Mrs J Doswell v The Royal Borough of Windsor and Maidenhead: 3304695/2024
EMPLOYMENT TRIBUNALS
Case No 3304695/2024
Between
Mrs J DoswellClaimantThe Royal Borough of Windsor and Maidenhead RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge T BrownIn person for claimantDate 28 August 2025
JUDGMENT
(1) The claimant was not dismissed (within the meaning of s 95(1)(c), Employment Rights Act 1996), and therefore the grounds of her complaint of unfair dismissal are not well-founded. Approved by: Employment Judge T Brown 28 August 202516 September 2025 For the Tribunal: Reasons for the Employment Tribunal’s decision having been given orally on 28 August 2025, and no request for written reasons having been made at the hearing, written reasons will not be provided unless a written request is presented by a party within 14 days of the sending of this written record of the decision. 1 of 1
REASONS
[1]I gave oral reasons on the third day of the hearing, following which the respondent requested written reasons, which follow. One of the people referred to in evdience and my reasons is the claimant’s manager. I have expressed some criticism of her in my judgment, which is a necessary aspect of my assessment of the facts and my conclusions, and I refer to a period of sickness absence, which is also relevant to my findings of fact and conclusions. The manager, Ms W, had no realistic opportunity to give evidence or comment on my findings and conclusions. Her sickness absence is a personal matter. I have therefore decided to anonymise her. She has a right to respect for her sickness absence, and professional reputation, as aspects of her private life, and there is the potential for my conclusions to be unfair to her personally if evidence from her would have affected my findings (I stress there is no corresponding unfairness to the parties to the claim, who were free to put such evidence as they wished to before the Tribunal, including through seeking a witness order for Ms W if they wished). Written reasons are now put online, and are searchable. I consider that it would be unjust for Ms W to be identifiable by this means in relation to my written reasons. I have decided that the very limited interference in the open justice principle of anonymising her is justified by what would otherwise be the effects of identifying her by name (namely revealing an aspect of her health and being pubclicly critical of her), and since the only step I am taking is to anonymise her (I make no other order), there is no effect on the freedom of expression of others. 1 of 20 As always this decision can be reviewed, but once publicised, I could not undo the consequences.
Introduction
[2]The respondent is one of the six unitary local authorities in the county of Berkshire, employing over 500 people. The claimant was employed by the respondent from 10 November 2014 to 03 March 2024, in a variety of roles. Her substantive post at the end of her employment was Deputyship Advisor in the Deputy and Appointee team, contributing to the fulfilment of the respondent’s duties as Court of Protection Deputy and DWP Appointee, managing the property and financial affairs of individuals with impaired capacity.[3]There is no dispute that the claimant resigned on 02 February 2024, on one month’s notice.[4]On 06 May 2024, following ACAS early conciliation between 07 March 2024 and 18 April 2024, the claimant presented a claim to the Employment Tribunals, complaining that she had been unfairly dismissed. The claimant’s ET1 said in terms that she had resigned, and so it was clear that her claim was that she had been “constructively dismissed” within the meaning of s 95(1)(c), Employment Rights Act 1996.[5]Her claim was set out in narrative form at box 8.2 of the ET1. There, she gave an account of being asked to apply for a secondment, and of being offered that role verbally. She described discussions with management after that verbal offer which after 2½ months had led to the withdrawal of the secondment opportunity. Her narrative case was that: I felt I could no longer work under that management. I had not sought out this opportunity, the project team had approached me & begged me to consider, I had applied via a full & formal application process & I had my manager's support, also a replacement officer had been recruited into my role. I don't feel that this process should have been allowed to go on as it did, I was led to believe that I would get the secondment. Due to there not being a formal policy in place and receiving no contact/advice from HR prior to or at the time of the application, I could not have been aware that approval from my line manager was not sufficient.[6]The respondent resisted the claim in a response including professionally-drafted grounds of resistance, presented on 04 July 2024. The respondent’s denied that the claimant had been constructively dismissed and contended that she had resigned. The grounds of resistance gave a narrative account of the respondent’s case as to the events leading up to the claimant’s resignation. Its case in summary was that it had sought to support in good faith the claimant’s wish to be seconded, but staffing levels in the Deputy and Appointee team would not allow for it, and there were no other changes that could be made that would enable the claimant to take up the secondment. Sources of evidence 2 of 20[7]In deciding the claim, I had copies of:a. An agreed hearing bundle, 243 pages long;b. A cast list;c. A chronology;d. Witness statements for: i. The claimant; and ii. For the respondent: 1. Ms Allison Killick, Care and Children’s Applications Specialist and Mosaic Migration Lead; 2. Ms Sarah Sneyd, Benefits Assessment and Social Care Finance Lead; 3. Ms Louise Freeth, Assistant Director of Revenues, Benefits, Library & Resident Services; 4. Ms Michelle Dear, Lead Human Resources Business Partner;
Issues
[8]The factual circumstances which had led the claimant to resign were set out in the details of her complaint, but the contractual term which she alleged had been breached (and precisely how) was not clear, and had not been the subject of prior case management. Therefore, at the start of the hearing, I sought to clarify this with the claimant.[9]Initially, the claimant was able to reiterate the facts which she had relied on in treating herself as dismissed, but I explained in different ways the importance of identifying the underlying contractual term on which she relied, since her case might be, for example, that there had been a contractual promise to engage her in the seconded role (which had been breached by withdrawal of the opportunity), or a breach of some other express or implied term.[10]I gave examples—intentionally unrelated to the case—of the kinds of terms which might be relied on and how it might be alleged that there had been a breach of them, and I identified some of the common contractual terms implied by law into all employment contracts, including the implied term of trust and confidence, and the obligation to provide a safe working environment.