Mrs A Noden v Step Up Children and Family Services Ltd: 3200055/2023

EMPLOYMENT TRIBUNALS

Case No 3200055/2023

Between

Mrs A NodenClaimant

Step Up Children and Family Services LimitedRespondent

Before

Employment Judge Gordon Walker

Ms M Duncan Brown (instructed by counsel) for respondent

Date 14 February 2025

JUDGMENT

[1]The claim of unfair dismissal is well founded and succeeds.

[2]The respondent is ordered to pay to the claimant the sum of £8755.69 within 14 days.

[3]The following claims are not well founded and are dismissed:a. Direct age discrimination

b. Direct race discrimination

c. Victimisation JUDGMENT having been sent to the parties and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:

REASONS

[1]By claim form dated 13 January 2023 the claimant presented claims of unfair dismissal, discrimination because of age, sex and race, and victimisation.

[2]The claim of sex discrimination was dismissed upon withdrawal by judgment

Issues

[3]The issues were agreed at a preliminary hearing on 3 October 2024. That list of issues was amended at the final hearing.

[4]The parties were given permission to amend the list of issues on the first day of the hearing:4.1 The claimant was permitted to add the express dismissal issue. The Tribunal concluded that this matter was included in the claim form and therefore permission to amend the claim was not required.

4.2 The respondent was permitted to amend the response to change the potentially fair reason for dismissal.

[5]Further amendments were made to the list of issues by consent during the hearing. The final list of issues was agreed as follows:

Issues

[1]Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 24 September 2022 may not have been brought in time.

1.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

1.3 Was the unfair dismissal complaint made within the time limit in section 111 of the Employment Rights Act 1996? The parties state in the claim and response forms that the effective date of termination was 27 September 2022. The Tribunal will decide:1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the effective date of termination?

1.3.2 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?

1.3.3 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?

[2]Unfair dismissal2.1 Was the claimant dismissed? Was the claimant given notice of dismissal at a meeting of 15 August 2022 by Ms Graley? The claimant says that this took effect on 27 September 2022 which was the date Ms Graley said she should leave.2.1.1 Alternatively, was the claimant constructively dismissed? Did the respondent do the following things:2.1.1.1 On 1 March 2021 did Ms Graley and Ms Warden promote Ms D Carr to the role of Deputy Manager, with managerial responsibility for other staff members, without giving the claimant the opportunity to apply for this role?

2.1.1.2 In the period from 23 June 2020 until the conversation between the claimant and Ms Graley on 8 February 2022, did Ms Graley falsely suggest that the claimant could have managerial responsibilities for a project called ‘breathing space’, despite not having the intention to proceed with the project?

2.1.1.3 On 9 February 2022 did Ms Graley tell the claimant that she was “costing too much money”, that she “had done everything she could for the respondent”, that it was “God's will”, and that it was “time she moved on”?

2.1.1.4 On 9 February 2022 did Ms Graley fail to respond to the claimant’s question sent in a WhatsApp message about whether there was a way she could make more money with the respondent, the claimant says she used the expression “just over broke” to refer to her job. Did Ms Graley instead treat this as an agreement by the claimant to leave her post?

2.1.1.5 At the end of July 2022 did Ms Graley offer Ms Carr the role of family coordinator, despite this being a substantive part of the claimant’s role?

2.1.1.6 At the end of July 2022 did Ms Graley tell Ms Carr that the claimant was leaving the respondent’s employment, despite the claimant not having such intentions. Was this statement made with the expectation that this would be relayed to the claimant?

2.1.1.7 On 18 June 2022 did Ms Graley complete a false supervision note of a meeting that did not take place? Did the note contain a false account of the claimant suggesting that she was leaving the respondent? Did the supervision note contain a false signature of the claimant?

2.1.1.8

2.1.1.9 At a meeting on 15 August 2022 did Ms Graley coerce the claimant to leave the respondent’s employment? Specifically, did Ms Graley give the claimant a date to leave (27 September 2022)?

2.1.1.10 Did Ms Graley produce false notes of a supervision meeting from April 2022? Specifically: did these notes include false statements that the claimant was going to leave, and did they include a false signature of the claimant?

2.1.1.11 At the 15 August 2022 meeting did Ms Warden tell the claimant that her last day of work was 27 September 2022?

2.1.1.12 In October 2022 did Ms Graley ask the claimant why she had not turned up for an awards ceremony and where she was, despite knowing the reason for the claimant not attending?

2.1.1.13 In November 2022 did Ms Graley email the claimant to ask her “where she was at”, not as a genuine attempt to find out how the claimant was, but to assess her reaction, and whether she was taking steps to bring a claim?

2.1.1.14 Did Ms Graley fail to respond to the claimant’s emails in October 2022 and 26 November 2022, which were sent in response to Ms Graley’s emails referred to at paragraphs 2.1.1.12 and 2.1.1.13 above? The claimant says that in her emails she stated that she had not resigned, and she asked Ms Graley for a meeting.

2.1.1.15 On 12 July 2022, did the respondent (the claimant believes this was Ms Graley) initiate a management meeting with Ms Warden and Mr Priest to take a management vote on whether to “keep” or “let go” of the claimant? The claimant believes this meeting was initiated or took place because, in the past, Ms Graley had held similar votes about other staff, where she sent WhatsApp messages asking for votes whether to keep or let go that employee.

2.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:2.1.2.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and

2.1.2.2 whether it had reasonable and proper cause for doing so.

2.1.3 Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.

2.1.4 Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.

2.1.5 Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

2.2 If the claimant was dismissed, what was the reason or principal reason for dismissal?2.2.1 If it was a constructive dismissal, the Tribunal will decide what was the reason for the breach of contract?

2.2.2 The respondent says that the reason was some other substantial reason: the irretrievable breakdown in the working relationship because the claimant continually mislead the respondent by saying that she was leaving.

2.3 Was it a potentially fair reason?

2.4 If the reason was misconduct, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:2.4.1 there were reasonable grounds for that belief;

2.4.2 at the time the belief was formed the respondent had carried out a reasonable investigation;

2.4.3 the respondent otherwise acted in a procedurally fair manner;

2.4.4 dismissal was within the range of reasonable responses.

2.5 Did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the claimant?

[3]Remedy for unfair dismissal3.1 If there is a compensatory award, how much should it be? The Tribunal will decide:3.1.1 What financial losses has the dismissal caused the claimant?

3.1.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

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

3.1.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? The respondent relies upon the claimant’s alleged misconduct of 12 July 2022.

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

3.1.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

3.1.7 Did the respondent or the claimant unreasonably fail to comply with it? The respondent says that the claimant did not put in a grievance, or appeal any express dismissal.

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

3.1.9 If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct? The respondent relies on their reason for dismissal.

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

3.1.11 Does the statutory cap apply?

3.2 What basic award is payable to the claimant, if any?

3.3 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? The respondent relies on their reason for dismissal. If so, to what extent?

[4]Direct age discrimination (Equality Act 2010 section 13)4.1 The claimant relies on the age group: over 50.

4.2 Did the respondent do the things set out at paragraph 2.1 and 2.1.1 above?

4.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says they were treated worse than Ms Carr for the detriments at paragraphs 2.1.1.1; 2.1.1.5; 2.1.1.6; 2.1.1.7 and 2.1.1.8. Ms Carr is in her 20s. The claimant also relies on a hypothetical comparator.

4.4 If so, was it because of age.

4.5 Did the respondent’s treatment amount to a detriment?

[5]Direct race discrimination (Equality Act 2010 section 13)5.1 The claimant relies on her colour: black.

5.2 Did the respondent do the things set out at paragraph 2.1. and 2.1.1 above?

5.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says they were treated worse than Ms Carr for the detriments at paragraphs 2.1.1.1; 2.1.1.5; 2.1.1.6; 2.1.1.7 and 2.1.1.8. Ms Carr is white. The claimant also relies on a hypothetical comparator.

5.4 If so, was it because of race?

5.5 Did the respondent’s treatment amount to a detriment?

[6]Victimisation (Equality Act 2010 section 27)6.1 Did the claimant do a protected act as follows:6.1.1 On 12 August 2022, at the meeting referred to at paragraph 2.1.1.5 above with Ms Graley, did the claimant suggest that it was unfair that Ms Carr, despite her experience, had been given the claimant’s role?

6.1.2 In January 2022 and/or on 22 March 2022 in a workplace counselling session with Mr Priest, did the claimant suggest or state that she had been subjected to race discrimination at the workplace?

6.2 Did the respondent do the things at paragraphs 2.1 and 2.1.1 (with the exception of paragraph 2.1.1.1 which happened before the alleged protected acts).

6.3 By doing so, did it subject the claimant to detriment?

6.4 If so, was it because the claimant did a protected act?

[7]Remedy for discrimination or victimisation7.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

7.2 What financial losses has the discrimination caused the claimant?

7.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

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

7.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

7.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

7.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

7.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

7.9 Did the respondent or the claimant unreasonably fail to comply with it?

7.10 If so is it just and equitable to increase or decrease any award payable to the claimant?

7.11 By what proportion, up to 25%?

7.12 Should interest be awarded? How much? Evidence 7. The parties produced an agreed main and supplementary file of written documents. The Tribunal watched a 6-minute video provided by the respondent. The claimant provided some additional documents on the issue of remedy which the respondent did not object to.

Evidence

[8]The claimant was a witness and she called Ms D Carr as a witness on her behalf. They both produced written witness statements and were questioned on their statements.

