Mrs A Coleman v South Normanton Community Interests Company: 2600447/2024

EMPLOYMENT TRIBUNALS

Case No 2600447/2024

Between

Mrs A ColemanClaimant

South Normanton Community Interests CompanyRespondent

Before

Employment Judge R Clark

Mr T Wood (instructed by Counsel.) for respondent

Date 17 September 2024

JUDGMENT

[1]The claim of unfair dismissal succeeds.

[2]The respondent shall pay the claimant compensation in the sum of £1955.75.

[3]The recoupment provisions do not apply.

REASONS

[1]Introduction 1.1 This is a single claim for constructive unfair dismissal. It arises from a disciplinary allegation against the claimant which resulted in the imposition of a final written warning, subsequently reduced on appeal to a written warning. The manner in which that was conducted and the decisions reached by the employer are alleged to have breached the implied term of trust and confidence.

[2]Preliminary Matters2.1 The hearing was listed to deal with all issues and the parties agreed they were in a position to deal with all issues.

2.2 The hearing was listed for two days. We timetabled the hearing with a view to giving an extempore judgment. In the event, the parties’ active participation concluded late on day two meaning this judgment has had to be reserved. I apologise that my other judicial commitments and a spell of planned absence has meant this judgment has taken longer than expected to promulgate.

[3]The issues3.1 This case had not been subject to any prior active case management beyond standard directions being ordered. We spent time on day one clarifying the issues in the claim. The term said to be breached is the implied term of trust and confidence. The conduct of the employer that is said to do so arises from the various actions and decisions in the conduct of the disciplinary matter. Those discrete aspects have been set out in the ET1 claim and the internal grounds of appeal.

3.2 That conduct took place over a period of about a month. I explored whether this was put as a last straw case but concluded, with their agreement, that whilst there was a period of time over which to consider the alleged conduct, the disciplinary matter essentially amounted to a single, albeit continuing, state of affairs. It was not therefore a last straw case and Mr Wood confirmed that there was no argument that there was affirmation at any point before the resignation.

[4]Evidence4.1 For the claimant I have heard from Mrs Coleman herself. Mr Coleman also gave evidence adopting the statement he tendered to the internal disciplinary hearing.

4.2 For the respondent I have heard from Mrs Margo Richards, the Centre Manager, who conducted the disciplinary hearing. I have also heard from Ms Heather Clements who was engaged by the respondent to provide HR advice.

4.3 I received a bundle running to around 265 pages. Each party made oral closing submissions.

[5]Facts5.1 It is not the purpose of the tribunal to resolve each and every last dispute of fact between the parties. My function is to make findings of fact sufficient to determine the issues that arise in the claim and to put it in its proper context. On that basis, and on the balance of probabilities, I make the following findings of fact.

5.2 The respondent is a legal entity registered as a community interest company, or ‘CIC’. It operates a venue called ‘The Post Mill’ which has function rooms available for hire for social and corporate events. It also operates social nights with cash prize chance games such as bingo and “open the box”. The concept of Bingo is well known. Open the box requires some explanation. In that game, people buy unique raffle tickets. The money raised, or part of it, goes into a locked box. In each play, a number is drawn giving the ticket holder the chance to pick a key from a selection of identical looking keys with which they can then try to open the box. If they have picked the correct key, they win the accumulated contents. If they have not, the prize rolls over to the next draw.

5.3 The company is run by a board of directors and, on a day-to-day basis, by the centre manager, Mrs Richards. At the material time, the claimant’s husband, Mr Coleman, was one of the statutory directors of the respondent entity. He was asked to resign from his role as a result of seeking to accompany and represent his wife in the disciplinary process arising in this case.

5.4 Mrs Coleman was employed as a bar person and reported to Christopher Richards as bar supervisor. Christopher Richards is Mrs Richards’ son.

5.5 There is a dispute about the claimant’s length of service and hours of work. The dispute about length of service is substantial and unusual, the parties being in the order of 10 years apart. I was concerned this may require more forensic analysis of continuous service than the parties anticipated but, in the event, the dispute was resolved without difficulty. Mrs Coleman said she was employed from June 2003. The respondent said she was employed from 31 May 2013. I find Mrs Coleman had been engaged from time to time for many years from around the millennium, but these spells of employment were on the basis of short spells of casual employment and voluntary activities. There is no basis identified for aggregating any of those earlier spells. I find her continuous employment for current purposes commenced on 31 May 2013 as evidenced in the later written contract signed by the claimant in 2017.

5.6 There was a similar dispute as to hours of work. Mrs Coleman says she was employed for 12 hours. The respondent is able to demonstrate with contemporaneous evidence the ups and downs of the claimant’s contracted hours over time and I find that to be accurate. I find Mrs Coleman was initially employed on zero hours. On 9 May 2022 this was varied to a fixed 15 hours. Then, on 21 December 2022, the claimant requested a reduction to 12 hours. From May 2023 her set hours were then reduced to 10 hours per week. The claimant accepted that this figure of 10 hours, as opposed to 12, was chosen to fit in with the rotas as it meant that she could undertake two shifts per week on weekdays only. Any additional hours would have meant he would have had to work over a weekend which she wanted to avoid. From time to time the claimant also voluntarily worked additional hours.

5.7 I find Mrs Richards and the claimant generally got on well. Mrs Richards came into the role of Centre Manager in or around late 2019 taking over from her predecessor, Tracey Cameron.

5.8 Despite them getting on well, I find there were aspects of the claimant’s conduct and performance that were challenging. I find Mrs Richards did take steps to engage with Mrs Coleman. It is not in dispute that she had had to speak to Mrs Coleman a number of times about her “demeanour” when interacting with the public and staff, albeit that these interactions happened within the context of a relatively inexperienced manager, an informal working relationship, with strong personalities and a blurring of the professional and social relationships. I therefore find that Mrs Coleman can come across as “snappy” or “sharp”, even though there is no suggestion she is necessarily deliberately behaving in this way. My finding is, in part, based on her own evidence that, “I don’t think I bark at people but I can’t help how I speak”; and in response to the informal reviews with Ms Richards, that “there’s not a lot I can do about it”; and that she didn’t think her way was a problem and “if others perceive her like that it’s not her fault”.