[11]I then gave the claimant some time to consider how she described the basis of her case (the factual narrative from each side was already clear and detailed in the evidence). The claimant said that:a. The breach related to the creation of an intolerable working environment with an atmosphere that the claimant would not have been able to put up with.b. The claimant did not believe the respondent had followed recruitment and selection code. 3 of 20c. The respondent had breached the claimant’s employment contract by holding her accountable to policies that were not in place.[12]These continued to describe the conduct by which the claimant alleged the respondent had breached the employment contract, but not the express or implied term which had been breached.[13]I stress that, in describing this discussion with the claimant about the basis of her claim, I am not criticising the claimant at all. There had been no prior case management of the claim by the Employment Tribunals, and the respondent had not sought to clarify with the claimant in a request for further information (as it could have done) the term of the employment contract which the claimant alleged had been breached. The claimant is a litigant in person and cannot have been expected prior to judicial intervention to have been asked to consider her case in this way, which may seem unduly technical to non-lawyers, but which is important to a legal consideration of such a claim. The claimant’s narrative case was clear, and had been responded to by the respondent in its grounds of resistance and witness statements. But I explained that it was important for me to clarify this aspect of the claim, and that I could not devise a case for the claimant, nor advise the claimant on the way she put her case, because this would undermine my impartiality.[14]After discussing the structure and timetable for the hearing, I adjourned to allow the claimant some time to consider what contractual term she was alleging had been breached by the respondent’s acts or omissions.[15]On resuming the hearing the Claimant helpfully explained that her case was that there had been breaches of:a. The implied term of trust and confidence, as a result of failed secondment process.b. A breach of an implied contract for the secondment opportunity, because the offer of the secondment had been rescinded after being offered, accepted and being the subject of an agreed salary, other than by reference to the condition which had been identified when the offer was made, namely that it was subject to a satisfactory reference.[16]I was satisfied that this was sufficiently clear for me to consider, and equally sufficiently clear for the respondent to respond to it, and that, although the claim had not been clarified in this way before, both sides had prepared to address the factual grounds of the claim in their evidence. I was therefore satisfied that, although the clarification of the claim in this way only took place at the start of the hearing, there was no prejudice to either party from the timing of this clarification, and that proceeding with the final hearing would be fair to both parties. The conduct of the hearing[17]I heard oral evidence from the claimant and from the respondent’s witnesses (as set out above). Each witness was clearly doing their best to help the Tribunal and 4 of 20 to give an honest account of what had happened. I considered that all witnesses were truthful in their oral evidence, which reflected the contemporaneous documents I had. The hearing was conducted courteously, professionally, and with dignity on both sides. I am grateful to everyone involved for the careful and helpful way in which they explained their case and the evidence. Neither party was represented by a professional advocate, and I explained conventional Tribunal process at the start of the hearing, and made adjustments to the usual process to accommodate the parties’ inexperience, including provision of regular breaks and a more flexible approach to asking questions. I asked questions myself to clarify the evidence and ensure that I understood the facts; where I did so, I gave the parties to ask any further questions arising from mine.
Findings of fact
[18]I reached the following factual findings on the balance of probabilities.[19]The claimant worked as Deputyship Advisor from May 2017 until March 2024, initially on secondment from within the same service area. It is therefore clear that the claimant had prior experience of secondments as a way to progress and develop professionally. There were four people in her team, which was led by Ms W, Team Leader. One of the members of the team was an administrative officer, and the claimant and Ms W were two of three advisors in the team. There could be no doubt that the claimant was well respected within both her own service area and the Borough’s wider service areas, and was a diligent, hard-working employee.[20]The claimant had developed spreadsheets and databases to support her team’s work and to create more efficient processes. She developed a customer management system database, allowing the recording and storage of data necessary to manage the finances of the Borough’s clients. Around the same time the respondent had gone out to tender for new adult social care software. Users of the current software, including the claimant, were invited to be part of a process to determine the needs of each team within the functionality of the new software. Ms W asked the claimant to attend those meetings and the claimant’s database was used as a way of evidencing the functionality required from any new software in relation to her area.[21]The lead for this project was Allison Killick, who worked within the respondent’s Adult Social Care Directorate, a different service area to the Revenues and Benefits area, in which the claimant worked, which was in the Resources Directorate. It followed that there were different lines of management (and different directors) for the areas in which Ms Killick and the claimant worked[22]Ms Killick was clearly impressed with the claimant’s work and her enthusiasm and diligence, and an opportunity was identified for a secondment to Ms Killick’s team as a Data Migration Analyst, to assist in migration from the respondents old “PARIS” system to the new “Project MOSAIC” system. Ms Killick’s unchallenged evidence was that the impetus for the idea of a secondment had come from Ms W and not from Ms Killick herself. Ms Killick and her Assistant Director, Katherine 5 of 20 Wilmette, decided that the opportunity would be available internally only, but across the respondent’s service areas, rather than only within the Adult Social Care Directorate. This was, on the unchallenged evidence, a unique situation within the respondent, in which a secondment was offered borough-wide, rather than solely within the same service area. While that secondment opportunity had to be advertised internally, to meet the respondent’s policy on fair recruitment, by the time of the formal application and assessment process, I am satisfied that the claimant was the front runner, if not the only identified prospect. The claimant therefore saw the recruitment process as a formality, and I find that she was entitled to do so, in light of the discussions to that point. She was in the event the only applicant, and was offered the role in terms which I will come to.