[9]The respondent produced ten witness statements:9.1 The following witnesses were questioned on their statements:9.1.1 Ms E Graley, director

9.1.2 Ms M Warden, registered manager

9.1.3 Mr C Priest, programme supervisor and private counsellor

9.1.4 Ms J Fretton, night team leader

9.1.5 Mr M Ugolor Drummond, residential support worker

9.1.6 Mr S Daanwi, residential support worker

9.2 The respondent did not call the remaining four witnesses. The respondent had intended to call Ms L Stuart and Ms H Stuart, but the claimant and the Tribunal indicated that they had no questions for those witnesses. The respondent produced signed witness statements from:9.2.1 Ms L Stuart, senior support worker;

9.2.2 Ms H Stuart, residential support worker;

9.2.3 Ms J Duckworth, relief support worker;

9.2.4 Mr L Antoine, family support coordinator.

The hearing

[10]Adjustments were made to allow Ms Fretton breaks during cross examination. No further adjustments were requested or required.

[11]The respondent produced a chronology and cast list at the outset of hearing.

[12]The parties made oral closing submissions.

Findings of fact

[13]The Tribunal took all the evidence into account. We only made findings of fact on the matters relevant to the list of issues.

[14]The respondent company was registered in 2017. It was initially named Foundations Children and Family Services Limited. In 2022 the name was changed to Step Up Childrens and Family Services Limited. The respondent is a provider of children and family services, providing care, assistance and accommodation for children aged between 8 and 17 years. The respondent opened a care home on 23 July 2018 which is registered to take up to five young people.

[15]The claimant’s employment with the respondent commenced on 10 May 2018. The claimant’s date of birth is 3 May 1968. For the purposes of her race discrimination claim she relies on her colour: black.

[16]On 19 March 2018 the claimant was offered the role of lead night support worker. The claimant’s statement of employment particulars states that she commenced employment as a lead support worker on 23 July 2018 and as operations co-ordinator on 5 November 2018.

[17]The contract states under the heading “notice” “following successful completion of your probationary period [six months], you are required to give 4 weeks’ notice, in writing, to terminate your employment with the Company”.

[18]In October 2018 the claimant approached Ms Graley with an idea for a new role of family support co-ordinator. The claimant was offered this role, commencing on 5 November 2018. This was a promotion with a salary increase to £38,727.36 (gross). The claimant worked four days a week. The claimant’s salary on termination was £39,500 gross plus £800 net for working two night shifts per week.

[19]The respondent has produced an organogram which shows the roles of family support co-ordinator, deputy manager and programme supervisor as being at the same level, but below the role of registered manager, which is, in turn, below the role of director. We accept that this is an accurate representation of the seniority and hierarchy of these roles. Whilst the claimant did not have managerial responsibilities for other staff, her role of family coordinator was of equivalent seniority to that of deputy manager, as evidenced by the fact that her pay was around, but in fact more, than the salary for deputy manager (£30,000).

[20]The respondent produced equality and diversity monitoring data:20.1 In respect of age:20.1.1 The responsible individual is aged 61-65;

20.1.2 The director is aged 41-50;

20.1.3 The registered manager is aged: 31-40;

20.1.4 The deputy manager is aged: 22-30;

20.1.5 The programme supervisor is aged: 41-50;

20.1.6 The family support coordinator is aged: 51-60; and

20.1.7 The support workers are aged 22-30 (8); 41-50 (6); 51-60 (8);

20.1.8 One employee declined to provide their age.

20.2 In respect of ethnic group:20.2.1 11 employees are black;

20.2.2 23 employees are white;

20.2.3 One employee has a mixed background;

20.2.4 One employee declined to provide their race. Deputy manager role

[21]On 1 March 2021 Ms Graley and Ms Warden promoted Ms Carr to the role of deputy manager, which had managerial responsibility for other staff members. Ms Carr is white. Her date of birth is 25 January 1995.

[22]The promotion was communicated to the claimant and others by email dated 9 March 2021.

[23]This was a new role that was not advertised. The claimant was not aware of the role and therefore did not have the opportunity to apply for it. The claimant did not raise this as a concern in her subsequent supervision sessions.

[24]In August or September 2019 Ms Graley met with the claimant at her request in a service station café. The claimant disclosed that Ms Shaw, the previous registered manager, was leaving the respondent. The claimant stated that Ms Shaw had told her that Ms Graley would not give the claimant a deputy manager role as she did not want the claimant to have too much power. The claimant was upset. Ms Graley cannot recall whether Ms Shaw had asked for the role of deputy manager to be created. The respondent did not have such a post at this time and did not intend to create this role. We reject the claimant’s submission that Ms Graley informed Ms Shaw that she would not give the claimant the deputy manager role as did not want the claimant to have too much power. Ms Graley’s evidence was that she did not say this. The claimant relies on what Ms Shaw told her: the claimant was not a witness to the alleged statement. Ms Shaw was not a witness in these proceedings. Further, the alleged statement is inconsistent with the fact that Ms Graley had already promoted the claimant to family support coordinator, which was of equivalent seniority to the deputy manager post.

[25]The job description and employee specification for the deputy manager role state that an NVQ level 3 children and young people’s workforce qualification was an essential requirement for the role. Ms Carr had this qualification, but the claimant did not. We accept the evidence of the respondent that the claimant was initially enrolled on the level 3 course, as such enrolment is a legal requirement under the Children’s Homes Regulations 2015, but that the claimant did not complete the qualification. In December 2019 the claimant was instead enrolled on the level 5 leadership and management course, to support her future career aspirations. Ms Warden explained, and we accept, that the claimant was given a day a week to work on achieving this qualification; but she did not complete it.

[26]We accept the clear and consistent evidence of Ms Graley and Ms Warden that the role of deputy manager was created with Ms Carr in mind at Ms Warden’s request, as a reflection of Ms Carr’s exceptional work ethic.

[27]Ms Graley accepted under cross examination that she “possibly” referred to Ms Carr as her “mini me”. We find that Ms Graley did use this term to refer to Ms Carr, not frequently, but on at least one occasion. We accept Ms Graley’s explanation that she felt an affinity with Ms Carr due to their similar career progression. In closing submissions, the claimant referred to Ms Graley’s evidence on this issue. She said that Ms Graley placed her hand on her chest, looked at Ms Carr and said that they were both white. This does not accord with our recollection or note of the evidence. Our note is that the claimant asked whether Ms Graley identified with Ms Carr “in looks” and Ms Graley said no. The claimant then asked a question about skin colour. It was then that Ms Graley stated that she and Ms Carr are white. The reference to skin colour was in direct response to an explicit question from the claimant on this issue.

[28]We do not find that Ms Graley used the term “mini me” to refer to race.

[29]We accept that “mini” could refer to age. This was not a suggestion put forward by the claimant in questions to Ms Graley, but the Tribunal asked this question. We accept Ms Graley’s answer that “mini me” was not meant as a reference to age, but a reference to Ms Carr progressing in a similar way to how Ms Graley had done earlier in her career. Breathing space

[30]The claimant came up with an idea of creating a home for children who were at risk and challenging, which they would attend for six weeks to help prepare them for a young persons’ home. The idea was called “breathing space”.

[31]The claimant took this idea to Ms Graley at some point in 2020. Ms Graley was supportive of the idea and the initial plan was that this would form part of the respondent company. The record of the 9 April 2020 supervision between the claimant and Ms Warden states that the claimant “has been part of a team to create a new company called breathing space”. A personal development plan created on 23 June 2020 by Ms Warden records two targets for the claimant, the first of which was breathing space. We accept the evidence of Ms Warden that the claimant was given one day a week to work on breathing space thereafter. We find that she was given this time until 8 February 2022, when she was then given a day to work on eagle foundations (findings of fact about this issue are set out below).

[32]On 3 August 2021 there was a meeting between the claimant, Ms Graley, and Mr Priest about breathing space.

[33]Prior to that meeting, these three attended a meeting with Hertfordshire County Council about breathing space. At this stage the idea was that breathing space would be part of the respondent. That finding is consistent with the oral evidence of the claimant and Ms Graley, Ms Graley’s witness statement (paragraph 51) and the claimant’s notes for that meeting. The claimant’s notes state that “Foundations have been working on an exciting new service which will prove beneficial for local authorities hard to place young people”. Ms Graley and Mr Priest could not recall these notes but accepted that they could have been notes prepared for that meeting. We accept the claimant’s evidence that the notes were produced by her for that purpose.

[34]In her witness statement at paragraph 51, Ms Graley says that, at the 3 August 2021 meeting, she made it clear that she did not want to contribute financially to breathing space or have any hands-on involvement. The claimant could work on breathing space on the basis that it did not interfere with her role for the respondent; the meeting concluded with the claimant saying she would complete the paperwork and the statement of purpose. We find that it was not made clear to the claimant at this stage that breathing space would have to be her own venture, or that it would be separate from the respondent. That finding is consistent with the fact that the claimant was still being given time during her employment for the respondent to work on breathing space, and that, at the end of the meeting, there were tasks for her to complete for breathing space.

[35]Breathing space was discussed at a supervision meeting between the claimant and Ms Graley on 8 February 2022, which took place between 6- 7:30pm. Ms Graley’s oral evidence was(1) that she informed the claimant at this meeting that she was no longer continuing with breathing space; and

(2) there was a discussion about setting up a charity together called eagle foundations which would be part of the respondent, rather than a separate business venture for the claimant. We accept that evidence, which is consistent with the written supervision record and subsequent communications between the claimant and Ms Graley in February 2022, as set out below. 9 February 2022 WhatsApp messages

[36]The claimant and Ms Graley exchanged WhatsApp messages on 9 February 2022:36.1 The claimant sent a message at 07:08 about the 8 February 2022 meeting: “I got back and thought “did I just get fired” [six laughing face emojis]”.

36.2 Ms Graley’s response was “U didn’t get fired” but there is no point beating about the bush, u have done what was set out for u at Foundations… Be that God’s intention or……..its time u moved on, thats obvious”.

36.3 The claimant’s reply was “Yeah plus the money I need can’t be got here. JOB Just Over Broke”.

36.4 Ms Graley responded to the “JOB Just Over Broke” message with “I 100% agree with that one”. She also wrote “U r costin me way too much money [laughing emoji] I need u moved on [laughing emoji]”.

