. Inasmuch as it is relevant to the constructive dismissal claim, I do not find that the correspondence entered into by the respondent with the BACP seeking accreditation and naming the claimant, was necessarily a breach of the respondent’s data protection obligations (as processing was necessary for the respondent’s legitimate interests and as the BACP sanction had already been published), nor was it (of itself) a fundamental or repudiatory breach of the claimant’s employment contract, even if it was a breach at all. Issue 1[67]The issues which I am required to determine are set out at paragraph 6 above. Issues 1-5, from the list of issues, follow from the Judgment in Kaur v Leeds Teaching Hospitals NHS Trust.[68]In respect of issue 1, the only act which the claimant relied upon as causing or triggering her resignation was the respondent’s decision to move her out of the role she had previously fulfilled, that is counselling supervisor (related to the level 5 counselling course). Issue 2 – affirming the breach (delay before resigning)[69]For issue 2, the question is whether the claimant had affirmed the contract after the act identified at issue 1? The claimant was made aware that she was being asked to move out of her role when Mr Atkins met with her on 31 May 2018. She was aware that she had been moved out of her role when she received the email of 14 June 2018 (320). The claimant did not resign until 5 March 2019. The question is whether, by remaining employed during that period, the claimant affirmed her contract (that is did she delay too long before resigning to be able to rely upon that breach)?[70]Whilst the claimant was absent on ill health grounds from 28 June 2018, she received pay for some of the period and provided fit notes. She corresponded with the respondent about meetings. She was not fit enough to work, but was fit enough to engage with the respondent and to make decisions about things such as remaining in employment and bringing a Tribunal claim. As recorded at paragraph 44, the claimant’s evidence was that she was hopeful that things would be resolved and that the respondent would change its decision. That evidence demonstrated that remaining in employment was a conscious decision from the claimant, albeit one based upon an understandable hope that matters would be resolved in the way the claimant wanted without her needing to resign. The claimant delayed resigning for eight and a half months from the date when she knew she was being moved out of the counselling supervisor role (14 June 2018).[71]The delay was partly explained by the claimant with reference to her ill health and personal circumstances. However, her evidence was clear that she made the decision to resign when she did, and she had chosen not to do so earlier. The claimant was able, and did, enter an Employment Tribunal claim on 23 November 2018, demonstrating that whilst the claimant was not well at the time and was facing a number of life challenges (as she explained during the hearing), she was nonetheless able to make important decisions and would have been able to resign earlier had she decided to do so.[72]The contention that the claimant did not affirm the contract, despite the lengthy delay in resigning between breach and resignation, would have been far stronger had the claimant resigned during the grievance process or shortly after it had concluded. The grievance, in part, was the claimant raising with the respondent her dissatisfaction with the decision made to take her role away. It was her providing the respondent with an opportunity to resolve that issue, utilising its own processes for doing so. This was also consistent with the claimant’s evidence that she continued to hope that the respondent would change its approach. However, the grievance process including the grievance appeal, concluded on 16 November 2018. There was a further delay of three and a half months before the claimant resigned. Whilst it may have been the case that the claimant did not waive the breach by remaining employed during the grievance process (even though that was a long period of time), nonetheless the further three and a half month period postgrievance, was significant.[73]I have cited from what was said in the cases of Western Excavating (ECC) Limited v Sharp and W. E. Cox Toner (International) Ltd v Crook (see paragraphs 48 and 52 above) about affirmation and delay in resigning. By continuing in employment for over eight months, I find that the claimant: continued for a length of time without leaving such that she was to be regarded as having elected to affirm the contract and lost her right to treat herself as discharged from it; and remained employed beyond the limit to the length of time during which she could continue to be employed and keep open her right to say that the respondent had repudiated the contract under which she was employed. She had therefore affirmed the contract by remaining employed. Even if the claimant had not affirmed the contract by 16 November 2018 as a result of the ongoing grievance procedure (including appeal), by remaining in employment for a further three and a half months after that date (in the context of the breach having occurred in June 2018) the claimant in any event affirmed the contract by remaining employed. I find that she waived the breach. The delay was not a reasonable one. On the facts of this case, I find that the delay of eight months and a half before resigning (and three and a half months from the end of the grievance appeal) did constitute an affirmation of the contract. The other constructive dismissal issues (3-5)[74]The fact that I have found that the claimant affirmed the contract and remained employed too long to be able to rely upon the respondent removing her from her role in 2018 as the basis for her constructive dismissal claim, means that I do not have to go on to decide whether that breach was fundamental/repudiatory (issue 3). Nevertheless, as I have heard evidence upon it and as it was a central part of the claimant’s claim, I will provide my decision.