5.9 Two earlier events are before me in the bundle. In 2019, a colleague called Selena left employment with the respondent citing, in part, the relationship with the claimant. This was at a time before Mrs Richards became manager. I accept the claimant’s evidence that this was not shown to the claimant at the time and that she has learned of this only in these proceedings. I also accept that the claimant and that person remain known to each other and are now on good terms. However, it does provide some support for the contention that the claimant could be difficult to work with and manage. More recently, in November 2022, the respondent received a very negative online review from someone attending its function rooms as part of a party booking. Mrs Coleman was spoken to about that at the time. She gave her account of someone attending a function early who was already in drink and that she accepted she had refused to serve them until the party started. Whilst no action was taken against Mrs Coleman, she accepted she was asked to be careful with her attitude. As a result of these and other occasions on which Margo Richards has had to “have a word” with the claimant about her interactions with others, it follows that they do paint a picture of an employee whose conduct or performance was going to engage any reasonable employer in some form of conduct or capability process at some stage. These previous matters have not, however, been regarded as matters of gross misconduct and have not resulted in any disciplinary sanction of any kind.

5.10 Turning to the instant matters, they focus on Thursday 13 and Friday 14 July 2023. On Thursday 13 July, the claimant was working behind the bar at a bingo night which she was in charge of and doing the “calling”. I find there were technical problems with the PA system meaning she had to call the numbers by shouting across a busy room. During the course of the night, Mrs Richards was present and says that three members of the public approached her to complain to her that Mrs Coleman was telling people to “shut up” and her attitude towards the room was aggressive. One is said to have called her character “vile” and said they would not play bingo again if she was running the event. Equally, however, I find other participants were complementary of Mrs Coleman’s perseverance to continue calling the bingo in the face of the technical problems.

5.11 During that night, there is no dispute that Mrs Coleman also participated in the cash game called “open the box”. I find there was no express policy or contractual restriction on her doing it whether she was there whilst employed or attending as a customer. I find Mrs Coleman was not alone in participating whilst working and, for some time, I find a number of members of staff had also done so. Indeed, one result of the matters in this case is that the employer stated that it would in future put in place formal measures to restrict those staff working from participating in the chance games and I find the limited investigation into this matter of any wider participation is because the employer was aware that others had or were also participating in the games.

5.12 Despite there being no explicit restriction on staff participating in these games at the time, I find Mrs Coleman did have a sense that staff ought not be seen to participate, particularly when running the games. I find there were obvious risks if she won the cash prize, as she was also responsible for the security of the box and the associated key bag from which a winning ticket holder would select a key. I find Mrs Coleman recognised this potential conflict and risk to the integrity of the game and her employer. However, rather than chose not to participate, she would still participate by getting a friend to draw from the bag.

5.13 I do not understand why Mrs Richards did not tackle the claimant on the night of 13 July, particularly in respect of her participation in the open the box game, but she did not. Indeed, she otherwise seems to accept that the claimant persevered well to complete the bingo calling despite the technical set back.

5.14 On Friday 14 July, the respondent had two events booked in two adjacent function rooms. The single bar is situated between them and serves both. There are security shutters on the bar to each function room and in the corners.

5.15 I find the claimant believed there were just two staff on duty that night. In fact, four employees had been rostered by Mrs Richards. They were Mrs Coleman, Alex, Emma and a trainee called Jack. Alex and Emma had only recently started work for the respondent and this was the first time the claimant had worked with Alex.

5.16 The claimant started work before the others arrived at 5pm. I find she attended and did her usual set up duties still thinking it was just her and one other. Although there is criticism of the claimant assuming the role of “supervising” and “delegating” to the other staff, I find she is the personal licence holder on premises that night. Only she and Emma held keys. Whatever the formalities of the supervising arrangements, Mrs Coleman was the most experienced member of staff and arrived before the others taking the responsibility for the till, the cash and opening up.

5.17 I find she did open the shutters to each bar but not the other shutters as she was still counting cash and opening a single till. The reason she opened a single till was because she believed, wrongly but genuinely, that there were only two members of staff on duty that night.

5.18 I find the night itself went without incident, at least from Mrs Coleman’s perspective. Mr Coleman attended at around 11 pm to collect his wife and enquired about the previous arrangements for giving Jack a lift home but he had already made arrangements for getting home. The Colemans and the other staff talked for a while in circumstances that did not appear to Mr Coleman to suggest anything untoward had happened that night.

5.19 At some point over the weekend, Jack complained about Mrs Coleman’s behaviour and attitude towards him on the night of Friday 14 July. I have not heard from Mr Richards who was apparently responsible for the investigation of this part of the disciplinary concerns and there are a number of gaps and ambiguities in the evidence. On balance, he seems to have asked Jack to put his concerns in writing which he did on Monday 17 July. In summary, his complaint was: - a) That the bar shutters were not open so, when he arrived, he opened them. b) Mrs Coleman trying to delegate jobs to him and Emma but not doing things herself. c) Emma asking a customer what they would like and Mrs Coleman saying, “let jack do something”. Emma saying to him “that was awkward”. d) Mrs Coleman stopping him serving and asking him to get ice. e) That Mrs Coleman went away for up to half an hour a number of times in the Carnfield Room. f) Having to queue for a till as there was only one till on for two functions, he didn’t ask her as he felt she would moan at him. g) That his time sheet hours were changed from starting at 5 to starting at 6:30 h) That he felt micromanaged by Mrs Coleman who he felt thought she was above everyone else.

5.20 Much of this complaint raised matters I might have expected an employer to question him about, never mind the claimant. If all the bar staff were equal, why was it an issue that he opened the shutters on arrival, and why didn’t he, or particularly Emma who was also a keyholder, open a second till if that was an issue? If he was a trainee, why was it an issue that the claimant was delegating jobs to him, especially as Mrs Richards accepted in evidence that he is trained by whoever he worked with? It was also common ground that Jack was known to spend time on his phone rather than working such that it may not be a surprise for Mrs Coleman to suggest to the staff the “let jack do something”? (I note the colleagues would later be asked if Jack was on his phone before Mrs Coleman could raise the issue so it must have been well known). Criticism of what work the claimant was or was not doing seemed to be against that context, and against the background of four staff being on duty instead of the two or possibly three that the claimant felt was needed. Those questions did not get asked. There was, however, an apparent acceptance that Mrs Coleman was right to alter Jack’s time sheet to dock Jack an hour’s pay due to his attendance. This complaint did not feature in any of the later disciplinary allegations.