[37]The claimant used the expression “just over broke” to other members of the respondent’s staff, including Ms Warden. This reflected the claimant’s desire to have her own business, rather than be an employee. The claimant felt that as an employee she was not paid enough (she was just above, or over, being broke).

[38]The claimant describes herself as business minded (page 5 of her witness statement). She has had past businesses (catering and beauty) and had an idea for a business creating facemasks during the pandemic.

[39]During her employment with the respondent, the claimant came up with business ideas in the respondent’s field. She took these to Ms Graley, who thought that many of these were good. They agreed to work on some of these ideas together (breathing space and eagle foundations). Evidence about the claimant leaving the respondent: up to and including 8 February 2022

[40]We accept the oral evidence of Ms Graley that, by the 8 February 2022 meeting, the claimant had been talking for years about leaving.

[41]We also accept the claimant’s evidence that, up until this time, when she spoke about leaving, she was referring to leaving her post of family coordinator, to carry out alternative employment with the respondent. She was not referring to leaving the respondent’s employment.

[42]More specifically, we find that:42.1 At the first supervision meeting between Ms Graley and the claimant (on 3 September 2020) an identified area of concern was the claimant’s “job role within Foundations” and “future with Foundations”. We find that this is a reference to breathing space. This was in the period before the 3 August 2021 meeting when there is no dispute that breathing space was to be part of the respondent.

42.2 In the claimant’s 8 December 2020 pre appraisal questionnaire she lists one of her achievements as “having the idea of another service hopefully to start in 2021 separate from Foundations”, she goes on to say “I am looking forward to moving on to lead my own service” . We find that this is a reference to breathing space. Even though there is a reference to this being “separate from Foundations” we find that this was still expected to be part of the claimant’s employment for the respondent. That is consistent with

(1) the chronology: this was long before the 3 August 2021 meeting; and

(2) the fact that this is recorded as an achievement of the claimant for the purposes of her appraisal with the respondent.

42.3 In the pre-appraisal questionnaire for the claimant’s December 2021 annual appraisal, she states under “objectives” “to move on to a suitable role as I feel after 4 years I still haven’t peaked to my full potential”. We find this is a reference to the claimant gaining a new role within the breathing space project (as part of her employment with the respondent), as this predates the 8 February 2022 meeting.

42.4 It is common ground that in her December 2021 appraisal the claimant stated that she did not want another annual appraisal with the respondent. We find that this was a reference to breathing space i.e. that the claimant hoped that, by that stage, she would be doing a separate role for the respondent running her own service for breathing space. This is consistent with what she wrote in her pre-appraisal questionnaire and our findings of fact about that.

42.5 On 31 January 2022 the claimant stated in an email “I hopefully won’t be around in July…”. We find that this was a reference to breathing space as this was before the 8 February 2022 meeting.

42.6 The record of the 8 February 2022 supervision states that the agreed action was “plan for new venture…” Ms Graley accepted in oral evidence (and we find) that this was a discussion about eagle foundations, which was envisaged to be part of the respondent.

42.7 This finding is consistent with Ms Graley’s notes of the claimant’s annual appraisal, which were also written on 8 February 2022. The appraisal states: “Audrey feels that she need (sic) something else to work towards and wants to develop herself further with new challenges… Audrey will on Thursdays of every week be working on a new venture that is in its infancy”. We find that this was a reference to eagle foundations. The claimant would no longer spend a day a week working on breathing space; she would work on eagle foundations that day instead. Alleged falsification of supervision records

[43]In the period from 9 February 2022 to July 2022, there are documents that refer to the claimant leaving. We make findings of fact on these below.

[44]Some of these documents are supervision records which the claimant says were falsified.

[45]The respondent held monthly supervision sessions that were recorded in a pro-forma document and saved to the employee’s password protected OneDrive.

[46]The policy was for the employee to log in, read the record, and sign to approve it. The claimant and Ms Graley did not use electronic signatures but typed their names to signify their agreement. The policy was set out in writing. The claimant was taken to this policy under cross examination. She accepted this was the correct policy, save that she did not agree with the statement in the policy that “failure to do this demonstrates that there is no disagreement with what has been written”. We find that this is an accurate record of the respondent’s written policy.

[47]We make the following findings of fact on this issue:47.1 Ms Graley typed up supervision records around the time of the supervision meetings and saved these to the claimant’s OneDrive;

47.2 In the period up to and including the meeting of 8 February 2022, the claimant logged in to read and approve those documents. She approved them by typing her name;

47.3 There were supervision meetings between the claimant and Ms Graley on 8 April 2022 and 10 May 2022. The claimant submits that Ms Graley modified the records on 27 July 2022 as evidenced by her screen shots of her supervision records. Ofsted inspected the respondent on 27 July 2022. We find that Ms Graley modified the supervision records on this date by adding “A.Noden-Signed on line”. We reach that conclusion because this way of signing is identical to how Ms Graley signed the notes, but different to how the claimant signed the notes. We conclude that Ms Graley did this to record that, as per the written policy on supervision records, by not signing the record, the claimant had indicated that she did not disagree with its contents. Ms Graley may have done this to ensure that the paperwork was in good order for the Ofsted inspection. We reject the submission that there were any other modifications to the records. The content of the records is too detailed to have been created after the event. We find that the supervision records are an accurate summary of what was discussed at the meetings.

47.4 On 18 June 2022 the claimant and Ms Graley were planning to meet at Ms Graley’s home. That meeting did not take place. Unbeknown to the claimant, Ms Graley had intended to carry out a supervision meeting at that time, even though this was described as a social visit on a Saturday. Ms Graley pre completed the supervision record of 18 June 2022 to reflect her intention to hold the supervision meeting that day. In fact, the claimant and Ms Graley did not meet on that day. They spoke on the phone the following day. Ms Graley treated this telephone call as a supervision session and recorded the contents of the telephone call into a supervision record for 19 June 2022. She accidentally also copied this into the 18 June 2022 partially completed pro forma. This explains why there are two records of the same meeting. The claimant should have realised that the conversation of 19 June 2022 was a supervision session, given that she was due to have a supervision that month, and such sessions were usually held remotely. The claimant should have logged into the OneDrive to sign the 19 June 2022 record. She did not do so. We find that, as with the April and May 2022 records, Ms Graley modified the June 2022 records to add “A.Noden-Signed on line”. We conclude that, in all other matters, the document at page 232 of the bundle is an accurate record of what was discussed by telephone on 19 June 2022. The 18 June 2022 record is an innocent and erroneous duplication of that record.

47.5 As with the April, May and June 2022 records, we find that Ms Graley modified the 4 July 2022 record to add “A.Noden-Signed on line”. We conclude that, in all other matters, the supervision record document is an accurate record of what was discussed at the 4 July 2022 supervision meeting. Evidence about the claimant leaving the respondent: 9 February 2022 to July 2022

[48]There were communications from 9-15 February 2022 where the claimant referred to leaving. We find that these refer to the claimant leaving to work on eagle foundations for the respondent. We reach that conclusion given the context and chronology of the 8 February 2022 meeting, where Ms Graley had agreed that the claimant would work on eagle foundations one day a week. These communications are:48.1 The WhatsApp messages of 9 February 2022 referred to above;

48.2 On 10 February 2022 the claimant sent Ms Graley a WhatsApp message which states “till I move over… although it is the right thing please bear in mind it is also a sensitive time because I’m having to prepare my goodbyes from now and the reality is sad”;

48.3 On 11 February 2022 the claimant sent an email which states “at some point I will be moving on to pursue another role connected to Foundations although not directly in house”;

48.4 On 15 February 2022 there were emails (including to social workers) about the Mr D Bucks taking over the claimant’s role as family support coordinator.

[49]From 8 April 2022, we find that references to the claimant leaving the respondent were about her plans to leave to set up her own business ventures, separate from the respondent. Specifically:49.1 The supervision record of 8 April 2022 meeting records “AN has voiced that she is planning on leaving Foundations around the summer of this year”. We conclude that this was about the claimant setting up her own business. We reach that conclusion because:49.1.1 The context of subsequent events, including the claimant incorporating her own company in May 2022. The claimant must have formed the idea to set up and incorporate her own business ventures before their incorporation. We find that she had such ideas by 8 April 2022 as evidenced by this supervision record;

49.1.2 The breathing space project had ended by this stage;

49.1.3 After an initial flurry of communications about eagle foundations in February 2022, this idea seems to have fizzled out.

49.2 The supervision record of the 10 May 2022 meeting records “AN is currently working on her training and 16+ project alongside working for foundations… AN stated that she will be very sad to leave Foundations but realises that this is the next step in her development”. We find this is a reference to

(1) the company that the claimant incorporated two weeks later (which provided training) and

(2) the company she incorporated on 25 August 2022 which was a 16+ company. This is the most logical explanation for the reference to 16+. We reject the claimant’s evidence that she only came up with the 16+ idea in August 2022 and that Ms Graley modified the supervision record on 27 August 2022 to include this reference. There was no reason for Ms Graley to do that. At that stage (27 August 2022) Ms Graley believed that the claimant had mutually agreed to leave the respondent and that the claimant was happy to do so. It was not until 12 October 2022 that the claimant raised any concerns about the 15 August 2022 meeting.

49.3 On 24 May 2022 the claimant incorporated a company “achieving excellence youth services limited”. The claimant provided services to the respondent through this company, which she invoiced the respondent for. This company was not part of the respondent.

49.4 Later on 24 May 2022 the claimant informed Ms Graley (by email and WhatsApp) about incorporating this company:49.4.1 In the email chain, the claimant wrote “I’m hoping you will miss me at some point [smiley face]” Ms Graley’s response was “We will miss you and so will I but I genuinely think this is what’s for you and I feel quite excited for you.” The claimant’s reply was: “will I get a long service Rolex he he… Yeah I’m excited too I think this is really it !!!!”