[75]The claimant was employed as a counselling supervisor. On 31 May 2018 she was informed that she would need to stop being a counselling supervisor and an alternative role was suggested. On 14 June 2018, before that alternative role was further discussed or explored, the claimant was told that she must stop being a counselling supervisor and must cease to undertake any supervision. At the point she was instructed to do so, she was on annual leave. That is, she was told to stop undertaking the duties for which she was employed, and no alternative role had been fully explored or agreed with her.[76]In those circumstances, I do find that requiring someone employed as a counselling supervisor to cease undertaking any supervision, was a fundamental (or repudiatory) breach of contract. The claimant’s contract stated that she was employed to undertake that role. Taking that role away was a fundamental breach. In any event, telling the claimant to cease undertaking the supervision for which she was employed was a fundamental breach of the duty of trust and confidence, being an instruction which was likely to destroy or seriously damage the relationship of trust and confidence. This unilateral decision about the entirety of the claimant’s duties was such a breach in any event, but in circumstances where the only discussion with the claimant about alternatives had been the short meeting with Mr Atkins, I find that requiring her to cease undertaking her role was a fundamental breach by the respondent of the duty of trust and confidence.[77]I would add that I fully understand the respondent’s reasons for making the decision. The decision was made to ensure that the level 5 course received BACP accreditation, in the light of the clear instruction from the BACP about what was required to achieve that accreditation. I also accept that BACP accreditation of the course was important to the respondent. However, instructing the claimant to cease undertaking all of the duties for which she was employed as a clinical supervisor was nonetheless a fundamental breach of contract, particularly in circumstances and at a time when the claimant had not agreed to an alternative role.[78]I accept that the respondent did (at least to an extent) endeavour to identify other work for the claimant to do. The offer of the role of Placement Supervisor was well intentioned and might have averted the issues, if the claimant had been happy to accept the role. The claimant did not wish to undertake the role, which she perceived to be purely administrative in nature and involved no clinical practice or supervision. I accept that the role was an important one for the respondent and its students. The claimant had perfectly appropriate and reasonable reasons for not wishing to fulfil an entirely non-supervisory (or non-clinical) role, particularly in the light of her disabilities and the fact that they meant she had particular difficulty with a role of this kind. Those issues were, however, never genuinely explored with the claimant, as that was intended to happen at the next meeting after 31 May (which never took place). Genuine consideration of what was required in the potential alternative role, and the claimant’s reasons for rejecting it, had not been discussed at the time that she was told to cease clinical supervision. The respondent did not place significant emphasis on clause 2.3 of the contract (see paragraph 19), but, in any event, I find that the position on 14 June 2018 was not that the respondent had required the claimant to perform other duties commensurate with her post and grade. The discussions about the alternative role had not reached that point. What occurred on that date was simply that the claimant was required to cease undertaking clinical supervision (that is the very thing she was employed to do), and that instruction was a fundamental (or repudiatory) breach of her contract and/or a breach of the duty of trust and confidence.[79]There was no course of conduct comprising several acts to be considered (issue 4). The claimant did not allege there was. The claimant had no particular issue with the grievance process or its outcome. There was no further breach or last straw relied upon in relation to the absence management of the claimant or the requests to meet with her in 2019. The reason for the claimant’s resignation was her removal from her role, something which was decided in June 2018.There was therefore no further breach or last straw to be considered.[80]I do find that the claimant did resign in response to the fundamental breach relied upon (issue 5). Whilst the claimant delayed a long time before resigning, she still resigned from employment for the reason that she gave, that is because she had been removed from her role. The respondent submitted that the reason for resignation was the claimant’s discovery that she needed to resign in order to pursue a constructive dismissal claim (and not the change in her role). It is correct that she resigned partly because she became aware that she could only pursue a constructive dismissal claim if she was no longer employed, that was clear from the timing of the resignation occurring on the day after the need to resign to claim constructive dismissal was explained to her by an Employment Judge. However, that does not alter the fact that the underlying and real reason for her resignation was the fact that she had been removed from her role. The fairness of the constructive dismissal (issues 6-9)[81]The respondent contended that the dismissal was fair, even if the claimant had been constructively dismissed, relying upon both capability and some other substantial reason (issues 6-9). As I have found that the claimant was not constructively dismissed, this issue does not impact upon the outcome of the claimant’s claim. It is also fair to say that the respondent’s primary argument was that the claimant had not been constructively dismissed at all. As I heard argument on the fairness of the constructive dismissal I will however record my findings on what was contended.