5.21 I find Ms Richards spoke with the respondent’s HR consultant, Heather Clements. Christopher Richards was notionally made the investigator but in reality, the disciplinary investigation is of such a nature that no single person did it and Mrs Richards described all three of them doing it. That did not make it easy to understand how and when any wider investigation took place. At some point in time, the two other staff on duty were asked to give their version of events of 14 July. The way in which this was done, when it was done and how these statements came to be signed was not made clear and did not make sense. At one stage it was suggested these were telephone interviews on the Monday during which Mr Richards typed up what he was being told and that they were signed the same day. At other times it was said they came into the workplace. Either way, two statements were prepared and both apparently signed on Wednesday 19 July. There are no handwritten notes disclosed showing the evolution or preparation for these statements being made. On balance, whilst there clearly were some discussions by Monday 17 July, I do not accept they existed as written statements until 19 July. It is alleged that they had to be resigned after errors were identified but the originals have not been produced and inconsistencies remain in the explanation.

5.22 The statements follow a question and answer format. The resulting statements were similar. The statement from Alex states that she felt the Mrs Coleman felt she was in charge, that she spent long periods in the ‘Carnfield room’, that the staff were queuing up to use the till, that there was an atmosphere, and that she witnessed a couple of negative comments from Mrs Coleman about Jack. She described this a being treated awful, that she would have left if spoken to like that and described it as borderline bullying showing she had a vendetta against him. None of the witnesses could explain what she meant by vendetta.

5.23 The statement from Emma referred to her sense that during the night jack wasn’t there, she gave an opinion about why he was away from the workplace so much, she recalled him being asked to do jobs when he was already doing something else. She also recalled how Jack didn’t do as much work as he did when working with Christopher. She maintained that none of them was in charge in Mr Richard’s absence, that they were all on the same level, but that Mrs Coleman felt as though she was in charge. She also noted that Mrs Coleman changed Jack’s hours because “he was on his phone”.

5.24 I find Mrs Richards, in discussion with Ms Clements, chose to take these matters to a disciplinary process. This was the first disciplinary process Mrs Richards had been involved in. They categorised the matters they collated as potentially gross misconduct which could lead to dismissal, even though they accepted in their evidence that there was never any intention of dismissing her. They chose this approach, as opposed to any alternative form of corrective action or performance improvement, as a means of sending a shock to the claimant.

5.25 The claimant was sent a letter on 17 July [65] inviting her to a disciplinary meeting to be held that Friday, 21 July. It contained three broad allegations of misconduct said to amount to gross misconduct. They were, in summary: - a) On 13 July, that the claimant was rude and aggressive to customers b) On 13 July, that the claimant had several goes at open the box c) On 14 July, the complaints raised by all three members of staff working alongside the claimant in respect of her behaviour and attitude towards them – giving them instructions and micro-managing them and not working alongside them.

5.26 These factual allegations were put into disciplinary terms of: - a) Aggressive behaviour towards staff and public. b) Harassing and bullying. c) Conduct including dishonesty, that may bring the employer into disrepute.

5.27 Although the letter purported to attach or enclose a copy of the disciplinary procedure, a prompt request for it by the Claimant made upon receipt leads me to find, on balance, that it was not included. I also find this letter did not enclose the witness statements. Again, on the balance of probabilities, I find they were not prepared until after the letter was sent out. Although this letter did include a footnote listing the policy as an enclosure, it did not list “witness statements” as being enclosed, as the later rearranged invite letter would do. There was equally nothing provided in respect of any investigation of the events of Thursday 13 July, either in respect of the claimant’s interactions with others or the participation in the open the box game. All those matters were matters Mrs Richards would put to the claimant at the meeting itself from her own understanding.

5.28 The claimant was not suspended despite the suggestion of gross misconduct including dishonesty. That further supports the finding that the respondent was using the procedure to shock the claimant. Around this time Ms Richards spoke to the claimant. It is not in dispute that she referred to the decision to invoke a formal process as the informal chats were not working. The claimant said she hadn’t realised these were informal chats, just that Ms Richards had been telling her things.

5.29 A written disciplinary policy exists. The key aspects that became relevant in this case are these: - a) The first concerns the provision of written information on which the disciplinary allegations are based. Paragraph 5 [of 154] states “the company will provide sufficient information about the alleged misconduct … and its possible consequences to enable the employee to answer the case. This will include the provision of copies of written evidence, including witness statements, where appropriate.” b) The second concerns timing and conduct of the formal meeting. Paragraph 6 [of 154] provides first that the employee will be given “reasonable time to prepare their case”. It goes on to deal with the hearing itself at which “the employee will be allowed to set out their case and answer any allegations and will also be given a reasonable opportunity to ask questions, present evidence, call relevant witnesses and raise points about any information provided by witnesses.” c) The third concerns whether there should be an investigation meeting with the employee. Principle 2 of the procedure provides for an investigation stage with the employee concerned before a formal hearing. Whilst that only says that “a full investigation…may include a meeting with you,” it goes on to identify the two main situations when this may not occur. Neither applies in this case, although for reasons I deal with elsewhere, the fact that this process, however serious it was labelled, was never going to result in dismissal may be part of the reason why the respondent did not conduct a separate investigation meeting prior to the formal disciplinary hearing. d) The fourth concerns the right to be accompanied, the policy states a right in varying forms. At paragraph 6 [of 154] it refers to the right to be accompanied “by a trade union official or a fellow employee of his or her choice.” At 155, principle 4 states the right to be accompanied “by a work colleague or a trade union representative”. Principle 8 goes on to expand on the role of a work colleague accompanying an employee subject to a disciplinary hearing.

5.30 Upon receipt of this letter, I find Mrs Coleman wanted her husband, Mr Coleman to be her representative / companion for the purpose of supporting her through this process. The letter inviting Mrs Coleman to the disciplinary hearing gave the claimant a right to be accompanied by a companion but limited to a fellow employee, as opposed to a Trade Union or a work colleague. He was a director of the company and there was no dispute that he was a work colleague. Notwithstanding the subtle difference in the language of the policy and the invite letter, I find the employer’s concerns were not about whether he was someone who met the definition of an appropriate companion. On balance, it seems the issue was not whether he otherwise could undertake that role, the issue is that Ms Richards felt awkward with him doing it as he was on the board. It seems others on the board felt the same way. Whether that gave rise to any secondary issues or not as between him and his fellow board members, that does not provide a reason to refuse his participation in a role that the employers policy permitted. There would appear to be a secondary argument that his attempt to do so led to detriment or dismissal potentially in breach of the rights given in section 12 of the 1999 Act.

