Ms S Dacey v Cambridge and Peterborough Fire Authority: 3304786/2020
JUDGMENT
It is the judgment of this tribunal that the claimant’s claim for constructive unfair dismissal fails and is dismissed. JUDGMENT having been sent to the parties on 3 March 2022 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunal Rules of Procedure 2013, the following reasons are provided:REASONS
[1]The Claimant, who was employed by the Respondent between 8 May 1989 and 2 January 2020, was latterly employed as a Watch Commander working in Control. She resigned by her letter of 29 November 2019. She presented a claim to this Tribunal on 16 May 2020.[2]The claim was initially allocated to the ‘fast track’ and standard directions were given. The Hearing date of 14 and 15 June 2021 was originally listed. It became obvious, however, that this was insufficient to hear the matter and the matter then came before me on 11 May 2021 for a Telephone Preliminary Hearing to deal with case management issues.[3]I vacated the original hearing date and relisted the matter for four days and this is that four day Hearing.[4]The Claimant is not professionally represented and her claim is home made. She is assisted by her Father who also worked in the Fire Service. The Claimant’s pleaded claim was at that time unclear. At paragraph 8 of my Preliminary Hearing Summary, I confirmed that after detailed discussions with the parties, the Claimant sought to rely on a number of breaches perpetrated by the Respondent to the implied term of trust and confidence which she says occurred between November 2018 and her resignation on 29 November 2019.[5]At that time I did not have the file before me, nor a copy of the Claimant’s resignation letter. I therefore Ordered the Claimant to provide a definitive list of breaches that she says were sufficient to constitute a fundamental breach on which she relied in resigning. Such a list was produced but was again rather woolly and that list was not subject to scrutiny or further case management prior to this trial. Some items on the list were not breaches, they were just statements of fact and some of the issues on the list post dated the Claimant’s termination of employment.[6]Therefore, during the course of this trial, both in the hearing of a considerable amount of evidence from the Claimant and in discussion with both the Claimant and her Father during the informal process of submissions we adopted, I was able to refine and definitively identify the alleged breaches upon which the Claimant relies.[7]I am bound to say that over the four days that this Hearing has been in progress, I have heard a huge amount of evidence and historical background to these proceedings. I heard evidence from the Claimant and for the Respondent from Jenny Illingworth Station Commander, from Simon Newton Area Commander and from Jonathon Anderson the Assistant Chief Fire Officer. I had before me a Bundle split into five tranches of eye watering proportions running to some 870 pages. I do not propose to repeat the evidence, nor refer to large tranches of the plethora of documents that were in front of me and I shall confine myself to the alleged breaches which the Claimant identified as being those she relies upon in entitling her to treat herself as dismissed.[8]The background, I must point out however, has all been helpful.The Issues
[9]The identified breaches upon which the Claimant therefore relies are as follows:[10]The Respondent’s decision to temporarily appoint Heidi Lindsay to the role of Temporary Station Commander in January 2019.[11]The Claimant worked on shift work as a Watch Commander in the Control. She had varied the usual shift for such role from two nights and two days, to two nights and one day. The Claimant quite properly had for some years had ambitions to better herself and secure promotion from Watch Commander to Station Commander. In order to achieve this on a permanent or substantive basis, it is common ground that she would have needed to have succeeded at an Assessment Centre. A process which involves specific examination under assessment conditions involving competency based interviews in scenarios, including on some occasions, role play.[12]The opportunity to put oneself forward for such Assessments arises frequently throughout the year. The Claimant had attended four such Assessments but had sadly not been successful on any of those occasions.[13]However, those that had attended an Assessment and failed were not precluded by that failure from seeking and obtaining a temporary appointment to say a higher role to assist them in gaining the necessary experience, confidence and impetus to in the future pass an Assessment and seek substantive promotion.[14]The first alleged breach was one such occasion. The Claimant’s case is that the decision to offer the temporary role of Station Commander to Heidi Lindsay was a breach of contract of the implied term of trust and confidence.[15]Heidi Lindsay was appointed the temporary role in January 2019. Heidi Lindsay worked on the Day Shift and I heard evidence that her temporary elevation was one that meant that her role did not have to be back filled or covered in her absence. Whereas the Claimant, had she been given the role, her role would need to be covered or back filled and as she worked on shift it would have been at that time a very difficult proposition for the Respondents to do this.[16]Both Jenny Illingworth and Jonathon Anderson explained that 2019 was an extremely difficult year for the Control area of the Respondent and that it takes a number of years to train up those working in Control and there was a significant shortage of experienced individuals in Control at that time. This meant that from a business point of view it was not feasible to release the Claimant to the temporary role at that time. The Respondent’s duty to be able to provide sufficient individuals to perform their function is a statutory duty and this principle is a significant overriding principal for them.[17]The Claimant argued that she should have been chosen above Heidi Lindsay as she had attended more Assessments than Heidi Lindsay and had scored higher even though they both failed at an Assessment. The policy for assessing elevation to such temporary roles, however, makes it clear that neither of those issues are a factor, something which the Claimant subsequently accepted in cross examination.