H Cullen v The Hillingdon Hospitals NHS Foundation Trust: 3303438/2020

EMPLOYMENT TRIBUNALS

Case No 3303438/2020

Between

H CullenClaimant

The Hillingdon Hospitals NHS Foundation TrustRespondent

Before

Employment Judge N Shastri-Hurst

In person for claimant

Mr Sudra (instructed by Counsel) for respondent

Date 14 April 2022

JUDGMENT

[1]The Respondent’s application to strike out the Claimant’s claims is successful only in relation to her holiday pay claim;

[2]The Respondent’s application for a deposit order is rejected;

[3]The Claimant’s application to amend her claim to include a discrimination claim is rejected.

REASONS

[1]The Claimant worked for the Respondent trust from 1 November 2004 to 28 October 2019 as an Overseas Officer. Following a period of ACAS early conciliation between 23 January and 23 February 2020, the Claimant presented her claim to the tribunal on 23 March 2020. This claim form contained claims of constructive unfair dismissal and unauthorised deduction of wages. The Claimant also ticked the boxes at 9.1 which confirmed that as a remedy the Claimant was seeking “compensation only” and “if claiming discrimination, a recommendation”.

[2]The Respondent presented its response to the claim, asking for further and better particulars (“FBPs”) of the constructive unfair dismissal claim and the wages claim. Employment Judge Lewis then made an order on 25 August 2020 that the Claimant was to provide the FBPs requested within the Respondent’s response – [37].

[3]The Claimant attempted to comply with this order by email of 26 September 2020, however this email did not give the required FBPs. That email did however set out that the Claimant suffers from autism, that her diagnosis was recent, and that, if she had known at the time of presenting her ET1 that she suffered autism, she would have also submitted a claim for disability discrimination – [39].

[4]The Claimant then provided a large amount of information regarding her claims on 20 October 2020 – [41-56]. The detail within those documents was more like a chronology of events, and did not specifically address the FBPs requested.

[5]Following this 20 October 2020 correspondence from the Claimant, Employment Judge Quill on 8 November 2020 confirmed that the original ET1 did not refer to discrimination in Box 8.1, and that the Claimant’s correspondence of 26 September 2020 did not amount to an application to amend the Claimant’s claim in order to include a disability discrimination claim. Employment Judge Quill set out what steps the Claimant needed to take if she were to try to pursue a discrimination claim – [57].

[6]The Claimant accordingly submitted an application to amend her claim to include disability discrimination on 13 November 2020 – [59-67]. On 26 November 2020, the Respondent replied to the Claimant’s application, arguing amongst other matters that the Claimant’s claims of constructive unfair dismissal and unauthorised deductions of wages had no reasonable prospect of success – [68]. There was further correspondence from the parties to the tribunal, following which this matter was listed for a one-day preliminary hearing today, to consider:a. Whether the Claimant’s claims of constructive unfair dismissal and unauthorised deductions of wages have no reasonable prospect of success;

b. Whether those same claims have little reasonable prospect of success;

c. Whether the Claimant’s application to amend her claim to add disability discrimination will be permitted;

d. For further case management orders.

[7]The Claimant represented herself during the hearing and Mr Sudra represented the Respondent. To assist me in making my decision I had a bundle of 312 pages, including a skeleton argument from Mr Sudra. I informed the parties at the beginning of the hearing that I had read all of the tribunal documents (i.e. pages 1 – 93) and asked if there were any further documents they wanted me to read before dealing with the hearing.

[8]At this stage the Claimant mentioned that she had provided a skeleton argument that she had sent to the tribunal the night before the hearing. This had not made its way through to me (although Mr Sudra confirmed he had received a copy) and so the Claimant re-sent the document to the clerk, who forwarded it onto me. I took 25 minutes prior to commencing the hearing proper, to read that skeleton.

[9]I am grateful to both the Claimant and Mr Sudra for their help today and the professional and courteous manner in which they both conducted themselves. I also found both their skeletons of great assistance. Reasonable adjustments

[10]From reading the papers, I was aware that the Claimant suffers from autism and various mental health conditions. I explained to her that she could tell me whenever she wanted a break, and that we would go through the day one part at a time. I informed her that she could ask me to explain anything at any time, and that she should just ask if she required a few minutes to gather her thoughts. At each new stage of the hearing, I asked whether the Claimant was ready to go ahead, or whether she wanted some time to gather her thoughts.

CLAIMS

[11]Despite the Claimant’s best efforts to provide FBPs regarding her constructive unfair dismissal and pay claims, and to clarify her proposed disability discrimination claim, I was initially still at a loss to understand the detail of certain aspects of her claim.

[12]As above, the Claimant today helpfully provided a skeleton, which she told me set out her claims more clearly and succinctly. I therefore used that as a framework, and spent the morning of the hearing teasing out the detail of the different claims. I have set out the Claimant’s claims in more detail below. Constructive unfair dismissal

[13]The Claimant alleges that the Respondent was in fundamental breach of her contract of employment by way of its actions prior to her resignation. She relies upon the implied term of trust and confidence present in all contracts of employment.

[14]The Claimant has set out the ten breaches she relies upon within her skeleton argument at paragraph 2. I set them out here for completeness and ease of reference:a. At the start of my sickness John Mitchell stopped all communication and effectively shunned me even though he knew how mentally ill I was.

b. Despite me being exhausted and mentally unwell, the Respondent (Liz Munoz and Sema Raj-Sahonta) never responded to my reasonable request to conduct a meeting at my home (approximately 5 minutes’ drive from the Respondent).

c. The Respondent failed to provide the correct Occupational Health Management Referral Form or discuss it with me or provide a copy for my records which was in breach of their own policy, they used a version which did not allow for an explanation of my illness to be discussed with Occupational Health where upon I should have been given the appropriate support and safeguarding at the earliest opportunity and that was detrimental to my health at the time and caused a further deterioration.

d. Despite me requesting and encouraging Ms Munoz, Ms Raj-Sahonta and Occupational Health to contact my GP, the Respondent failed to contact my GP at any time, which would have safeguarded my wellbeing as the GP’s medical report would have gone on record. The GP would have advised a history of long-standing stress and anxiety issues and confirmation of my referral for autism.

e. The Respondent (Ms Raj-Sahonta) refused a reasonable request to record the first sickness absence meeting.

f. The first sickness absence review meeting was carried out as an interrogation and it was more an initiation of gaining grounds for further dismissal.

g. My outcome letter from the first sickness review meeting stated “if you return to work” rather than “upon your return to work”. The template letters were altered away from the standard format i.e. “UPON” your return crossed out and replaced with “IF”. This indicates from an early position that I was not wanted back and shows the intent that from the beginning the Respondent wanted to lead down a dismissal route.

h. The second sickness absence review meeting “Stage 2” was clearly advertised as you enter the building for all to see which caused me distress, anxiety and embarrassment.

i. Despite me being distressed at the Stage 2 meeting and bearing in mind I was sick and mentally unwell, Ms Munoz emailed me that same afternoon to ask if I would like to apply for the full-time Band 4 position in the department. i. The Respondent (Mr Mitchell and Ms Munoz) knew I could not work full time hours; ii. I had previously been told by Mr Mitchell that I would be a part-time Band 5 (Assistant Overseas Manager) as support to Ms Munoz and to deputise in Ms Munoz’s absence. iii. The Band 4 full-time job was “ear marked” for the Band 2 part-time worker that I employed to assist with admin on a temporary basis, which was before Ms Munoz joined the Respondent. This means that additional hours were being worked in the department. If I had been supported and I returned to work, the department would have been over staffed. No additional members of staff have been employed in the department since my resignation.

j. No weekly touch points or telephone calls from the Respondent to see how I was doing and no communication from the Respondent in the final weeks before my resignation. Pay claim

[15]This is a claim for accrued but untaken holiday pay, based upon the Claimant’s leaver’s form at [101] in which it states she is owed 25 hours of annual leave. Disability discrimination

[16]The Claimant relies on depression, anxiety/stress and autism as being disabilities under s6 of the Equality Act 2010 (“EqA”). I refer to the Claimant’s “disabilities” throughout this judgment: I do however note that the Respondent has not conceded that these conditions amount to disabilities, nor have I made any judgment as to whether the Claimant was, at the relevant time, disabled pursuant to s6 EqA. The reference to “disabilities” is for ease, but it remains open to the Respondent to contest disability if the discrimination claims progress.

[17]The Claimant had in her skeleton pared back the chronological narrative she had produced on 20 October 2020 and her application to amend on 13 November 2020, regarding her proposed claim of discrimination.

[18]I spent a considerable amount of time with the Claimant picking out the points within her skeleton that are complaints, and then attempting to attach to them the most suitable label out of the five different disability discrimination claims and victimisation claim available to claimants within the EqA. In relation to each complaint, I asked Mr Sudra whether he agreed with my proposed label: evidently, I explained that I did not take his ascent to my labels to be an indication of agreement that those claims have any merit, but made it clear I was simply trying to reach a position where the Claimant’s potential claim could at least be framed within the relevant legislation, so that I can fairly and properly make a decision on her application to amend – see Mbiusa v Cygnet Healthcare Ltd

UKEAT/0119/18

below.