5.31 Upon receipt of the notice of disciplinary hearing, Mrs Coleman commenced a period of sick leave. In fact, she would never return to work. On Wednesday 19 July, Mr Coleman wrote to the respondent on her behalf. I find it was clear that he was writing on her behalf. He set out how she was sick and sought to rearrange the hearing. He requested that he attend. Significantly, he asked for various pieces of relevant and important information to be provided including the disciplinary policy and the statements of those employees and members of the public making the complaints. He sought copies of the investigation notes. He sought clarification of how the employer was defining ‘harassment’. He sought the attendance of those making complaints to answer questions and the right to call witnesses to speak for Mrs Coleman.

5.32 The respondent refused this application the same day. The refusal went further and accused Mr Coleman of putting all in a difficult position because he had a conflict of interest as a director of the respondent. It did not address the substance of the requests and confirmed that the hearing would go ahead as planned on 21 July as it saw no reason to delay or cause undue stress to all parties involved.

5.33 The next day, 20 July, Mr Coleman emailed again stating that Mrs Coleman had still not received the statements or the information requested; that they would not be attending the hearing planned for the following day; refuting that his attendance as Mrs Coleman’s companion was unreasonable and pointing out that they had still not received a response to the questions raised nor had the respondent confirmed that witnesses would be in attendance.

5.34 On Friday 21 July, the claimant through her husband again chased the respondent for the information. In response, the respondent agreed to reschedule the disciplinary hearing to Wednesday the following week. A new invite letter was sent out which was essentially the same save that it now included the documents missing from the first communication.

5.35 The hearing went ahead on Wednesday 26 July. The claimant attended without her chosen companion of Mr Coleman but with another colleague called Carla Dodd. She was her third choice, her second choice after Mr Coleman had declined to accompany her as she feared getting involved in the process.

5.36 Mrs Coleman had received the two statements from Emma and Alex and the complaint from Jack. She never received any statements or written account from the customers attending the bingo on Thursday 13 July as none were taken and she went into the disciplinary hearing thinking that those matters were not being pursued. I find Ms Richards did not reduce to writing the detail of any verbal exchanges she had with others that night meaning the first the claimant had any idea of the actual complaints in any detail was when it was put to her in the meeting.

5.37 The claimant had sought the attendance of the witnesses so she could ask them questions in accordance with the policy. Ms Clements said in evidence this did not happen as they didn’t want to attend. I do not accept that they were actually asked but, even if they did decline, there is nothing further done to test their evidence against Mrs Coleman’s case in any alternative manner short of calling them.

5.38 The notes of the meeting are recorded and well set out. However, it is difficult to identify clear exchanges of the explicit allegations of fact and the claimant’s response. This is a tense exchange between those present which gives a flavour that the allegations were made out from the start and the claimant was expected to accept wrongdoing. Discussion about 13 July starts with challenges to why the claimant had not been sent any written account of what she had done in advance. The exchanges then reduce to expressions of Ms Richards’ sense of the claimant’s attitude generally. As the matter moves to 14 July, the claimant puts her case and at times expresses how she can’t win. An example of this catch 22 was in response to her said to have been standing doing little work which arises from Mrs Richards’ suggestion that she should have had an easy shift due to four staff being rostered. Discussions about her changing hours and health leads to Ms Coleman explaining that she feels like jacking it in as she feels like the scapegoat again. She is accused of being hostile in the meeting because she made reference to believing she was going to be dismissed. Similarly, she is accused of being sarcastic which I do not accept was the tone of the exchange and was in fact challenging the absence of clear evidence of what had happened.

5.39 The outcome was communicated in a letter dated 31 July 2023. It was written by Ms Clements but signed by Mrs Richards after the two discussed the decision after the meeting. The result was that all the allegations were made out, meaning the employer considered that the claimant had been guilty of the allegations classed as gross misconduct. The outcome, however, was a final written warning and not dismissal. When this was explained in evidence, Ms Clements stated (and, through Counsel, Ms Richards agreed with her analysis and was not therefore recalled to give evidence) that this was because there never was any intention to dismiss the claimant, only to reign her in a bit and shock her into accepting that her conduct could not continue.

5.40 Within the outcome, I find three new matters were included in the disciplinary charges that the claimant had no prior knowledge of at all. The first was that she was now being sanctioned for “allowing to let her husband interfere”. That is a direct reference to her electing Mr Coleman as her representative and companion. The second is that she was sanctioned for coming to the hearing with a preconceived idea she was going to be sacked. The respondent believed she had told various people that was going to happen albeit the claimant denied it. There is no evidence to support that belief although, having been told the original allegations amounted to gross misconduct and that dismissal could be an outcome, I struggled to understand why an employer would be surprised if that was a conclusion an employee came to. This was further said to be an act of gross misconduct. That, again, supports the conclusion the disciplinary procedure was being used to send “a shot across the bows” to shock the claimant into conforming with Mrs Richards’ expectations. The final new factual matter was that on 13 July the claimant had “stomped off again” when Ms Richards refused to let her have a brandy to soothe her sore throat as she was on duty.

5.41 Mrs Coleman lodged an appeal on 4 August 2023 in writing. She set out 9 issues of concern. They were: - a) not receiving copies of the investigation carried out by Christopher Richards and the fact that the witness statements of Emma and Alex appeared to be copied and pasted as if someone else had typed them out for them to sign. b) checking the questions asked by Christopher to see if he had led Emma and Alex in their evidence and responses in anyway. c) that the claimant wasn't interviewed as part of the investigation. d) that she didn't have any opportunity to ask questions of the witnesses despite requesting them to attend numerous times. e) Emma or Jack not coming forward. f) no evidence of the alleged events of Thursday the 13th of July and the claimant’s indications from others that they would support her leading to her concluding that matter had been dropped. g) that she was not precluded from participating in the “open the box” game and denies anything dishonest or bringing the post into disrepute by doing so. h) the request for CCTV footage has not been forthcoming. i) that the disciplinary punishment was unfair.