[23]The claimant’s case was that the recruitment process had started when Ms Killick made contact with the claimant to discuss an opportunity she thought would come for which Ms Killick and Ms W had identified the claimant as suitable. Ms Killick considered that the duration of the recruitment process to align with the duration of the formal recruitment process for the secondment, that is, an internal advertisement, the shortlisting and interview stages, and the indication to the claimant that she had been successful.[24]In my judgment, these are different, but each valid, ways of considering the series of events that ultimately led to an offer of a secondment to the claimant. Ms Killick’s evidence was that she had spoken to the claimant about whether she would be interested in working on the project in March 2023, and in fact this was one in a series of events which led to an offer of a secondment to the claimant. I will come to the terms of that offer shortly. It is evident that the claimant had been identified as a person who was suitable for the secondment, and the front runner, and there is no dispute that there had been substantial conversations between the claimant and Ms Killick and Ms W about the claimant’s suitability for a secondment to the MOSAIC project. In particular, the claimant and her immediate line manager Ms W evidently spoke about the secondment and Ms W was enthusiastic about the claimant taking up the opportunity.[25]In the meantime, with effect from 01 June 2023, and with the express agreement of Louise Freeth and Sarah Sneyd, the claimant and other members of her team helped with Ms Killick with a separate ring-fenced task relating to a new statutory report, adding some information to the existing PARIS database.[26]From about July 2023, a job description for the secondment opportunity was produced and graded; grading was undertaken by a subject matter specialist for job evaluation and equal pay purposes, and not by Ms Killick or the Project Manager, Sydney Martindale. The claimant’s evidence was that Ms W had told the claimant that Ms Killick had called Ms W while writing the job description for the secondment to understand the claimant’s current salary and elements to be included in the job accountabilities. I do not consider that I need to find as a fact whether or not such a conversation took place between Ms Killick and Ms W—it was not put to Ms Killick that it had, and she did not give evidence about it—but there is no reason to doubt the claimant’s evidence that this is what Ms W told her, or at least that this is what the claimant genuinely understood as a result of 6 of 20 something said by Ms W, and no doubt it contributed to a genuine and understandable perception that a secondment was being created at least with the claimant in mind.[27]In July and August 2023, Katherine Willmette and Allison Killick corresponded with Michelle Dear about the HR implications of the proposal to recruit a Data Migration Analyst. Michelle Dear’s 13 July 2023 email assumed that the secondment would be of an existing member of Ms Killick’s team; she wrote that Ms Killick “currently manages the team that have the skill which one presumes you will be offering this role [sic].”[28]By the time of a subsequent email on 07 August 2023, Ms Dear appreciated that the intention was to offer the Data Migration Analyst role more widely within the respondent. Ms Dear advised Ms Killick (not copying Ms Willmette) (emphasis added): You may wish when your J[ob] A[dvert] is ready to think about maybe communicating further with the A[ssistant] D[irector]'s your thoughts if you are looking at the secondment route. It is important to note that the relevant AD/HOS needs to provide any decision to allow any secondment, and they will look at that in light with their own business needs. [...] You could explain that you are happy for internal staff to be considered with their AD /services approval, and with a secondment this will allow any applicant to go back to their substantive post after the year was up.[29]Ms Dear’s HR advice was sound, and made clear the implications of a crossservice secondment, namely that there would be consequences to losing an employee for the loaning business area which would not be within the “jurisdiction” of the receiving business area. These considerations would not arise on an intra-service secondment, because the same managers would be responsible for the parts of the organisation from which and to which the employee was loaned. Nor would they arise in the same way on an external secondment, where the dialogue would be between an internal directorate and an organisation wholly external to the respondent. I am satisfied that they were not reflected in a policy of the respondent because they were unique to the secondment opportunity which is the subject of these proceedings, and no one had had to consider them before. Ms Dear’s email showed that she had considered them and she was highlighting the issue that would arise and the level—Assistant Director level—at which consent would need to be given. Ms Killick did not expressly build these considerations into the recruitment process for the secondment, for example by requiring the written consent of an applicant’s Assistant Director, although on the evidence, I conclude that she genuinely believed that no issue arose.[30]The consequences of an an inter-service secondment for the loaning business area will always be material, and are not unique to this case or to the respondent. In every case, it will be a consideration how the loaned employee’s work will be covered during a secondment, and the circumstances may vary: the prospective 7 of 20 loaned employee may be redundant or under-deployed in which case, a secondment may be ideal for everyone; at the other extreme, the prospective loaned employee may be indispensable in their substantive role, and it may be very difficult or impossible to operate a secondment of them elsewhere. This case, unfortunately for the claimant, was at the latter end of the spectrum of possible circumstances as a result of a number of events.[31]There is no rule of law, or fixed rule of best employment practice, about when decisions on the feasibility of loaning an employee need to be flagged or taken— as Ms Dear suggested, in some cases, it may be appropriate to make it a condition of application that a manager of a specified grade has approved the application; in other cases, it may be appropriate to make the offer of a secondment conditional on subsequent approval from a manager of a specified grade from the loaning business unit. Part of the difficulty here in my judgment, was an undue focus on the timing or sequence of events, rather than their substance, misunderstanding or miscommunication in relation to Assistant Director level consent and its importance, and also very different expectations and perspectives about the secondment opportunity.