[18]It was unfortunate that the situation in Control was such that the Claimant could not be spared. But it was a necessity of business management at the time and I accept the Respondent’s evidence on this and that it would also have been disproportionate and impracticable to let the Claimant have the temporary elevation and then forcibly transfer Heidi Lindsay from the Day Shift to cover the Claimant’s shift role.[19]The Claimant initially raised an informal Grievance about this with Jonathon Anderson, after which there was a delay in dealing with issues raised by the Claimant because Mr Anderson thought he had delegated that to the HR and there was a miscommunication between him and HR. I accept that there was nothing sinister in this and Mr Anderson accepted that this was just an error.[20]The Claimant then pursued a formal Grievance which was heard by Group Commander Gary Mitchely who heard that Grievance. He did not uphold the Claimant’s Grievance. Sadly, Mr Mitchely has since passed away.[21]The second alleged breach arises out of the same scenario, as after only a couple of weeks Heidi Lindsay decided that she no longer wished to continue in the temporary role and it was still then not offered to the Claimant. The Claimant says this amounts to a further breach.[22]The Respondents say that the position with the staffing of Control on shift had not altered in that time and they simply could not spare the Claimant for the reasons previously expressed.[23]Once again, this was an unfortunate circumstance for the Claimant in that she was not offered that temporary role of Station Commander.[24]Breach 3 relates to a Disciplinary Investigation which was undertaken concerning allegations raised verbally, not in writing, that the Claimant had helped a probationer in the furtherance of an Assessment the probationer was undertaking.[25]Superiors can provide guidance and some assistance to those undergoing an Assessment, but such assistance must be limited. The suggestion was that the Claimant had gone much further than that which was permitted. The matter was initially investigated and initiated in March 2019 and dealt with by way of formal investigation by Jenny Illingworth from whom I heard evidence.[26]She conducted a series of interviews and informal investigations in respect of which were simple verbal allegations and had not been reduced to writing. The matter was then taken out of her hands and elevated to a more formal investigation by Paul Oliver. The Claimant corresponded with Paul Oliver and he provided certain information about the nature of the investigation and invited her to an investigatory meeting. She refused saying that she had insufficient detail.[27]Ultimately, however, Paul Oliver concluded that having investigated the matter there was insufficient evidence to proceed and decided that there was no case to answer.[28]The Claimant argues that the way in which this process was conducted amounts to a breach. She argues that it could have been dealt with by way of an informal chat as the allegations had never been formalised and were only nothing more than inuendo and rumour. In fact she said that Paul Oliver indicated his agreement with that view. Nevertheless, the end result was that the Claimant had no case to answer. I accept the evidence of both Jenny Illingworth and Jonathon Anderson that it would have been quite wrong to ignore those allegations and do nothing. The outcome was favourable, although I do accept that the whole process was very difficult for the Claimant as such things always are. Perhaps the matter could have been handled somewhat better if more detail had been provided at an earlier stage to the Claimant. Also, perhaps it could have been dealt with by virtue of sticking with the informal investigation that Jenny Illingworth was carrying out, long enough at least for her to speak to the Claimant, which did not happen.[29]The Claimant pursued an informal Grievance and this was dealt with by Station Commander Scott Fevier. He indicated that some shortcomings in the process had occurred and he made recommendations. Yet the Claimant elevated the matter further to a formal Grievance to Group Commander Paul Clark who gave an outcome to that formal Grievance in a letter much later in the year dated 22 November 2019.[30]Breach 4 relates to the appointment of Carly Smith who is married to DC Stuart Smith and she was allowed to transfer into a role on a job share basis on the Day Watch when returning from maternity leave in June 2019.[31]The operational balancing board (OBB) had originally identified that role as a new role which should be advertised as new roles are required to be. However, such decisions are subject to ratification. This decision was not ratified as GFCGC Kevin Napier intervened and explained that there had been an agreement at a CFC Management meeting prior to the OBB meeting that the post was not new and would be filled by transfer.[32]Carly Smith did have an application for transfer in known as a P36. She was ultimately given the role as Day Watch Commander on a two and a half day job share with someone else.[33]However, some months later she applied for and secured a further post. The Claimant did not have a transfer request in and said she did not know about the role, or indeed the P36 process until September 2019 when she did put in such a request.[34]In cross examination she said it was a role she would have applied for but was less certain when questioned about whether she really would have applied for it on a job share basis, knowing that it was a job share position. I am not persuaded that this is a role that she would have wanted on a part time two and a half day week basis. BREACHES 5 AND 6[35]These alleged breaches relate to the two jobs the Claimant applied for in September 2019 and in respect of which she interviewed. One was a secondment and one was a six month temporary role. The Claimant lost out at interview at both jobs to Carly Smith and Donna Claydon.[36]The Claimant seemed to accept in cross examination that the interview process was fair and that she had simply been out performed on the day by the others. Her unhappiness stems from the fact that she says the job should not have been advertised as new roles and should have been reserved for those who had attended an Assessment previously and who were seeking a P36 transfer as she was at that time.