5.42 The appeal was arranged for 16 August 2023. Mr Martin Wilson chaired the appeal. He was a Trustee Board Director. There are no notes of that appeal hearing. I accept Ms Clements’ evidence that the reason for that is that the audio recording failed, and this was only realised at the end of the meeting.

5.43 The appeal outcome was sent in writing by a letter dated 18 August 2023 which was, again, drafted by Ms Clements. Aspects of the appeal challenges were upheld but, overall, the appeal was dismissed, and a disciplinary sanction remained albeit the final written warning was reduced to a written warning. In particular: - a) Mr Wilson agreed that the claimant raised valid points regarding the investigation and similarity between witness statements. b) He rejected her contention she was not interviewed as part of the investigation. He set out that this was not necessary in all cases and the formal meeting was her opportunity to respond to the allegations. c) There was no CCTV disclosed as there was none in existence. (I note this fact was not previously conveyed to the claimant when she requested the CCTV). d) He did believe that the claimant had acted inappropriately “in allowing her husband to interfere with the process” and then criticised her further by suggesting her own “failure to engage directly” has exacerbated her anxiety levels. e) He recorded that he was aware it was not the first time she had been spoken to regarding her demeanour and behaviour with colleagues and members of the public. f) He disagreed with her view regarding claimant having a go at “open the box” when in charge of the event and set out the formal measures that the employer would thereafter put in place to prevent staff being able to do that in the future. g) Of the matters that Mr Wilson found to be valid challenges, he does not then go on to explain whether that led him to uphold the allegations of bullying behaviour towards colleagues on 14 July.

5.44 The reasoning why the sanction was reduced from a final written warning to a written warning was not explained. Mr Wilson was not called but Ms Clements, who was present and drafted the letter, suggested that it was reduced simply because Mr Wilson felt a written warning was more appropriate as he was quite recent in post and did not have the history of what had gone on before with the claimant and Ms Richards. The latter part of Ms Clements’ explanation is not consistent with the content of the appeal outcome letter which explicitly refers to Mr Wilson’s knowledge of past issues. As with the initial outcome, Mr Wilson also stressed the issue of participating in the open the box game which was the key part of why Ms Clements’ categorised these allegations of gross misconduct. His reference to the need for the respondent to put in place restrictions on staff participating is not expressed in terms of mitigation, but on balance it seems there must have been some sense that that reduced the claimant’s culpability.

5.45 Mrs Coleman’s sickness absence continued. She was invited to a sickness absence review meeting by letter dated 29 August. The meeting was scheduled for 12 September 2023.

5.46 The claimant attended but at the outset handed in a written resignation. This was said to be without notice due to the respondent’s breach of contract. This resignation was not accepted by Mrs Richards as it had been drafted by Mr Coleman. Despite it clearly being what Mrs Coleman wanted to do, it contained phrases that Mrs Coleman could not explain to Ms Richards in the meeting. It was put to Mrs Coleman that Mr Coleman had “railroaded” the whole process, but I accept Mrs Coleman’s evidence that it was her decision to resign and this is consistent with her comments in the earlier disciplinary hearing and about her state of mind during the review meeting.

5.47 On 26 September 2023 the claimant resubmitted her resignation, in her own words, and this time giving four weeks’ notice. Margo I would like to tender my notice [4 weeks] due to the past issues. I feel I can no longer return. I will pass on my sick note when I receive it. Hope this one is OK as it's in my handwriting since you wouldn't accept my last one 2 weeks ago

5.48 This was accepted and the claimant’s employment ended on 21 October 2023.

5.49 At the time the claimant’s employment ended she was earning £111.10 gross per week. Since then, the claimant has not taken up new employment. She gave various reasons for that. First, she said she has looked for work but cannot do many hours or lift. I accept that it would be reasonable to look in the first instance for similar work at similar part time hours per week but that in looking for bar or hospitality work, her physical abilities and demands would be little different to those in performing her duties for this respondent. I do not accept it was reasonable to limit her search to bar work absolutely, especially with there being an extensive range of retail establishments in very close proximity requiring similar customer facing skills. Secondly, she explained her limited search for work was because she had been living off what she described as the profits of her late mother’s house. In that regard I note that she has not claimed any state benefits as a result of leaving her employment. Thirdly, she said she wanted her body to have a rest. Whilst the claimant was absent on sick leave at the time of her termination, I find she did not maintain contact with her GP thereafter. I find the absence was directly linked to the disciplinary process. Fourthly, she did not want to travel at all.

5.50 Against that approach to finding alternative employment, a number of potential employment opportunities were put to the claimant in the local area, including places where the claimant had previously worked. No documentary evidence was disclosed as to the approaches made by the claimant to those employers. The claimant said in oral evidence she had had informal discussions with a couple of local hospitality employers which had resulted in her being put on a relief worker lists, but she had not actually worked any shifts.

5.51 The claimant explained that she had not made work enquiries beyond her village, despite living close to a major shopping park. She explained there was what nowadays is a relatively frequent bus service form her village leaving about every 30 minutes. She is located in relatively close proximity to larger towns where the opportunities for hospitality work increase only further. There is already evidence before me of Mr Coleman driving to collect Mrs Coleman from evening shifts to overcome any issues that might arise with reliance on buses later in the evening.

5.52 I find, on balance, that the present state of the economy in the hospitality sector is such that there would be a number of suitable opportunities arising within reasonable travel to work time to enable the claimant to make up the 10 hours per week at similar level of earnings within a matter of around 4 months, or 16 weeks. As a result, I find the search has not been undertaken in a manner that a reasonable employee in the claimant’s situation, seeking to recover financial losses, would have conducted it had they no expectation of recovering compensation from the respondent.

[6]Law6.1 It is axiomatic that in order to claim unfair dismissal, the claimant must have been dismissed. In this context, section 95(1)(c) of the Employment Rights Act 1996 (“the Act”) provides the statutory definition of dismissal: - (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2), only if)— (a)… (b)… (c)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.

6.2 I remind myself of the essential authorities on this form of “constructive” dismissal. They start with Western Excavating (ECC) Ltd v Sharp

[1978] 1 QB 761

on the application of common law principles of repudiatory breach of contract, acceptance and causation as they arise within the context of a contract of employment. The definition of the implied term of trust and confidence set out in Mahmud v BCCI

[1997] UKHL 23

is that: - “an employer shall not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage trust and confidence’.