49.4.2 In the WhatsApp messages, Ms Graley responded with her congratulations. The claimant wrote “[six crying sad emojis] this is soooo real…well now the hard work begins… Foundations is a huge part of my story”. We find that in these communications, the claimant was expressing to Ms Graley a future intention to leave the respondent’s employment to work for herself. That conclusion is consistent with the natural reading and content of the communications.

49.5 In June and July 2022 there are further statements which we find are a reference to the claimant’s intention to leave the respondent’s employment for her own business ventures. This is the natural reading of what was written and consistent with the chronology. Specifically:49.5.1 The supervision record of the 19 June 2022 meeting records “AN stated that she would not leave Foundations in the lurch until someone was able to take over her role confidently”.

49.5.2 The supervision record of the 4 July 2022 meeting records “AN feels that all is going well and she is busy with her new venture… this new venture in the future may be of benefit to Foundations”. Under “next scheduled meeting” it states “August – dependant on AN’s leaving date”.

49.5.3 On 12 July 2022 the claimant and Ms Graley exchanged WhatsApp messages:49.5.3.1 The claimant wrote “When I’m back from hols it’s full speed ahead for meetings and contracts so if 3 combine to 5,000 then that’s great…”

49.5.3.2 The claimant informed Ms Graley that she had sent her a bottle of malibu as a thank you for her help with achieving excellence youth services limited. The claimant stated “However I can leave and jump in when needed in bank if need be…. I need you drunk for my exit bonus [laughing emojis]”. January and 22 March 2022 counselling sessions

[50]The claimant had two counselling sessions with Mr Priest, one in January and one in March 2022.

[51]Mr Priest has a private counselling business, separate from the respondent. He provides counselling services to the respondent through this business. These services are provided to the young people and to employees. The contents of the sessions are confidential. The respondent is only made aware of the date of the counselling sessions so that invoices can be raised. Mr Priest has other private clients, including from other children’s homes.

[52]The claimant disclosed during the January 2022 session that she thought she may have been subject to race discrimination. The claimant initially believed that this was stated in the March 2022 session. Mr Priest recalled that it was the January 2022 session, and the claimant did not challenge this.

[53]The claimant suspected that Mr Priest had disclosed her allegations of racism to Ms Graley. She made this assumption due to the closeness of Ms Graley and Mr Priest’s friendship. Mr Priest and Ms Graley deny that he disclosed this. We accept their evidence because(1) there is no evidence to the contrary; and

(2) we find that Mr Priest was a professional counsellor who took his duty of confidentiality seriously. 12 July 2022 meeting

[54]On 12 July 2022 there was a meeting between Ms Graley, Ms Warden and Mr Priest. Ms Carr and the claimant were not invited to the meeting. The claimant suspects that the purpose of this meeting was to vote on her future at the company. She reached that conclusion because(1) Ms Graley had previously asked members of the management team to carry out such votes; and

(2) the claimant and Ms Carr (who was the claimant’s friend) were excluded from the meeting.

[55]On 21 September 2021 Ms Graley asked members of the management team by WhatsApp to vote whether to “keep” or “let go” of junior members of staff. We accept that this was a one-off occurrence, as there is no evidence to the contrary.

[56]We reject the claimant’s allegation that the meeting of 12 July 2022 was a meeting to vote on her future with the respondent. We reach that finding because:56.1 Neither the claimant nor Ms Carr were at the meeting so they cannot say what was discussed;

56.2 Ms Graley, Ms Warden and Mr Priest gave clear and consistent evidence that the meeting was held to discuss training a female member of staff to provide counselling services;

56.3 The claimant’s allegation is inconsistent with subsequent events. If the respondent had wanted to terminate the claimant’s employment, and therefore held a meeting to vote on her future, we would have expected the respondent to capitalise on the incident that occurred on the 12 July 2022 night shift, and dismiss the claimant for this. They did not do so. 12 July 2022 incident

[57]The claimant worked the night shift of 12 July 2022 alone. During her shift a 15-year-old went missing. This was a relatively common occurrence. In fact, during her shift, the claimant was dealing with paperwork and telephone calls about an earlier missing person incident. The claimant did not realise that the young person was missing until the early hours of the morning.

[58]The respondent felt that the claimant’s failure to carry out welfare checks on the young person earlier in the evening required investigation. The claimant was due to go on annual leave shortly. Ms Warden decided not to suspend the claimant but to ask her to go on annual leave earlier. The purpose of this was to remove the claimant from the home whilst the investigation was ongoing, and to save the claimant the embarrassment of being suspended.

[59]The outcome of the investigation was for the claimant to carry out further training. The respondent decided not to take disciplinary action. Part of the reason for this was to protect the claimant’s record, as disciplinary action or dismissal for gross misconduct could potentially have a negative impact on her setting up her own business to care for young people.

[60]We accept Ms Graley’s evidence that, if the claimant’s employment had not been terminated in September 2022, the respondent would not have subsequently dismissed the claimant for the 12 July 2022 incident. Ms Graley said, and we accept, that the respondent would not have reopened the investigation into the 12 July 2022 incident. Giving Ms Carr family support coordinator duties

[61]The claimant was on annual leave from 25 July to 10 August 2022, in the USA.

[62]Whilst the claimant was on leave two new young people joined the home. They both had families involved in care and they needed intense family support.

[63]The 8 April 2022 supervision record states “[redacted] has now left Foundations, leaving no one to fulfil the role as family support when AN leaves”. We take this to be a reference to Mr Bucks who, in February 2022, was going to be trained to take over the claimant’s family coordinator role. Even if this was not a reference to Mr Bucks, this still evidences that, at this stage, the respondent had no succession plan for the claimant’s role.

[64]The record of the 1 August 2022 management meeting with Ms Graley, Ms Warden and Ms Carr, states: “Danielle to take over family support with 2 new young people due to AN leaving and being in America, this is on a temp basis until family support can be found”.

[65]Before the meeting, at some point at the end of July 2022, Ms Warden told Ms Carr that she would take over family support when the claimant left the respondent. Ms Carr was not previously aware that the claimant intended to leave the respondent imminently. She spoke to the claimant on her return from America. The claimant stated that she was not. We accept the claimant and Ms Carr’s evidence about their conversation in August 2022, as they were the only people present to witness what was said. 12 August 2022 meeting

[66]The claimant returned to work on or around 12 August 2022. She had a meeting with Ms Graley that day. The 12 July 2022 incident was discussed, as is recorded in the note of the meeting. The meeting note records that the claimant stated that she had just returned from leave and felt refreshed, but before going on leave she felt pushed out.

[67]We accept the evidence of Ms Graley in her witness statement that she asked the claimant what her plans were and stated that the claimant needed to make some decisions as to what she was doing, as she had been saying for a long time that she was leaving. She said that they should reconvene on 15 August 2022 after she had given some thought as to what she wanted to do, and where she was at with everything. This evidence is not recorded in the notes of the meeting. However, those notes are very brief and not verbatim. This evidence is accepted as it is consistent with subsequent events, such as the claimant’s voice notes.

[68]We reject the claimant’s submission that she disclosed during the meeting that transferring her duties to Ms Carr was unfair. Such a statement would be inconsistent with(1) her statements from April 2022 evidencing an intention to leave the respondent’s employment;

(2) statements from February 2022 about handing over her family coordinator duties to another member of staff; and

(3) the impression that the claimant gave in her communications after 15 August 2022 (up to but not including her email of 12 October 2022) that she was happy and excited to leave the respondent 12 August 2022 voice notes

[69]On 12 August 2022 the claimant sent three voice-notes to Ms Graley, one of which was six minutes long. These were transcribed. The claimant made various suggestions for business ideas including that she leave the respondent and the respondent “reemploy” her company. These were made in response to what Ms Graley had said at the meeting earlier that day.

[70]These voice notes come across as a stream of consciousness. The claimant was thinking out loud. They demonstrate that her business plans were not ready. Her ideas were not finalised. For example, she had no capital in place. 15 August 2022 meeting

[71]It is agreed that, at the meeting of 15 August 2022, notice was given to terminate the claimant’s employment on 27 September 2022. The parties disagree as to who gave notice at that meeting.

[72]Ms Graley produced brief written contemporaneous notes of the meeting. Those notes do not state that the claimant resigned. Ms Graley explained the following in oral evidence:72.1 At start of meeting, Ms Graley made the statement which is in the section of the notes “actions to be taken”: “leaving date needs to be decided and worked towards”.

72.2 Later in the meeting Ms Graley made the statements recorded in the notes: “Step Up also had to plan for her leaving and needed to get things moving and preparing for changes”… “She was aware that emotionally it would be a big step for AN to let go of Step Up but that that is what she needed to do in order to be able to move forward with her career path”.

72.3 At the end of the meeting Ms Graley and the claimant agreed that her last day of work would be 27 September 2022. Prior to this the claimant had proposed an earlier leaving date in August 2022.

72.4 Ms Graley was not “fed up” with the claimant’s continued statements about leaving.

72.5 Ms Graley felt that the claimant needed Ms Graley to give her a push to make a decision about leaving (as referred to in Ms Graley’s witness statement at paragraph 112). Ms Graley felt that she gave the claimant that push by holding the meeting on 15 August 2022 to put in place plans for the claimant leaving, and by making the claimant make a decision on this.