[32]Ms Killick’s evidence—see para 22 of her witness statement—was that she was under the impression that Ms W had, as Ms Dear’s guidance emphasised, discussed the possibility of a secondment for the claimant with her service lead, Sarah Sneyd, because the claimant had been identified as a potential resource since earlier in 2023, and the claimant, Ms W and Sarah Sneyd had attended migration meetings. I accept that Ms Killick had no reason to doubt that Ms W’s position as to the suitability of a secondment appeared to have been authorised by more senior managers. Ms Killick knew that she herself did not have the power to make decisions about a secondment and Ms Killick knew that Ms W, her professional peer, would not have had the power to make decisions about loaning the claimant to Adult Social Care. The claimant meanwhile was under the impression from Ms W that a secondment was approved from within her management line, although her evidence was that she had not given thought to who if anyone above Ms W in her line of management was aware of the secondment opportunity and/or had approved it or needed to approve it. In my judgment, it seems likely that had this been the subject of active thought, the claimant would have appreciated that Ms W could not herself make a decision to lose the claimant as a resource for the terms of the secondment, and the claimant did not ask Ms W in terms if Ms W had discussed the matter with Sarah Sneyd and had her express approval to release the claimant on secondment. The evidence of the respondent’s witnesses was that Ms W did not herself have authority to approve a loan of the claimant to the project on secondment, and this was a decision which would need to involve at least Sarah Sneyd (and realistically Louise Freeth). I find that Ms W did not have approval. Ms W herself appears to have appreciated that she would need approval to release the claimant. Ms W no longer works for the respondent and I had no evidence from her, so I can reach findings only on the evidence I do have, and it is important to stress that I have not heard what Ms W has to say. But on the evidence available to me, it appears that there was a failing by Ms W in, on the one hand, allowing the claimant to believe that her transfer on secondment was or would be 8 of 20 approved, while, on the other, not seeking appropriate approval from her managers to that end.[33]On the day before the claimant’s interview. Ms W told Ms Killick that Ms W was amenable to the claimant starting the secondment, if successful, in December 2023 or January 2024. Again, this reinforced Ms Killick’s belief that the claimant’s service at a higher level of management was aware of the secondment opportunity and had approved it. I consider that it was reasonable for Ms Killick to hold that belief.[34]The claimant duly applied for the secondment in November 2023. She was the only applicant. She was shortlisted, interviewed and was successful. The fact that this was an inter-service secondment not an intra-service secondment was plainly a point of difference, and I do not consider that the requirement for the claimant to complete a full application form rather than an expression of interest affects the issues in this claim, other than by highlighting that this was a different sort of secondment because it was not within the same service, and that an active consideration of the nature of the secondment would have made that difference clear.[35]Ms Killick’s evidence was that she told the claimant that they would like to take the next step in offering the role and start conversations with the service to progress a release date. She said that they had made it clear that the claimant’s team leader and the service would need to confirm how they could proceed. I find that Ms Killick said this to the claimant. The claimant, understandably, did not attach much importance to this, or see it as an obstacle or issue, because the claimant’s impression from Ms W was that this was not an obstacle to the secondment, but it was, I find, an express condition of the secondment progressing.[36]Ms Killick followed up the verbal confirmation of success with an email, which offered the secondment, conditional on references and the processing of the correct paperwork on iTrent. iTrent was the respondent’s staff management system. The reference to “paperwork” was a metaphor for the changes that needed to be made on the digital iTrent system. “Paperwork” for the secondment was never processed—that is no changes were made on iTrent; the issue was that this required a start date for the secondment to be identified, and in the event, it never became possible to identify a start date.[37]Ms Killick told Ms W via Microsoft Teams that Ms Killick wanted to offer the claimant the role, but needed to confirm dates with the service. At this point, for the first time (I find), Ms W informed Ms Killick she had not discussed the matter with her manager and asked Ms Killick to “cover for her” should Sarah Sneyd make contact. I have no reason not to accept Ms Killick’s evidence that this was said (she was a credible and reliable witness, as were all of the witnesses), and it reinforces the point that the failing in the process thus far was Ms W’s in failing to take steps that she ought to have taken, hence Ms W’s request for Ms Killick to “cover” for her, which is not something Ms W would have said unless she believed that she had failed to do something which she ought to have done. 9 of 20 Again, I stress that I have not heard from Ms W, who may have a different account of events, and so my findings are reached with that caveat, but I have to reach findings on the basis of the evidence which I do have, not the evidence which I do not, on the balance of probabilities, and these are central issues in the claim. Therefore, I do not consider that I can pass over these facts in reaching a decision, even though they are critical of Ms W, who has not had a chance to respond to them[38]Meanwhile, the claimant was understandably very excited about the secondment opportunity, which she saw as a stepping stone to further career progression as well as a basis for an increase in her pay. She told friends and family that she had been successful. She had no reason, subjectively, to consider that there would be an impediment, based on Ms W’s position to date.[39]It was at this point that Sarah Sneyd became aware for the first time of the prospect of the claimant going on secondment, because Ms Sneyd needed to approve a secondment, Ms W lacked the power to do so and Ms W had not previously raised this issue with Ms Sneyd.[40]It was self-evident, or ought to have been, that if the claimant was going to be absent on secondment, her role would need to be backfilled or some other arrangements would need to be made to cover her work. The claimant worked hard in her substantive role, and there was no suggestion that she was redundant or under-utilised. Furthermore, other staff were about to leave the team in which the claimant worked, which would only increase the work pressure for the claimant.