6.3 Assessing whether that term has been breached is an objective test. (Leeds Dental Team Limited v Rose

[2014] ICR 94

6.4 As to causation, it is not necessary that the contractual breach is the only reason for the resignation or even that it is the principal reason for the employee's resignation. It is sufficient that the repudiatory breach "played a part in the dismissal" (Nottinghamshire County Council V Meikle

[2004] EWCA Civ 859

[IRLR] 703)

6.5 If a resignation amounts in law to a dismissal, that is not the end of the claim. The provisions of section 98 of the Act then engage. It is then open to the respondent to prove the reason, or if more than one the principal reason, for dismissal and that that reason is a potentially fair reason. In this case, whilst the respondent is able to advance conduct as a potentially fair reason, it does not seriously assert any dismissal was reasonable. Whilst the common law test for breach of contract and the statutory test of fairness are distinct, (see Buckland v Bournmouth University

[2010] EWCA Civ 121

) it was acknowledged that the underlying facts and circumstances that each test relies on means it is hard to conceive a situation where the answer to the questions of reasonable and proper cause could be negative, but reasonableness be positive. If the respondent succeeds in its defence of breach, there is no dismissal. If it fails, the absence of reasonable and proper cause will provide the same factual issues to answer the question of reasonableness. Consequently. its defence lies elsewhere in the cause of action and remedy.

6.6 Finally, I should note that Mrs Coleman relies on Stevens v University of Birmingham

[2015] EWHC 2300 (QB)

. This is a civil case seeking a declaration of legal rights, albeit it is in the employment context. In that case, the defendant’s refusal to allow Professor Stevens to be accompanied by a companion of his choice was found to offend the implied term of trust and confidence. It is obviously of relevance to this case, but I do not consider that it creates any new proposition of law. It was a conclusion reached on the application of the established test for breach of the implied term of trust and confidence in the particular circumstances of that case, as opposed to an interpretation of the statutory provisions relating to the right to be accompanied.

[7]Discussion7.1 Before dealing with the discrete elements of the conduct said to breach the implied term, I consider the situation as a whole. There can be no real dispute that putting an employee through any formal disciplinary process, particularly one from which dismissal could result, is conduct which is likely to at least seriously damage trust and confidence. It would not be a breach of contract under the Malik test if there was reasonable and proper cause for it. Staying with this general overview, I am equally satisfied that there was reasonable and proper cause for Mrs Richards to take some action of some sort to address her concerns about the claimant’s conduct. I am satisfied that the claimant’s manner of dealing with colleagues and customers could be brusque. Even where there may have been good reason why she needed to direct colleagues to tasks, or refuse customers service, the manner in which it was done was likely to cause the sort of complaints and negative responses that were seen to arise in this case. Similarly, the employer clearly had reasonable and proper cause for taking some steps to stop Mrs Coleman and all its employees from participating in the cash prize chance games that she was at the same time coordinating. However, what is reasonable and proper is not an abstract concept. It includes a degree of proportionality and has to be measured against the actual conduct that is said to offend the implied term. In that regard it is necessary to look at the various elements of the process to determine whether, individually or cumulatively, the implied term was breached.

7.2 Those elements all need to be viewed through the prism of a deliberate decision to take a heavy hand to what was a genuine underlying issue. The allegations that the claimant faced were explicitly labelled as gross misconduct from which the sanction could be dismissal. There was, however, never any intention of dismissing the claimant even though the respondent at all times believed the allegations were made out. That was not a case of accepting mitigation to reduce the sanction, it was a case of wanting to take a hard approach. Colloquially, a sledgehammer to crack a nut. I do not accept that there was reasonable and proper cause for that action. I do accept that Mrs Richards had spoken to the claimant on a few occasions previously about her demeanour with others but there were any number of intervening levels of intervention that were available to her short of threatening a potential dismissal she had no intention of imposing. Some of that may be explained by Mrs Richards’ relative lack of experience as this was her first experience of any disciplinary process, but does not provide reasonable and proper cause especially where there was professional HR advice being provided.

7.3 As a result of that, the whole process took a predetermined path. The claimant raises a number of concerns about the conduct of the disciplinary process as, from her perspective, she believed she was potentially facing dismissal and expected the process to apply the degree of formality and due process commensurate with the gravity of that possibility. Conversely, as this was never Mrs Richards’ intended outcome, the process took a more informal and summary approach.

7.4 The effect of that can be seem in the first specific complaint that Mrs Coleman did not receive copies of the investigation carried out by Christopher Richards. There never was any advance explanation of what had happened by way of investigation. I found the witness statements of the other staff present on 14 July were not enclosed with the original invite to disciplinary as they did not exist at that time. They were only produced after the claimant chased them. There were equally no advance written details of the complaints about her alleged behaviour on 13 July. There is no reasonable and proper cause for that. It is militated so some degree because the witness statements were produced by the time of the second invite letter which the claimant received on the Saturday before the hearing on the Wednesday. Whilst that gave her the information to respond to at the hearing, it does not alter the decision to invoke the process without them which goes to the earlier observation of the ulterior purpose of the process. The allegation in respect of open the box is different. As a stand-alone allegation, it is difficult to see what more is required than the statement that she was accused of participating on 13 July. However, as it was not a stand-alone issue, it does nothing to alter then conclusion that the claimant was left unclear about the detail of all the allegations.

7.5 I do not see any issue in the claimants second complaint that the witness statements of Emma and Alex appeared to be copied and pasted as if someone else had typed them out for them to sign. Even applying a margin for the vague manner in which they were prepared, there is nothing which in isolation goes to the implied term of trust and confidence. There was some sense of leading them and similarity, which was accepted at the appeal stage, and the delay in obtaining their signed accounts only adds to that. However, these were (or ought to have been) relatively minor matters of interpersonal interaction and to the extent that the form and structure of the statements adds to any conduct likely to seriously damage trust and confidence, there is reasonable and proper cause in asking them direct questions and noting their brief responses. The fact the topic areas, questions and responses are very similar in part does not mean they are not what was asked and what was answered. There are also differences and aspects of the accounts which provide some support to the claimant’s case. Similarly, the third complaint about wanting to check the questions asked by Christopher Richards of the two witnesses to see if he had led Emma and Alex in their evidence and responses in anyway adds nothing more to this consideration.