[73]We accept this evidence from Ms Graley, save for the part about the leaving date:73.1 We reject her evidence that the claimant proposed a leaving date in August 2022. This is not in the notes of the meeting or in the grounds of resistance. We would have expected this important point to be included in these documents if it was said. This evidence is inconsistent with the claimant’s voice notes which demonstrate that she was not ready at this time to leave the respondent’s employment to pursue her business ventures;

73.2 We accept the claimant’s evidence that it was Ms Graley who proposed 27 September 2022 as the leaving date. This was a convenient date for the respondent’s payroll. This finding is consistent with Ms Graley’s actions during the meeting: she was the one who gave the claimant the push to leave. We find that the claimant agreed to Ms Graley’s proposal: she was excited to pursue her business ventures and trusted Ms Graley’s advice. However, we find that she would not have voluntarily elected to terminate her employment at this stage as her business plans were not ready. WhatsApp messages of 15 August 2022

[74]On 15 August 2022 the claimant sent messages to Ms Graley stating: “Oh sorry didn’t discuss telling staff I’d like to be the one that lets the old lot know please as I can let them know it’s positive but obviously scary too but necessary and the best thing I won’t discuss anything financial as far as they will be concerned I leave last tues in sept” “…unless you need my input you can take me off management group?” 16+ company

[75]During her notice period, the claimant sent Ms Graley messages about her new business venture. The tone of these was that the claimant was excited, albeit apprehensive, about her new business. Ms Graley offered some advice and support.

[76]On 25 August 2022 the claimant incorporated a company to provide services to young people aged 16 years and over (achieving excellence 16+ semi independent services limited).

[77]The claimant rented premises to be used as a home for 16+ residents. She sent Ms Graley a video of the premises on 20 September 2022 and she showed it to other members of staff around that time.

[78]The claimant’s company was not successful, and, on 2 January 2023, she sent a WhatsApp message to Ms Fretton stating that she was closing down. She said “the woman is gonna pay”. The claimant explained that this was a reference to Ms Graley and a reflection of her state of mind at the time. She was extremely upset and felt that Ms Graley had coerced her into setting up a business that was not viable. We accept that that was how the claimant felt at that time. 27 September 2022

[79]The parties agree that the claimant’s employment terminated on 27 September 2022. Her last shift was the night shift of 27 September 2022.

[80]Ms Graley sent the claimant an email on 27 September 2022 at 13:11 referencing that this was her last shift and stating that she should leave her keys and laptop in the morning. October to December 2022 events

[81]The respondent paid the claimant for October, November and December 2022 through the payroll. The purpose of this was to assist the claimant in setting up her new business. Ms Graley informed the claimant of this at the 15 August 2022 meeting. The meeting notes state that the claimant would be put on garden leave. It is common ground that the claimant’s employment terminated on 27 September 2022, and she was not on garden leave after this date.

[82]The respondent was nominated for an award, to be presented at a ceremony in Birmingham in October 2022. The claimant planned to attend the ceremony. The respondent booked her accommodation and intended to use the event as a leaving party for her. The claimant decided not to attend and did not inform the respondent of this in advance.

[83]On 12 October 2022 Ms Graley sent an email to the claimant’s personal email account stating “please could you get in touch to let me know where you are at and what is going on as you did not turn up for the Awards evening in Birmingham and I have not heard from you since you finished working shifts? I would appreciate a response to this email as you don’t appear to be answering my messages or phone calls. After such a long working relationship I’d like to think that this is possible so I can best understand what is going on.”

[84]The claimant replied later that day. In that email the claimant said that she had not resigned and questioned whether she had been dismissed. The claimant did not request a meeting with Ms Graley.

[85]On 22 November 2022 Ms Graley emailed the claimant, stating: “Good morning, Audrey, Hope you are well. Just an email to catch up and see where you are at with everything?”

[86]The claimant replied on 26 November 2022 referring to her email of 12 October 2022.

[87]Ms Graley did not reply to the claimant’s emails of 12 October 2022 and 26 November 2022. She said this was because the first email went to her junk folder, and she did not receive the second email. Ms Graley did receive the claimant’s email of 27 October 2022 about her payslip.

[88]We reject Ms Graley’s explanation for not responding. Given that she wrote the initial email on 12 October 2022, we think it is unlikely the claimant’s email went to her junk folder. Even if it had gone to the junk folder, given that Ms Graley had asked the claimant to reply to her 12 October 2022 email, we would have expected her to search for that reply in all her email folders. There is no logical explanation why the claimant’s 26 November 2022 email was not received. We find that Ms Graley chose not to reply to the claimant’s emails as they raised difficult and potentially litigious issues. Time limits

[89]The claimant first contacted ACAS in September 2022. She informed them of her potential intention to submit a claim of unfair dismissal. She did not refer to discrimination or victimisation. ACAS informed her of the relevant time limits for commencing the ACAS conciliation process for an unfair dismissal claim (three months from termination date). The claimant commenced ACAS conciliation on 23 December 2022, in accordance with the advice she had received about time limits. That process concluded on 4 January 2023, and she presented her tribunal claim on 13 January 2023.

[90]The claimant says that she did not put in claim whilst she was still employed because she did not want the situation to be uncomfortable.

[91]The claimant’s salary with the respondent at the time of termination of her employment was £3,357.39 per month net. That was made up of her earnings as a family coordinator (£39,000 gross per annum) together with her earnings for working two-night shifts per month (£800 net per month).

[92]The claimant was paid for October, November and December 2022 by the respondent, specifically she was paid the following net sums:92.1 £2,502.73 (October 2022)

92.2 £2,502.73 (November 2022)

92.3 £2,390.77 (December 2022

[93]In May 2022 the claimant commenced work for Cygnet. This was an additional source of income. She worked two-night shifts per week and was paid £1000 net per month. The claimant was not given any guarantee that she would be given two shifts per week, and she was not told that she would be given these shifts over a specific time period. The claimant says that if she had remained employed with the respondent, she would have continued to work for Cygnet doing two shifts per week for £1000 per month indefinitely. We do not accept that submission. Our findings of fact on this issue are at paragraphs 97-98 below.

[94]After termination of employment, the claimant’s net earnings for Cygnet were as follows:94.1.1 £1500 October 2022 (this figure was not evidenced by the claimant’s bank statements but was taken from the claimant’s evidence that, after dismissal, she worked on average 50% more for Cygnet i.e. three shifts per week)

94.1.2 £1492.21 November 2022

94.1.3 £1077.96 December 2022

94.1.4 £1608.64 January 2023

94.1.5 £859 February 2023

94.1.6 £392 March 2023

[95]In February 2023 the claimant started working for Capital. She earned:95.1 In February 2023 and March 2023 she worked bank shifts, earning:95.1.1 £774.77 net for February 2023

95.1.2 £2003.06 net for March 2023

95.2 In April 2023 she was employed under a contract of employment and worked overtime. Her net earnings were:95.2.1 April 2023: £2000

95.2.2 May 2023: £2351.46

95.2.3 June 2023: £2993.33

95.2.4 July 2023: £4520.79

95.2.5 August 2023: £3013.46

95.2.6 September 2023 to March 2024 £3,500 net per month

95.3 In April 2024 the claimant was promoted to a gross annual salary of £61,000. Her net monthly earnings were:95.3.1 £3,522 April 2024

95.3.2 £3,795 May 2024

95.3.3 £3,631June 2024

95.3.4 £3,704.32 July 2024

95.3.5 £3,728.68 August 2024

95.3.6 £3,655.60 September 2024

95.3.7 £6,579.96 October 2024 (inclusive of a bonus)

95.3.8 £3,680.36 November 2024

95.3.9 £6,677 December 2024 (inclusive of a bonus)

95.3.10 £3,850 January 2025

[96]In the period from October 2022 to March 2023 the claimant also worked for Swan, earning the following net amounts:96.1 £285.50 October 2022

96.2 £170 November 2022

96.3 £471.43 December 2022

96.4 £186.50 January 2023

96.5 £600 February 2023 (this was not evidenced by bank statements but was taken from the claimant’s oral evidence that on one month she earned £600 net for Swan)

96.6 £257.29 March 2023

[97]As set out above, in February and March 2023 the claimant’s hours and earnings for Cygnet reduced to below her pre termination earnings for Cygnet (£1000 per month). The claimant says that was because she had started working for Capital. We do not accept that explanation. At that stage, whilst the claimant had started working for Capital, she was only working bank shifts and she was not under a contract of employment. She did not have guaranteed income from Capital and was in February 2023 earning less than she earned for Cygnet. There was no restriction on the claimant working for other employers at that time or on working extra shifts for Cygnet. That restriction only came into force once she entered into a contract of employment with Capital in April 2023. Given the claimant’s financial commitments (her mortgage and other outgoings) we conclude that, if there were more shifts available to the claimant at Cygnet in February and March 2023, she would have worked these. We conclude that the claimant’s earnings for Cygnet reduced in February and March 2023 due to a reduction in the amount of available work for the claimant: that is the most logical explanation.

[98]We conclude that, even if the claimant had remained employed by the respondent, her earnings for Cygnet would have tailed off and stopped from February 2023 in the way that they did. Legal principles Unfair dismissal

Legal principles

[99]Section 95(1) Employment Rights Act 1996 (“ERA”) defines a dismissal (so far as is relevant) as: For the purposes of this Part an employee is dismissed by his employer if … (a) the contract under which he is employed is terminated by the employer (whether with or without notice), … (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.

[100]Section 98 ERA(1) says: 98 General. (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

[101]Words that are capable of being interpreted as a resignation or a dismissal may not necessarily amount to such in the circumstances. Broadly speaking, the test as to whether ostensibly ambiguous words amount to a dismissal or a resignation is an objective one:101.1 all the surrounding circumstances (both preceding and following the incident) and the nature of the workplace in which the misunderstanding arose must be considered;

101.2 if the words are still ambiguous, the tribunal should ask itself how a reasonable employer or employee would have understood them in light of those circumstances.

[102]The same objective test applies when the ambiguity occurs in correspondence. Where an employee has received an ambiguous letter, the EAT has said that the interpretation ‘should not be a technical one but should reflect what an ordinary, reasonable employee… would understand by the words used’, ‘the letter must be construed in the light of the facts known to the employee at the date he receives the letter’: Chapman v Letheby and Christopher Ltd [198]1 IRLR 440, EAT.