[41]Ms W told Ms Sneyd that the claimant had been successful. In an email from Ms Sneyd to Ms Freeth on 16 November 2023, Ms Sneyd said that Ms W did not really know if the opportunity was a secondment or not. Again, I have no reason not to accept that contemporaneous documentary evidence: Ms Sneyd put that matter in terms to Ms W by email on 16 November 2023 and Ms W did not deny that she had been unsure of the nature of the opportunity. It tends to show a serious lack of thought by Ms W about how the claimant’s absence from her substantive post would be managed. Ms Sneyd contacted Ms Killick. Ms Sneyd asked Ms Killick if the claimant was aware of how a secondment worked. Ms Killick said that she: “[...] did explain the different services would need to liaise to discuss the requirements of the opportunity.”[42]Ms Sneyd explained that the problem was that: Jennifer has told most of the team she has got a new position and will be leaving, without any prior consultation with either myself or the head of service. As you are aware the Deputy and Appointeeship team is very small we have already had one officer off on Maternity and we cant recruit to that 9 month contract. Losing Jennifer will mean half of the team is no longer here, they are already struggling with a full team and have a long waiting list. Any secondment would be conditional on us being able to cover that role either internally or externally. I understand your position in terms of the project but the position that Jennifer holds is crucial 10 of 20 to the smooth running of the team dealing with financially vulnerable clients. In normal circumstances of secondment a discussion would have been had prior to any offer in terms of how we would for[e]see the old position being covered. I will set something up to discuss next week. It does put us in a very difficult position if Jennifer perceives this offer to be a done deal.[43]The claimant’s communication to the team that she would be leaving on secondment had (according to the claimant’s evidence, which I accept) been at Ms W’s suggestion. It was another surprising error of judgment by Ms W in the context of Ms W’s failure to appreciate either the nature of the secondment opportunity, or the need to secure approval from more senior managers for the claimant’s release. It is all the more surprising in the context of Ms Sneyd’s observation to Louise Freeth that “[Ms W] just seemed really stressed about losing [the claimant]”[44]Ms Sneyd followed up by email to Ms W on 16 November 2023, explaining that any secondment would be conditional on being able to cover the claimant’s role, and observing that there had been no prior consultation.[45]Ms W responded by email on 17 November 2023, suggesting that the claimant should be allowed to go on secondment and that someone should be recruited to replace her. That was a fine approach in theory, but I have to say not an evidently realistic approach, given timescales for recruitment. Ms W said that the claimant’s work could not be spread around the remaining members of the team, so this was not a solution to enable the claimant to be released.[46]Ms Sneyd’s email stressed her concern about a lack of prior discussion. There was no absolute requirement for prior discussion; discussions about the feasibility of a secondment could have taken place just as well after an offer of a secondment as before it. But the delay in discussion had resulted in: a significant raising of the claimant’s expectations, and the communication by the claimant of her departure to colleagues, at Ms W’s behest, as well as a communication by the claimant to her friends and family of her success. The only problems in the timing of events were in allowing the claimant to expect that a secondment was a certainty, and allowing the communication of that to third parties before this had been resolved practically by the claimant’s service area. This risked, in addition to the claimant’s disappointment, a significant loss of face for her.[47]While there was a focus on the timing and sequence of discussions with Ms Sneyd therefore, this was not, in my judgment, really the key issue as a matter of policy or procedure, and the claimant herself had not done anything wrong. What matters was that the claimant and others were treating the secondment opportunity as a certainty when it remained subject to arrangements to cover the claimant’s work.[48]The situation also led to a clash of tone, between the claimant, who was pleased and excited and had high expectations; Ms W who had made a serious error and was somewhat combative and obstructive in respect of the problem she had created; and Ms Sneyd and Ms Freeth who were left to manage a difficult 11 of 20 situation in which they were perceived to be blocking something that was a certainty, rather than looking to facilitate something that was only ever a possibility. I accept that the claimant therefore (for understandable reasons) perceived the conduct and tone of Ms Sneyd and Ms Freeth as negative, but objectively viewed, they were, in very difficult circumstances, genuinely seeking to make the secondment work for the claimant, while seeking to manage expectations that this might not in fact be possible.[49]However, Ms Sneyd’s email to the claimant on 21 November 2023, which suggested that certain steps should have taken place before the interview and the offer of a secondment, and which sounded like a statement of policy and process was unhelpful to the situation, because it could well be perceived as blaming the claimant for something (the failure to obtain prior approval for the secondment), when Ms Sneyd knew that the failing was with Ms W. Also, for the reasons I have set out above, the timing of approval was really not the issue. Suggesting that prior conversation was necessary and that this was where the failing lay merely compounded and confused the difficulties of the situation. A discussion of the practicalities of a secondment could just as well take place once it was clear that the claimant was the chosen candidate and in light of the concrete circumstances as they then stood, since, if, for example, the 16 November 2023 interview process had led to the recruitment of a different candidate, there would not have been an issue. Discussing practicalities after the claimant’s appointment was no issue at all, provided that the claimant appreciated that the secondment remained subject to approval, and did not take premature steps to communicate the matter to friends, family and colleagues. I stress that in saying this I am not criticising the claimant, only identifying what was problematic (expectations and communications) and what was not (timing). A suggestion of what should have happened when there was no policy to that effect and when Ms W had made an error of judgment, was not calculated or likely to help the situation, although no doubt Ms Sneyd also had an eye on the need to avoid undermining Ms W’s authority in the claimant’s eyes through criticism of Ms W.