[19]We were therefore able to frame the Claimant’s case as seven acts of discrimination during her employment, and eight acts of post-termination discrimination/victimisation. These acts are listed below. Date of Detail of complaint Section of the complaint EqA Discrimination during employment 1 01.07.19 Ms Munoz did not complete the S19 – indirect Occupational Health referral form discrimination correctly. The correct form was not used. These inaccuracies led to an exacerbation of the Claimant’s disabilities as compared to those who do not suffer with her disabilities 2 16.07.19 The Claimant asked if the Stage S20/21 – One meeting could be held at her failure to make home. This request was rejected reasonable adjustments 3 18.07.19 The Claimant asked if she could S20/21 – record the Stage One meeting. This failure to make request was denied reasonable adjustments 4 22.07.19 The conduct of the Stage One S13 – direct meeting was hostile, confrontational discrimination and the Claimant felt as if she was not believed. The Claimant alleges that the participants were aware of her mental state and used that vulnerability deliberately to make the situation worse for the Claimant. N/A 22.07.19 Also at the Stage One meeting, the This is a point Claimant suggested that the that goes to Respondent speak to her GP and/or the obtain the GP’s notes. The Respondent’s Respondent did not do this. Had knowledge of they done so, they would have had disability. It is a fuller understanding of the not a claim in Claimant’s health issues its own right, but is relevant. 5 28.08.19 The Claimant requested on both S20/21 – & these occasions that there be a failure to make 11.09.19 different HR representative to Ms reasonable Raj-Sahonta at the Stage Two adjustments meeting. This was because of how Ms Raj-Sahonta had made the Claimant feel throughout the sickness absence process so far. This request was denied 6 29.08.19 Ms Munoz invited the Claimant to S26 – apply for the full-time version of her harassment role. Ms Munoz knew that the Claimant was unable to work full time, and that she in fact was exploring another role at that time (Band 5 role). The Claimant claims that this was done in order to unsettle the Claimant, in the knowledge of her conditions 7 12.09.19 The Stage Two meeting was held in S26 – a room with a glass panel in the harassment door, meaning that passers-by could see that the Claimant was in a meeting. Also, there was a board in the entrance way to the building in which the meeting was held that stated that there was a formal Stage Two meeting in progress in that particular room. Therefore, it was obvious to passers-by that the Claimant was in a Stage Two meeting. The Claimant believes that this was done deliberately by her manager, knowing that the Claimant was of a fragile state of mind. Post-termination discrimination/victimisation Note, the umbrella allegation here is that the Respondent breached its own policies, namely the Equality Policy, the Managing Sickness Absence Policy and the Dignity at Work Policy, along with the CARES values. 1 13.03.20 It became known to the Claimant Ss26/108 – through the investigation report that harassment the Respondent had not been able to provide the Claimant with a copy of her professional development review notes taken originally by Mr Mitchell, which contained positive feedback about the Claimant’s performances, as well as information pertinent to her health conditions. The Claimant contends that these notes have been deliberately lost in order to cover up the Respondent’s knowledge of her disability and her good conduct. 2 Around The manner in which the appeal Ss19/108 – 22.03.20 process was dealt with. The indirect onwards Respondent did not acknowledge discrimination the Claimant’s appeal when it was provided on 22 March 2020. It was not acknowledged until the Claimant chased this on 17 June 2020. There was also a delay in hearing the appeal. The Claimant believes that this was conduct they would apply to all ex-employees, but it had a particular disadvantage to her in that it caused the Claimant heightened anxiety and stress. 3 Around The Claimant did not receive a Ss26/108 28.10.19 completed leaver’s form, and did not harassment onwards have an exit interview, at the time of her termination. The Claimant alleges that this was done deliberately in order to cause her more stress/anxiety. 4 Post- The Claimant asked Ema Ojiako Ss26/108 February (Terry Roberts’ replacement) for a harassment 2020 copy of the notes from the meeting she had with Mr Roberts on 30.12.19. Ms Ojiako failed to ever reply. The Claimant alleges that this failure to reply was deliberately done to cause the Claimant further anxiety/stress. 5 Around The investigation report produced Ss26/108 13.03.20 on 13 March 2020 did not contain harassment an important witness statement. The Claimant alleges that this statement was missed out as it would be quite damning for the investigation; they wanted to avoid dealing with that statement and knew this would cause the Claimant further anxiety/stress 6 Around The Claimant was sent an invitation Ss26/108 15.09.20 letter to the appeal meeting for 15 harassment September 2020. This invitation was sent from Ms Raj-Sahonta. Given the Claimant’s experience of Ms Raj-Sahonta through the course of the sickness absence process, and that the Respondent knew the Claimant had previously asked for a different HR representative, the Claimant’s anxiety and stress levels were heightened during the run up and in the appeal hearing/. The Claimant was concerned that Ms Raj-Sahonta would be on the call/Teams meeting. 7 October At the appeal hearing on 5 October S27 – post2020 2020, the Claimant was informed termination that she would receive the outcome victimisation letter by 15 October 2020. She in fact received it on 23 October 2020. One symptom of autism is that timelines and deadlines are very important, and any change to them can be distressing. The Respondent was aware that the Claimant had to provide FBPs to the tribunal by 20 October 2020. It is the Claimant’s belief that the Respondent delayed the appeal outcome in order to see what the Claimant was intending to produce to the tribunal 8 02.11.20 The Claimant was given a specific S27 – postdate from the Respondent on which termination she would receive communication victimisation from them. This deadline was missed. As above, such change in deadlines without explanation has a detrimental effect on the Claimant due to her autism. The Claimant alleges that the Respondent delayed this communication because the Respondent knew that the Claimant was at that time talking to ACAS and had certain tribunal deadlines to meet

[20]The above discrimination claims therefore form the basis of the Claimant’s application to amend her claim to add those claims.

ISSUES

[21]As above, the hearing today was listed in order to deal with the following matters:a. Whether the Claimant’s claims for constructive unfair dismissal and unauthorised deduction of wages should be struck out as having no reasonable prospect of success under r37(1)(a) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”);

b. In the alternative, whether a deposit order should be made as the Claimant’s claims for constructive unfair dismissal and unauthorised deduction of wages have little reasonable prospect of success under r39 of the Rules;

c. Whether the Claimant’s application to amend her claim to include a claim for disability discrimination, dated 13 November 2020, should be permitted. LEGAL FRAMEWORK Strike out

LEGAL FRAMEWORK

[22]The Respondent applies to strike out the Claimant’s claims under r37(1)(a) of Sch 1 of the Rules, which provides as follows: “At any stage of the proceedings, either on its own initiative or on the application of a party, a tribunal may strike out all or part of a claim on any of the following grounds: (a) That it is scandalous or vexatious or has no reasonable prospect of success; ...”

[23]Generally, this power to strike out should only be used in rare circumstances – Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly

[2012] IRLR 755

. It is understood that, as a general rule of thumb, claims should not be struck out where there is a dispute of facts that go to the core of the claim – Ezsias v North Glamorgan NHS Trust

[2007] IRLR 603

[24]I am also assisted by the case of Balls v Downham Market High School and College

[2011] IRLR 217

, in which Lady Smith held: “When strike out is sought or contemplated on the ground that the claim has no reasonable prospects of success, the structure of the exercise that the tribunal has to carry out is the same; the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word “no” because it shows that the test is not whether the claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects.”

[25]Only in exceptional circumstances will a claim with contested facts be struck out – Ezsias. However, there are some caveats to the general approach of caution towards strike out applications. For example, when:a. “It is instantly demonstrable that the central facts in the claim are untrue” – Tayside;

b. There is no real substance to the factual assertions the claimant makes, particularly in light of contradictory contemporaneous documentary evidence – ED & F Man Liquid Products v Patel

[2003] EWCA Civ 472

;

c. There are no reasonable prospects of the facts needed to find liability being established. This is caveated by the need to be aware of the danger of reaching that conclusion without having heard all the evidence – Ahir v British Airways plc

[2017] EWCA Civ 1392

CA.

[26]When considering an application to strike out, a claimant’s claim must be taken at its highest, as it is set out in the ET1, “unless contradicted by plainly inconsistent documents” – Ukegheson v London Borough of Haringey

[2015] ICR 1285

. It is important to take into account that a claim form entered by a litigant in person may not put that claimant’s case at its best as had it been properly pleaded – Hasan v Tesco Stores Ltd

UKEAT/0098/16

. The best course of action in such a scenario is to establish exactly what the claimant’s claim is, and, if still in doubt about prospects, make a deposit order – Mbiusa v Cygnet Healthcare Ltd

UKEAT/0119/18

. Deposit order

[27]The tribunal has the power to make deposit orders against any specific allegations or arguments that it considers have little reasonable prospect of success under r39 of the Rules: “39(1) Where at a preliminary hearing (under rule 53) the tribunal considers that any specific allegation or argument in a claim…has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. 39(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.”

[28]The rationale of a deposit order is to warn a claimant against pursuing claims with little merit, which may leave them open to a risk of costs should they proceed with the claim and lose on the same basis as identified as the reason for making a deposit order.

[29]The purpose of such an order is not to restrict disproportionately access to justice, hence any order made must be for an amount that is affordable by a party, and can be realistically complied with – Hemdan v Ishmail and anor

[2017] IRLR 228

[30]If I decide to make a deposit order, I must give reasons, not only for the fact of the order, but also for the amount of that order – Adams v Kingdon Services Group Ltd

EAT/0235/18

. Application to amend

[31]Under r29 of the Rules, the tribunal has general case management powers, which include the general discretion to grant leave to amend a

[32]The leading case on such applications is Selkent Bus Company Ltd v Moore

[1996] ICR 836

. In this case, the tribunals were reminded that the discretion to permit amendments is to be exercised “in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions”.

[33]In Chief Constable of Essex Police v Kovacevic

UKEAT/0126/13

the EAT held that it is “fundamental that any application to amend a claim must be considered in the light of the actual proposed amendment”. However, a lack of particularisation need not result in the refusal of an application to amend if that problem can be remedied before the decision on the application is made – Amey Services Ltd v Aldridge

UKEATS/0007/16

paragraph 23.

[34]The overall test for me to apply is to consider the balance the hardship and injustice that each party would suffer if I refused or granted the application respectively – Selkent.

[35]More specifically, there are three elements that I will have a mind to:a. The nature of the application. There are three categories of amendments: i. amendments which alter the basis of the existing claim but do not raise a new separate head of complaint; ii. amendments which add or substitute a new cause of action but is linked to or arises out of the same facts as the original claim; and, iii. amendments which add or substitute a wholly new claim or cause of action unconnected to the existing claim. In determining whether there is a new claim, or whether I am dealing with a change of label, it is necessary to look at the original ET1 and see whether there is a “causative link” with the proposed amendment – Housing Corporation v Bryant

[1999] ICR 123

b. The timing of the application. An application should not be refused purely on the ground that there was a delay in making it. Delay is a discretionary factor for consideration, which includes the need to consider why the application was not made earlier and why it is being made now.

c. The manner of the application.

[36]Further, the tribunal is entitled to consider whether the new claim has reasonable prospects of success. If it has no reasonable prospects, it would make no sense if an application to amend could not be refused on that basis – Gillett v Bridge 86 Ltd

UKEAT/0051/17

at paragraph 26.

