Mrs A Grainger (née Harrington) v CF Social Work Ltd: 3305856/2021

EMPLOYMENT TRIBUNALS

Case No 3305856/2021

Between

Mrs A Grainger (née Harrington)Claimant

CF Social Work LtdRespondent

Before

Employment Judge Postle

Mr Hine (instructed by Solicitor) for respondent

Date 7 June 2022

JUDGMENT

The Claimant was not constructively unfairly dismissed.

REASONS

[1]The Claimant brings claims for constructive dismissal under the Employment Rights Act 1996. The specific claims were identified at a previous Hearing before Judge Welch on 31 January 2020. That was originally a Full Merits Hearing but the parties were not in a position to proceed.

[2]The issues identified for reliance by the Claimant are:2.1 the under payment of the Claimant’s tax and that the Respondent tried to get the Claimant to pay it in August or September 2019;

2.2 in July / August / September 2020, Miss Finlayson accused the Claimant as being the reason two members of staff CO and TR left the Respondent’s employment;

2.3 the failure to provide the Claimant with a new contract from November 2020;

2.4 the failure to sort out the Claimant’s remuneration as a Care Quality Manager from 23 October 2020;

2.5 the failure to supply the Claimant with a mobile phone until 2019 and a laptop throughout her employment;

2.6 excluding the Claimant from Management meetings from November 2020;

2.7 on 11 December 2020, Miss Finlayson having informed the Claimant that she had to collect a foster child from Sudbury;

2.8 on 15 September 2020, Miss Finlayson having criticised the Claimant by email concerning her failure to assist a Director;

2.9 in or around December 2020, the removal of Peter Masters from the Claimant’s team without discussion;

2.10 in December 2020 to January 2021, Miss Finlayson informed the Claimant that all possible work had to be quoted for despite not having the resources to do it; and

2.11 the ‘final straw’ relied upon was on 5 February 2021, Miss Finlayson and Miss Evans informed the Claimant that she would be responsible for a new contract of services to Local Authority without providing her with information concerning this.

[3]The Claimant relies on the breach of the implied term of trust and confidence. The Claimant was employed as a Registered CQC Manager at the Respondent’s, which operates a business as a private social work company working with local authorities, legal professionals and regulatory bodies to provide services to children and families. She was employed from 1 August 2018 to 12 February 2021 when she resigned by letter of 6 February 2021 and that letter of resignation is at page 208 of the Hearing Bundle.

[4]In this Tribunal we have heard evidence from the Claimant through a prepared witness statement and the Claimant’s husband tendered a witness statement. However, as Mr Grainger was not employed by the Respondents at the time and had no direct evidence, much of his evidence contained in that statement was of speculation and the Respondent’s Representative quite rightly did not require to cross examine Mr Grainger. The Claimant had also tendered a number of what purports to be witness statements from ex-employees, but oddly signed by the Claimant. None of these witnesses attended the Tribunal to give any oral evidence.

[5]The Respondents gave evidence through the Respondent’s former Chief Executive Miss Finlayson and Mr Goulson a former Social Work Manager, also at the Respondent’s and again through prepared witness statements.

[6]The Tribunal had the benefit of two Bundles of documents; one from the Respondents which had not been fully agreed and the Claimant produced a further Bundle for reference at the Hearing. It was noted that none of those documents in the secondary Bundle was referred to in the course of the Hearing.

The Law

[7]The law for this case is contained in Section 95(1)(c) of the Employment Rights Act 1996 (“ERA”) and that states, 95. Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if- (a) … (b) … (c) the employee terminates the contract under which he or she 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.

[8]That form of dismissal is commonly known as constructive dismissal.

[9]In a leading case in this area Western Excavating Limited v Sharpe

[1978] ICR221

, the Court of Appeal ruled that for an employer’s conduct to give rise to a constructive dismissal, it must involve a repudiatory breach of contract, as Lord Denning MR put it, “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 or herself as discharged from any further performance. If he or she does so, then he or she terminates the contract by reason of the employer’s conduct. He or she would be constructively dismissed.”

[10]Therefore, in order to claim constructive dismissal, an employee must establish that,a. there was a fundamental breach of contract on the part of the employer;

b. that the employer’s breach caused the employee to resign; and

c. the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.

[11]In order to show, or achieve, there has been a breach of the implied term of trust and confidence, known as the ‘final straw’, not itself a breach of contract, must be an act in a series of earlier acts which accumulatively amount to a breach of the implied term. The act does not have to be of the same character as the earlier acts. Its essential quality is that when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant so long as it is not entirely trivial. The final straw viewed in isolation need not be unreasonable or blameworthy conduct, however, an entirely innocuous act on the part of the employer cannot be a final straw even if the employee genuinely, but mistakenly, interprets that act as hurtful and destructive of his or her trust and confidence in the employer.

[12]The test of whether an employee’s trust and confidence has been undermined is objective.

[13]CF Social Work Limited was previously owned by Miss Finlayson and Mr Ross Evans until 18 December 2020, when the business was taken over by CFSWH Limited by a share transfer. All employees appear to have been what we call TUPE over to the new company. Although Miss Finlayson continued to work for the new Respondents after 18 December 2020 as a Consultant, she was not an employee of the Respondents after that date. It would appear at that stage no new contracts were issued to any staff and at the time the Claimant does not appear to have raised an issue over that; only her salary.