[103]It is a well-established principle in the construction of commercial contracts that any ambiguity will be construed against the party seeking to rely on it. In Graham Group plc v Garratt EAT 161/97 the EAT held that this principle should also be applied to ambiguous words or acts in the context of a dismissal or resignation.

[104]The legal principles about dismissal for some other substantial reason (irretrievable breakdown in relationship between employer and employee) were recently set out in Matthews v CGI IT UK Ltd

[2024] EAT 38

. That was a rare case where the ET found (upheld on appeal) that the dismissal without warning or right to appeal was fair. Direct discrimination

[105]Section 13(1) Equality Act 2010 (“EqA”) provides: A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[106]The question whether the alleged discriminator acted ‘because of’ a protected characteristic is a question about their reasons for acting as they did. The test is subjective (Nagarajan v London Regional Transport

[1999] ICR 877

at 884; Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

at 29.

[107]It is sufficient that the protected characteristic had a ‘significant influence’ on the decision to act in the manner complained of. It need not be the sole ground for the decision (Nagarajan at 886).

[108]When considering whether there has been direct discrimination, the Tribunal can apply a two-stage approach: considering first whether there has been less favourable treatment by reference to a real or hypothetical comparator; and then going on to consider whether that treatment is because of the protected characteristic.

[109]Alternatively the Tribunal can address both stages by considering a single question: the ‘reason why’ the employer did the act or acts alleged to be discriminatory. Was it on the prohibited ground or was it for some other reason? This approach does not require the construction of a hypothetical comparator: Martin v Devonshires Solicitors

[2011] ICR 352

at 30.

[110]The less favourable treatment must give rise to a detriment (s.39(2)(d) EqA). There is a detriment if ‘a reasonable worker would or might take the view that [the treatment was] in all the circumstances to his detriment’ (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

at 35). An unjustified sense of grievance does not fall into that category. The burden of proof in discrimination cases

[111]The burden of proof provisions are contained in s.136 EqA:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[112]The operation of the burden of proof provisions was explained in Base Childrenswear Ltd v Otshudi

[2019] EWCA Civ 1648

at 18.

[113]As for the ‘something more’ required to shift the burden, Deman v Commission for Equality and Human Rights

[2010] EWCA Civ 1279

at 19: ‘the “more” which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred.’ Victimisation

[114]As to victimisation, section 27 provides that:(1) A person (A) victimises another person (B) if A subjects B to a detriment because– (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act– (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving information or making a false allegation is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

[115]Subsection 2(d) covers allegations made by the claimant that the employer or another person has contravened the EqA, whether or not they are express. It is not necessary that the EqA be mentioned, but the asserted facts must, if verified, be capable of amounting to a breach of the EqA.

[116]The EAT in Chalmers v Airpoint Ltd

UKEATS/0031/19/SS

(unreported 2020) upheld the Tribunal’s decision that a reference to actions which ‘may be discriminatory’ in a grievance was not sufficient to amount to a protected act.

[117]In Durrani v London Borough of Ealing EAT 0454/12 the EAT upheld the Tribunal’s decision that references to ‘being discriminated against’ referred to general unfairness rather than detrimental action based on the Claimant’s race, although the EAT emphasised that the case should not be taken as ‘any general endorsement for the view that where an employee complains of “discrimination” he has not yet said enough to bring himself within the scope of s.27 EqA’. All will depend on the circumstances of the particular case.

[118]The Tribunal must determine whether the relevant decision was materially influenced by the doing of a protected act. This is not a ‘but for’ test, it is a subjective test. The focus is on the ‘reason why’ the alleged discriminator acted as s/he did (West Yorkshire Police v Khan

[2001] IRLR 830

[119]The Court of Appeal emphasised the importance of focusing on motivation, rather than ‘but for’ causation in Dunn v Secretary of State for Justice

[2019] IRLR 298

at paragraph 44.

[120]Section 122(2) ERA states: Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.

[121]Section 123 ERA states (so far as is relevant):(1) Subject to the provisions of this section and sections 124 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

(2) The loss referred to in subsection (1) shall be taken to include— (a) any expenses reasonably incurred by the complainant in consequence of the dismissal, and (b) subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal. … (4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland. … (6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

[122]The EAT provided guidance in Shittu v South London & Maudsley NHS Foundation Trust

[2022] EAT 18

about assessing loss of a chance.

[123]The ACAS Code expressly covers disciplinary issues relating to ‘misconduct’ and ‘poor performance’. The EAT has provided guidance about its applicability to SOSR dismissals: Phoenix House Ltd v Stockman

[2017] ICR 84

and Rentplus UK Ltd v Coulson

[2022] EAT 81

[124]Although the wording at section 122(2) ERA and 123(6) ERA are different, in both cases the relevant conduct of the employee must be culpable and blameworthy: Parker Foundry Ltd v Slack

1992 ICR 302

; Steen v ASP Packaging Ltd

2014 ICR 56

Conclusion

[125]We took all findings of fact into account when reaching our conclusions and applied the legal principles set out above. We only refer below to the findings of fact that were relevant to the issues we had to determine. Unfair dismissal

[126]We conclude that there was an express dismissal at the meeting of 15 August 2022.

[127]The best evidence we have of what was said in the August 2022 meetings is the contemporaneous supervision record. This was written by Ms Graley.

[128]The notes show that, in both meetings, it was Ms Graley who raised the matter of the claimant leaving:128.1 In the 12 August 2022 meeting she said that the claimant had to “make some decisions about what she was doing” and that they should reconvene at the meeting of 15 August 2022.

128.2 At the start of the 15 August 2022 meeting Ms Graley stated that a leaving date needed to be decided and worked towards. She then stated that “letting go” of the respondent was what the claimant needed to do.

[129]We have found that it was Ms Graley that proposed the leaving date and that she felt it was incumbent on her to provide the claimant with the necessary “push” to leave the respondent’s employment.

[130]There is nothing recorded in the notes that amounts to a resignation by the claimant. If the claimant had resigned, we would have expected this to be recorded in the notes and followed by a letter from Ms Graley accepting the resignation.

[131]The claimant raised various business ideas in her voice notes. We do not find that these were a resignation or that this context alters our view about what was said in the 15 August 2022 meeting. The claimant only made the voice notes because of what Ms Graley told her in the 12 August 2022 meeting.

[132]The respondent submits that the 15 August 2022 WhatsApp message from the claimant about informing staff of her leaving amounts to a resignation. We reject that submission. The claimant’s reference to “leaving” could refer to leaving by resignation or dismissal. If the claimant were resigning in writing, as required under her contract of employment, we would have expected her to set this out clearly. She did not do that.

[133]Given our conclusion that there was an express dismissal, it is not necessary to consider whether there was a constructive dismissal.

[134]We find that the reason for dismissal was that the claimant had raised a prior intention to leave the respondent, and the respondent needed to make succession plans. We also find that part of the reason was misguided encouragement by Ms Graley: she gave the claimant the “push” she thought the claimant needed to set up her own business.

[135]We do not find that there was an irretrievable relationship breakdown justifying dismissal:135.1 The claimant and Ms Graley remained on good terms throughout the notice period, as evidenced by their written communications.

135.2 Ms Graley was not “fed up” with the claimant saying she was going to leave.

135.3 We reject the submission that the claimant was misleading the respondent. The claimant was expressing a genuine, albeit unrealistic, intention to leave to set up her own business.

135.4 The respondent’s submission that the claimant had been saying she was leaving for years is overstated: statements before April 2022 were about potential business ventures with the respondent where the expectation was that the claimant would remain an employee.

135.5 We accept that the respondent needed to make succession plans. They had tried to do this with Mr Bucks, but he had then left.

[136]We therefore conclude that there was a dismissal but that it was not for a potentially fair reason.

[137]The claim of unfair dismissal succeeds. Direct age and race discrimination Mini me comment

[138]We have found that Ms Graley made this comment about Ms Carr on at least one occasion, but not frequently. We have found she did this because she felt there was a similarity between her career progression and that of Ms Carr’s. We reject the claimant’s submission that this was about age or race. This comment therefore does not assist us in our determination of the age and race discrimination claims. Diversity data

[139]Neither party submitted that the diversity data supported their case. The data did not assist us in our determinations. The sample size is very small. Those in senior roles were represented in all age groups. Promotion of Ms Carr

[140]The alleged treatment at paragraph 2.1.1.1 of the list of issues is proven.

[141]On 1 March 2021 Ms Graley and Ms Warden promoted Ms Carr to the role of deputy manager with managerial responsibility for other staff members, without giving the claimant the opportunity to apply for the role.

[142]The claimant compares herself to Ms Carr. Ms Carr was in a materially different situation to the claimant and is therefore not an appropriate comparator. Ms Carr had the NVQ level 3, whereas the claimant did not. This was an essential criterion for the role. Additionally, Ms Carr was in a junior role and performing at a level appropriate for promotion. Whereas the claimant was already performing well having been promoted to a role of equivalent seniority to the deputy manager post.

[143]Even if she was an appropriate comparator, there was not less favourable treatment. The claimant had already been promoted. The claimant’s role of family coordinator was at the same seniority as the deputy manager role. The claimant’s salary was nearly 30% higher than that of the deputy manager role.

[144]We considered how a hypothetical comparator would have been treated. There is no evidence from which to infer that a hypothetical comparator would have been treated differently. The claimant relies on Ms Carr as an evidential comparator. But her situation was different to the claimant’s.

[145]The reason for the treatment was:145.1 Ms Carr had the required level 3 NVQ;

145.2 Ms Carr had demonstrated an exceptional work ethic;

145.3 Ms Carr was performing at a level appropriate for promotion; and

145.4 The claimant had already been promoted and was performing well in her role.

[146]It was nothing to do with age or race.