[37]It is also important to consider the extent to which the amendment raises new issues of both fact and law. Generally, the more new issues there are, the less likely it is that the amendment will be granted – Abercrombie v Aga Rangemaster Ltd

[2013] EWCA Civ 1148

at paragraph 48. Time limits

[38]If the amendment falls within the third category and is an entirely new claim, then it becomes necessary to consider time limits around the bringing of that claim, and whether the appropriate time limit should be extended under s123 EqA. The time limit is only one factor, although it is an important one and can be decisive – Transport and General Workers Union v Safeway Stores Ltd

UKEAT/0092/07

[39]The first issue is to determine when the new claim is deemed to take effect. The EAT, in Galilee v Commissioner of Police of the Metropolis

UKEAT/0207/16

held that, where a new claim is permitted by way of an amendment application, it takes effect from the date on which permission to amend was given – paragraph 109(a).

[40]The second issue for consideration is, if the claim is time-barred, is a tribunal obliged to consider the factors relating to both the application to amend and to a possible extension of the time limit at the same time? Again, I turn to the EAT in Galilee: a tribunal is entitled to either defer the whole question of amendment and limitation to be decided after evidence has been given, or to allow the amendment and leave the limitation issue to be decided at that later stage – paragraph 98.

[41]The issue of extension of time on the ground of “just and equitable” has recently been considered by the Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

. In this case, Underhill LJ warned against taking the rigid approach of using the oft-cited checklist provided in the case of British Coal Corporation v Keeble

[1997] UKEAT 496/98

when considering the factors relevant to a decision on time limits. At paragraph 37 of his judgment, Underhill LJ held: “The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) [EqA] is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular (as Holland J notes) “the length of, and the reasons for, the delay”. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking.”

[42]The case of Bexley Community Centre (t/a Leisure Link) v Robertson

[2003] EWCA Civ 576

acts as a reminder from the higher courts that “time limits are applied strictly in employment and industrial cases...A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule” – paragraph 25.

[43]As set out by Langstaff J in Abertawe Bro Morgannwg University Local Health Board v Morgan

UKEAT/0305/13

, a claimant cannot hope to satisfy a tribunal to extend time unless they can answer two questions – paragraph 52: “The first question in deciding whether to extend time is why it is that the primary time limit has not been met; and insofar as it is distinct the scone is [the] reason why after the expiry of the primary time limit the claim was not brought sooner than it was.”

FINDINGS OF FACT

[44]I have only made findings of fact so far as they are relevant to the applications before me. Where I have not covered certain facts, it is because they are not relevant to the issues I have set out above.

[45]I have not heard any oral evidence on these matters from either party (other than from the Claimant on the limited issue of her financial means). The facts that follow are therefore based solely on the documents I have seen. These findings will therefore, inevitably, be incomplete. It will be for the tribunal at the final merits hearing to make full findings on what actually occurred between the two parties throughout the relevant chronology. Any findings set out below are therefore not binding on any future tribunal. The Claimant’s alleged disabilities

[46]The Claimant suffers with depression, anxiety, stress (“mental health conditions”) and autism. Regarding the Claimant’s mental health conditions, these arose at the earliest in 2015, following some traumatic events in her life. There were further such events in 2016 and 2017 which added to those conditions.

[47]In terms of the Claimant’s autism, the Claimant was referred by her GP for an autism assessment on 7 December 2018. She eventually received an appointment to attend an assessment in May 2020. There then followed a diagnosis of autism on 8 September 2020. Around this time, the Claimant informed the Respondent of that diagnosis. She however informs me that her manager, John Mitchell, was aware of her mental health conditions in around 2018 and also that she had been referred regarding exploration of autism in 2018. Sickness absence 2019

[48]The Claimant commenced work for the Respondent on 1 November 2004. From September 2016, she oversaw the Overseas Department. Between 17 June 2019 and 11 September 2019, the Claimant had taken such sickness absence leave so as to trigger the Respondent’s sickness absence review process.

[49]The Stage 1 sickness absence review meeting was held on 22 July 2019. This meeting was chaired by Ms Munoz as the Claimant’s line manager, and Ms Raj-Sahonta from HR. The Claimant was supported by Ms Lynne Simpson, a colleague and Complaints Manager.

[50]The Stage 2 meeting followed on 12 September 2019. The Claimant was supported by Ms Louise Bryn as a colleague (Assistant Head of Clinical Coding). Again, Ms Munoz and Ms Raj-Sahonta conducted the meeting.

[51]On 20 September 2019, the Respondent circulated a CEO staff blog regarding mutual respect, fair treatment, and general well-being issues and the need to open communication about these issues amongst the Respondent’s teams – [194]. There was a suggestion that the well-being of some employees was not being sufficiently protected, and this blog was, in a sense, a call to arms. The blog ends with the line: “There are so many things we can resolve quickly, they do not need to come to me or my executive colleagues for decisions”.

[52]The Claimant told me today that she read this, and realised that she was one of the members of staff who was falling between the gaps of wellbeing. She also said that the last line of the blog, quoted above, left her feeling like there was no-one left to turn to, and that she had nowhere left to go.

[53]The Claimant resigned on 24 October 2019, giving notice until 28 October 2019. It is agreed that the Claimant was in fact paid for the full month of October, up to and including 31 October 2019.

[54]Following her resignation, the Claimant raised some concerns with the former Chief People Officer, Terry Roberts, with whom she had a meeting on 30 December 2019. The Claimant also had a meeting on 6 January 2020 with Sarah Tedford, the Chief Executive Officer. On 23 January 2020, the Claimant entered into the ACAS early conciliation process, receiving the certificate of compliance on 23 February 2020.

[55]An investigation into the Claimant’s concerns ensued (summarised into seventeen allegations), under the Dignity at Work Policy, commissioned by Mr Roberts, and conducted by Andrew Caunce (Chief Pharmacist). The Claimant received the outcome of the internal investigation, produced by Mr Caunce on 13 March 2020: the report did not uphold the Claimant’s concerns – [222]. Following receipt of that report, she appealed the decision to Cathy Cale (Medical Director) on 22 March 2020. The day after, she presented her ET1.

[56]The Claimant emailed Sue Smith (Chief People Officer) on 24 July 2020, to inform her of an underlying health issue, namely her referral for a full diagnostic assessment for autism.

[57]There was a delay before the appeal hearing was able to take place; it was eventually convened via MS Teams on 15 September 2020, then adjourned to and concluded on 5 October 2020 – [256-298]. The appeal officer was Sue Smith, supported by Anjali Joshi (Director of Operations) and Nishant Aggarwal (HR Business Partner). Mr Caunce attended to represent the management’s case. Between these two dates, on 26 September 2020, the Claimant applied to “resubmit” her claim – [39].

[58]On 20 October 2020, the Claimant provided three documents to the tribunal in an attempt to provide FBPs – [41]. Three days later, on 23 October 2020, the Claimant received the outcome of the internal appeal process, which upheld her appeal – [102]. Of importance is one particular passage at [103]: “Based on the information presented to us, we have identified a number of concerns regarding how you were treated prior to your decision to resign – these include poor communication around the sickness absence process and therefore the impact this had on your perception that you were not being supported by either your immediate line manager, your senior manager, and also the HR Representative. Whilst every effort was made to follow the Sickness Absence Policy and you were referred to Occupational Health and supported to access counselling and talking therapy sessions, your line manager was clearly inexperienced in dealing with sickness absence. It appears that this inexperience did exacerbate the situation, made the process somewhat robotic, and in our view could have been handled with more sensitivity and compassion in line with our CARES values. As stated within the Investigation Report, whilst it does not appear that there was any intention to deliberately upset you or treat you unfairly, the effect was that you did feel that you had been treated unfairly. It is therefore the conclusion of the Appeal Panel that the way in which your sickness absence was managed did constitute “unfair treatment” as outlined within Section 5.3 Examples of Unacceptable Behaviours within Section 5 Explanation of Terms and Recognising Bullying and Harassment within the Dignity at Work Policy”.

[59]The Claimant attended an “Outcome of Appeal” meeting on 2 November 2020, via MS Teams, hosted by Sue Smith, the Chief People Officer – [299-312].

[60]On 8 November 2020, Employment Judge Quill invited the Claimant to apply to amend her claim, if this is what she sought to do. The Claimant so applied on 13 November 2020, to amend her claim to add a claim of disability discrimination.

[61]The Claimant had some legal advice in 2020. Initially she went to a firm of solicitors in February/March 2020 (before the ET1 was presented), however they did not get into the meat of the claim as the Claimant was not satisfied with their service, as her case was to be dealt with by a trainee. In June/July 2020 (after receipt of the ET3), the Claimant sought assistance from another law firm, sending them the internal investigation report. She then went back to the original firm in December 2020. Holiday pay

[62]The Claimant only received her leaver’s form at [101] following her Data Subject Access Request (“DSAR”) in March 2020. That form is dated 28 October 2019, the date on which the Claimant’s employment came to an end. The Claimant queried an entry on that form that stated she was owed 25 hours’ pay.

[63]Internal discussions took place within the Respondent in May through to July 2020, following the Claimant’s query, in an attempt to get to the bottom of whether the Claimant was owed any outstanding holiday pay upon her departure – [94-96]. On 11 July 2020, Mark Handley, the Interim Assistant Director of Human Resources Operations, clarified that in fact the Claimant was owed 13 hours, not 25 – [94]. However, the Claimant was paid the additional three days of 29, 30, 31 October 2019, past the end of her notice period, which concluded on 28 October 2019. This meant that in fact, if anything, the Claimant technically owed the Respondent some pay.

[64]This explanation was repeated to the Claimant in an email from Nishant Aggarwal, on 12 March 2021 – 113. Ms Aggarwal attached a copy of the Claimant’s leaver’s form – [114]. This form is different from the one at [101] in that it has been amended by handwriting, and signed again on 8 November 2019. The amendments show that the original 25 hours of annual leave to be paid was reduced to 13 hours. There is then a comment that states “taken 29 – 31/10/19” and also “paid to 31/10/19 all ok”.