[82]One difficulty in determining this issue, is the timing of the alleged fundamental breach of contract. Whilst the arguments put forward by the respondent about the potential fairness of the contractive dismissal focussed upon the time of the claimant’s resignation (in March 2019), in practice if the claimant was constructively dismissed as alleged, that occurred in May and June 2018. The reason for the constructive dismissal and the fairness of it therefore could only be appropriately considered as at the time when the respondent took the action which resulted in the termination of the claimant’s contract.[83]The respondent did not remove the claimant from her role due to capability. There was no evidence that the reason she was removed from her duties was because she was not capable of fulfilling the role. Even considering capability as at 5 March 2019, whilst it might ultimately have been possible that the claimant could fairly have been dismissed by reason of capability on the basis that she was not fit to return to work had a fair procedure subsequently been followed and exhausted, the respondent had not reached that point as at the date of resignation. The respondent had not determined that the claimant was incapable of undertaking the role, as for example evidenced by Mr Atkins exchange of correspondence with the BACP (see paragraph 41). That was not genuinely the reason for dismissal. In any event a fair procedure had not been undertaken which would have enabled a capability dismissal to be fair in all the circumstances of the case, at the point that the claimant resigned. That is why Mr Atkins had written to the claimant inviting her to a meeting, because there were still further matters to be discussed when the claimant was able to attend such a meeting, before a decision could be fairly reached.[84]For some other substantial reason, there was simply no evidence given by any of the respondent’s witnesses that they had or would have dismissed the claimant for that reason. The respondent’s representative submitted that the reason existed in March 2019, but the reality was that the moment when the respondent removed the claimant from her role was May or June 2018, and at that time the decision reached was not to dismiss her but to try to identify some other role for her. There was no evidence that there was a decision to dismiss the claimant because of the BACP’s requirements. Indeed, Mr Atkins’ clear evidence was that the respondent decided not to dismiss the claimant because of the BACP’s accreditation requirements, the decision was to keep her in employment. Whilst the decision to remove the claimant from her role may have been due to third party pressure, the respondent did not contend that this made the dismissal fair, nor would I have find that it did so in the circumstances for the reasons which I have explained.[85]Accordingly, I do not find that had the claimant been constructively dismissed on 5 March 2019, the dismissal would have been fair. Would the claimant have been dismissed in any event – Polkey (issues 10 and 13(ii))[86]With regard to issues 10 and 13(ii), there is no doubt that by the time of the claimant’s resignation there was a strong possibility that the claimant would otherwise in any event have been dismissed by reason of capability (that is her health). Her evidence to the Tribunal was that she was unable at the time to return to work. She had been absent on ill health grounds for over eight months and there was no positive prognosis for a return. The claimant did not feel able to meet with the respondent. Had it been necessary to do so, I would have decided that a significant reduction to the compensatory award would have needed to be made, to reflect the strong possibility that the claimant would in any event have been dismissed on capability (health) grounds (Polkey). I believe that the appropriate reduction would have been 80%. However, as I have decided that the claimant was not constructively dismissed, this does not in fact apply. Contributory fault (issues 11, 12 and 13(iii))[87]The respondent also contended that any award should be reduced for contributory fault (issues 11, 12 and 13(iii)). Based upon the submission made, the contributory fault was contended to arise from the claimant’s non-engagement with the respondent and the offers of meetings in 2019. This alleged non-engagement was not genuinely culpable or blameworthy conduct. It did not cause or contribute to the dismissal as it did not cause or contribute to the alleged fundamental breach relied upon. It would not be just and equitable to reduce any award. It was not submitted that the matters which led to the BACP sanction were themselves contributory conduct. Failure to comply with the ACAS code/raise a grievance (issue 13(iv))[88]In practice this issue did not need to be determined. Issue 13(iv) in the list of issues clearly records this issue as only applying if any alleged act or omission on the part of the respondent which was relied upon was not considered as part of the grievance procedure undertaken in 2018. The issue upon which the claimant relied as constituting a fundamental breach was raised as part of that grievance. No subsequent issues were relied upon. There was no failure to follow the ACAS code, as the claimant did raise a grievance which included within it the matters which led her to resign.
Summary
[89]For the reasons explained above, I do find that the respondent fundamentally breached the claimant’s contract of employment in June 2018 and the claimant did resign in response to that breach. Any such dismissal would not have been fair. However, as the claimant waited eight and a half months from the breach before resigning and three and a half months after the end of the grievance process (including the appeal), she waived the breach and affirmed the contract – that is she delayed too long in resigning and therefore lost the right to be able to rely upon that breach to be able to claim constructive dismissal.