[147]Further, the claimant accepted that Ms Warden’s actions were not discriminatory, and we have found that it was Ms Warden’s suggestion to promote Ms Carr.

[148]For all these reasons, we conclude that there was no direct discrimination Breathing space

[149]In the period from 23 June 2020 to 8 February 2022 Ms Graley suggested that the claimant could have managerial responsibilities for breathing space.

[150]In the period until August 2021, Ms Graley intended to proceed with the project as part of the respondent.

[151]In the period from 3 August 2021 to 8 February 2022, Ms Graley expressed that she did not want to invest her own time and money in the venture. However, she gave the claimant one day a week to work on breathing space. There was therefore still an intention that it would be part of the respondent in some way.

[152]We conclude that Ms Graley’s actions until 8 February 2022 were consistent with her intentions. She did not make false suggestions to the claimant.

[153]It follows that the factual allegation at paragraph 2.1.1.2 of the list of issues is not proven.

[154]The claimant relies on a hypothetical comparator. She relies on the treatment of Ms Carr as an evidential comparator. She relies on the promotion of Ms Carr as evidence of discriminatory treatment. However, Ms Carr was in a materially different situation, and her promotion was not discriminatory. There is no other evidence from which to infer that a hypothetical comparator would have been treated differently.

[155]There is no evidence of less favourable treatment.

[156]The reason why Ms Graley moved the respondent away from breathing space was because she did not have the energy or financial resources to commit to the project. It was nothing to do with age or race.

[157]For all these reasons, we conclude that there was no direct discrimination 9 February 2022 WhatsApp messages

[158]In these messages, Ms Graley said words to the effect that the claimant was “costing too much money”, that she “had done everything she could for the respondent”, that it was “God's will”, and that it was “time she moved on”. The allegation at paragraph 2.1.1.3 of the list of issues is therefore proven.

[159]Turning to allegation 2.1.1.4. The claimant used the expression “just over broke”. Ms Graley did not treat this as an agreement by the claimant to leave the respondent: that came much later, in August 2022. At this time the claimant was expressing an intention to leave her post of family coordinator to start working for eagle foundations. However that was still part of the respondent and the plan did not come to fruition. Therefore, even if Ms Graley did treat this as an agreement by the claimant to leave her post of family coordinator, this was not a detriment to the claimant.

[160]The claimant relies on a hypothetical comparator. She relies on the treatment of Ms Carr as an evidential comparator. She relies on the promotion of Ms Carr as evidence of discriminatory treatment. However, Ms Carr was in a materially different situation, and her promotion was not discriminatory. There is no other evidence from which to infer that a hypothetical comparator would have been treated differently. There was no less favourable treatment.

[161]The reason for the WhatsApp messages was the meeting of 8 February 2022 where the respondent put an end to breathing space and started to discuss eagle foundations, a new venture that the claimant would work on one day a week. This was nothing to do with age or race.

[162]Ms Graley’s reference to the claimant “costing too much money” was meant as a joke, as evidenced by her use of laughing emojis. However, there was also some truth in this: the claimant was paid 30% more than Ms Carr. The claimant had one day of her four-day working week to work on business ventures that did not come to fruition. She had a further day a week to work towards qualifications that she did not achieve.

[163]For all these reasons, we conclude that there was no direct discrimination End of July 2022 events with Ms Carr

[164]At the end of July 2022 Ms Graley told Ms Carr that the claimant was leaving the respondent’s employment. Ms Graley did this because the claimant had, since April 2022, been expressing an intention to leave the respondent to set up her own business venture. Ms Graley assumed that Ms Carr would know this, given her friendship with the claimant. This was not done with the expectation that it would be relayed to the claimant: Ms Graley thought this was common knowledge.

[165]At the end of July 2022 Ms Graley asked Ms Carr to take over family coordinator responsibilities for two new young people who had joined the home. The reason for this was to ensure continuity of family coordinator care, given the claimant’s stated intention to leave the respondent imminently and the fact that these young people and their families needed intense support. Further, this was in the context of Mr Bucks (who the claimant had been training to take over her duties) having left the respondent. As recorded in the written record of 1 August 2022, the expectation was that this would be a temporary arrangement as it was too much work for Ms Carr to do this as well as her deputy manager role. In fact, Ms Carr continued with these tasks until her resignation in November 2022.

[166]It follows that the factual allegations at paragraphs 2.1.1.5 and 2.1.1.6 of the list of issues are proven in part.

[167]The claimant relies on Ms Carr as an actual comparator. Ms Carr was in materially different situation as she was not expected to imminently leave the respondent.

[168]There is no evidence that a hypothetical comparator would have been treated differently. The claimant relies on the treatment of Ms Carr as an evidential comparator. She relies on the promotion of Ms Carr as evidence of discriminatory treatment. However, Ms Carr was in a materially different situation, and her promotion was not discriminatory. There is no other evidence from which to infer that a hypothetical comparator would have been treated differently.

[169]There was no less favourable treatment.

[170]The reason for the treatment was because the claimant had expressed an intention to leave the respondent imminently. Ms Graley assumed that Ms Carr would know this, given their friendship. The respondent needed to make succession plans for family coordination, given Mr Bucks departure and the claimant’s stated intention to leave. This was to ensure continuity of care for vulnerable families. This was nothing to do with age or race.

[171]For all these reasons, we conclude that there was no direct discrimination Supervision notes

[172]The April 2022 supervision note is an accurate record of what was discussed at the meeting. The claimant did not sign this record. In accordance with the written policy, Ms Graley treated the record as agreed. She therefore included a signature which appeared to be written by the claimant, but it was not.

[173]The 18 June 2022 supervision note is a note of a meeting that did not take place. The meeting took place on 19 June 2022. The main text of these supervision records is identical. This is an accurate record of what was discussed on 19 June 2022. The claimant did not sign this record. In accordance with the written policy, Ms Graley treated the record as agreed. She therefore included a signature which appeared to be written by the claimant, but it was not.

[174]It follows that the factual allegations at paragraphs 2.1.1.7 and 2.1.1.10 of the list of issues are proven in part.

[175]For the June 2022 allegation, the claimant relies on Ms Carr as an actual comparator. Ms Carr was in materially different situation as she was not supervised by Ms Graley. There is no evidence of different treatment.

[176]Insofar as the claimant relies on a hypothetical comparator, she relies on Ms Carr as an evidential comparator. She relies on the promotion of Ms Carr as evidence of discriminatory treatment. However, Ms Carr was in a materially different situation, and her promotion was not discriminatory. There is no other evidence from which to infer that a hypothetical comparator would have been treated differently.

[177]There was no less favourable treatment.

[178]The reason for the treatment was:178.1 The claimant did not sign the supervision records, this meant that, as per the written policy, she was treated as agreeing their contents. Ms Graley wrote the claimant’s name on the records to signify this agreement. This may have been done to ensure that the records were in good order for the Ofsted inspection;

178.2 Ms Graley intended to hold a supervision meeting with the claimant on 18 June 2022, but this did not go ahead. Ms Graley had prefilled parts of the 18 June 2022 pro forma record. Ms Graley erroneously recorded what was said in the 19 June 2022 meeting in both the 18 June 2022 and 19 June 2022 record.

178.3 This was nothing to do with age or race.

[179]For all these reasons, we conclude that there was no direct discrimination 12 July 2022 meeting

[180]The claimant has not proven her factual case for allegation 2.1.1.15 of the list of issues. This meeting was about training a female employee to provide counselling services. This was not about the claimant. There was no detrimental or less favourable treatment of the claimant as it had nothing to do with her. The claim therefore fails. 15 August 2022

[181]Ms Graley did not coerce the claimant to leave on 15 August 2022. She provided her with encouragement and a “push” to do so. This was a misguided attempt to provide mentoring support. It amounts to a dismissal but not coercion.

[182]Ms Graley proposed 27 September 2022 as the claimant’s leaving date. The claimant agreed to this.

[183]It follows that the allegation at paragraph 2.1.1.9 of the list of issues is proven in part.

[184]There was no less favourable treatment. The claimant relies on a hypothetical comparator. She relies on the treatment of Ms Carr as an evidential comparator. She relies on the promotion of Ms Carr as evidence of discriminatory treatment. However, Ms Carr was in a materially different situation, and her promotion was not discriminatory. There is no other evidence from which to infer that a hypothetical comparator would have been treated differently.

[185]The reason for the treatment was:185.1 The claimant’s statements from April 2022 expressing an intention to leave the respondent.

185.2 The respondent’s need to make succession plans.

185.3 Ms Graley’s misguided mentoring support: pushing the claimant to set up her own business.

185.4 Ms Graley was also keen to make the financial saving on the claimant’s salary given

(1) her salary as compared to Ms Carr’s;

(2) the fact she was only working two days of her four-day working week on family coordinator duties; and

(3) Ms Graley’s reference in the 9 February 2022 WhatsApp to the claimant costing her too much money.

185.5 This was nothing to do with age or race.

[186]For all these reasons, we conclude that there was no direct discrimination October and November 2022

[187]In October 2022 Ms Graley asked the claimant why she had not turned up to the awards ceremony. Ms Graley did not know the claimant’s reason for not attending as this email predated the claimant’s email of 12 October 2022.

[188]In November 2022 Ms Graley emailed the claimant to ask her where she was at. We conclude that this was to assess her reaction and whether she was taking steps to bring a claim. That is consistent with Ms Graley’s failure to respond to the claimant’s 12 October 2022 email the contents of which expressed a potential intention to litigate.

[189]Ms Graley failed to respond to the claimant’s emails of 12 October 2022 and 26 November 2022. In the 12 October 2022 email the claimant said that she had not resigned. The claimant did not ask for a meeting with Ms Graley. The 26 November 2022 referred to the 12 October 2022 meeting.