[65]I clarified with the Claimant at the hearing that her claim for 25 hours’ pay was based solely on the leaver’s form at [101], and that she was not able to provide any further details. This is corroborated by the Claimant’s own email to the Respondent at [115], in which she states: “Could you please break this down and simplify it for me further. Please also confirm how much annual leave I had taken from April 2018 – April 2019 and from April 2019 until I resigned. ...” CONCLUSIONS Strike out – holiday pay claim

CONCLUSIONS

[66]The Claimant’s claim for unauthorised deduction from wages relates to 25 hours of accrued but untaken holiday leave. The Claimant’s case on this is that she was provided with a leaver’s form that states on it that “A/L to be paid/recovered after last working day” was 25 hours – [101].

[67]As I have set out in my findings, the Respondent subsequently explained that there had been an error in calculation, that the Claimant was only in fact owed 13 hours for accrued but untaken holiday leave, and that this was effectively cancelled out by the overpayment to the Claimant for the last three days of October 2019.

[68]It therefore appears that the Claimant does not have a positive case that she can advance as to why she is owed 25 hours rather than the 13 hours the Respondent has calculated. The Respondent has shown that these 13 hours balance with the Claimant’s overpayment for the last three days in October 2019.

[69]I therefore conclude that this is a case where the Claimant has no chance of proving the facts she needs to prove (i.e. that she is owed 25 hours’ holiday pay), in light of the documentation I have seen before me. There is no real substance to the Claimant’s holiday pay claim. The Claimant’s pay claim has no reasonable prospect of success, and therefore is struck out. Strike out – constructive unfair dismissal claim

[70]The Respondent’s submissions on this aspect of its application in the skeleton produced on its behalf are predicated on the basis that the Claimant had not done sufficient to particularise her claim for constructive unfair dismissal. We have moved on from this position now as we have a defined list of ten breaches of the implied term of trust and confidence that the Claimant seeks to rely upon.

[71]In brief, to be successful in a constructive unfair dismissal claim, the tribunal must be satisfied that:a. The Respondent was guilty of fundamentally breaching the Claimant’s contract of employment;

b. The breach(es) was (were) at least in part the reason for the Claimant’s resignation; and,

c. The Claimant did not waive her right to resign in response to the breach(es) by affirming her contract.

[72]In his oral submissions, Mr Sudra highlighted that the test for whether there has been a fundamental breach of contract is an objective (not subjective) one: it is irrelevant that a claimant may believe their contract has been breached. The question as to whether there has been a fundamental breach is a question of fact for the tribunal, which is highly context-specific. Mr Sudra reminded me that it has been held by Maurice Kay LJ that the “central question is whether it had ‘clearly shown an intention to abandon and altogether refuse to perform the contract’ (Eminence Property Development Ltd, at paragraph 61)” – Tullett Prebon Plc and ors v BGC Brokers LP and ors

[2011] IRLR 420

, paragraph 24.

[73]I was also reminded that, even where conduct is likely or calculated to destroy the relationship between the parties, if there is a reasonable and proper cause for that conduct, then there will be no fundamental breach of contract. This goes back to the definition of a fundamental breach of the implied term of trust and confidence as set out in Malik v Bank of Credit and Commerce International SA

[1997] ICR 606

: “The employer shall not, without reasonable and proper cause, conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.

[74]Mr Sudra also highlighted to me that any act that is said to amount to a fundamental breach cannot be a small or trivial act. He relied upon the case of Omilaju v London Borough of Waltham Forest

UKEAT/0941/03/MAA

, in which it was held that, when dealing with a series of acts said to amount to a fundamental breach, it is important to take the conduct as a whole and assess the cumulative impact. The final act in the chain of conduct need not in itself amount to a breach of contract.

[75]The law has since been developed further regarding cases where there is a series of acts that culminate in a “last straw”. In Williams v Alderman Davies Church in Wales Primary School UKEAT/01.08/19LA, HHJ Auerbach held that, even if the alleged final straw is found to be entirely innocuous, the tribunal may still look back at the rest of the conduct relied upon. If that prior conduct amounts to a fundamental breach, which has not been affirmed, and the claimant resigns in response (at least in part) to that conduct, then his/her claim is made out.

[76]Turning to consider the ten alleged incidents that led the Claimant to resign and taking the Claimant’s claim at its highest, as I must, I note the following:a. There are disputes of fact that cannot be resolved by looking at the documentation I have in front of me today: for example, whether she was shunned by her manager (Mr Mitchell), or whether the Stage One meeting was conducted in a manner that was hostile;

b. The internal investigation appeal held that the Claimant had been subjected to “unfair treatment” regarding the conduct of her sickness absence process. I note that several of the alleged acts said to contribute to a fundamental breach stem from this process. This suggests that there is admission from the Respondent that there was at least something wrong with way in which the Claimant’s sickness absence process was conducted;

c. It is alleged by the Claimant that there was a chain of events that spanned several months that led to her resigning. I accept that some of those acts appear on the face of it to be less likely to contribute to a fundamental breach than others. However, it will be a matter of evidence as to whether each and every one of these acts contributed to a fundamental breach, was the reason (at least in part) for the Claimant’s decision to resign, and why also she resigned when she did.

[77]Strike out is a draconian measure, that requires a high bar to be met by the Respondent, who, in such an application, bears the burden of proof to demonstrate that there are no reasonable prospects of success.

[78]I am not satisfied that the Respondent has met that high burden, and I therefore reject the application to strike out the Claimant’s constructive unfair dismissal claim. Deposit order – constructive unfair dismissal

[79]Again, taking the Claimant’s claim at its highest, I am satisfied that the Claimant has more than “little reasonable prospects” of proving that she resigned (at least in part) due to the alleged breaches, and that she did not affirm her contract of employment in light of the cumulative effect that one must consider in last straw cases.

[80]The one part of the constructive unfair dismissal test that has caused me to pause at this “little reasonable prospect” test is the first limb that any claimant must demonstrate, that there has been a fundamental breach of contract.

[81]Mr Sudra for the Respondent argues that the course of conduct alleged to have taken place on the part of the Respondent is simply not serious enough to amount to a fundamental breach. I have some sympathy with that argument in relation to certain of the ten breaches alleged by the Claimant, and I have considered whether to make a deposit order in relation to some of the individual alleged breaches (for example, the seventh alleged breach regarding the wording of the template outcome letter).

[82]However, the Claimant’s case rests on an argument that the effect of all ten incidents taken together amount to a breach. I consider therefore that the issue of the weight of each individual alleged breach, and their individual contribution to any overarching fundamental breach is one that can and should be rightly left, unencumbered, to be pursued and explored at a final hearing. I am not satisfied that, taking an overall view of the ten alleged breaches and the alleged cumulative fundamental breach, I can find at this stage, on the evidence before me, that there is little reasonable prospect of the Claimant succeeding in her constructive unfair dismissal

[83]I therefore refuse the application for a deposit order. Application to amend Nature of amendment

[84]Dealing first with the nature of the amendment, there is no suggestion of a discrimination claim within the ET1 at box 8.1or 8.2, nor is there any such detail within the Claimant’s letter attached to the ET1 (her Grounds of Complaint at [17]). I agree with Employment Judge Quill’s analysis that no discrimination claim appears on the face of the Claimant’s ET1.

[85]Although there is some overlap with the facts as now pleaded (and set out above) between the Claimant’s constructive unfair dismissal claim and her pre-termination discrimination claims, those facts were not at all clear from the Claimant’s original ET1 form. Furthermore, the post-termination discrimination claims are entirely unrelated to the facts contained within the original claim form, or indeed within the now clarified constructive unfair dismissal claim.

[86]I therefore conclude that this is an amendment that falls within the third category set out in Selkent. Timing and manner of the amendment application

[87]The Claimant’s ET1 was presented to the tribunal on 23 March 2020. Her application to amend is dated 13 November 2020. There was therefore an eight-month gap between the Claimant presenting her original claim and her seeking to amend her claim.

[88]The Claimant explained that she thought she had raised a discrimination claim in her original ET1, and understood that she would be asked for further detail as and when the tribunal considered it appropriate. She did not understand that to tick the remedy box at Box 9.1 regarding recommendations was far from sufficient to raise a discrimination claim. The Claimant informed me that she did not understand herself to be disabled at the time of entering her ET1; however, at the time of presenting the ET1, the Claimant also told me that she believed she had been discriminated against on the grounds of her health and thought she had indicated a desire to raise a discrimination claim on her ET1.

[89]I accept that the Claimant had various deadlines approaching at the same time as the deadline for submitting her ET1. I also accept that she was told by an ACAS representative to do the best she could and to get her ET1 in on time, and that she could provide more details later on. However, all that was required of her was to tick the box marked “I was discriminated against” at Box 8.1, or even write a couple of lines in her Grounds of Complaint stating that she thought she had been discriminated against, yet she did not do so. I further note that the Claimant has been able to send in numerous and lengthy documents into the tribunal setting out the facts around her claim and her disabilities (even if they have needed some clarification today).

[90]The Claimant only provided such details and made her application when it was made clear to her by Employment Judge Quill’s order that she did not at that stage have a live discrimination claim, and would have to apply to amend.

[91]I note however that the Grounds of Resistance, dated 12 May 2020, set out clearly that the Respondent had understood that the Claimant was only bringing claims of constructive unfair dismissal and unauthorised deductions from wages – [29]. I also note that Employment Judge Lewis’ order of 25 August 2020 did not mention any discrimination claim, or ask for details about such a claim.

[92]The Claimant told me that she did wonder why no-one had asked her for specifics about a discrimination claim. However, despite this concern, the first document she sent regarding disability discrimination is dated 26 September 2020, a month after Employment Judge Lewis’ order. I consider that the lack of reference to discrimination in both the Respondent’s Grounds of Resistance and Employment Judge Lewis’ order should have prompted the Claimant to act more swiftly in applying to amend. Alternatively, given that the Claimant told me that ACAS advised that she could enter the ET1 and add more information later, she could reasonably have been expected to take steps to set out her discrimination claim without any need for prompting from the Respondent or the tribunal. I accept Mr Sudra’s point here, that it is not for the Respondent or the tribunal to make the Claimant’s case for her or to second guess the claims she was attempting to present in her ET1.

[93]I bear in mind that the Claimant suffers from autism, however this has not prevented the Claimant from setting out facts that she relies upon for her claims in various documents. She also had access to some legal advice some time prior to her application to amend being made (at least four months). Time limits

[94]Given that I have found that this is an amendment application seeking to bring an entirely new claim, I need to consider the impact of time limits. If I were to allow the amendment, then the discrimination claim would be deemed to have been presented on the date of this order. The last act of alleged discrimination is said to have occurred on 2 November 2020, and therefore any claim relating to that act should have been presented to the tribunal on or before 1 February 2021. The discrimination claims would therefore be out of time by over two months.