[50]The claimant responded to Ms Sneyd’s 21 November 2023 email the same day, questioning the ideal timeframe for notification. The claimant’s observations were valid. The claimant noted that no formal offer for the secondment had been received by her to date. She sought a final decision by Thursday 23 November 2023, one way or another. She said in oral evidence (which I accept) that this was an attempt to protect herself and to draw a line under the situation. I can see that uncertainty might be less comfortable than even a certain refusal, but I do not consider that the absence of a definitive refusal from Ms Sneyd and Ms Freeth on 23 November 2023 amounted to a commitment to release the claimant, and I find that the claimant realised that there remained no commitment to her release, and in my judgment it was reasonable for Ms Sneyd and Ms Freeth to continue to seek to find ways to enable the claimant’s release, rather than reject it outright on 23 November 2023. This is further evidence of their genuine, good faith, attempts to make the secondment opportunity work. 12 of 20[51]At around the same time, as Ms Sneyd’s 21 November 2023 email, another advisor who was part of the claimant’s team of three advisors had just begun a period of maternity leave, and so the team was additionally one advisor down. There was an active recruitment process for maternity cover for this period of temporary absence. In fact interviews for maternity cover took place on 16 November 2023. There were no appointable candidates. Fixed-term contracts of relatively short duration are inevitably more difficult to fill than permanent roles. In fact, it proved very difficult to fill the vacancy. As at 16 November 2023, therefore, the service was faced with uncertainty about covering another temporary vacancy in the team. This made the prospect of losing the claimant as well even less viable.[52]Then on 27 November 2023, Ms W began a period sickness absence. So, of a team of 3 advisors, there were absences in two posts, leaving only the claimant and the administrator. The claimant therefore faced both a heavy workload in her substantive post, and uncertainty about whether and if so when she could begin a secondment, and, with an eye on securing the secondment, she was involving herself in work related to it. I accept that this was a pressured, uncertain and stressful time for the claimant, which she experienced negatively. Ms Sneyd and Ms Freeth likely did not appreciate quite how important the secondment was to the claimant and how much store the claimant set in it, but for the claimant this was a very important part of her professional life and for Ms Sneyd and Ms Freeth this was no doubt one of many things requiring their attention. The clash of tone which the claimant subjectively perceived, therefore, did not, in my judgment, involve anything by Ms Sneyd and Ms Freeth which objectively viewed, was calculated or likely to destroy trust and confidence between the claimant and the respondent, but the claimant’s subjective perception is quite understandable. Situations such as these can sometimes be resolved or ameliorated if people on all sides can take a step back, put themselves in the shoes of the people on the other side, and try to find the common ground from which a solution can be identified. There was a failure, on both sides, to do this.[53]From 21 November 2023 to 31 January 2024, Ms Sneyd and Ms Freeth sought to enable the claimant’s secondment to take place. I accept that the solutions discussed included a job share, but the Mosaic Project considered that the Data Migration Analyst role was itself full-time. After the failure of the 16 November 2023 recruitment process for maternity cover, Claire Gillow, who had been the Deputyship Assistant (i.e., administrator) was appointed to act up in a Deputyship Advisor Role, and Pat Wootton was recruited on a fixed-term 12-month contract. No other potential candidates were available for an immediate start and none had more experience than Pat Wootton who had both financial experience and experience of working in relation to vulnerable people. Had Ms W not been on sick leave, this would have left a full establishment of Deputyship Advisors which ought to have enabled the claimant’s release, but Ms W remained off sick on the basis of a series of short sick notes which did not enable longer term planning for her absence. While Ms Gillow and Ms Wootton covered two of the three Deputyship Advisor roles, neither approached anywhere near the experience or skill or the claimant or Ms W (again, I stress that this is no criticism of them at all; they were new in role) and I accept that Ms Gillow and Ms Wootton could not 13 of 20 have managed alone: they would have been two thirds of a complete cohort, lacking personal or institutional experience of the role, or administrative support. Part of the claimant’s case was that Ms Sneyd or Ms Freeth themselves ought to have covered for the claimant’s role, but neither was a subject matter specialist and both worked full, demanding, substantive roles. I do not consider that this was a realistic or reasonable expectation, and to the extent that this affected the claimant’s beliefs and position it did not help the matter. There also remained a need to backfill Claire Gillow’s substantive administrative post which had been vacated while she acted up.[54]Ms Freeth offered the claimant the opportunity to act up in Ms W’s role during her absence; I accept that this was a good faith attempt by Ms Freeth to give the claimant a development opportunity in the context of a difficult situation, albeit it was not the particular development opportunity which the claimant sought by way of secondment. The claimant agreed, on the basis that this would not affect attempts to enable the secondment, and was given an increase in salary while acting up with effect from 08 January 2024.[55]Ms Freeth was also seeking opportunities external to the Borough to make good the gaps in the Deputyship and Appointeeship team and enable the claimant to be released on secondment: she had approached agencies without success, and other unitary authorities in Berkshire, and via the association of Public Authority Deputies. Ms Freeth’s evidence, which I accept, was that these approaches predated the claimant’s resignation, and they resulted in the provision of some further resource after the claimant had resigned. Ms Freeth chose not to tell the claimant about these approaches, because she was seeking to manage expectations. In my judgment, telling the claimant what steps were being taken while stressing that there were no guarantees may have helped the claimant see what efforts were being made to facilitate the secondment, but it was a fine judgment whether this would help or hinder the situation, by creating expectations or further demands, and I do not criticise Ms Freeth for not doing so.