7.6 The bigger issue with evidence is the lack of written account of any of the alleged complaints about the claimant during the evening of Thursday 13 July. This was a central part of addressing the claimant’s demeanour when interacting with others. It was crucial she knew in sufficient terms who had said what about her. Especially as there were others saying what a good job she had done that evening. There could be any number of relevant issues arising from knowing the who, what and when which the claimant was not afforded. I can see an employer may not have been able to obtain written statements from those members of the public, but there is no reason why Mrs Richards could not have provided her own detailed written account with sufficient particulars to be able to respond to it. The invite letter did not provide that, alleging only that she was rude and aggressive on more than one occasion.

7.7 The next complaint is that the claimant wasn't interviewed as part of the investigation. The employer’s internal disciplinary policy provides for that. The exceptions in the policy do not apply so long as the seriousness of the allegations are accepted at face value. The notion that the disciplinary hearing forms part of the investigation and becomes the employee’s opportunity to state their case can have valid operation but that is not what this employer’s policy says will happen and arguably would only likely to be appropriate where there had been the full prior disclosure of the particulars the employer was concerned about. In my judgement, the explanation to this lies again in the fact that the disciplinary process was deliberately being used in a heavy-handed way to make a point. In that context, I do not consider the respondent has shown reasonable and proper cause for not speaking with the claimant in the way the policy envisaged before deciding to proceed to the formal stage.

7.8 The next specific complaint is that Mrs Coleman didn't have an opportunity to ask questions of the complainants/witnesses despite requesting them to attend numerous times. I have found they were not asked. Of course, absent any contractual right to do so, an employee has no absolute right to cross examine complainants or witness in internal proceedings. It is always a matter of what is fair and appropriate in the circumstances. Where, however, matters arise in the evidence which raises a conflict in the evidence or other matters of relevance, to act reasonably an employer may be expected to take other steps to test or confirm the evidence short of being cross examined. There were no other secondary steps taken in this case. Perhaps more significantly there were no sense that any aspect of the allegations against the claimant were reconsidered or reviewed in the light of her responses, especially as a number of the complaints raised about Friday 14 appeared not to raise serious issues outside what might have been expected of Mrs Coleman’s normal duties.

7.9 A further complaint is that Emma or Jack did not come forward. I am not satisfied this is a case where Jack or the witnesses were set up to raise false allegations. However the complaints came to be known, the underlying issue about how Mrs Coleman spoke to Jack is not something that has been shown to be false. There is clearly some skewing of what was legitimate or not arising from the informal structure and I have already noted where a number of the complaints raised did not seem to be of real significance. This, in isolation is not something I consider adds to the breach. As I have already noted, this is not a case where the employer had no grounds for seeking to address issues with the claimant’s interaction with others, it is about the manner in which it went about it.

7.10 The next challenge is that she was not precluded from participating in the “open the box” game and denied anything dishonest. There is some confusion on the employer’s position as dishonesty is entirely proper to treat as gross misconduct leading to dismissal, yet there was no intention to dismiss. I consider there to be a perfectly reasonable and proper cause for taking some form of action in this regard to stop participation. The claimant’s own evidence shows there she did have a sense of it not looking good, even if she was not dishonest. The respondent obviously knew it had not laid down rules restricting staff from participating as it went on to do so as a result of this matter. In the absence of any rules or restrictions, this forms part of my earlier conclusion that whilst there is reasonable and proper cause for taking some steps to stop this activity recuring, the manner in which it was done in Mrs Coleman’s case to allege dishonest gross misconduct cannot be justified as having reasonable and proper cause, especially where the manager was herself present on the night and apparently took no steps to deal with the situation there and then.

7.11 The claimant also complains that her request for CCTV footage has not been forthcoming. That was dealt with at the appeal stage. There is no basis for going behind the response given that the camera was not working. There is delay in providing the claimant with that explanation, but the complaint is put on the basis of not being given the footage. Accepting the explanation means the conduct complained of cannot breach the implied term or, to the extent it could, would have reasonable and proper cause.

7.12 Mrs Coleman’s appeal concluded with a challenge to the sanction being unfair. It was a final written warning. Whilst it was reduced on appeal to a first written warning, that doesn’t undo what had by then already happened. Moreover, there was some sense of criticism of Mr Wilson that his inexperience had reduced the warning inappropriately. It again forms part of my earlier conclusion in respect of the ulterior purpose of the process. Whilst the employer clearly did have an issue to engage with, the respondent has not satisfied me that there was reasonable and proper cause for moving straight to grave and formal disciplinary sanctions in respect of either Mrs Coleman’s demeanour with others or her participation in the open the box game.

7.13 Moreover, the question of sanction then brings me to the expansion of the disciplinary allegations that were taken into account. This included the allegation of “stomping off” when Mrs Richards refused the claimant a drink, a matter that was not known to Mrs Coleman before the hearing and illustrates the need to put to the employee the factual issues of concern. Of greater significance was the additional matter of “allowing her husband to interfere” which aggravates what is already a significant concern of the claimants, namely her choice of companion or representative. Mr Coleman was a work colleague. His statutory role as such would appear to me to be likely to qualify him as a “worker” for legal purposes meaning he was a relevant representative to act as a companion in the formal disciplinary stages but this case has not been argued explicitly on the basis of him falling withing section 10 of the Employment Relations Act 1999 but as this case has not been argued on that basis, I do not need to go into that further. It is sufficient that there is common ground he was a work colleague. The claimant was denied the support she sought from her him in the intervening stages of the process, and, significantly, in the stages where the internal policy entitles her to be represented by him, and even including her first attempt to resign. She was denied that in circumstances where I do not accept the employer’s suggestion of a conflict of interest is made out to provide reasonable and proper cause for the action it took. The refusal to allow her companion of choice in those circumstances without reasonable and proper cause is enough in my judgment to offend the implied term of trust and confidence without more. But in this case, there was more. First, the claimant herself is punished further in the terms of both the disciplinary outcome and the appeal outcome for “allowing” her husband to interfere. Secondly, Mr Coleman is himself required to resign from the board as a direct consequence of seeking to act as Mrs Coleman’s companion for the purpose of her disciplinary process. It is not necessary for me to take into account that latter sanction which is clearly focused on Mr Coleman as the breach to Mrs Coleman’s contractual term is made out in any event. However, it is not without relevance to Mrs Coleman’s own perspective on trust and confidence in her employer and the continuation of her own employment contract.