[95]I have heard the reasons for the Claimant’s delay in making the application to amend, and am content that I can consider the issue of time limits at this stage in proceedings.

[96]I remind myself that the starting point is that time limits must be strictly enforced unless the Claimant can prove that the application was brought in such time as was just and equitable after the expiration of the primary time limit.

[97]I turn to the two questions set out by Langstaff J. Firstly, the reason for the delay in bringing the application to amend. As I have set out above, I consider that the Claimant could and should have provided some indication of her desire to pursue a claim for discrimination earlier than 26 September 2020, given that she understood from ACAS that she would be able to provide further detail after submission of her claim. Certainly, upon receipt of the Respondent’s ET3, which only referenced constructive unfair dismissal and the pay claim, this should have alerted the Claimant to the need to act in order to make it clear that she was pursuing a discrimination

[98]In terms of the second question, why the amendment was not made sooner, I accept that part of the delay is due to the tribunal listing a hearing of the Claimant’s application some four months after she made her application. However, I come back to my reasoning above: had the Claimant reacted sooner and raised discrimination earlier, then doubtless a hearing would have been listed earlier.

[99]I turn to consider the prejudice that would be suffered by the Respondent if I were to extend time – Miller v Ministry of Justice

UKEAT/0003/15

. There is the inevitable prejudice of having to defend a claim to which the Respondent has a perfectly legitimate limitation defence; this is a staple prejudice relied upon by all respondents facing an extension of time application.

[100]There may also be “forensic prejudice” suffered by a respondent: in other words, whether, due to the historic nature of any allegations, a respondent loses its ability to defend itself effectively due to faded memories of witnesses, or lost documents and so on. I do not accept the Respondent’s argument that witnesses’ memories will have faded so as to mean that they are disadvantaged in their ability to give evidence on the discrimination claims. The claims go no further back in reality than the constructive unfair dismissal claim. Neither do I accept the argument that some of the Respondent’s potential witnesses have left: this was a speculative statement made by Mr Sudra, who submitted that other employees of the Respondent (besides Mr Robertson) may have left. He was unable to tell me whether in fact any potentially relevant witnesses had left the Respondent’s employ. I therefore find that there is no forensic prejudice to be suffered should I extend time. However, the lack of forensic prejudice is not decisive in favour of an extension of time.

[101]As I have set out above, I consider that the Claimant could and should have acted more promptly in making the application to amend, particularly given that she understood that she had been discriminated against on the basis of her health at the time of entering her ET1. I am not satisfied that I have received sufficient answers to the two questions raised by Langstaff J so as to satisfy me that this is a case which should be an exception to the usual strict rules on time limits.

[102]I therefore find that the Claimant’s claim is out of time. Balance of hardship and injustice

[103]If I reject the Claimant’s application to amend, she loses the ability to pursue her discrimination claim. She also therefore loses the opportunity of obtaining an award for injury to feelings. However, the Claimant’s claim of constructive unfair dismissal survives and, if successful, the Claimant will be able to claim losses stemming from her dismissal.

[104]If I allow the application to amend, the Respondent would face the obvious detriment of losing the ability to rely upon a perfectly legitimate limitation defence. A longer hearing will be required, leading to more costs incurred by the Respondent (and arguably also the Claimant, although she is representing herself). Not only will more evidence need to be heard (particularly regarding the post-termination claims) but submissions and deliberations will inevitably be longer as the tribunal will have to consider numerous different legal tests regarding the different discrimination and victimisation claims. There will also be an increased amount of disclosure which will in turn lead to more costs and tribunal time.

[105]Mr Sudra submitted that the Respondent would suffer hardship given the time that had passed since the alleged acts of discrimination, and the potential loss of witnesses from the Respondent. I have set out my conclusions on this point in reference to “forensic prejudice” above, and do not consider this particular argument to hold much weight.

Conclusion

[106]In conclusion, weighing up the balance of hardship and injustice, and the nature, timing and manner of the application (including reference to time limits), I refuse the application to amend. The balance of hardship and injustice falls in favour of refusing the application.

[107]I should note that, even if I am wrong regarding my decision that the time limit here should not be extended, the fact that the claim would then have been in time would not have tipped the balance in favour of me permitted the application to amend. In other words, regardless of the time limit issue, I would have found that the application to amend should be refused, taking all relevant factors into account.

SUMMARY

[108]In summary, the only claim that moves forward from this point is the Claimant’s claim for constructive unfair dismissal.

[109]In the presence of both parties, I listed a telephone closed preliminary hearing for 2pm on 19 May 2021.

[110]From this point onwards, this matter will not come before me again, as I have given my view on the merits of the Claimant’s claim.

SUMMARY

[1]The claim for constructive dismissal is not well-founded and is dismissed.

[2]The claim for unauthorised deductions from wages is dismissed upon confirmation by the claimant that the claim has been settled.

[3]A direction is made pursuant to Rule 50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 that no party is to disclose the address of the claimant. JUDGMENT having been sent to the parties on 27 April 2022 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:

Introduction

[1]This is a claim for constructive unfair dismissal brought by the claimant by way of a claim form presented on 23 March 2020. The respondent denies the claim on the basis that there has been no breach of contract to entitle the claimant to resign.

[2]The claimant had originally also brought a claim for unauthorised deductions from wages but during the course of the proceedings she confirmed that she accepted that the respondent had now paid her the correct amount in relation to holiday pay and that claim was therefore settled. I therefore dismissed that claim upon that confirmation. Preliminary matters

[3]At the outset of the hearing there were a number of preliminary matters that I had to deal with to include an indication from the claimant that she wished to postpone the proceedings starting. Having discussed that with her in more detail on 12 April, she was unsure in relation to her position given the fact that she had waited a long time to come before the tribunal, and was aware that any postponement would likely result in a significant delay. Her concern however was that she had not been sent the cross examination of the respondent or their submissions and considered that she was at an unfair disadvantage in that regard. I will note, for the purpose of my judgment that the claimant believed there was a tribunal direction requiring cross examination to be sent at least seven days in advance but this was not the case. The respondent had sent the cross examination I understand three days in advance and the submissions had been sent I understand one day in advance. In any event, the claimant did not pursue the postponement application further and I did not need to deal with that.

[4]I went on to look at reasonable adjustments to be made for the claimant as a result of an email that she sent to the tribunal dated 10 March 2022. I do not go into the detail of that email but confirm that it was agreed that we would look to take a break every 40 minutes and before each stage of the proceedings. Again, I will note for the purpose of my judgment that actually as the case progressed and when checking with Ms Cullen whether she required a break at the 40 minute point, there were often points where she indicated that she happy to continue, and that her preference was to do so, so as not to interrupt her trail of thought and therefore we did so, taking convenient breaks at alternative opportunities.

[5]By way of reasonable adjustments, it was also agreed that I would advise the claimant in relation to procedure at each stage. The claimant also requested that she be allowed to take a recording of the proceedings and this was discussed in more detail with the parties. Mr Sudra observed that in terms of her ability to rely upon that, my colleague, Judge Hyams during a preliminary hearing, indicated that any recording would need to be sent to the respondent in terms of each section and that this would likely hinder her in terms of her ability to prepare the case. Indeed, I also made the observation that if she were having to rewind large parts of evidence on a tape, it would not necessarily be easy for her to ascertain a particular point of evidence that she was looking to look back on.

[6]Having considered the matter, the request to take a recording was refused it being observed that recordings of proceedings would not usually be allowed and that in all the circumstances this was unlikely to assist the claimant. I explained to the claimant that she could be afforded with additional time for notetaking and I also noted that she had two witnesses in attendance who indicated that they would be happy to assist her in her notetaking. Ms Cullen also had her camera off throughout these proceedings save at the point that she gave evidence, where it was agreed that all other parties would turn their cameras off. Ms Cullen was also concerned about giving her address during her evidence and I confirmed that she would not be required to do so. The respondent did also offer the opportunity for their witnesses to go first in order that the claimant could have more time to prepare for cross examination but she confirmed at the outset that she was happy to proceed first.

[7]In terms of other matters, during the course of the proceedings it became evident that the claimant’s address had been included in the bundle of documentation. I made a direction pursuant to Rule 50 that there should be no disclosure of the claimant’s address by any party and that is a formal order of this tribunal. I requested that any copies of the bundles, electronically are deleted or paper are confidentially destroyed and suggested that if the witnesses had paper versions, that arrangements were made for them to be returned to the respondent’s solicitors for them to destroy. The respondent’s solicitors will retain copies of the bundles by way of it being legal evidence.

The issues

[8]In terms of the issues in the case I do not intend to rehearse those at this time save to say that they are as per the order of Employment Judge Matthews, dated 20 May 2021 following the preliminary hearing that took place on 19 May 2021 and they appear at pages 126 to 128 of the bundle. Evidence

[9]In terms of the evidence, I had a bundle consisting of 615 pages. I was provided with a chronology, reading list and cast list. I also had witness statements of Hannah Cullen, Lynne Simpson (Complaints Manager) and Louise Bryn (Deputy Head of Clinical Coding) for the claimant, and witness statements of Liz Munoz (Overseas Visitors Manager), John Mitchell (Emergency Care Manager) and Wendy Fiddes (Head of Employee Relations) for the respondent. I was also provided with written closing submissions from the respondent as well as hearing from both the respondent and Ms Cullen by way of oral submissions. Fact Finding

[10]The claimant was employed by the respondent between 1 November 2004 and 28 October 2019. At the time she left her employment she was employed as an Overseas Manager.

[11]The claimant had a period of compassionate leave for five days from 3 June 2019 following the death of her grandmother. I do not go into the details here but this was complicated by external matters and caused significant stress on the claimant at a time where she was also having to deal with her grief over the loss of her grandmother.

[12]There was a text message exchange between the claimant and Ms Munoz, her line manager at page 249 of the bundle where the claimant refers that she may make a holiday request for the period 10 to 14 June 2019. Ms Munoz replies at page 250 and says that she had booked leave for that week for which the claimant thanks her. The claimant does not respond at that stage to suggest that the annual leave should not have been booked or that there had been no request by her.