[37]Simon Newton had in fact spoken to her and essentially offered her to choose one of those posts before withdrawing that offer upon declaring that in fact, they were new posts and therefore they were required to be advertised.[38]Breach 7 concerns a collective Grievance of which the Claimant was part, raised through the Union concerning the appointment in June of Carly Smith into the Day Watch role. It was conducted by John Fagg and an outcome was produced on 20 November 2019. That outcome recognised shortcomings in the promotion and transfer operation and indicated that there were inconsistencies and uncertainties in the way in which posts were filled and where individuals who had sought P36 transfer were invited or whether new roles were advertised or not. In essence, therefore, the collective Grievance was partially upheld.[39]The Claimant relies on this as a Breach that she relied upon in resigning. However, in my judgment this cannot be so. She did not have this Grievance before her until 20 November 2019 and on her own evidence she had applied for and secured another job prior to that. She had already made up her mind to leave and therefore this Grievance outcome could not on any analysis have formed part of her decision to leave.[40]She confirmed in submissions that she relied on the last straw as being the failure to secure either of the posts she applied for in September 2019. It was after that she had made up her mind to leave. This is supported factually by the fact that on 25 October 2019 she was actually offered temporary roles, the kind of which she had been seeking, but she turned them down. She made it clear in cross examination that she had had enough by then.[41]Breach 8 is the outcome of the formal Grievance conducted by Paul Clark which the Claimant received on 22 November 2019. Once again, this occurs after the final straw that the Claimant relies upon and her decision to leave also took place before she received this. This cannot therefore be a reason for her decision to leave in the same way that Breach 7 cannot be.[42]I am bound to say that the Claimant had been very unfortunate throughout the time span we have examined in this process. Missing out on roles she was seeking to try in order to further her development and hopefully ultimately to pass an Assessment and secure substantive promotion to Station Commander.[43]I have a huge amount of sympathy for her plight and I found her to be an honest, wholly believable and genuine witness.[44]I also must say that I found the Respondent’s witnesses also to be exemplary in their evidence and I have no reason to disbelieve what they told me. Where mistakes were made, they admitted them and there were mistakes as highlighted in the Grievance outcomes I have referred to and in the Inspection Reports, I have also read which were in the Bundle and to which I was referred by Mr Dacey.[45]Simon Newton, for example, admitted he had inadvertently misled the Claimant over the September 2019 job roles. Jonathon Anderson admitted a communication failure between himself and HR relating to the first Grievance. The Disciplinary Investigation process was not perfect and could have been handled better. The Claimant was unfortunate in the Heidi Lindsay situation as the business circumstances at the time precluded her from being considered for the role which at a later date she might well have been.[46]All of this led the Claimant’s self-esteem and worth to be reduced. She eventually decided to leave after the September 2019 failures and I genuinely believe that she did leave for the reasons she has indicated other than the two Grievances to which I have referred. She was particularly upset by the Disciplinary Investigation and that is clear in her resignation letter. She got to the stage where she felt she could not go on and was even off sick as a result. I therefore have an enormous amount of sympathy for her position.[47]But I am bound by the Law.The Law
[48]The Claimant’s claim is for her to prove and it occurs under Section 95 of the Employment Rights Act 1996. She has to show that the behaviour of the Respondent was such that she was entitled to treat herself as dismissed. This is called constructive dismissal. The burden is on her to show that the Respondents treated her so badly that they breached fundamentally either express or implied terms of her contract. Here she argues that there was a series of breaches six of which I have identified as relevant. She says these collectively or individually amount to a breach so fundamental that it goes to the very root of her contract entitling her to treat herself as dismissed. She has to prove that.[49]The case of Western Excavating (ECC) Limited v Sharp [1978] ICR 221 in the Court of Appeal remains a leading Authority on constructive dismissal.[50]The reasonableness or otherwise of the employer’s actions are not relevant. An employee cannot succeed by arguing that they left because the actions of the employer were unreasonable, that is not sufficient. The range of reasonable responses test does not apply in these circumstances. The test is objective and the bar for an employee pursuing a claim such as this is a high one. Employees who resign in reliance of alleged breaches always run a risk that in walking away from their job they will not be able to clear that very high hurdle set out by the Legal Authorities. They must resign because of the alleged breach and not leave for another reason. They must also resign within a reasonable time of the breach otherwise they will lose the right to do so and the contract will be affirmed.Conclusions
[51]I find that the Claimant genuinely resigned as a result of what she felt was the treatment she had received in the alleged Breaches 1 – 6. I believe her explanation of why in the long goodbye note to her colleague she made no mention of the real reason. That is entirely plausible and understandable.[52]However, I cannot conclude, despite the Respondent’s shortcomings, that Breaches 1 – 6 either individually or collectively on the last straw doctrine amount to a breach of contract so fundamental that the Claimant is entitled to resign and treat herself as dismissed.[53]The Claimant has been unfortunate, but none of the Respondent’s shortcomings are anywhere near enough sufficient to clear the hurdle amounting to a fundamental breach of any express or implied term of the Claimant’s contract.[54]For those reasons, the Claimant’s claim must fail and is dismissed. 1 April 2022