7.14 Brining those individual observations together, whilst some of Mrs Coleman’s complaints in isolation either are not made out as offending conduct or happen with reasonable and proper cause, the cumulative totality of the disciplinary process does include amount to conduct which is, at least, likely to seriously damage trust and confidence and has not been shown to have occurred with reasonable and proper cause. There was, therefore, a repudiatory breach of contract and the claimant’s resignation was her acceptance of that and directly in response to it. I do not accept that her concerns about other colleagues raising complaints about her can be said to displace the disciplinary process as the reason for her resignation.

7.15 For completeness, that only establishes a dismissal, not necessarily an unfair dismissal. In that regard, I accept that there was a genuine belief in matters concerning the claimant’s conduct which was sufficient to make out the first limb of section 98 of the Employment Rights Act 1996 and that ‘conduct’ is a potentially fair reason. I do not accept that the actions of the employer fell within the range of reasonable responses of a reasonable employer. For reasons touched on already, the facts that fall to be considered in the decisions reached and the steps taken to reach them traverse the same ground as those that engage with whether those same decisions and steps were done with reasonable and proper cause. There is no meaningful argument to examine as to why, if they fail that common law question, they nonetheless fall within the test of fairness.

7.16 Consequently, the claimant was dismissed. That dismissal was for the potentially fair reason of conduct but dismissing for that reason fell outside the range of reasonable responses of a reasonable employer and was therefore not fair and reasonable in all the circumstances.

[8]Remedy8.1 The claimant seeks financial compensation only. Her schedule of loss claims the statutory awards of a basic and compensatory award including past and future loss and loss of statutory rights. It also claims £3000 for injury to feelings. It does not claim any adjustment in respect of compliance with the ACAS code.

8.2 The figures are premised on a normal week’s pay of £110.10 gross, based on contracted normal hours. In addition, there was voluntary additional hours worked meaning for compensatory purposes, here average weekly net income was agreed between the parties as being £148.80. The employer pays an employer’s pension contribution of £4.45 per week making the total net weekly benefit £153.25.

8.3 Mrs Coleman is entitled to a basic award under section 119 of the 1996 Act subject to any later adjustment. The calculation derived from her age at the EDT of 60 and length of service of 10 years results in a basic award of 15 normal week’s gross pay (subject to a cap which does not apply here) which, based on the only evidence of pay I have results in a figure of £1,651.50 before any adjustments.

8.4 I have already made findings in respect of the claimant’s efforts to mitigate her loss after resigning. I have concluded that the market for the type of work that the claimant was able to perform within a reasonable local travel was such that it ought to have been possible to find suitable alternative employment within a relatively short period of time. There are other factors I refer to above that go to explain why the claimant has not sought to find new employment in the manner that would be expected of a reasonable claimant who had no expectation of recovering compensation. Accordingly, I have concluded that it is not just an equitable for the respondent to be responsible for losses that arise after 16 weeks after the termination.

8.5 The compensatory award so far as financial loss is concerned is therefore 16 x £153.25 = £2452.00.

8.6 I questioned whether to make the conventional award for loss of statutory rights having regard to the claimant’s approach to finding alternative employment. On balance, it is a right that she no longer has if and when she does return to paid employment and in view of all the circumstances of the case I cannot say it is not just and equitable to award it. I do, however, value it broadly in line with a week’s pay and award a round £150. The total compensatory award is therefore £2,260.00.

8.7 I reject the claim for injury to feelings. This is not a cause of action which permits the tribunal to make such an award. No other heads of loss are claimed.

8.8 I then turn to adjustment. This is not a case which engages with an adjustment under section 123(1) of the 1996 act or the principles that flow from that including those identified in the case of Polkey. There is no suggestion that but for the events in this case, the claimant’s employment would in any event have come to an end at any time soon, and certainly not within the period of 16 weeks that I have allowed. I do, however, consider this to be a case where an adjustment is appropriate to make to reflect the claimant’s conduct which is directly relevant to the circumstances of the disciplinary proceedings. The power to make that adjustment arises under section 123(6) of the 1996 Act, in respect of the compensatory award is concerned, and section 122(2) in respect of the basic award. The tests are subtly different in that the former requires that conduct to have caused or contributed to the dismissal whereas the latter does not have that causal connection. Otherwise, in accordance with Nelson and BBC (No2)

[1980] ICR 110

and Langston v Department for Business, Enterprise and Regulatory Reform EAT 0534/09, the conduct must be culpable and blameworthy under both adjustments and in all cases fall within the sense of justice and equity in the particular facts. Steen v ASP Packaging [2014] I.C.R. 56 considered the similarities and differences in the two statutory tests being applied at the same time and set out 4 stages to the assessment. Whilst the tests are different, the EAT concluded those tests are likely, if not inevitably, to result in the same outcome.

8.9 At the first stage I do consider there is conduct which engages both provisions. That arises in respect of the claimant’s demeanour with colleagues and customers which she was sufficiently on notice of was a problem for the employer and required her to modify her interactions. It also arises in respect of the participation in the chance games which, whilst falling short of dishonesty, was understood by the claimant to be improper as she had on some occasions hidden her participation by engaging a friend to act for her.

8.10 I am satisfied those two areas of conduct are sufficiently blameworthy to satisfy the second stage. Had there been no previous engagement with the claimant about her demeanour I may not have come to that conclusion as was likely had the claimant not given evidence recognising there was an obvious issue with her playing the chance game that she was running.

8.11 The third stage applies only to the compensatory award under 123(6) and is whether that conduct caused or contributed to the dismissal. Although this is a constructive dismissal, I am satisfied it did as the constructive dismissal is based entirely on the employer’s approach to the disciplinary process to tackle those matters.

8.12 The final stage is to assess the just and equitable adjustment for each type of award. Mr Wood suggested 75%. Mr Coleman left the matter to me. This is a broad-brush assessment which is unlikely to move in increments of less than around 25% at a time. I was initially attracted to Mr Wood’s figure as the working relationship was otherwise good and the two matters of the claimant’s conduct were really the whole reason for the disciplinary process starting. However, issues that led to the dismissal then broadened into matters that go beyond these issues and for the adjustment to be just and equitable, that figure has to reduce. I have decided to make a reduction of 50% to both the basic and compensatory awards. The basic award reduces accordingly to £825.75. The compensatory award reduces to £1130.00. The total award of compensation is therefore £1,955.75.