[13]There is then a sick note from 17 June 2019 stating that the claimant had been signed off for bereavement. The claimant subsequently makes contact with the respondent to say that she was actually ill for her annual leave period between 10 to 14 June and asked that it is noted as sick leave. That was part of the unauthorised deduction claim which has been resolved but the claimant indicated to me that this was still relevant to the matters in issue because it was her assertion that it forms one of the breaches, namely that she was forced to take annual leave.

[14]I note that this breach was not alleged as part of the agreed issues in the case but I do make a finding on it nonetheless. I do not accept on the facts before me that the claimant was forced to take annual leave. She clearly gives an indication of her intention to take leave in the text message exchange. Although she refers to “may” take annual leave, it is clear that Ms Munoz took it as a request and actioned it in that way and I consider that she was entitled to do so. She confirmed this by text to the claimant and the claimant did not object to it by way of saying I did not request annual leave. In fact, she accepted it in her response and thanked Ms Munoz.

[15]At this time, I note that she was off with bereavement and could not have necessarily known that she would subsequently fall sick during that annual leave period. It did subsequently turn out that she was sick during that period to which she asked HR to amend the record to be marked as sickness instead of holiday. On the evidence before me I find that there was no evidence that she was forced to take that period as holiday.

[16]As a result of the claimant's length of sick leave, on 1 July 2019, Liz Munoz made a referral to occupational health. This was in accordance with the respondent’s internal procedures on sick leave. The claimant’s case is that it was largely the handling of this process that breached the implied term of trust and confidence and lead to her resignation.

[17]I therefore move on to the allegations on the list and address each one in turn. Issue 1.1.1

[18]Issue 1.1.1 is an allegation that Mr Mitchell stopped communication with the claimant and effectively shunned her. Mr Mitchell was the claimant’s previous line manager for a period of two years and eight months. The claimant describes having a good personal relationship with him and he also describes having a good relationship with the claimant. It is clear on the evidence in the bundle that she makes contact with Mr Mitchell on 7 June explaining that she is going through a difficult time and asks him to contact her. He replied to say that he was in an executive meeting and that he would do so. I find that he did fail to subsequently call her. The claimant then contacted him on 9 June and whilst I find that Mr Mitchell did not call the claimant back on 9 June it is clear that there was a conversation for one hour and thirty minutes between the parties on that date.

[19]The claimant’s assertion is that that was the last contact that she had with Mr Mitchell and on the evidence before me I agree with that. However, what I do note is that the contact that Ms Cullen was trying to have with Mr Mitchell was one of a personal nature. He was not her line manager and she was contacting him in a personal capacity for support. I find that there was no obligation on Mr Mitchell to have continued contact with the claimant. Issue 1.1.2

[20]This is an allegation that regarding the sick leave process and a meeting for that to be discussed, that the claimant requested that this take place at her home address. I find that she did make such a request. This was done by way of email at page 274 of the bundle dated 15 July. What is clear from that email, however is that she gave alternatives. She did not say that she was only happy for it to be held at home. Having received that email Ms Munoz took on board the comments that had been made and arranged an alternative venue. I therefore find that the respondent did accommodate the request of the claimant as she had offered, namely an alternative venue. Issue 1.1.3

[21]This is an allegation that the incorrect referral form was used by Liz Munoz when the referral to occupational health was made. On the evidence of the respondent it is not disputed that the form used was an outdated version. The referral form used appears at pages 262 to 265. The correct form is at pages 183 to 184 of the bundle. I was taken to the differences in the two forms and I note that they are largely similar. I do not place any weight on the differences in terms of my findings.

[22]The claimant also states that the referral to Occupational Health should have been discussed with her and she should have been sent the form. I find that she was not sent the form. Ms Munoz accepts that in her witness statement and states that this was an oversight.

[23]The claimant has also made reference to the fact that the referral should not have been made until there had been a period of 21 days sick leave. Her assertion was that if you used the respondent’s date, 17 June 2019, a referral that was made on 1 July was sooner than that 21 day period. In that regard I do take the view that the claimant cannot have it both ways; she is saying that she was sick from either 3 or 10 June 2019 so a referral on 1 July based on that period would not have been an issue in any event. I also note of the policy at page 170 which does not say that an employee must have been off sick for 21 days but rather, as soon as the manager becomes aware that the employee will be off sick for 21 days, the referral should be made. Ms Fiddes also gave evidence in that regard that it is the sickness review meeting that should take place in 21 days and that they would want the Occupational Health report for that meeting and therefore, it is important that the referral is made as quickly as possible and I accept her evidence in that regard.

[24]In terms of 1.1.4, this is an allegation that the respondent did not contact the claimant’s general practitioner and they should have done so. The respondent accepts that no contact was made with the GP. Their evidence was that it would have been for Occupational Health to contact the GP and in any event, they did not have written consent from Ms Cullen. Ms Cullen’s evidence was that she believed her managers could make contact based on the oral consent that she provided during the first sickness meeting.

[25]I do not accept the claimant’s evidence in that regard, namely that she did not know that she would need to give written permission. She worked in the health industry, she knew in that role in answer to my questioning, that she needed written permission to disclose records and there was no reason why that would not be true of her. Ms Simpson made a similar assertion and I do not accept her evidence for the same reasons. I would suggest that it is common knowledge that written consent is required and even if that is not the case, I take the view that both would have known because of the particular roles that they work in. In any event, I accept the evidence of the respondent on this point that it would have been for Occupational Heath to follow up anything with the GP and not for the claimant’s manager or HR. In that regard, the oral consent had not been given to Occupational Health and therefore, even had oral consent been sufficient, this would not have allowed Occupational Health to have followed up on it.

[26]This is an allegation that the claimant was refused her request to record the sickness absence review meeting. The respondent accepts that it refused the claimant’s request. The evidence of the respondent was that it would not have been standard practice to have recorded such a meeting and I find that the evidence of Ms Fiddes was very persuasive on this point. Whilst she stated that there was no particular policy in place to say that the recording should not be made, or indeed neither did she deny that such a recording could have been made, but in her 20 years of practice she stated that the recording of a sickness absence review meeting had never been undertaken by her. This was for the reasons that the meeting was supposed to be an open and honest one promoting the parties to speak open and freely, and that often a recording can hinder that and I accept her evince on that point. I note that in refusing the request to record the meeting the claimant was reminded that’s she could bring someone with her; that she did do so; they took notes for her and she said that she received a copy of those notes.

[27]This is an allegation that the first sickness absence review meeting letter said ‘If’ you return to work, rather than ‘upon’ your return. The claimant took me to pages 287 and 288 in terms of the wording used at the meeting itself. I note that the wording at 288 is illegible in that you cannot read whether it reads “when” or “upon” but I accept the claimant’s evidence in relation to this meeting, namely that the discussions that took place referenced “when” and “upon” her return to work. Indeed, the very purpose of that meeting was to look at how that would be managed and how they could assist her.

[28]The letter that was subsequently sent to her, all parties accepted that this was a template letter, it was not there was a standard letter that had to be followed in its entirety and it was open to amendment. In that regard, Ms Munoz’s evidence was that she changed the word to “if” because she did not wish to put undue pressure on the claimant in terms of her returning to work. I accept her explanation in that regard but I do note that the claimant was caused sufficient concern by it, that she sent an email to Mr Munoz on receipt of the letter indicating her concerns in relation to that wording.

[29]This is an allegation that the second sickness review meeting was advertised on a screen for anyone entering the building to see, which caused the claimant stress, anxiety and embarrassment. All parties agreed on the evidence before me that it was not appropriate for such a message to be displayed. Indeed, that is supported by Ms Raj-Sohanta when Ms Bryn overheard her asking reception to take it down.

[30]Ms Munoz indicated in relation to that that she had not intentionally caused the information to be displayed. She explained that she had only used the venue on one prior occasion, she was not aware that screens would display the purpose of the meeting and that she had been keen to give the reason for the meeting so as to ensure, firstly that an adequate room was provided which was of particular importance given the claimant’s previous concerns but also that rooms could be cancelled and she wanted to ensure that this did not happen. I accept the explanation provided by Ms Munoz in that regard.

[31]It is further noted that on the claimant’s own evidence, she accepts that she did not see this screen at any point and it is also agreed that the screen did not refer to the claimant by name, and therefore it did not identify her. I take that from the evidence of Ms Bryn, the only witness before the Tribunal who did see it and who gave no indication that it made reference to the claimant’s name.

[32]This is an allegation that the claimant was sent a job advertisement whilst on sick. This vacancy was not suitable for her given her working hours and the fact she had previously discussed being offered a band 5 role.

[33]There are a number of aspects to this particular complaint and I will deal with each one in turn. The first is that the claimant states that she was sent it and this caused her distress at a time she was sick and unwell. Ms Munoz’s evidence was that the reason it was sent is that she did not wish for the claimant to miss out on such an opportunity. It was first sent to the claimant on 20 August when it was sent by email to her and to others. The claimant did not reply at that time to suggest that she was distressed by receipt of it. It was then subsequently sent to the claimant following the stage 2 meeting.

[34]The claimant states that the respondent should have known that she did not want to work full-time and as such this vacancy would have been no interest to her. In that regard Mr John Mitchell gave evidence indicating that whilst he was aware that the claimant only worked part time, people’s circumstances do change and somebody who works part-time may wish for the opportunity to go full-time or vice versa. In terms of sending the advert to the claimant, I find that it was entirely proper for the respondent to do so. Indeed, I consider that they could have been criticised had they failed to do so because this would have effectively excluded her from applying to a role which may have been of interest to her.

[35]The other aspect of this allegation is that it should not have been sent to the claimant because there had previously been discussions about a Band 5 role. On the evidence of Mr Mitchell, I understand he indicated that there may have been such discussions. On the evidence of the claimant, she stated that there had indeed been such discussions.

[36]It is clear on the evidence before me, in terms of the evidence of all the parties, that the claimant was well liked in her role and extremely capable. She had acted up in a Band 5 position and no doubt would have likely been successful in any application for such a role. However, on the evidence before me, I cannot see that there had been a formal vacancy or offer of this role and, therefore, I do not accept that the respondent should not have sent a Band 4 vacancy role simply because there had been discussions regarding a Band 5 role. Therefore, I find that there were indeed discussions about the claimant possibly moving into a Band 5 role if and when such a role presented itself. I am not satisfied that there was any agreed date for that role and despite those discussions, I see no reason why a Band 4 vacancy should not have been shared with the claimant.