[190]It follows that the factual allegations at paragraphs 2.1.1.12, 2.1.1.13 and 2.1.1.14 of the list of issues are proven in part.

[191]The claimant relies on a hypothetical comparator. She relies on the treatment of Ms Carr as an evidential comparator. She relies on the promotion of Ms Carr as evidence of discriminatory treatment. However, Ms Carr was in a materially different situation, and her promotion was not discriminatory. There was no less favourable treatment. There is no other evidence from which to infer that a hypothetical comparator would have been treated differently.

[192]The reason for the treatment was:192.1 The claimant did not attend the awards ceremony. She did not inform the respondent of this in advance.

192.2 The claimant’s email of 12 October 2022 challenged her termination of employment. This demonstrated a potential desire to litigate. It would have been preferable if Ms Graley had responded to this. She chose to ignore the email, hoping the problem would go away.

192.3 Ms Graley wrote to the claimant again six weeks later to assess the situation and to gauge whether the claimant intended to bring a claim. She chose not to reply to the claimant’s email sent in response. She hoped the problem would go away.

192.4 This was nothing to do with age or race.

[193]For all these reasons, we conclude that there was no direct discrimination Victimisation

[194]The claimant made allegations of discrimination to Mr Priest in January 2022. This is a protected act. There is no requirement in section 27 EqA that these allegations are made to the respondent. Mr Priest did not disclose these allegations to the respondent. Given the respondent’s ignorance of these allegations, the alleged detrimental treatment cannot have been because of the protected act, and the claim therefore fails.

[195]The claimant says that she also made a protected act in the 12 August 2022 meeting. The claimant accepts that she did not make an express allegation of discrimination at the meeting. Even if the claimant had alleged unfair treatment, which we have rejected, there was nothing to imply that this was an allegation of discrimination, particularly given the respondent’s ignorance of the January 2022 protected act. We conclude that the claimant did not do a protected act in the meeting of 12 August 2022 and the claim therefore fails. Time limits

[196]The claim of unfair dismissal succeeds, and the other claims fail. It is common ground that the unfair dismissal claim was presented within the statutory time limits. Period of loss, Polkey and mitigation of loss

[197]The respondent decided not to discipline or dismiss the claimant for the 12 July 2022 incident. Ms Graley’s evidence (which we accepted) was that, if the claimant’s employment had not terminated in September 2022, the respondent would not have reopened this investigation. We conclude that the claimant would not have been dismissed at any stage for the 12 July 2022 incident, as the matter was closed. We make no Polkey reduction on this basis.

[198]We have found that the relationship between the parties had not irretrievably broken down on 15 August 2022 when notice of termination was served. If the claimant had continued to express an intention to leave the respondent, but failed to take action to do so, this would have created difficulties for the respondent with succession planning and providing continuity of service to vulnerable young people. At some stage, the relationship would have irretrievably broken down for this reason.

[199]On 8 April 2022, the claimant stated that she planned to leave the respondent’s employment in summer 2022. This was to set up her own business. Thereafter, she incorporated her youth excellence company and made further statements of her intention to leave to pursue this business venture and her 16+ idea. We accept that the claimant was not in fact ready to leave the respondent’s employment in the summer of 2022. However, we find that, if the claimant had not been dismissed, she would have resigned at some stage to pursue her business ventures.

[200]At the 15 August 2022 meeting Ms Graley stated that the claimant would be paid until the end of December 2022. The period from 27 September 2022 until the end of the year was described as “garden leave” although the parties agree it did not have that legal meaning, as the claimant’s employment was terminated on 27 September 2022.

[201]We conclude that, if the claimant had not been dismissed on 27 September 2022, the respondent would have given her from 15 August 2022 until the end of December 2022 to(1) work on her business plans and

(2) decide whether she planned to stay in the respondent’s employment or leave. This conclusion is consistent with the respondent’s actions in paying the claimant until the end of 2022 and describing this period as garden leave.

[202]We conclude that, if the respondent had done this, there is an 80% chance that notice of termination would have been given at the end of December 2022. It is likely that such notice would have been given by the respondent, rather than by the claimant. This would have been a fair dismissal. We reach these conclusions because:202.1 It is unlikely that the claimant would have resigned because, by this stage, she would have known that her business ventures were not viable;

202.2 It is likely that the claimant would have had further business ideas and continued to express a desire to leave the respondent. This is consistent with her view that a job means “just over broke”, her past conduct in coming up with numerous business ideas, and her aspirations as a business woman;

202.3 In those circumstances the relationship between the parties would have irretrievably broken down. The respondent would not have been able to rely on the claimant to provide regular and reliable service in her family coordinator role. They would need to make succession plans to ensure continuity of family coordination services to the vulnerable young people in their care;

202.4 The dismissal would have been procedurally fair and fair in all the circumstances. The claimant would have been warned from August 2022 about the need to decide whether she wanted to remain in the respondent’s employment or to leave. She would have been given more than four months to work on her business plans.

[203]We therefore conclude that, if the claimant had not been unfairly dismissed, there is an 80% chance that her employment would have terminated lawfully at the end of January 2023.

[204]We conclude that there was a 20% chance that the claimant would not have been dismissed at the end of January 2023 but would have remained employed by the respondent. This is because we accept that, if, as would be required under a fair dismissal procedure, it had been made clear to the claimant in August 2022 that her continued statements about leaving the respondent placed her at risk of dismissal, there is a chance that she would have stopped setting out her intention to leave. This would have reduced the risk of the relationship irretrievably breaking down. However, we conclude that it is far more likely that the claimant would have continued to make such statements about leaving, as she had in the past. It was telling that in her closing submissions when asked about this, one of the things the claimant said was, if there had been this meeting in December 2022 she would have said “I can’t leave now because of my mortgage”. The implication being that she would have left at some later date.

[205]We conclude that, from the end of May 2023, the claimant’s earnings in mitigation were broadly equivalent to those that she would have earned had she not been dismissed by the respondent. The claimant earned an average of £3,500 net per month from June 2023 onwards. We have found that her earnings with Cygnet would have ceased by this stage, even if she had remained employed by the respondent. We therefore conclude that she suffered no loss of earnings after the end of May 2023.

[206]We conclude that the claimant has taken reasonable steps to mitigate her loss by her efforts in working for several companies to reduce her losses, starting immediately following dismissal. Contributory conduct

[207]We conclude that the claimant’s statements about leaving the respondent’s employment from April 2022 to August 2022 were not culpable and/or blameworthy conduct. They were not treated by the respondent in this way. Rather, the respondent was supportive of the claimant’s career aspirations and provided encouragement.

[208]We make no reduction to the compensatory and/or basic award on this basis. ACAS code of practice

[209]We conclude that the ACAS code of practice does not apply.

[210]The dismissal was not for conduct or capability reasons.

[211]Neither did the reason for dismissal have similarities with conduct or capability reasons. There was no misconduct or blameworthy conduct by the claimant in expressing an intention to leave the respondent. The claimant’s stated intention to leave was part of the reason for dismissal given the respondent’s need to make succession plans. The dismissal was also a misguided attempt to provide mentoring support. There was a financial element to the decision as well. None of these were reasons to do with capability or misconduct.

[212]We make no adjustment to the compensatory and/or basic award on this basis. Compensatory award

[213]We assess the claimant’s compensatory award on the basis(1) of loss of earnings up to end of January 2023 on 100% basis and

(2) 20% loss of earnings from February 2023 to end of May 2023; and

(3) loss of statutory rights.

[214]The figure for loss of earnings is £4329.69 net calculated as set out below.

[215]In the period from dismissal to the end of January 2023, the claimant’s loss was £3,241.09:215.1 If she had not been dismissed, the claimant would have earned £3357.39 x 4 for respondent = £13,429.56 net

215.2 Her actual earnings were £10,188.47 net:215.2.1 Earnings from Swan: £1113.43

215.2.1.1 £285.50 October 2022

215.2.1.2 £170 November 2022

215.2.1.3 £471.43 December 2022

215.2.1.4 £186.50 January 2023

215.2.2 Earnings from Cygnet: £1678.81 We deducted £1000 each month from the claimant’s earnings (set out in full below) to reflect the fact that, at this stage, if the claimant had not been dismissed, she would have earned £1000 net per month from Cygnet in any event:215.2.2.1 £1500 October 2022

215.2.2.2 £1492.21 November 2022

215.2.2.3 £1077.96 December 2022

215.2.2.4 £1608.64 January 2023

215.2.3 Earnings from the respondent: £7396.23 net:215.2.3.1 £2502.73 October 2022

215.2.3.2 £2502.73 November 2022

215.2.3.3 £2390.77 December 2022

[216]In the period from February 2023 until the end of May 2023 the claimant’s total loss (which we allow 20% of) was: £5442.98 net. 20% of this sum is £1088.60 net. This is calculated as follows:216.1 If she had not been dismissed, the claimant would have earned £3357.39 x 4 for respondent = £13,429.56 net

216.2 The claimant’s actual earnings were £7,986.58 net, made up of:216.2.1 Earnings from Swan: £857.29 net:216.2.1.1 £600 February 2023

216.2.1.2 £257.29 March 2023

216.2.2 The claimant earned £1251 from Cygnet in February and March 2023. We do not give credit for these earnings as we have concluded the claimant would have earned these sums if she had remained employed by the respondent.

216.2.3 Earnings from Capital: £7129.29 net:216.2.3.1 £774.77 net for February 2023

216.2.3.2 £2003.06 net for March 2023

216.2.3.3 £2000 net per month April 2023

216.2.3.4 £2351.46 net per month May 2023

[217]We assess loss of statutory of rights at £500.

[218]The total value of the compensatory award is £5,329.69. Basic award

[219]Applying the statutory formula, the basic award is 4 x 1.5 x £571 (being the maximum weekly pay allowed at the relevant time) = £3,426. Total award

[220]The total award for compensatory and basic award is £8,755.69.