[14]The Respondents accept that due to a payroll error on their part, or particularly the external accountants who deal with the wages, the Claimant’s tax was underpaid in the period August 2019 and September 2019. There was some dispute at the time originally over who was responsible and originally the Claimant was asked to pay a proportion back. However, when the Respondents realised that the mistake was really down to them, they paid the money in September 2019, all of it to HMRC £894.80 as confirmed by a letter at page 140. That was the end of the matter and the Claimant did not have to pay any sums.

[15]It is also accepted that two employees left the Respondent’s employ around the summer of 2020. One because the job where she was going to was less onerous in terms of travelling and that was a Miss Oakham. The other being a Mr Tom Rumsey. However, there is no evidence to support the fact that the Claimant was blamed in some way for their leaving by Miss Finlayson and indeed, it was never put to their witness that she used offensive and aggressive language to which the Claimant says she was subjected to over Mr Rumsey leaving.

[16]It is also true that the Respondent’s contracts provided staff would be given a mobile telephone. The Claimant was largely office based, so clearly not a priority and she does not appear to have made an issue over this, the lack of a mobile telephone in 2018. Particularly there is no evidence that the Claimant constantly raised this with either her Manager, whether verbally or in writing, and in any event a mobile telephone was made available to the Claimant in 2019.

[17]In December 2019, there was need to cover a worker’s shift who had telephoned in to say they were unable to cover their shift, the Claimant seemingly was the only person available and as a Manager and a Safe Guarding Lead and as she was aware of the case and the family was asked by Miss Finlayson to cover. In the event, it appears that the Claimant did not have to cover because someone else was found to cover it. That seems to have been the end of that matter.

[18]There also appears to have been an expectation on the part of the Claimant that the Respondent company would simply accede to her demands so far as any increase in salary was concerned. The Respondents did agree to increase the Claimant’s salary following her registration as the CQC Manager and that went from £26,500 to £28,000. The Respondents made no other commitments to the Claimant to increase her salary. By 11 December 2019, at page 179, the Claimant was indicating she wanted, or believed she was worth £30,000; she may well have been right. She did not get it and informed the Respondent if she did not get the salary she would have no option but to seek alternative employment.

[19]The email exchange on 15 September 2020, at page 152 and 153, again over another apparent staff shortage, was from Miss Finlayson asking for help. She merely asked the Claimant if she could help. When the Claimant responded that she had been busy, Miss Finlayson acknowledged that fact in an email and that was that. There was no inherent criticism of the Claimant in those emails.

[20]The Claimant and Mr Masters clearly did not get on. There were tensions between them. He had not been performing and indeed, had been put on some form of performance improvement plan. Ultimately, he was given another job under new Line Management. Whether it was discussed formally or informally, it is not clear. What is clear, it removed an apparent problem away from the Claimant where she and Mr Masters clearly did not get on.

[21]It is clear also that in the lead up to the tender process, the Respondents were quoting for a lot of work. Some of it, no doubt, was ambitious and that would not be unusual in those circumstances where a company is quoting for new work. Clearly, there may have been differences of opinion as to resources and whether one should quote for that work between the Claimant and Miss Finlayson. Ultimately, it was a Senior Management decision in those circumstances.

[22]As to the suggestion the Claimant was excluded from management meetings, it is not entirely clear what management meetings the Claimant advances as being excluded from. If it is that the Claimant refers to the tender process for the Cambridgeshire County Council contract in November / December 2020, the tender writing was outsourced to a Miss Gear. She was indeed emailing the Claimant and other people in November 2020 about the contract and we see that at page 197 and 199 of the Hearing Bundle, about the progress and information. Given the nature of the tender the Claimant had been aware as a CQC Manager at the Respondent’s that if the tender was successful she would be responsible for overseeing it.

[23]When the Respondents were notified they had been successful, the Claimant was notified and asked to make contact with the appropriate person at Cambridgeshire County Council.

[24]It is clear at that stage, the terms of the contract would not be known by the Respondents until some time later, after formal ratification of that contract was affirmed by the County Council. The Conclusions

[25]It is not entirely clear the reason the Claimant resigned. If one looks at her resignation letter, at page 208 of the Hearing Bundle, it is not a resignation letter which suggests that the Claimant is aggrieved, that there is some sort of ‘final straw’, that she’s had enough, or that the Respondents behaved in such a way that is likely to destroy trust and confidence. There is no mention of that sort of thing which, is odd in a resignation letter.

[26]We also have, in December 2019, the Claimant making it clear to the Respondents that she is considering if she does not get what she wants, i.e. £30,000 will seek alternative employment.

[27]Again, the above does not suggest that the reason for her ultimately resigning was because of some lack of information about the tender or contract with Cambridgeshire County Council as being a final straw. Nor does it suggest cumulatively or singularly that there were matters, as referred to above, which were in the mind of the Claimant when she took the decision to resign.

[28]I am also persuaded, when one looks at letters she wrote to her employers, at page 235 / 236 of the Hearing Bundle, again they are not letters that suggest that the employer was some sort of horrible employer who bullied, intimidated or otherwise behaved in such a manner as likely to breach the fundamental term of trust and confidence. Particularly, she says, “It was good to meet you, sounds like you have a clear vision on where you wish to take the company in the months to come, I am sorry that I will not be part of this journey. I have personal reasons for needing to leave the company but I didn’t want to walk away without taking this opportunity of wishing you well. You have a great team with which to work, both office based and in the community who combine to have a varied and diverse skill set and there is so much potential to grow the company.”

[29]They are not the words of somebody who has resigned in response to breaches by the Respondents, suggesting that the Respondents behaved in a way that was likely and calculated to destroy or seriously damage trust and confidence between the Claimant and the Respondent.

[30]In those circumstances, I conclude that the Claimant was not constructively unfairly dismissed.