[37]The other aspect to this allegation is that if it had been filled it would have meant that on the claimant’s return to work, the department would have been overstaffed. The respondent denies this and states that after the claimant resigned there were three members of staff recruited. The claimant does not accept this position pointing out that the first recruit was the Band 2 person who moved into the Band 4 role that was advertised so that was one in the same person. In that regard Ms Munoz’s evidence was that, that person was the same person but she still saw it as a recruitment because it was somebody moving into a permanent position with an increase in hours.

[38]In terms of the recruitment of the second Band 4 person, this was a replacement of someone who had retired and I accept that. That does not however mean that it was not a recruitment; somebody new had still been recruited, albeit I accept that it was not an additional role. The other person that was recruited I understand was in a credit control position. Ultimately, regardless of whether or not there were three new recruits or two recruits who were existing members of staff at the time, the issue is whether or not the respondent would have been overstaffed if the claimant had returned to work. I make findings on that in terms of my conclusions later but I will say that I do accept the evidence of Ms Munoz that one of the people that was recruited were recruited to work additional hours. The other person was recruited into a different role so there was nothing to suggest that the respondent would have been overstaffed at that time.

[39]Ms Munoz gave evidence in relation to her budgets and the requirements for the department and indicated that they were looking to recruit more in order to work more cost effectively.

[40]I will say in addition under that head of complaint, 1.1.8, the claimant did raise the point that she had not been advised that Ms Paul had been recruited whilst she was on sick. That did not form the basis in 1.1.8 but I do address it because it was raised by her on several occasions during the hearing. In that regard, Ms Munoz gave evidence that a number of changes were taking place in the team at that time and she did not feel that she should, or needed to, update the claimant on those changes whilst she was on sick leave. Those were matters on which the claimant would have been updated when she returned and I consider that course of action to be entirely proper. Indeed, I reiterate that at a time when the claimant was signed off with stress and bereavement, it would likely be that criticism could be made had Ms Munoz contacted her in order to update her on changes in the department to include recruitment of an individual.

[41]This is an allegation that there were no weekly touch points or telephone calls from the respondent and no communication in the final weeks before resignation. The evidence of Ms Fiddes in this regard was that a contact plan should have been agreed at the outset and there is no evidence before me that this was done. Ms Munoz said that she tried to make contact with the claimant but was unsuccessful. The claimant denies that attempts were made. On the evidence before me I do find that there was not any significant contact between the parties and I was not persuaded by the evidence of Ms Munoz that she had called the claimant and that these calls had gone unanswered. Despite the fact that there was little contact, the explanation that has been provided for that is that the respondent did not want to put pressure on the claimant and be seen to harass her and I do accept that explanation.

[42]I go on to look at the suggestion that the real reason that the claimant resigned was that she was unhappy and was looking for another job as reference in the statement of Ms Munoz. In that regard I am not satisfied on her evidence alone that this is the case. Even if those comments about being unhappy at work had been made, the evidence of Ms Munoz was that they were made in May 2019, the claimant did not resign until October 2019 and her position could have changed. I accept the evidence of the claimant that she was pleased the department finally had a new manager and was looking forward to working in the team in the future. I do also note that whilst the claimant secured employment in December 2019 that was some two months after her resignation and it is not the case that she started a new job within a number of days or weeks.

[43]It was also suggested by the claimant that in relation to the first sickness review meeting, that the conduct of it was inappropriate, dismissive or rude. I accept the evidence of the claimant and her witness, Ms Simpson, that that was their perception of it. I go no further and make no finding on whether it actually was an interrogation because I note that it was not one of the claimant’s allegations with regard to the breach of contract as per the agreed list of issues.

[44]I do also note the following in terms of my fact finding namely that the respondent had a grievance policy; it would have been open to the claimant to have used that policy in relation to the complaints that she has made and she failed to do so. In her resignation letter itself, she made no complaint, she did not suggest that she had been forced to resign or indeed, that she was resigning for any of the reasons in the list of issues before the tribunal.

The Law

[45]During delivery of my oral Judgment I noted that the claimant had previously stated that she struggles with legal jargon. I indicated in the circumstances that I was satisfied that the law was fairly summarised in the submissions prepared by Mr Sudra which the claimant had had for some time and I applied the law as set out in those submissions. That is rehearsed here as follows:

[46]The implied term of trust and confidence is an obligation on both parties to a contract of employment not, without reasonable and proper cause, to act in a way which is calculated or likely seriously to damage the relationship of trust and confidence which exists, or at least should exist, between employer and employee.

[47]If the employer breaches the implied term, an employee is entitled to terminate the contract of employment. The question for the Tribunal to decide is whether the claimant was dismissed in accordance with the statutory provisions: The Employment Rights Act 1996 (ERA) s.95 1(c) states: (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2). . . , only if)— …. (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.

[48]In making its determination the Tribunal will have regard to the fundamental statement of Lord Denning in Western Excavating (ECC) Ltd -v- Sharp

[1978] ICR 221

4 ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed.’

[49]The claimant relies upon the implied term of trust and confidence, which has been defined in Malik v. Bank of Credit and Commerce International SA

[1997] IRLR 462

as: ‘The employer shall not without reasonable and proper cause conduct itself in a manner calculated and [read as “or”] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.’

[50]In Omilaju v. Waltham Forest London Borough

[2005] ICR 481

Lord Dyson (as he then was) said in paragraph 14.4 of his judgement: ‘The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer’.

[51]In relation to repudiatory breach the relevant question for the Tribunal is not whether a reasonable employer would have concluded that there was no breach, but whether on the evidence before the Tribunal, it considers that such a breach has occurred. The subjective view of either the employer or the employee is irrelevant to establishing whether there has been a breach of contract – Jones v Collegiate Academy Trust

(2010) UKEAT 0011/10

[52]The fundamental breach need not be the sole cause of the resignation, provided it is an effective cause – Jones v F Siri & Son (Furnishers) Ltd

[1997] IRLR 493

. This means that ‘the crucial question is whether the repudiatory breach played a part in the dismissal’ and a claimant may claim constructive unfair dismissal ‘if the repudiatory breach is one of the factors relied upon’ – Ford v Abbycars (West Horndon) Ltd

[2008] All ER (d) 331

[53]An employee ‘must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged’ – Western Excavating. There is no prescribed time window within which an aggrieved claimant must resign, it is a question of fact in each case, and whilst a reasonable period will be allowed, time is of the essence

[54]I do add to the law referred to by the respondent, two points. Firstly, This is a case where the claimant says there was a cumulative breach; she is not saying that one incident caused her to resign but rather all of the incidents together and in that regard I am referred to Lewis v Motorworld Garages Limited [1986] in which it was held that a course of conduct can cumulatively amount to a fundamental breach of contract entitling the claimant to resign and claim constructive dismissal following what is effectively referred to as a last straw incident which in itself does not amount to a breach of contract. Secondly, once a breach has been established the tribunal then needs to consider whether the breach is fundamental. In this case it is an allegation of breach of the implied term of trust and confidence. In that regard, I have regard to the case of Morrow v Safeway Stores [2002] where it was held that a breach of that implied term is inevitably fundamental.

Conclusion

[55]Turning to my conclusions, again, I go through each point as per the list of issues.

[56]As I have said, on the evidence before me I accept that there was no contact between the claimant and Mr Mitchell from 9 June, being the date of their telephone call, until the claimant’s resignation. I do not however find that this amounted to him shunning her in the sense of an employee/employer relationship. Mr Mitchell was not her line manager. The contact between them was personal only and there is no obligation on him to maintain that contact. On that basis I do not find that that amounts to a breach of the implied term of trust and confidence.

[57]In relation to 1.1.2 regarding the request to have the meeting at home, it is clear from the documents that the claimant gave an indication that she would like to have the meeting at home or at an alternative venue. This indication was done by way of an email dated 15 July at page 274 where she gave two alternatives. She did not say that she was only happy for it to be held at home and having received that email Ms Munoz took on board the comments that had been made regarding the existing room and arranged an alternative venue. The respondent therefore accommodated the request of the claimant which was offered by the claimant in the alternative. The respondent acted on the claimant’s own suggestion, found an alternative venue and again I do not find this to amount to a breach of contract.

[58]In relation to 1.1.3 that the wrong form was used in referring to Occupational Health, as I have already stated the respondents do not dispute that the wrong form, or version of the form, was used. On comparing the forms, they are different but it is my finding that there are little differences between the two. I also not that the referral form is the first step in the procedure, it is not the end of the matter, and it is for Occupational Health to pursue it further from there. Following the referral there were three appointments with the claimant where I understand matters were discussed in full. Whilst the wrong form may have been used; I do not consider that is would have had a bearing on the subsequent procedure overall.

[59]Under this same point the claimant says that she was not shown a copy of the form before it was sent and the respondent accepts this. Ms Munoz, in her evidence, says that she indeed did not provide the claimant with a copy and this was simply an oversight. I accept that explanation and do not consider it to be a deliberate act by Ms Munoz.

[60]The claimant also said that this did divulge confidential information without her consent, but in that regard, the referral was sent to Occupational Health, it was not sent to the team as a whole, and I do note that the claimant herself was in any event, copying in a number of individuals into the correspondence that she was sending to update the respondent as to her current absence position. Ms Munoz said that the information included in the referral was taken from the claimant’s email that she had sent her and on comparing the two documents, that is indeed correct. Ms Munoz therefore used the claimant’s own words in the referral and had not given it her own comment. Again, for that reason, I do not consider that this impacted on the referral to Occupational Health in any way. Ms Fiddes also gave clear evidence at the outset of any Occupational Health meeting they would check that the individual was aware of the procedure and I have nothing before me on the evidence to suggest that this did not take place. I note that the claimant continued to engage with the process and attended three meetings.

[61]Of most importance however is that at the time the claimant resigned, she was not aware of the incorrect form having been used. This is confirmed in the claimant’s witness statement at paragraph 13. As such, the fact that the incorrect form was used would not have contributed to her resignation because she simply was not aware of the fact.