[56]The combination of the day to day work pressure that the claimant was under in her substantive role, and the additional pressure created by seeking to do what she could that related to the secondment opportunity, and the uncertainty around whether she would be able to take up the secondment opportunity all took their toll on the claimant’s mental health, and I accept that she felt under immense pressure and was very unhappy at the situation. She perceived that there was a failure to enable her to undertake the secondment, but I am satisfied that Ms Sneyd and Ms Freeth were doing all that could reasonably have been expected of them and more, and for example, the claimant’s expectation that one of them would take on her role, illustrates the claimant’s expectations which I consider exceeded what was reasonable to expect of Ms Sneyd and Ms Freeth.[57]The claimant and others, including Katherine Willmette and Alison Killick were on leave in December 2023 and January 2024, a time of year when extended leave is common, and productivity is reduced. Ms Killick returned to work from leave on 11 January 2024. 14 of 20[58]Inevitably, there were limits on the time that Ms Killick and the project team could wait for the claimant to be released.[59]Ms Killick and Ms Sneyd met via Teams on 11 January 2024. Ms Sneyd explained that the service was doing everything they could to release the claimant but due to the team leader’s continuing absence, with no indication of a returnto-work date, and the team’s situation in filling a backfill, that they could not confirm a start date. However, Ms Sneyd was still open to discussing a job share opportunity.[60]On 12 January 2024, Ms Killick emailed Ms Sneyd, extending an offer to share the claimant through January, until 19 February 2024.[61]On 25 January 2024, the claimant and Ms Killick attended new system administration training. The claimant was not required to attend this training, but it would obviously have been relevant to the secondment and she was enabled by her managers to attend (a further instance of facilitation by Ms Sneyd and Ms Freeth). During a break time during the course, Ms Killick spoke to the claimant regarding potential timeframes and salary expectations. The claimant saw this as further support for her release on secondment, but I find that Ms Killick had no power to effect that, as the claimant ought to have appreciated. On 26 January 2024, Ms Killick asked Ms Sneyd by email if the claimant could be released by 05 February 2024 and said that if this was not possible, an agency worker would be recruited.[62]A meeting was called for 31 January 2024. The claimant was not invited to this; it took place among those at a higher management grade. Again, in my judgment, on the one hand, it would have been helpful to involve the claimant, but on the other, because of the need carefully to manage expectations, it would enable freer communication if the claimant was not involved. This too was ultimately a discretionary decision for management.[63]At the meeting, Ms Killick explained, as she had been directed to do by her Assistant Director, that the project required an immediate start with a full-time capacity because it had already turned red within the work stream and further delays would impact the timeline. The project was time-sensitive and could not continue to wait for a future full-time commitment. Based on their then operational requirements, Ms Sneyd and Ms Freeth felt unable to agree to the claimant’s immediate release. There was ongoing uncertainty about when Ms W would return to work and the other Deputyship and Appointeeship the Advisors in post were new and lacked experience.[64]Ms Killick, Ms Sneyd and Ms Freeth therefore agreed that the claimant would be informed that the secondment opportunity was no longer viable and would be withdrawn.[65]The claimant had hoped and expected that 31 January 2024 would see confirmation of a start date for a secondment. She chased Ms Killick for an update. On 1 February 2024, Ms Killick told the claimant that, given the 15 of 20 immediate need for the project, she would be seeking to recruit an agency worker to commence ASAP, and they we were not advertising externally for the role.[66]The claimant resigned on 2 February 2024, on one month’s notice. Her letter of resignation did not refer to the handling of her secondment, and did not indicate that she was treating herself as constructively dismissed. It referred only to “the continued increasing pressure and complexities of my role along with the lack of support for our service”, and said that the claimant’s resignation was to protect her own mental health. But the claimant’s covering email to Ms Sneyd and Ms Freeth referred to “an incredibly badly managed secondment process,” her exclusion from formal meetings about the secondment, and in her words “constant reference to a secondment process that doesn’t formally exist and was not referred to at any point in the application process.”[67]The claimant also raised a grievance about the handling of the secondment opportunity. Her evidence was that she had hoped that by raising a grievance she would be able to take up the secondment opportunity, but she did not feel that she would be able to return to her substantive role.[68]Ms Freeth responded to the claimant’s resignation, expressing her sorrow personally and professionally, although she did not encourage the claimant to reconsider her decision; the situation was complicated by the now active formal grievance against, in effect, Ms Freeth and Ms Sneyd which, I accept, affected their perceived ability to manage the situation.[69]The claimant’s grievance was dismissed at stage 1 and stage 2, but since these decisions post date the claimant’s resignation, they are not relevant to the question whether the claimant was constructively dismissed.
Applicable law
[70]By s 95(1)(c) Employment Rights Act 1996, an employee is dismissed if they terminate the contract under which they are employed (with or without notice) in circumstances in which they are entitled to terminate it without notice by reason of the employer’s conduct.[71]The following summary of the applicable law is taken from Omilaju v Waltham Forest London Borough Council [2005] ICR 481 (since approved by the Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1:[72]The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761.[73]It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA [1997] ICR 606, 610E—611A (Lord Nicholls of 16 of 20 Birkenhead) and 620H—622C (Lord Steyn) (“the implied term of trust and confidence”).[74]Any breach of the implied term of trust and confidence will amount to a repudiation of the contract: see, for example, per Browne- Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666, 672A. The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship.[75]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 610H, 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.”[76]A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. Harvey on Industrial Relations and Employment Law, says at para D1 [480]: “Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the “last straw” which causes the employee to terminate a deteriorating relationship.