[62]In terms of 1.1.4 that the respondent did not contact her GP, it is accepted that they did not do so. The claimant says that she gave her consent for this at the first absence review meeting and expected that this was sufficient to allow access. As I have already stated, I do not find this to be credible and consider that she was aware that she would need to give written consent. Further, even if the claimant had given permission to Ms Munoz and the Human Resources representative in the meeting, and even if that oral permission was acceptable in that the oral permission would have allowed access, the respondent’s evidence is that it would not have been for them to obtain the medical records but rather a matter for Occupational Health. I do not have evidence before me as to why Occupational Health did not access the records but, equally, I have not been taken to anything to suggest the claimant raised directly with Occupational Health the issue of why her GP had not been contacted. There were three meetings between them during which matters were discussed and I find that the claimant would have no doubt raised all issues with them.

[63]The claimant’s complaint is that had her GP been contacted, her position regarding her health would have been safeguarded as the history would have been on record. However, it appears to me that the history was on record by way of her own raising of it with Occupational Health. Also the updated medical certificate did not just say bereavement but said about stress also. Therefore, stress was noted on the record.

[64]In all of the circumstances, there is no suggestion here that the respondents were not happy with the fact that the claimant was off for bereavement; they were trying to support her in whatever way they could, and that was the purpose for the sickness policy. I cannot find that a failure to contact the GP amounted to a breach of trust and confidence because on the evidence it did not alter the position in any way.

[65]In terms of allegation 1.1.15 being the refusal to take a recording of the sickness meeting, the claimant requested this due to her health at the time. I do not consider that her request was an unreasonable one. The respondent accepts that they refused that request and I heard form Ms Fiddes on the point. As I have already said, her evidence was that in her 20 years she had never recorded a sickness meeting. She described the purpose of the meeting as being one between the parties where they are encouraged to speak freely and that a recording can hinder this process and I accept her evidence on that point. I must look at whether or not the respondent had reasonable and proper cause for refusing the request and I find that they did. They noted that the claimant could be accompanied and somebody could take a note for her. Indeed, the claimant accepts that someone did attend and take a note. She states that she did not know if she would have somebody available to do this up until the last point but, in those circumstances when she renewed her request at the outset of the meeting for it to be recorded, a different decision may have been reached. As it was, she was accompanied, she was able to be assisted with somebody taking notes and she confirmed that she received a copy of those notes.

[66]Looking at the evidence before me I am satisfied that the refusal to record the meeting was a reasonable one. I note that it was not trust policy to record the meetings as standard and whilst I accept that recording could have bene done and the Trust have facilities to do so, I do not consider that the failure by them amounted to a breach of the implied term.

[67]In terms of 1.1.6, namely the wording in the letter being “if” instead of “upon”, this was addressed in the claimant’s witness statement at paragraph 22 and, as I have said already, she was sufficiently concerned by the wording to immediately put her position on record by way of email dated 6 August at page 316 of the bundle.

[68]At this stage however I note that the claimant did not know that the template usually says “upon” since this was discovered as a result of her data subject access request made by the claimant later on.

[69]The claimant’s complaint is that the words were changed from “upon” to “if” but at the time she resigned she did not know that the template had been changed. I do acknowledge that she was concerned by the wording “If” hence her email on the subject but I do not consider that the choice of that wording amounts to a breach of the implied term. Ms Munoz gave an explanation that her choice of words at the time was because she did not want to put additional pressure on the claimant to return to work. She also confirmed that English was not her first language. She said that she used “if”, “when” and “upon” as interchangeable words and her intention was always that the claimant would return to work. It is not for me to establish today what her intention was but I do find that her use of the word “if” did not have any ill intent behind it. The use of the word was appropriate based on the explanation that she did not want to place pressure on the claimant. For those reasons I do not find it amounts to a breach.

[70]In terms of the meeting being displayed on the screen, the claimant did not directly witness this. The explanation by the respondent is that Ms Munoz had only used the room on one prior occasion, she was not aware that it had screens and did not know that the purpose of the meeting would be displayed. She only noted the purpose of the meeting as she wanted to ensure an adequate room was provided without risks of cancellation.

[71]The evidence of Ms Bryn, the claimant’s witness, was that on arrival she heard Ms Raj-Sohanta asking for the reason to be removed from the screen. This evidence is that this was not a deliberate act of the respondent to have the reason displayed. I do accept that being told about it may have caused the claimant distress but her name was not directly displayed, neither did she see the sign herself. I have to look at the alleged breach objectively in terms of whether that act was likely to destroy or damage the trust and confidence between the parties and I do not consider that it does.

[72]Turing to 1.1.8, I have already addressed this at some length but the first issue is that the claimant was caused distress and should not have been sent the job vacancy. She says it was because the respondent knew that she could not work full-time and there had been discussions about a Band 5 management role. The respondent says that the position was sent to her so as not to miss out on the opportunity. The initial email on this included two other people and was sent in August. I accept the evidence of the respondent that this was purely to ensure that the claimant did not miss out. I do not accept the claimant’s assertion that the respondent should have or would have known that she would not want that job. As Mr Mitchell said, people’s positions and their circumstances change and that knowing there was a fulltime vacancy available the claimant may have wanted to apply. The fact that the vacancy was emailed to the claimant is not unreasonable in my view and the respondent had proper cause for doing so.

[73]The claimant also takes issue with the fact that the vacancy was earmarked for another person and so should not have been sent to her but I do not accept that assertion because the respondent, as an employer would need to ensure that all potential candidates are given a fair opportunity to apply.

[74]Regarding the Bad 5 job I have already stated that I find that there were discussions regarding the potential for the claimant to have such a role but there was no immediate vacancy and I do not find that that is a reason why the claimant should not have been sent the Band 4 role that she was.

[75]In relation to the issue of over staffing, I have addressed that at length in terms of my fact findings earlier. I do not consider that if the claimant had returned to work, the recruitment of somebody into the Band 4 role would have meant that the department would be overstaff and as such none of the circumstances of the allegation 1.1.8 give rise to a breach when looked at objectively. The respondent, in my view, was acting with reasonable and proper cause in sending the job vacancy.

[76]In terms of 1.1.9, the evidence of Ms Fiddes was that a contact plan should have been agreed at the outset and there is no evidence before me that it was done. Ms Munoz said that she tried to make contact with the claimant but was unsuccessful. The claimant denies that attempts were made. On the evidence before me I do find that there was not any significant contact between the parties and I was not persuaded by the evidence of Ms Munoz that she had called the claimant and that these calls had gone unanswered.

[77]Despite the fact that there was little contact, the explanation that has been provided for that is that the respondent did not want to put pressure on the claimant and be seen to harass her. As Mr Sudra pointed out in his submissions, many complaints come before this tribunal for that very reason, namely where somebody is on sick leave and an employer unnecessarily contacts them when they do not want to be contacted. It is a very difficult balancing act therefore for the respondent and had they contacted the claimant on a number of occasions, it could have been open to the claimant to have presented a claim for constructive dismissal on those grounds.

[78]As I say, the respondents were in a very difficult predicament. Ms Munoz sought advice from the Human Resources Department who told her to await the Occupational Health report. This was based on the periods that the claimant had been signed off for. Ms Munoz also wrote to the claimant and said that she was happy to take her call at any point if she wanted to. The claimant did not respond to that either by email or call and I find that the respondent was entitled to take that as an indication that the claimant did not want to be contacted. She was not engaging.

[79]After her resignation the respondent, at page 390, invited the claimant to speak to them and she refused. She was well within her right to do so but I do find this supports the fact that the claimant would not necessarily have wanted significant contact with the respondent and the respondents had acted upon this.

[80]It is not for me to establish what the claimant thought in these circumstances but objectively I do not consider that a lack of contact in the circumstances amounted to a breach.

[81]The claimant’s case is that all of these matters acted cumulatively to cause a breach of trust and confidence and I therefore stand back and look at whether putting all of those matters as a whole it does amount to a breach of the implied term and, on that point, I find that it does not. I understand why in the mindset of the claimant at the time, she may have seen these breaches as amounting to constructive dismissal but that is not the test. In correct application of the law, I am not looking at whether the claimant thought that there were breaches but rather whether the employee has without reasonable and proper cause done something which looked at objectively, has caused loss and trust of confidence.

[82]In all of their actions the respondent had reasonable and proper cause. They were following the sickness policy. I have given detailed reason for each allegation and in all of the circumstances I do not consider that a breach has occurred.

[83]On the basis that I have found that there has been no breach of contract, I go no further in terms of whether or not the claimant resigned because of that breach or indeed whether or not she affirmed the contract.

[84]The claimant was not entitled to terminate her contract as a result of the respondent’s conduct and as such, the respondent did not dismiss the claimant within the definition of Section 95(1) ERA 1996. The claim for unfair dismissal is therefore not well-founded and is dismissed. RECONSIDERATION JUDGMENT The claimant’s application for a reconsideration of the Reasons Judgment sent to the parties on 8 July 2022, is refused.

Conclusion

[1]On 22 July 2022, the claimant applied for a reconsideration of the Reasons Judgment sent to the parties on 8 July 2022, on the basis that it is in the interests of justice to do so.

[2]After a hearing on liability heard on 12th to 14 April 2022, I gave judgment on liability. I found that the claimant’s claim for unfair dismissal was not well founded and it was dismissed. The claimant confirmed that her claim for unpaid wages had been settled and this was dismissed upon her withdrawal. Case number: 3303438/2020

[3]In relation to the judgment on liability, I considered carefully the evidence, made findings of fact, and applied the law to those findings in its conclusions.

[4]Having read the claimant’s application I am satisfied that it seeks to challenge the findings of fact and conclusions, and is an attempt to re-litigate the case.

[5]Under rule 71 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, as amended, “ET Rules of Procedure”, a party can make an application for reconsideration within 14 days of the date on which the original decision was sent or within 14 days from the date that the written reasons were sent, if later.

[6]Rule 72(1) provides: “An Employment Judge shall consider any application made under rule 71. If the judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the tribunal shall inform the parties of the refusal. Otherwise the tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application.”

[7]Under rule 72, ET Rules of Procedure, and having regard to the matters above, I have concluded that there is no reasonable prospect of the judgment being either varied or revoked. Accordingly, this application by the claimant for a reconsideration, is refused.