Conclusions
[77]The first basis of the claimant’s claim is that there was a breach of an implied contract of employment in relation to the secondment itself, in other words, the respondent had offered the claimant employment on the terms of the secondment, the claimant had accepted and the respondent had then breached that contract for the secondment.[78]On the facts, I conclude that there was no concluded contract for a secondment because the offer that was made was conditional on completion of the relevant paperwork and this was never done. It was not done, because there was no certainty about a start date for the claimant. The claimant herself referred to the absence of receipt of a formal offer. Ms Killick in my judgment made it clear to the claimant that the secondment was subject to agreement between the loaning and receiving service areas and this agreement was never reached. There was never a point at which an agreement amounting to a legally enforceable promise to second and to be seconded was reached. I therefore have no been persuaded that the withdrawal of the secondment was itself a fundamental breach of the claimant’s employment contract which entitled her to treat herself as dismissed.[79]Nor have I been persuaded that the withdrawal of the secondment opportunity was a breach of the implied term of trust and confidence. The question whether 17 of 20 the claimant could be released from her post for the purposes of the secondment involved an exercise of discretion for which Ms Freeth was ultimately responsible. The implied term and trust and confidence meant that Ms Freeth and Ms Sneyd were required to exercise that discretion in a way which was not capricious or perverse, or to put it another way, that was rational. In my judgment, the approach of Ms Freeth (and Ms Sneyd) was neither capricious nor perverse. It was objectively reasonable for the respondent to decline to release the claimant from her substantive post while her team was seriously understaffed through maternity and sick leave and where all reasonable attempts had been made to cover these absences. Ms Freeth and Ms Sneyd took reasonable steps to seek to enable the claimant’s release, by trying to find cover internally and externally, and by trying to facilitate sharing the claimant between services. They provided some opportunity to allow the claimant to act up, acknowledging the claimant’s desire for professional progression, and the claimant’s pay was increased to reflect the additional responsibilities she agreed to take on. Equally, I am satisfied that Ms Killick acted rationally, and not capriciously or perversely, in the position that she took that the claimant was needed full-time, and by January 2024 was needed to start urgently, given the time-sensitive nature of the project and the delays which had occurred by then.[80]The claimant was, on the evidence before me, clearly let down by Ms W’s apparent error of judgment in not considering the consequences of an interservice secondment. The undue fixation after 16 November 2023 on the time at which the secondment had been brought to the attention of Ms Sneyd was unhelpful, but I do not accept that there was (as has been alleged) a continuous reference to non-existent policy, and both sides focussed unhelpfully on the timing and sequence of steps in the secondment process.[81]The real issue, as I have identified above, was always whether the claimant could feasibly be released from her role on secondment, and she had no right to be released.[82]While I have been critical of Ms W’s actions, and of Ms Sneyd’s focus on process on 21 November 2023, I do not consider that they amounted to a breach of the implied term of trust and confidence either individually or cumulatively. Nor do I consider the tone of Ms Sneyd and Ms Freeth in communications with the claimant to have been a breach of the implied term either individually or in combination with others matters. It was objectively reasonable for Ms Sneyd and Ms Freeth to seek restore and manage expectations. I[83]In my judgment, the claimant’s absence from meetings to consider how her secondment could be effected was also objectively reasonable because the decisions in question were being taken at a managerial grade and it was important that the managers involved could speak freely and seek to explore options without thereby giving rise to particular expectations or a sense of grievance if particular avenues were not pursued on rational grounds. In my judgment, the implied term of trust and confidence did not require Ms Freeth or Ms Sneyd to assume Ms W’s responsibilities, in Ms W’s absence, alongside their own. The time which passed in seeking to identify a solution between 16 18 of 20 November 2023 and 01 February 2024 was spent exploring in good faith ways to enable the secondment to succeed, and seeing when Ms W might return to work. The respondent managed in fact to recruit to the two posts which would have been left vacant by maternity leave and the claimant’s secondment, but the likely duration of Ms W’s absence remained uncertain, and it was not a breach of the implied term for Ms Freeth and Ms Sneyd to prioritise cover for one of their own teams over releasing the claimant on secondment. The ultimate pressure which led to the withdrawal of the secondment opportunity came not from Ms Freeth or Ms Sneyd but from Ms Killick who reasonably needed a Data Migration Analyst in post and who had herself put off forcing the issue for as long as reasonably possible in the hope that the claimant could start her secondment.[84]The claimant’s feelings about the handling of the secondment were real and genuine, but in my judgment, the respondent’s conduct, objectively viewed, did not in any particular respect, or considered as a totality, breach the implied term of trust and confidence and the difficult situation arose from early intense expectations on the claimant’s part, which could not have anticipated the difficulties in recruiting to the vacancies in the Deputyship and Appointeeship team or Ms W’s extended sickness absence as the team’s manager.[85]While it was not the claimant’ case, I have also considered whether the conduct of Ms W, of which I have been critical, amounted to a fundamental breach of contract. I conclude that it was not. It was unhelpful, but in her own way Ms W was trying to assist the claimant to achieve the secondment. In any event, the claimant did not resign in response to Ms W’s conduct, and further, after Ms W’s conduct, the claimant affirmed the contract under which she was employed, I conclude, by accepting an increase in pay while acting up in Ms W’s role in her absence. This was a clear affirmation of contract. There was nothing after this affirmation which, taken together with the earlier matters, including Ms W’s conduct, amounted to a fundemntal breach of the claimant’s contract of employment. For all these reasons, I conclude that the complaint of unfair dismissal would not be well-founded on this basis (although, again, this was not in any event a basis on which the claimant pursued her claim).[86]I have therefore concluded that there was no fundamental breach of contract by the respondent. It follows that there cannot have been a dismissal within the meaning of s 95(1)(c) ERA, and, therefore, since the claimant was not dismissed, she cannot have been unfairly dismissed. The complaint of unfair dismissal must therefore fail. Postscript[87]This very sad situation, which has seen the end of the claimant’s long and distinguished career at the respondent, appears to be the result of several unfortunate circumstances, no one of which by itself undermined the prospect of a secondment for the claimant, and no one of which involved any of the participants in this hearing doing anything objectively wrong. As so often in the cases that come before this tribunal, a situation simply ran away with itself to the 19 of 20 disadvantage of both the claimant, whose employment has ended, and the respondent, which lost the valuable work of the claimant. Approved by: