Ms T Panteli v The Greek Orthodox Community of Saint Demetrios of Edmonton (Charity Number: 281574) and G George: 3310407/2023

EMPLOYMENT TRIBUNALS

Case No 3310407/2023

Between

Ms T PanteliClaimant

The Greek Orthodox Community of Saint Demetrios of Edmonton (Charity Number: 281574) R1 Gina George R3Respondent

Before

Employment Judge Quill; Ms P Barratt; Ms J Hancock

Date 14 March 2025

JUDGMENT

Liability(1) The Claimant was dismissed by the Respondent within the definition in section 95(1)(c) of the Employment Rights Act 1996 (“ERA”). In other words, there was a constructive dismissal.

(2) The dismissal took effect on 6 July 2023.

(3) The complaint of unfair dismissal is well-founded. In other words, the dismissal was unfair.

(4) The complaint of breach of contract succeeds and the Claimant is entitled to 12 weeks’ notice of dismissal and did not receive any notice of dismissal.

(5) The complaint of harassment related to race fails and is dismissed.

(6) Therefore all complaints against R3 have failed and are dismissed, and only R1 is liable for the complaints which we have upheld. Remedy

(7) The grand total which the Respondent is ordered to pay is £26,976. It is ordered to pay that sum to the Claimant within 28 days of the date on which this judgment is sent to the parties.

(8) The breakdown of that grand total is as follows. (i) Damages for Breach of Contract (re notice period) £4,607.84 (ii) Basic Award for unfair dismissal £12,750.00 (iii) Compensatory Award for unfair dismissal £8,618.16 Being £8168.16 for loss of earnings + £ 450 for loss of statutory rights (iv) Section 38 Employment Act 2002 £1,000.00 Being 2 weeks gross pay

(9) There is no adjustment (either in the Claimant’s favour or in the Respondent’s favour) in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992 (for alleged unreasonable failure to comply with requirements of ACAS code).

(10) The Claimant had no benefits in the relevant period and the Recoupment Regulations do not apply. Approved by: CERTIFICATE OF CORRECTION Under Rule 67, the written reasons document EMPLOYMENT TRIBUNALS Claimant: Ms T Panteli Respondent: The Greek Orthodox Community of Saint Demetrios of Edmonton (Charity Number: 281574) R1 Gina George R3 Heard at: Watford Employment Tribunal (In public; In person) On: 10 to 13 March 2025 Before: Employment Judge Quill; Ms P Barratt; Ms J Hancock Appearances For the claimant: Mr G Panteli (family member) For the respondent: Ms M Wahabi, consultant CORRECTED WRITTEN REASONS Introduction

[1]On 13 March 2025, judgment with reasons was given orally for liability. Later the same day, judgment with reasons was given orally for remedy. The written judgment was sent to the parties on 22 March 2025.

[2]A request for written reasons was subsequently made in writing in accordance with the rules. These are those reasons.

[3]This was a claim by a former employee of R1, who alleged that she was constructively dismissed. R3 was also an employee of R1, and the Claimant alleged that there was an incident of harassment related to race by R3 The Claims and The Issues

[4]There was a preliminary hearing before REJ Foxwell on 3 May 2024, at which the Claimant was represented by a solicitor, and the Respondents by a paid external consultant. [Bundle 48]. Page 1 of 62

[5]Prior the evidence being heard, the parties confirmed that, notwithstanding what is written in the Case Summary from that hearing, or in paragraph 8 of Particulars of Complaint on [Bundle 17], there is no suggestion that the Claimant resigned on 30 June 2023. Rather the resignation was effected by the emails on [Bundle 77-79], the earliest of which was 6 July 2023.

[6]The following list of issues was produced. [Bundle 53].

[1]Unfair dismissal1.1 Was the claimant dismissed?1.1.1 Did the respondents do the following things:1.1.1.1 Inform Christiana Kromidias of “Enfield Early Years” that the claimant had resigned and /or that the claimant would be “sacked within 6 months of the nursery being taken over”. The claimant’s case is that Ms Kromidias said these things to her (the first in front of the third respondent and her colleagues Gina and Nisha) on 1 June 2023. The claimant contends that Ms Kromidias must have been told these things by the respondents;

1.1.1.2 On or about 26 June 2023 unjustly suspending the claimant;

1.1.1.3 On 29 June 2023 the third respondent saying to an Indian colleague, Sunita Bowpowsingh, as she was tending to a child who had dropped off a table, “Indians eat off the table anyway”;

1.1.1.4 The respondents failing to provide the claimant with reasons for suspending her despite her requests made on 30 June and 6 July 2023;

1.1.1.5 The respondents failing to deal with the claimant’s grievances of 9 September 2022, January 2023 and/or 26 June 2023 in a timely manner.

1.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:1.1.2.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and

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

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

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

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

1.2 If the claimant was dismissed, what was the reason or principal reason for dismissal - i.e. what was the reason for the breach of contract? The respondent alleges misconduct or SOSR.

1.3 Was it a potentially fair reason?

1.4 Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant? Page 2 of 62

[2]Remedy for unfair dismissal2.1 Does the claimant wish to be reinstated to their previous employment?

2.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?

2.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

2.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

2.5 What should the terms of the re-engagement order be?

2.6 If there is a compensatory award, how much should it be? The Tribunal will decide:2.6.1 What financial losses has the dismissal caused the claimant?

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

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

2.6.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

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

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

2.6.7 Did the respondent or the claimant unreasonably fail to comply with it by [specify alleged breach]?

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

2.6.9 If the claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct?

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

2.6.11 What is the relevant statutory cap and does it apply?

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

2.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?

[3]Wrongful dismissal / Notice pay3.1 Was the claimant dismissed (see paragraph 1.1 above)?

3.2 What was the claimant’s notice period?

3.3 Was the claimant paid for that notice period?

3.4 If not, was the claimant guilty of gross misconduct? / did the claimant do something so serious that the respondent was entitled to dismiss without notice? Page 3 of 62

[4]Harassment related to race (Equality Act 2010 section 26)4.1 Did the third respondent do the following: 4.1.1 On 29 June 2023 saying to an Indian colleague, Sunita Bowpowsingh, as she was tending to a child who had dropped off a table, “Indians eat off the table anyway”;

4.2 If so, was that unwanted conduct?

4.3 Did it relate to race?

4.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

4.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

4.6 The first respondent has not raised the statutory defence and will therefore be jointly and severally liable with the third respondent to the extent that this allegation is proved.

[5]Remedy for discrimination5.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

5.2 What financial losses has the discrimination caused the claimant?

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

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

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

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

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

[6]Remedy issues6.1 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

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

6.3 Is it just and equitable to increase or decrease any award payable to the claimant?

6.4 By what proportion, up to 25%?

6.5 When these proceedings were begun, was the respondent in breach of its duty to give the claimant a written statement of employment particulars or of a change to those particulars? Page 4 of 62

6.6 If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay.

6.7 Would it be just and equitable to award four weeks’ pay?

[7]Prior to the oral evidence, the parties agreed that the list was correct subject to the fact that the Claimant’s side sought an amendment (which was agreed) to change the date specified in paragraphs 1.1.1.3 and 4.1.1 to 28 June 2023.

[8]During the evidence phase, it emerged that it was common ground that the suspension was actually on 30 June 2023.

[9]In closing submissions, it was agreed by the Claimant that the third of the dates in paragraph 1.1.1.5 should be 30 June 2023 (which is how the Respondent had interpreted the allegation in any event).

[10]There had originally been three respondents. The claim against R2 was dismissed on withdrawal.

[11]For each of the three original respondents, there had been ACAS early conciliation commencing on 6 July 2023 and finishing on 21 July 2023. The claim was presented on 18 August 2023, which was less than one month after the end of early conciliation. Thus for acts/omissions on or after 7 April 2023, the claims were in time. Since all the complaints were based on alleged acts/omissions on or after 7 April 2023, they were all in time. The Hearing and The Evidence

[12]The hearing took place in person save that, in advance of the hearing, R3 had been given permission to attend by video for the reasons stated in the written application.

[13]We had a bundle of around 240 pages (plus index)

[14]There were 3 witnesses, each of whom had produced a written statement. Each witness swore to the accuracy of the statement and answered oral questions from the other side and the panel. They were:14.1 The Claimant

14.2 Michael Eracleous, a Trustee of R1

14.3 Gina George (“R3”), a manager employed by R1

[15]The Claimant gave evidence on Day 1, and both of the Respondents’ witnesses gave evidence on Day 2. Page 5 of 62

[16]We flagged up to the parties before the evidence phase that we had some queries:16.1 We wanted to know where the appendices were for the Grievance Report [Bundle 94] as laid out in paragraph 11 of the document.

16.2 We wanted to know if there was any letter/email sending it to the Claimant

16.3 We wanted to know if the document on [Bundle 64] was complete, because it did not look that way.

16.4 We wanted to know if documents connected with any disciplinary allegations had been searched for by the Respondent and disclosed to the Claimant.

16.5 It turned out that [Bundle 239 and 240] were the Claimant’s documents. The Respondent took no issue with the accuracy of [Bundle 240]; we ordered that if the Respondent accepted that [Bundle 239] was indeed what the index described it as, then we wanted the full document (the version the Claimant had been able to supply was cropped to the point of being fairly useless, as neither sender’s nor recipient’s details were included).

16.6 We said that since [Bundle 239 and 240] were in the bundle (apparently acknowledgements of the respective resignations of Shampa and Nisha) then we should also have the resignation letters themselves; at the least, they should be disclosed by the Respondent to the Claimant.

16.7 We said that we thought it slightly odd that documents about the resignations of Shampa and Nisha had been deemed to be sufficiently relevant, in circumstances where we had no documentation about Sunita’s resignation / termination. We said that we were not going to make any order of our own initiative, and that it was up to the parties to make any application to us if either of them sought to have such documents disclosed / added to bundle. No such application was made.

[17]We noted that both sides were represented1 and therefore we proceeded on the assumption that both sides had agreed to documents marked “without prejudice” on their face being included in bundle. We asked if this was because they agreed that the documents had never been without prejudice, or whether they had been without prejudice but that privilege was waived. The parties were not in complete agreement over that.

[18]We asked why some portions of letters had been redacted. Firstly because this did not seem necessary, given that privilege (if any) was waived and the parties 1 The Claimant was represented by solicitors during the preparations, though they did not provide advocacy for the final hearing. At the final hearing, the Claimant was represented by her son, who is a solicitor, though not an employment specialist, and not an employee of the firm of solicitors representing the Claimant. Page 6 of 62 had agreed we would see the items. Secondly, there were other documents in the bundle which contained allegations about what the Claimant had asked for. Both parties stated that the redactions should stay in place, and they did not think anything that was relevant to our decisions had been redacted.

[19]Before the evidence phase, we were given the page numbers, from the bundle, of the appendices to the grievance report. It emerged that none of those referred to item 29 in the index “Meeting Notes re above Grievance on the 30th June 2023” for which the given date was 7 July 2023 and the page numbers [Bundle 80-84]. We were told that that was a mistake in the index and the notes (purportedly from interviews with Sunita, Nisha and R3) were from an investigation.

[20]The Respondent has been unable to trace any record of the grievance report having been sent to the Claimant shortly after it was written.

[21]On Day 2, we ordered some documents to be disclosed, one of which was the meeting notes for September 2022 Trustee meetings.21.1 We received the email from the Respondent's representative dated 11 March at 23.20 with various attachments.

21.2 We received the email from the Respondent’s representative dated 12 March at 11.20, which attached the September minutes, only after the panel had asked the clerk to send a further chaser. Inferences from the disclosure of document exercise

[22]The minutes of the Trustee meeting of Tuesday 27 June 2023 are extremely important and relevant. During Mr Eracleous’s cross-examination he stated that he was aware of the list of issues and of the disclosure orders made at the hearing before REJ Foxwell. The 27 June minutes show that the decision to suspend the Claimant was made on 27 June, contrary to Mr Eracleous’s written statement, and oral evidence, which both stated that the decision was made after the Claimant’s email in the morning of 28 June.

[23]We have considered whether this could be an accidental oversight. Our decision is that this document is so directly relevant to the issues in the case that its nondisclosure means that Mr Eracleous’s credibility is adversely affected, and it also means that we are potentially sceptical about R1’s claim that all other relevant documents have been disclosed.

[24]One of the late items was an email exchange on 12 July 2023. This is consistent with Mr Eracleous’s oral evidence, and also with the June 2023 minutes, that Demetris Demetriou and Elias Elia were tasked with carrying out some Page 7 of 62 interviews. We are not necessarily satisfied that this is the only email exchange on the subject. However, even it is, the documents on [Bundle 80 to 84] are of only limited value given that the terms of reference for the investigation are unclear, there is no clear account of the specific questions put or specific answers given, the notes were not sent to the interviewees to check and neither of the interviewers has given evidence and nor has Nisha or Sunita.

[25]The above comments about R1’s failures do not reflect on R3. We have no reason to doubt R3’s assertion that she left all documents behind when she left the workplace for the last time in around July 2023, which is before the claim was presented. The findings of fact

[26]The Greek Orthodox Community of Saint Demetrios of Edmonton (“R1”) is the First Respondent to this claim. R1 is a charity. It is administered by trustees, one of whom is Michael Eracleous.

[27]As recorded in paragraph 34 of the summary from the preliminary hearing [Bundle 52]: The second respondent is the board of trustees of the first respondent. Upon [respondent’s representative] confirming that the first respondent was the claimant’s employer, [claimant’s representative] withdrew the claim against this respondent (in fact a group of individuals) and I have dismissed it accordingly.

[28]It is therefore common ground between all three remaining parties to the claim (as well as the original second respondent) that the Claimant was an employee of R1.

[29]One of R1’s activities was to operate St Demetrios Playgroup, which was regulated by OFSTED [Bundle 219]. The witnesses have referred to this as “the nursery”. The nursery did not have its own self-contained premises, but rather operated with a building owned by R1 which was used for several purposes.

[30]Gina George (“R3” or “Ms George”) is the Third Respondent to this claim. R3 had been employed by R1 since around 2010. Her role was Manager of the nursery. Her employment ended after the Claimant’s employment ended, but not long after. R3’s employment ended in July 2023.

[31]The Claimant was an employee of R1 from around 2005. Her role was Deputy Manager of the nursery. The Claimant ended the employment relationship by communications which will be discussed in more detail below. It is an alleged constructive dismissal. Page 8 of 62

[32]Some time prior to the summer of 2022, Nisha and Sunita became employees of the nursery.

[33]In September 2022, a letter (“collective grievance letter”) was sent to the Trustees raising concerns about the nursery [Bundle 59]. It was signed by all 4 employees working in the nursery at the time, namely: Ms George, the Claimant, Sunita and Nisha. The seven numbered paragraphs can be summarised as:33.1 When they came to the nursery area for the start of the academic year, various items which had nothing to do with the nursery had been stored there, whereas their own equipment was not laid out.

33.2 There appeared to be an intention to use “divider boards” within the hall to create a specific space for the nursery, but the staff had not seen any risk assessment, which was an OFSTED requirement before such a change could be implemented.

33.3 Safety of children was at risk, including: … unauthorised persons entered the hall and carried out dangerous practices, (carrying hot oil and hot tea, soup and hot coffee’s through the nursery room where the children are). We now are asking you to address this ongoing illegal practice and it must stop. All members of the church must be informed that the hall is out of bounds to everyone when the nursery children are on the premises. Also, the leaving of the front door open when the children are on the premises must be stopped. On many different occasions different church members feel its ok to prop open the door. This is not acceptable as a child nearly ran out of the door into the road. There is also a risk of an intruder gaining access to the nursery.

33.4 Lack of support from the Trustees for nursery staff, and failure by the Trustees to understand the legal requirements for running a nursery.

33.5 Alleged breakdown of trust and low morale. Allegedly “vindictive” and “wrong” information being supplied to Trustees about the nursery staff causing them to feel “undervalued and not respected”.

33.6 Belief that they were treated “like dirt” meaning that they would not now carry out “extra work” that they believed was not part of the job description.

33.7 Having had “to turn a blind eye to safeguarding issues at the setting”. There was reference to an obligation to report such matters, to the whistleblowing policy, and to all being accountable for safety issues. It was stated that the long-serving staff felt their “loyalty and expertise to your nursery counts for nothing”.

[34]The concluding paragraph stated: Page 9 of 62 We would welcome your feedback on our grievance and hope that by airing them they will be taken on board and addressed so we can look to the [future] and work together to repair the damage that has been caused. We feel positive that we can still build a very successfully nursery business together if we work together.

[35]The reference to a belief that they were being spied on, and that the Trustees were receiving false information about them, was a reference to a letter which had been sent to R3, by Mr Eracleous, a few months earlier.35.1 That letter had raised several questions including about what hours staff were working and being paid for.

35.2 R3 had shown the letter to other staff (or, at least, to the Claimant).

35.3 Mr Eracleous’s account of the Claimant’s reaction to seeing that letter (which he says had been intended for R3’s eyes only) was that she became difficult to work with afterwards, and frequently mentioned that letter.

35.4 The Claimant’s opinion is that the letter to R3 showed that she and the other nursery staff were not appreciated.

35.5 That letter caused the Claimant to believe that it was important that she should have confirmation in writing of her contractual terms. As we will discuss in more detail below, we accept that the Claimant, during the remainder of her employment did raise queries with the employer relating to the specific terms of employment, such terms not all having been set out in writing.

[36]Soon after the collective grievance letter, the Trustees decided that they should move the nursery out of the hall downstairs, on the ground floor, and to a space upstairs in the same building, on the first floor.

[37]The notes of the 22 September 2022 meeting of the Trustees (one of the items disclosed extremely late) include the following extract, which we accept accurately reflects the discussion: ME stated that the nursery might be relocated in the upstairs hall. Although with the dividers in place, the Greek School and nursery arrangements currently work well, the move might be preferable.

[38]On 28 September 2022, Mr Eracleous and R3 met two staff from the local authority Gill Critchlow and Christiana Kromidias to discuss the possible move. 39. [Bundle 62 and 63] contain notes of what was discussed on 28 September 2022, and during a later visit by the local authority on 1 June 2023. This document is on Enfield Council stationery and the wording makes clear that it was written by Gill Critchlow. We treat this document as including the author’s genuine opinions and beliefs, but it was written as a note of the local authority’s involvement, not Page 10 of 62 as a purported contemporaneous record of exactly what the Claimant or Mr Eracleous said. Elsewhere in the bundle, there are documents about other local authority visits or advice, but these were not referred to in witness evidence.

[40]The notes of 28 September 2022 meeting include Another option would be, if possible, to relocate the nursery to the house, where children can have access to the outdoor space that was funded by the LA, Parents may also find this a better option, and this may help to increase numbers. However, having not viewed the buildings internal spaces we cannot confirm the number of children the building can be registered for and if suitable for nursery provision.

[41]The Claimant does not recall when she was first informed of plans to move upstairs. However, given that R3 was one of the signatories to the collective grievance letter, and R3 met the local authority on 28 September, we are sure that R3 let the Claimant know about the discussions within September 2022; the Claimant and R3 had got on well for many years, and were still getting on well as of September 2022.

[42]Furthermore, the Claimant does recall that there was a discussion about moving the nursery to a different building (as mentioned in the extract quoted above). We do accept that there was a period of uncertainty as to whether the nursery move would be upstairs in the same building, or else to a nearby building. However, the Claimant was aware, from not long after the collective grievance letter, that R1 was making plans to move the nursery in response to the comments made in the collective grievance letter.

[43]A letter dated 5 October 2022 was sent by Mr Eracleous to the three staff working as of that date (Sunita having left, though she did return to do some shifts in the summer term). [Bundle 64]. Page 2 of the letter was one of the items disclosed very late. The letter uses numbered paragraphs to reply to the corresponding numbered paragraphs (1 to 7) in the collective grievance letter. His paragraph 8 was the response to the employees’ final concluding paragraph. He wrote: Lastly thank you again for the points you raised, and I hope and look forward to moving forward with better communication between all of us. The advent to being in a position now to use the upstairs hall will solve many issues that you have raised as this will be self-contained and for your use only. There will be no need to put anything away and once you lock the door there is no need for anyone to enter unless it is for maintenance issues. In the meantime f there is anything that you need to raise then please do so.

[44]All three of the employees, the Claimant, R3 and Nisha, received the letter. The letter said nothing about any right of appeal, or about the letter having been treated as a grievance, or about any grievance policy. Having received the letter, none of the three employees contacted Mr Eracleous or R1 immediately afterwards, either to express dissatisfaction with the outcome, or to say that it had failed to address any particular point that had been raised. Page 11 of 62

[45]On 24 January 2023 the Claimant and R3 had a meeting. [Bundle 205 through to 211] is a document with the title “staff well-being and: self-assessment and evaluation”. The document, to a large extent, speaks for itself. It is a meeting between an employee and her manager. It used the “RAG” system (red, amber, green) to signify the importance/urgency of matters raised. It is clear in the document where the Claimant had made a comment and where R3 has initialled to say whether the issue raised is red or amber or green.

[46]At the end of the document, underneath where the Claimant has signed / dated it, Ms George has added some additional comments and signed / dated it.

[47]We are satisfied on the evidence, including what R3 said orally, that not long after this document was completed (by her signature on 24 January 2023), R3 supplied a copy of it to the trustees. We are satisfied that the Claimant wanted there to be a response to it.

[48]There no written response, and there was no oral response specifically to this document. We reject the assertion that Mr Eracleous only found the document after the Claimant and Ms George had both ceased to be employees and that it was not provided to the Trustees in late January 2023. During cross-examination about what (if anything) was done to address the complaints/issues raised by the Claimant, he stated that he called that there had been a discussion between the Trustees in which he asked whether anybody had said words to the effect of, “If you don't like it you can leave”. His answer during evidence was that since none of the Trustees admitted that, and since the Claimant had not named anyone in particular, he left the matter there because he did not think it could be taken any further. However, that allegation was not something that was raised in the September 2022 letter. Our finding that the discussion which the Trustees had about that topic was following Mr Eracleous’s receipt of the 24 January 2023 document [Bundle 205 to 2011] and that it was not long after 24 January 2023.

[49]To the extent that Mr Eracleous / R1 argues that the 24 January document was simply a repeat of matters, we do find that there are some issues that were not raised previously, including, for example, about lack of sick pay.

[50]Within the academic year 2022/2023, a new employee, Shampa started working in the nursery. She submitted a resignation to take effect on 26 May 2023. R1’s acknowledgement (or part of it) is shown [Bundle 239].50.1 R1 argues that part of the reason for Shampa's resignation was the way she was treated by the Claimant and/or the atmosphere created by the Claimant.

50.2 R1 has not proved that that was the case.

50.3 The penultimate paragraph on [Bundle 239] is not consistent with Shampa having given that reason for leaving. Page 12 of 62

50.4 Furthermore, [Bundle 239] was not disclosed by R1. The Claimant contacted Shampa who provided it to the Claimant. So the Claimant and Shampa were on good enough terms for Shampa to be willing to provide that assistance.

50.5 R1 has failed to disclose any documents relating to Shampa's resignation.

[51]R3’s evidence was that, during 2023, R3 and Nisha and the Claimant reached a joint agreement that they would each resign. According to R3, the plan was that they would each meet the Trustees one at a time (one after the other, on the same day) and submit their resignations. She, R3, claimed that the Claimant insisted on going last and that, after she, R3, and Nisha had each resigned, the Claimant went into the meeting and did not resign. Rather, R3 alleges, the Claimant asked to be made Manager of the nursery. R3’s evidence was that, later, the Claimant told R3 that she would like R3 to retract her resignation and that they would become joint managers from September 2023.

[52]It is not necessary for us to make a finding about whether events unfolded in exactly the way described in the previous paragraph. It suffices to say that we believe that, as of March 2025, two years later, and after several intervening events, that is now R3’s genuine belief and recollection. Our finding is that R3 resigned, in around April 2023, and, after that, the Claimant and R3 discussed becoming joint managers with effect from September 2023, the start of the next academic year. For this to happen, the Trustees would have to agree to let Ms George retract her resignation and the Trustees would have had to agree to the plan for joint managers. Prior to 1 June 2023, R1 and R3 had agreed that R3’s resignation was retracted, but no decision had been made by the Trustees as to whether the Claimant and R3 would be joint managers. Prior to 18 June 2023, Mr Eracleous had become aware of the fact that there was a proposal that the Claimant and R3 should become joint managers, and he was waiting for it to be put in writing.

[53]We are satisfied that there was some disruption and uncertainty during the second half of the academic year 2022/2023 (that is, later than the 24 January document). We are not satisfied that the Claimant was making other employees unhappy, and causing them to want to resign to get away from her.

[54]According to the document on [Bundle 83] (which is one of the mis-described in the index as being part of the Claimant’s grievance, but actually was written by Elias Elia and/or Demetris Demetriou in the circumstances described below), Ms George's recollection, as of July 2023, was that her resignation had been in April 2023. That approximation is likely to be correct, and it is consistent with [Bundle 240], which is a letter to Nisha from Mr Eracleous dated 9 May 2023. It is the response to Nisha's resignation. The sentence which includes “thank you for providing your written resignation letter” is consistent with an oral resignation (in Page 13 of 62 approximately April, though the exact date does not matter), followed by a request for it to be put in writing, followed by a written resignation.

[55]Nisha’s resignation was due to take effect from 21 July 2023 and that was because that was going to the last day of the year, before the nursery closed for the summer holidays.

[56]Regardless of whether R3’s recollection is 100% accurate or not, and regardless of whether R3’s belief that the claimant had agreed with R3 and with Nisha that they would all resign at the same time is accurate or not, the events described by R3 are not consistent with Nisha deciding to resign as a result of bad treatment by the Claimant or a bad atmosphere created by the Claimant. On the contrary, if R3’s recollection is accurate, then the three employees were seemingly on good enough terms to come up with this joint plan.

[57]In any event, in the written acknowledgement letter, Mr Eracleous makes no reference to the Claimant. He does allude to Nisha having previously raised some matter, without saying what that was, and asserts that the Trustees did provide support to Nisha. R1 has not disclosed Nisha’s resignation letter, but it is clear that one of the points Nisha must have mentioned was a concern about whether the nursery was going to continue to operate. Mr Eracleous’s response sought to assure her that it would, and offered her the chance to reconsider the resignation by writing to him by 31 May 2023.

[58]In May 2023, the nursery closed temporarily for the move upstairs. The date on which it was due to reopen was around the very end of May or the very start of June.

[59]The local authority’s document at [Bundle 62 and 63] refers to a meeting on Thursday 1 June 2023. The Claimant’s opinion is that this took place on the final day of the moving process, with the nursery due to reopen the following day.

[60]The notes include: We also had a staff discussion as the staff team have expressed concerns about moving upstairs and have said that they may resign. Once we had set out the space, we sat and had a group discussion. The manager, Gina, expressed that she had resigned but had now retracted her resignation. Christiana stated that we need to find a positive way forward to continue the pre school in the newly allocated space. We acknowledged that the staff team were unhappy about the move, however, this decision has been made by the Church trustees. Christiana asked what the staff wanted and the Deputy, Terri, said that she would consider redundancy. She said that she had worked out the redundancy amount and it was approx. £14,000. Christiana stated that she did not think that the Church would offer this, and Terri said that she would consider £6,000. Christiana asked Terri if she would like her to speak to Michael about redundancy to see if he would Page 14 of 62 agree to the sum asked for. Terri said that she would like Christiana to speak to Michael and Christiana asked her if she was sure and Terri said she was. We asked all staff members if they were happy to stay and at that time, they all said yes apart from Terri who wanted to pursue the possibility of redundancy. Christiana agreed to speak to Michael and get back to Terri in due course.

[61]Although we have not had witness evidence from Ms Critchlow, this is a document produced by her as part of her role as an employee of the local authority, and we accept that she was doing her best to be accurate. “Christiana” is Ms Critchlow’s manager, Ms Kromidias. “Terri” is the Claimant and “Gina” is R3 and “Michael” is Mr Eracleous.

[62]There is no mention in the local authority notes of the local authority’s being informed of the Claimant and R3 being joint managers from the following September. At [Bundle 222-223] is a document which R3 believes was part of the Claimant’s attempts to persuade R3 to retract her resignation. On the Claimant’s account, it was from earlier than R3’s resignation (and retraction of resignation), and reflected discussions that she and R3 had had about possible low pupil numbers predicted for 2023/2024 academic year, and a suggestion that the Claimant and R3 would inform R1 / Mr Eracleous that they would each do 3 days per week, as joint managers. [The Claimant also later alleged that this was to be a temporary arrangement, and the plan was that they would each revert to full-time once pupil numbers picked up, but that is not stated in the document.] Our finding is that the document at [Bundle 222-223] was from prior to 1 June 2023, but the proposal - if yet been brought to Mr Eracleous’s attention at all – had not yet been the subject of a decision by the Trustees.

[63]Our finding is that the reason Ms Critchlow mentioned “redundancy” is that it is something that the Claimant raised (not R3, and not the local authority). Regardless of the original source of concerns about the nursery potentially closing, each of the Claimant and Nisha seemed to have had such concerns at roughly the same time, around late April 2023 1 June 2023.

[64]Having considered the contemporaneous evidence, and having heard evidence from R3, and Mr Eracleous and the Claimant, our finding is that the Claimant did use the word “redundancy” and did refer to the figure of around £14,000. Our finding is that the local authority did not state or imply that the nursery was going to close, or that R1 was going to dismiss the current employees.

[65]Regardless of what Ms Kromidias’s reasons were for being willing to become involved in severance discussions between the Claimant and R1, R1 had not asked her to do this. R1 had not asked Ms Kromidias to tell the Claimant, or anyone else, that they would be made redundant, or made to TUPE transfer, and R1 had not asked Ms Kromidias to find out if the Claimant was willing to leave on agreed terms (or at all). Page 15 of 62

[66]Our finding is that Mr Eracleous did not tell the local authority that the Claimant had resigned. If there was anything said to the effect that Ms Critchlow or Ms Kromidias thought all the employees had resigned, that was a misunderstanding on their part. As of 1 June 2023, Nisha had resigned, been offered the chance to retract, and (as far as we know) not retracted (the notes are unclear as to whether Nisha was present, and whether she told the local authority she was happy to stay). Whereas R3 had resigned, and R1 and R3 had agreed that was retracted. Our finding is that the notes accurately state that, of the employees who were present, the Claimant was the only person who potentially referred to an intention / desire to leave.

[67]However, while we reject the Claimant’s recollection / understanding that the local authority had been informed by R1 that the Claimant had resigned, in relation to what happened after Ms Kromidias spoke to Mr Eracleous, our findings of fact are closer to the Claimant's version of events than to Mr Eracleous’s.67.1 We accept that Mr Eracleous did meet the Claimant that day.

67.2 We find that there was a discussion, and, in the course of the discussion, the Claimant spoke about possible severance.

67.3 Amongst other things, we take into account what Mr Eracleous wrote on 14 July - so six weeks after the incident – at [Bundle 86]. These were his comments to the Croner consultant who had been appointed to deal with a grievance. On the second page of that document, at [Bundle 87], he stated: During the Move Enfield Early Learning officers (Christiana) ( C ) came down to supervise and help the Nursery to set up. A discussion happened between ( C ) and TP where TP was advised that the upstairs hall was a good place and she should be positive rather than negative, and there are lots of Nurseries which are upstairs. She also advised TP that I was advised that if we wanted to we could let another provider take over the nursery. This tipped TP over the edge as her possible redundancy started to drift away from her. She has been intolerable ever since. I went to the church that day, and was told what had happened, and had a meeting with TP She asked about my meetings with Enfield, and why I was discussing matters without her present, to which I said I could speak to whoever on church business why did I need to consult her? She continued to ask about other providers, and tell me that none would want the place and it will be difficult … she was aggressive and bullying in her attitude and continued to say that modern day slavery had been abolished and we could not sell them on. She then went on to say that she was not happy at work and that if we did not want her to cause any trouble we should pay her off - She made her demand verbally of 3 months pay holiday and 6k. I said we do not have the Page 16 of 62 funds , but again threatened that it would become very messy and she would make things very hard for the Charity I I said I would refer it to the other trustees and come back to her. No time limit was given.

67.4 Our finding is that, contrary to what is written in the last paragraph quoted, what Mr Eracleous actually said to the Claimant was that she should put her request in writing and if she did, then he would discuss it with the Trustees. In any event, that is how the Claimant understood his remarks and, furthermore, it is common grounds that, between 1 June and 18 June, Mr Eracleous did not come back to the Claimant with any further response to what she had raised on 1 June.

67.5 We reject the assertion that the only discussion that the Claimant and Mr Eracleous had on 1 June was about whether the Claimant would become joint manager. [Our finding is that if “joint manager” was discussed at all, it must have been either because Mr Eracleous already knew about the proposal, and raised it with the Claimant, or because R3 made him aware of it for the first time on 1 June. Either way, on 1 June 2023, the Claimant did not propose to Mr Eracleous that she become joint manager, and her stance was that she was seeking a severance arrangement.]

[68]We do accept that, on 1 June 2023, Mr Eracleous made clear to the Claimant that there was no intention to close the nursery, and that he intended that her employment would be ongoing, and that he thought that there was work available for September 2023 (and later).

[69]As shown by [Bundle 67], the Claimant sent a letter dated 18 June 2023. It is marked “without prejudice”. The version in the bundle has two paragraphs of redactions. We assume that, under the redactions, there are specific details of the financial arrangements that the Claimant at was seeking. In this letter, she says that she had been unhappy at work for some time and that the environment was hostile. She said that, taken cumulatively, she believed that there had been a breach of the implied term of trust and confidence and that she would have grounds to bring a claim for constructive unfair dismissal.

[70]She also mentioned (in the same paragraph that referred to constructive dismissal) that there were examples of “discrimination”. She not identify what she meant by that, but she does say discrimination towards herself, the Claimant. Our finding is that she was not referring to the topic addressed in paragraph 4 of the list of issues, or anything similar to that alleged incident.

[71]Our decision is that this letter was indeed “without prejudice”, at the time it was written. It outlined why there was a dispute and made clear that – from the point of view of one party, at least – the possibility of litigation was being contemplated. Page 17 of 62

[72]Furthermore, and in any event, this was a letter that Mr Eracleous said that the Claimant should write (and it would be discussed between him and the trustees) if she was seeking a severance arrangement.

[73]On 1 June 2023, and between 1 June and 18 June 2023, neither Mr Eracleous nor anyone else on behalf of R1, told the Claimant unequivocally that R1 would not contemplate having severance discussions with her. As we have said above, Ms Kromidias (for whatever reason) informed Mr Eracleous that the Claimant wished to discuss severance, and Mr Eracleous met the Claimant, and heard what she had to say, and told her to put it in writing. We are sure that he did not seek to encourage the Claimant, and did not state or imply that her request was likely to be granted, but he certainly did not draw a line under matters on 1 June 2023 and/or try to tell the Claimant that she should not raise the topic again.

[74]There was no indication to the Claimant from Mr Eracleous or R1 that they were not willing to have without prejudice discussions or settlement discussions. There was no indication from him that, if the Claimant said or wrote anything after 1 June, discussions would not be treated as without prejudice.

[75]Mr Eracleous sent an acknowledgment on 19 June 2023 [Bundle 68]. He wrote: Thank you for your without prejudice offer. I am not sure what has changed since we last spoke for you to wish to accelerate your departure, but I will put it to the trustees to discuss, and get back to you.

[76]It is true that Mr Eracleous is not a lawyer, but it is also true that he took no issue with the Claimant’s having labelled the 18 June letter as “without prejudice”. In terms of the comment about “since we last spoke”, he has not given evidence to the Tribunal about a specific discussion that they had had after 1 June and before the Claimant’s 18 June email. It is not impossible that they had spoken to each other during the intervening period; however, we are satisfied that the Claimant had not said anything, since 1 June 2023, to indicate that she had changed her mind. As far as she was concerned, she had been told on 1 June 2023 that she would need to make a severance request in writing if she wanted the trustees to consider, she did want the trustees to consider it, and so she sent the 18 June letter. The surprise expressed in Mr Eracleous’s letter is not consistent with what he wrote on 14 July (as quoted above); on that occasion, his account to Croner was that he had been intending to take the Claimant’s oral request for severance (made to him on 1 June 2023) to the Trustees in due course. He did not inform Croner that, between 1 June and 18 June, the Claimant had withdrawn the request, and our finding is that she had not done so.

[77]On 23 June 2023, R1 sent an email [Bundle 69] with attached letter [Bundle 70]. The email contained the same subject line as earlier correspondence, namely “settlement agreement”. The letter was headed “without prejudice”. Parts of the letter are redacted in the bundle. The unredacted part included: Page 18 of 62 I understand that Gina has spoken to you, and that I was expecting a further letter from you outlining that you wished to be considered as joint manager with Gina, as, and when she decided to go part time. I have not received this so I can only assume that you have changed your mind. Please let me know how you wish to proceed by the 30/06/2023, given the contents of your letter of the 18th so I can assist if required Gina with planning the future smooth running of the Nursery.

[78]It is common ground that under the redactions Mr Eracleous said a flat “no” to the Claimant's offer. He made no counter offer. The letter was correctly marked as “without prejudice”; it was part of ongoing settlement discussions.

[79]We are was satisfied that, in the unredacted part of the letter, Mr Eracleous gave his genuine opinion. For whatever reason, he had genuinely been thinking that moves were afoot for the claimant and R3 to become joint managers, starting in the academic year 2023/2024. Regardless of his exact reasons that belief, the Claimant had not said to him, on or after 1 June 2023, that she no longer wished to have severance and that she wished to work as joint manager instead.

[80]It is not fully clear what Mr Eracleous was expecting or inviting the claimant to do by 30 June 2023.80.1 We have considered the possibility that he was inviting the Claimant to respond, on a without prejudice basis, if she had any further without prejudice offers to make.

80.2 We have considered the possibility that he was asking whether she was going to go ahead and resign as had been suggested by her 18 June without prejudice letter.

80.3 We have considered the possibility that he wanted to know whether she wished to send an open letter of grievance at which could potentially be investigated.

80.4 On the balance of probabilities, we do not think he had any of those intentions. Our finding is that the letter was intended to imply that the Claimant could become joint manager, provided she wrote back by 30 June 2023.

[81]On Tuesday, 27 June 2023, starting at 7:10pm, there was a Trustee meeting. The minutes of that meeting were a relevant document which fell within the orders for disclosure made at the preliminary hearing, but the minutes were only disclosed during the course of the final hearing and only after the Tribunal made specific orders.

[82]The minutes include: Page 19 of 62 Nursery ME Terri trying to get redundancy. Have been complaints made to Enfield Council and Ofsted in the background. She requested a settlement which works out similar to redundancy – 3 months’ salary + holiday then whatever additional. ME gone back and said no as we did not request the settlement. She is threatening us in her communication. Situation has got worse since the nursery moved upstairs. Enfield Council were happy with the setting upstairs. Terri has asked for SAR – access to docs with her name on them. There’s hardly anything. She mentioned once about the food bank. Redundancy looking at £14,000.00. we cannot afford it. It is reported she had her phone on her recording ME and DD during their meeting. Terri thinks we are constantly talking about her and its affecting other staff and the kids. During the week before rejection of settlement agreement, Gina asked her what she wanted. She wanted to be joint manager and to make us jump ME asked Terri to put her request in writing and why she wants the role. ME gets an email after 2 days of silence and ME said we cannot do this anymore. Cost of HR is £270.00 p/m. Gina has been crying and her husband has booked her a 3-month holiday. ME mentioned back in the old days working in the bank, there would be a shift in staff on the days staff turned up to work. ME phoned designated HR lady as he wanted a way forward ME was asked to do a letter suspending her pending informal enquiry. From here need to interview existing staff to collect information before we interview Terri. ME cannot conduct the interview so 2 others must. This will involve 3 of the ladies and Terri. It was decided EE and DD to carry out interviews. If Terri provides sick note then this has to be sent straight to HR. Suspended will be paid. Need to remove her from the environment. Cannot name those that have commented in the interviews and need to say “it has been commented”. ….

[83]The data subject access request that is mentioned in in hearing bundle at [Bundle 66]. It is not marked “without prejudice” and it contains no accusations of wrongdoing or threats of litigation.

[84]To the extent that the Respondent seeks to rely on complaints to OFSTED as justifying suspension, we have not been provided with details of this alleged complaint. The Respondent has not proven that it is factually accurate that such a complaint was made, and (therefore) the Respondent has not proven that the Page 20 of 62 Claimant gave any false information to OFSTED, or any information that should not have been supplied to OFSTED.

[85]We heard nothing during the witness evidence about the Claimant’s recording meetings or the allegation that the Claimant believed that people were constantly talking about her. Paragraphs 10 to 20 of Mr Eracleous’s statement makes allegations of things that he claims to have been told, but he did not mention either of these allegations.

[86]On balance of probabilities, the information given to the other Trustees by Mr Eracleous - that the Claimant had requested a settlement which was similar to the amounts payable as redundancy - was correct. As we have mentioned, the parties had agreed to redact relevant parts of the correspondence, but this assertion is consistent with the information in other documents.

[87]Mr Eracleous reported at the meeting that Mr Eracleous had informed the Claimant that the answer was “no”. It was stated that the Claimant was threatening in her communication. Our finding is that that is a reference to the 18 June without prejudice letter [Bundle 67]. In any event, it cannot have been a reference to anything later than 7.10pm on 27 June. By that time, there had been the discussion on 1 June 2023 (as mentioned above) and the 18 June letter.

[88]The minutes of the meeting mention that R3 had been very upset, but nothing specific about other employees were also having been upset by the Claimant.

[89]“DD” (Demetris Demetriou – Secretary) and “EE” (Elias Elia – Vice Secretary) were to carry out interviews “to collect information”. No specific disciplinary allegations were identified, which would be the subject matter of the investigation.

[90]Paragraphs 24 to 27 of Mr Eracleous’s witness statement make no mention of the meeting of 27 June 2023, or to the fact that the decision to suspend the Claimant was made that evening (after 7.10pm, but before the end of the day). On the contrary, the witness statement is clearly intended to suggest that the decision to suspend was made after, and in response to, the Claimant’s email of 28 June 2023 at 08:27:40 [Bundle 71].

[91]At [Bundle 72], there is a letter which bears the date “28 June”. It was sent to the Claimant at 12.45pm on 30 June 2023. The covering email said: “Please see attached letter in response to your email of the 28th.” The letter was headed “without prejudice” and it read: Further to your email today, which is very disappointing, the trustees are becoming increasingly concerned with your constant demands which started with "make us all redundant" and then led to a settlement agreement request … [when] we have Page 21 of 62 constantly reaffirmed that we have no intention of closing the Nursery, and we do not have the finances to settle any such demands. You seem to believe that everyone is talking about you, all the time, which is not the As your employer if the trustees or I wish to speak to the manager about any of nursery staff they have every right to, and this can be with or without your knowledge. I for one have never promised you, that I would not discuss what may or may not concern you without you knowing with your manager. In respect of the communication, I was expecting from you … [this] was due to a conversation you had with your line manager Gina George, to which you expressed that you wanted to be included in all communications with the trustees, and in affect be considered as a joint manager! Gina advised you that she would pass the message on to me, to which I requested it in writing, and the reasons why, as this was another change in direction from you. Therefore, you were fully aware of this conversation, unless of course you are now calling Gina a liar. It is with regret that we are in this position but given your demands, unfounded claims, and threats, the trustees at this point are not confident that you are able to carry out your duties comfortably, and without disrupting your colleagues, and therefore they feel that they have no option but to suspend you from your duties with immediate effect. An informal enquiry will take place, where you will be invited for an interview at a future date. You are to hand in your keys, to the priests asap, and not to return to the premises until invited to do so.

[92]It is common ground that it was sent to the claimant on 30 June (not 28 June). It starts off by referring to the Claimant’s email “today”. That is a reference to the Claimant’s email of 28 June. There is nothing in the document that indicates that the decision to suspend the claimant had already been made prior to the Claimant’s email “today”.

[93]The Claimant’s own email of 28 June was sent at 8.27am [Bundle 71] and it read: Without prejudice Dear Michael I am very disappointed by your decision to decline my request for a settlement agreement. I also do not understand why you were awaiting an alternative proposal from me regarding a joint management position. This does unfortunately appear to be another example of a conversation taking place about me behind my back even after your personal reassurance that this would no longer happen. I can assure you my position has not changed since my previous request particularly with the irreversible breakdown of trust and confidence and the continued pattern of behaviour towards me. Given your reluctance to accept my settlement proposal, I have no other option but to now take independent legal advice before I decide how next to proceed. Many Thanks Page 22 of 62

[94]So, in this 28 June email, there is no allegation that R3 had allegedly made a racist remark (in front of child, or in front of Sunita, or at all). On the Claimant’s account of the incident, as given in the Tribunal hearing, the incident did not occur until after 8.27am on 28 June.

[95]During this litigation, the Claimant had referred to 29 June as the date of that alleged incident, including in her written witness statement. It was only during the hearing itself (prior to swearing to the accuracy of the written statement) that she first said that the actual alleged date should be treated as 28 June.

[96]In her written statement, she alleged: On 29.06.23, I recall Gina saying to Sunita Bowpowsingh “Indian’s eat off the table anyway,” following her attending to an Indian child who had dropped food on the table.

[97]This is different to the allegation in paragraph 12 of Particulars of Complaint which read: On 29.06.23, the Claimant’s Manager, Gina, made the following comment in response to an Indian colleague, Sunita Bowpowsingh, tending to a child who dropped off the table: “Indians eat off the table anyway.”

[98]It was that wording which was adopted in the list of issues which formed part of REJ Foxwell’s summary and orders.

[99]There was a draft list of issues produced (on 7 March 2024 according to the index, though we had no correspondence about it in the bundle). Paragraph 1.1.1.1 of that draft list replicated the wording from the Particulars of Complaint and from REJ Foxwell’s list. Paragraph 4.1.1 was different in two respects. It gave “26.06.23” as the alleged date, but also stated that it was “food” not the “child” who had allegedly dropped off the table.

[100]On balance, we accept that the Claimant had always intended the allegation to be (as per paragraph 32 of her statement) that food, rather than the child, had dropped off the table. It is unfortunate that neither the Claimant, nor her solicitors, sought to correct the list of issues after it was sent to parties (and that neither they nor the Respondent’s representative sought to resolve the conflict between paragraphs 1.1.1.1 and 4.1.1 of the earlier “draft” list). However, the discrepancy between a child dropping off the table, and food being dropped, by the child, onto the table, does not, in itself, affect the Claimant’s credibility.

[101]In her oral evidence, the Claimant asserted that she regarded R3’s alleged words as a safeguarding issue. She asserted that – because of that – a report to OFSTED would have been required. She claims that she was intending to follow OFSTED guidance and ensure that a proper report of the matter was made within Page 23 of 62 48 hours. She did not actually make such a report, but says she would have done had she not been suspended before the 48 hours had elapsed.

[102]The Claimant says that she did not report the matter to her employer at the time because – in her opinion – the procedure would have been that she make the report to the manager, who was R3. The Claimant says she regarded reporting the matter to R3 as inappropriate on the basis that the allegation was against R3.

[103]The Claimant’s account was that she made notes of this incident in her personal hard copy folder. The Claimant’s evidence was that she was sure that Sunita heard the remark, and the Claimant believed that Sunita was visibly upset by it. The Claimant’s account was that - before reporting the matter to OFSTED – she wanted to have a further conversation with Sunita about the issue. The Claimant says that she made these handwritten notes on in a document which she put in a red folder and then she put the red folder in her locker. 104. 28 June 2023 was a Wednesday. The Claimant was suspended on 30 June 2023, which was a Friday (with the first of two emails sent at 12.45pm). As mentioned, the Claimant’s oral evidence was that she would have made a safeguarding report within 48 hours of the incident, but for the fact she was suspended. So, by implication, the incident must have happened – according to the Claimant – later than 12.45pm on Wednesday 28 June, and presumably quite a bit later that afternoon if the Claimant thought she had time, after 12.45pm on 30 June, to first of all speak to Sunita, and then second of all compile her report to OFSTED.

[105]The Claimant accepts that she did not make a report to OFSTED, either on 30 June, or later. As well as the fact that she was suspended, on Friday 30 June, the Claimant states that the effects that her employment situation had on her mental health, as well as not having access to the paper records (the red folder), also played a part. Her account was that her husband collected her belongings on her behalf from her locker, and when he came home, he did not have the red folder with him. Nothing about considering a report to OFSTED, or the red folder, was in her written statement.

[106]We accept R3’s evidence that she and the Claimant shared a locker and that she, Ms George, has no recollection of seeing a red folder and that she, Ms George, did not remove / destroy any items belonging to the Claimant following the Claimant’s suspension. As far as R3 was concerned, the Claimant's husband collected everything that belonged to the Claimant. Furthermore, on R3’s own last day of work, in July, when she left, there was nothing left behind in that locker, apart from a couple of aprons. R3 took her own personal belongings out of the locker. R3 did not leave any of the paperwork in the locker. Any paperwork that she had was left at the premises (not in the locker) for R1. Page 24 of 62

[107]Our finding is that no red folder was destroyed or removed by R3. Furthermore, although R1 has been shown to have failed to disclose some documents that ought to have been disclosed, the Claimant’s failure to mention this red folder prior to her oral evidence means that we have not been satisfied that it did exist (and that R1 therefore destroyed it, or failed to disclose it).

[108]The first report by the Claimant, of R3 making the alleged remark, appeared in the claim form and attached Particulars of Complaint, sent to the Tribunal on 18 August 2023.

[109]After the first suspension letter of 30 June, the same day, at 2.48pm, Mr Eracleous sent a covering email which read: Please see attached clarification of suspension. I will be in contact as to when you are required to attend an informal interview and with who that will be.

[110]The attachment was [Bundle 73-74]. The letter commenced: I refer to my email today the 30/06/23 which contained our letter of the 28/0/6/23 , in which I suspended you from your employment pending investigations into, your current behaviour, attitude towards your employers the increasing demands to be paid to leave, unfounded claims and the disruption to the workplace, and as per our earlier letter. As your employer, we have a duty to fully and properly investigate this matter.

[111]Mr Eracleous claims that it had always been intended that both letters would be sent. We do not need to decide whether that is true or not; however, we do accept his evidence that the second suspension letter was drafted by Croner on his behalf.

[112]The Claimant responded at 10:41pm that night [Bundle 75]. She referred to both suspension letters. She made no reference to any allegedly discriminatory words uttered by R3, but stated (amongst other things): 1. I have for a number of months now been communicating to my line manager (Gina) and you various grievances I have about the way I have been managed and treated by various individuals during the course of my employment. In the absence of any formal grievance policy, I have raised these concerns in person through various discussions with Gina and you. While these matters were never formally investigated, you have acknowledged these ongoing issues in the two letters you have sent today.

[113]She made several comments in paragraphs 1 to 4 of the letter. Within paragraph 4, there were five questions (a) to (e).

[114]There had been no reply from Mr Eracleous or R1 to that letter by 12.55pm on 6 July 2023, which is when the Claimant sent an email which read: Page 25 of 62 I am writing to inform you that I resign my position has Deputy manager of the preschool effective from today (6th July 2023), due to the way I have been unfairly treated.

[115]Mr Eracleous accepts that he received that email and read it the same day.

[116]The following day, at 7.48am, the Claimant sent an email which read: It addition to resigning my position as Deputy Manager I also am giving three weeks notice to terminate my employment with St Demtiros Church.

[117]On 7 July, at 11.14am, Mr Eracleous responded to the emails. He wrote: Further to your email of the 6th of July and subsequent email today resigning, with immediate effect and then adding a notice period. Please contact me if you wish to discuss your reasons further on [phone number] or by email.

[118]In other words, unlike the response to Nisha’s resignation, he did not invite the employee to reconsider.

[119]At 12.06pm that same day, 7 July, the Claimant sent a further email which read: Just to confirm I was of the understanding I was legally required to give you notice before I could terminate my employment. After legal consultation I have been informed that notice is not required. Please accept my first email terminating my employment from the 6th July. The reasons for my resignation is that I feel that I have been treated unfairly and the loss of trust and confidence.

[120]On 13 July, Mr Eracleous wrote to the Claimant. The letter commenced: I acknowledge that your resignation letter outlined several grievances, and I feel it would be appropriate to address these matters through the Company’s formal grievance procedures.

[121]He mentioned some possible dates for a grievance meeting and referred to Peninsula Face2Face.

[122]As mentioned above, on 14 July, he wrote to the grievance investigator with his comments on the grievance [Bundle 86-88].

[123]On 17 July, having had no prior response, he wrote to the Claimant again about a grievance meeting and referred to Croner Face2Face. [Bundle 112].

[124]Later that day, the Claimant sent an email (at 8.52pm) asking that further correspondence be sent to her son, George Panteli, and confirming that George’s email sent at 8.11pm that evening [Bundle 111] was with her authority.

[125]Within that 8.11pm email, it was stated: Mrs Panteli will not be attending the proposed meeting, nor is there any legal requirement for her to do so. The whole situation has been incredibly upsetting and Page 26 of 62 stressful for my Mum which would only be made worse by engaging now in your grievance process. I would ask you not to send any further communication to her to save upsetting her further. If you need to contact Mrs Panteli directly for anything else, albeit I cannot think of any good reason why you should, please email or call me in the first instance and I will discuss with my Mum as appropriate before responding. I note from your email that you seem determined to proceed with a grievance hearing regardless. This course of action is somewhat curious given the lack of due process followed so far, but you are of course entitled to proceed however you see fit. So as to not make the process a complete waste of time however, I have set out below some further clarity about Mrs Panteli’s grievances leading up to her decision to resign.

[126]Within a list of numbered paragraphs, he wrote: 3. ... Two conflicting letters were sent on the same day communicating the suspension decision. The first letter was particularly concerning as it was abundantly clear from its content and tone that a decision to discipline or dismiss Mrs Panteli had already been made. 4. On my advice, Mrs Panteli wrote to you to request further clarification on the terms of her suspension, purpose of investigation to follow and the conflicting content of the two letters. No response was received to this email and no further communication was received at all (nearly a week later) following up on the suspension and investigation. 5. Following legal advice, Mrs Panteli took the very difficult decision to resign. The reason given for the resignation was the way she had been treated and a breakdown of trust and confidence.

[127]We accept that that email was written on the Claimant's behalf with her knowledge of what it was going to say, and that the email represents the facts as she intended to convey them to the Respondent. There is no mention of any alleged discriminatory remarks by R3 around late June 2023 (so around 3 to 4 weeks before this email).

[128]On 19 July 2023 [Bundle 90], Mr Eracleous sent a more formal letter to the Claimant. It gave the Claimant the time and date (21 July) of a grievance meeting, and stated clearly that it would be with “an impartial Consultant from Croner Face2Face”. The letter referred to a “resignation email dated Friday 30th June 2023 in which you outlined several grievances”. This was incorrect. There was no resignation email of 30 June 2023. The Claimant’s email of 10.41pm on 30 June asked the Respondent to respond to some questions, and was treated by the Respondent as a grievance, but did not contain a resignation.

[129]On 21 July, the consultant emailed the Claimant in the afternoon [Bundle 92] stating (amongst other things): I note that you did not attend the scheduled meeting this morning and I’d like to offer you the opportunity to conduct your grievance via written submissions. If you wish I Page 27 of 62 can send you a list a questions and offer you the opportunity to send me any evidence or additional information.

[130]On 23 July [Bundle 93], Mr Eracleous wrote to the consultant. Relevant extracts included: Terri in my meeting where she verbally requested the settlement agreement said that she was not happy at work. … If we were made aware of any difficulties faced by staff, then we would have a meeting with the individual to discuss the matter and see how we could help … We did not suspend Terri due to the request for a settlement agreement. She was suspended because the feedback from the Manager and other staff, was that she was being disruptive to the environment of the nursery with negative comments to staff members and the manager, on how she was going to take the nursery down, that she should be Manager and this was in front of children. She also advised other members of staff and the manager, that she would return to work in September but then go sick so that we had a problem with staffing levels. She would then tip off, ofsted. In her letters she was referring to grievances that we were not aware of. So it was felt best to take her out of the environment, let the situation calm down, and then two other members of the Trust would interview the staff and Terri, and resolve whatever issues there were.

[131]The Claimant did not attend the grievance meeting and (other than her son’s email of 17 July) did not send any written response to the offer of a grievance meeting, or to the request for details of her allegations.

[132]Our finding is that the Claimant’s reasons for not attending the meeting had nothing to do with the fact that one letter referred to Peninsula and another letter referred to Croner.

[133]The document at [Bundle 94 to 101] is the grievance outcome. Paragraph 11 on [Bundle 96] lists the appendices. They were not in the bundle immediately behind the report, but the parties have supplied an agreed list of the page numbers that were the actual items supplied to the investigator.

[134]The grievance report was dated 27 July 2023. No copy was supplied to the Claimant at the time. The Law Equality Act 2010 (“EQA”)

[135]The burden of proof provisions are codified in s136 EQA and s136 is applicable to all of the contraventions of the Equality Act which are alleged in these proceedings. Page 28 of 62(1) This section applies to any proceedings relating to a contravention of this Act.

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

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

[136]It is a two stage approach.136.1 At the first stage, the Tribunal considers whether the Tribunal has found facts - having assessed the totality of the evidence presented by either side and drawn any appropriate factual inferences from that evidence - from which the Tribunal could potentially conclude - in the absence of an adequate explanation - that a contravention has occurred. At this first stage it is not sufficient for the claimant to simply prove that the alleged treatment did occur. There has to be some evidential basis from which the Tribunal could reasonably infer that there was a contravention of the act. The Tribunal can and should look at all the relevant facts and circumstances when considering this part of the burden of proof test.

136.2 If the claimant succeeds at the first stage then that means the burden of proof is shifted to the respondent and the claim is to be upheld unless the respondent proves the contravention did not occur.

[137]In Efobi v Royal Mail

[2021] UKSC 33

, the Supreme Court made clear that the changes to the wording of the burden of proof provision in EQA compared to the wording in earlier legislation do not represent a change in the law. Thus when assessing the evidence in a case and considering the burden of proof provisions, the Tribunal can have regard to the guidance given by the Court of Appeal in, for example, Igen v Wong

[2005] EWCA Civ 142

and Madarassy v Nomura International

[2007] EWCA Civ 33

[138]As per paragraph 57 of Madarassy, “could decide” in section 136(2) EQA is equivalent to: a reasonable tribunal could properly decide from all the evidence before it.

[139]The burden of proof does not shift simply because, for example, the claimant proves that there was a difference in treatment (in comparison to someone whose relevant protected characteristics were different) and/or that there was unwanted conduct and/or that there was a protected act. Those things only indicate the possibility of discrimination or harassment or victimisation. They are not sufficient in themselves to shift the burden of proof; something more is needed. Page 29 of 62

[140]Recent EAT cases have re-emphasised the importance of actually adhering to the two stage approach set out in section 136. We have taken note of the comments in Field v Steve Pye and Co (KL) Limited and ors

[2022] EAT 68

and of the fact that several subsequent EAT decisions have cited those comments with approval. Time Limits for EQA complaints

[141]In EQA, time limits are covered in s123. No issue about time limits arises in this Harassment – section 26 EQA

[142]Harassment is defined in s.26 of the Act. (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[143]It needs to be established on the balance of probabilities that the claimant has been subjected to unwanted conduct which had the prohibited purpose or effect. However, to succeed in a claim of harassment, it is not sufficient for a claimant to prove that the conduct was unwanted or that it had the purpose or effect described in s.26(1)(b). The conduct also has to be related to the particular characteristic.

[144]Section 136 EQA applies and so the claimant does not necessarily need to prove on the balance of probabilities that the conduct was related to the protected characteristic. If the tribunal finds facts from which it could conclude that the conduct was related to the protected characteristic then the burden of proof shifts. Constructive Dismissal

[145]Section 95(1)(c) ERA refer to something colloquially known as “constructive dismissal”. In order to prove constructive dismissal the employee must prove Page 30 of 62145.1 that the employer has committed a serious breach of contract and

145.2 that the employee resigned because of that breach (or at least partly because of that breach; it does not necessarily have to be the only reason) and

145.3 that the employee must also prove they has not waived the breach by affirming the contract.

145.4 In London Borough of Waltham Forest v Omilaju

[2004] EWCA Civ 1493

, the court, at paragraph 14, stated that: The following basic propositions of law can be derived from the authorities: 1 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

2 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

[1998] AC 20

, 34H–35D (Lord Nicholls) and 45C– 46E (Lord Steyn). I shall refer to this as “the implied term of trust and confidence”. 3 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 (emphasis added). 4 The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must “impinge on the relationship in the sense that, looked at objectively , it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer” (emphasis added). 5 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. It is well put at paragraph [480] of Harvey on Industrial Relations and Employment Law: “[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.”

[146]The implied term that the employer “shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously Page 31 of 62 damage the relationship of confidence and trust between employer and employee” is one which the employee can allege was breached by a single incident or by the cumulative effect of different treatment.

[147]“Last straw” arguments do not do away with the need for the employee to establish that there has been a fundamental breach of contract, but are significant when considering – based on the specific incident which caused the employee to resign – whether the employee resigned because of the fundamental breach.

[148]The last straw might be relatively insignificant, but it must not be utterly trivial. An entirely innocuous act on the part of the employer cannot be a final straw even if the employee genuinely but mistakenly interprets the act as hurtful.

[149]In Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

, the Court of Appeal clarified the analysis in Omilaju and added to it. It reiterated that the last straw doctrine is only relevant to cases where the repudiation relied on by the employee takes the form of a cumulative breach and that the last straw doctrine does not have any application to a case where the alleged repudiation consists of a one-off serious breach of contract.

[150]In Kaur, the Court of Appeal made clear that - in a last straw case - the fact that the employee might have affirmed a contract after some of the earlier conduct does not mean that it is not possible for the Claimant to rely on that earlier conduct as part of a cumulative breach argument. In paragraph 55 of its decision it summarised the correct approach. 1 What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? 2 Has he or she affirmed the contract since that act? 3 If not, was that act (or omission) by itself a repudiatory breach of contract? 4 If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation ...) 5 Did the employee resign in response (or partly in response) to that breach?

[151]Where the answer at point (4) is “no” (for example the act that triggered the resignation was entirely innocuous), it is necessary to go back and see whether there was any earlier breach of contract that has not been affirmed, and which was a cause of the resignation. See Williams v Governing Body of Alderman Davies Church in Wales Primary School EAT 0108/19.

[152]The “Malik term” (which derives from Malik v BCCI

[1998] AC 20

) is: Page 32 of 62 ‘… not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract implicitly envisages…The conduct must, of course, 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’.

[153]In the same case, the court emphasised that the breach occurs: ‘only where there is “no reasonable and proper cause” for the employer's conduct, and then only if the conduct is calculated to destroy or seriously damage the relationship …’

[154]In Morrow v Safeway Stores Plc [2002] I.R.L.R. 9, the EAT said: In general terms a finding that there has been conduct which amounts to a breach of the implied term of trust and confidence will mean, inevitably, that there has been a fundamental or repudiatory breach going necessarily to the root of the contract (at para.25).

[155]The term may be breached even though the employer does not intend to bring the employment relationship to an end:

[156]In terms of suspending an employee – even on full pay – there might be circumstances in which the suspension amounts to breach of the Malik term, even in circumstances where the employer indisputably had an obligation to investigate alleged misconduct. See Gogay v Hertfordshire CC

[157]As was made clear in Lambeth v Agoreyo

[2019] EWCA Civ 322

, it is important not to treat Gogay as laying down a general principle of law that some minimum amount of discussion with the employee is always required prior to suspension; each case has to be decided on its own facts. On the facts of Agoyero, at the time of the decision to suspend, the employer had reasonable and proper cause to suspend the employee pending investigation, and the suspension did not breach the Malik term.

[158]Where an employee succeeds in the argument that there was a constructive dismissal, then the dismissal “reason” is the employer’s reason for the conduct which caused the employee to treat themselves as dismissed: Berriman v Delabole Slate Ltd

1985 ICR 546

[159]Depending on the nature of the contractual term which was breached, it may be open to an employer to argue that the dismissal was for a potentially fair reason and was, in all the circumstances, a fair dismissal. A constructive dismissal is not necessarily an unfair one: Savoia v Chiltern Herb Farms Ltd

1982 IRLR 166

[160]Section 98 of the Employment Rights Act 1996 (“ERA”) deals with fairness. 98.— General. Page 33 of 62(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— (a) relates to the capability or qualiﬁcations of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. … (4) Where the employer has fulﬁlled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufﬁcient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the

[161]To seek to argue that the dismissal was not unfair, the employer must satisfy us that the dismissal reason falls within one of the definitions in either section 98(2) or section 98(1)(b).

[162]In this case, the Respondent alleges that the reason was “conduct” as defined by section 98(2)(b) ERA, as well as the reason in section 98(1)(b), which we will refer to as “SOSR” for convenience, while not ignoring the full text of the legislation.

[163]In principle, a situation where an individual causes a breakdown of relationships with one or more of their colleagues, and is dismissed because they caused such a breakdown, might mean that the dismissal reason is “conduct”.

[164]Whereas, a situation where there has been a breakdown in relationships between colleagues, and an employee is dismissed because that means that the employer’s business has been adversely affected - regardless of what caused the breakdown - might mean that the dismissal reason is “SOSR”. Although, for Page 34 of 62 us to decide that the reason is SOSR, the mere fact alone that the employer considered that dismissal was the appropriate outcome does not automatically mean that we are obliged to decide that their decision was one which a reasonable employer might reach. We may take into account all the circumstances, including what caused the state of affairs which was the reason for the dismissal: Governing Body of Tubbenden Primary School v Sylvester

UKEAT/0527/11

[165]The ACAS Code of Practice on Disciplinary and Grievance Procedures must be taken into account by the Employment Tribunal if it is relevant to a question arising during the proceedings (see section 207(2) of the Trade Union and Labour Relations (Consolidation) Act 1992). It includes: 5 It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing. 9 If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification. Analysis and conclusions Harassment related to race – section 4 of list of issues

[166]We deal first with the allegation of harassment related to race. This is because we have to make our decisions about what happened in relation to this incident before we deal with all of the constructive unfair dismissal arguments.

[167]When one person alleges that another person used some specific words and the other person denies it, we have to consider the possibilities that the claimant might have misheard what was said or that the claimant heard the words correctly, but was mistaken about which person uttered them.

[168]In this case, based on the Claimant’s account, there is no mistake about the actual words used because – on the Claimant’s account - she and Sunita both heard them. On the Claimant’s account, there is no mistake about which person uttered the words, because only she, and Sunita, and the child were present apart from R3, and, on the Claimant’s account, both her and Sunita believed R3 uttered those words. Page 35 of 62

[169]Another possibility, that has to be considered is that while a claimant might be accurately remembering the words that we used, they might be mistaken about some of the surrounding circumstances, such as the date, or the identities of the people who were also present. In this case, on the Claimant’s account, there can be no mistake about the date (albeit she changed it from 29 June during the hearing, prior to swearing to the accuracy of the written statement). The Claimant’s evidence is that her recollection that it was definitely 28 June ties in closely to the incident being two days before she was suspended. On her account, it cannot have been any earlier than 28 June because, on her case (as explained in oral evidence, though not earlier) she had intended to report the matter to OFSTED, and would have done so within 48 hours of the incident (that being her understanding of what OFSTED’s safeguarding rules require).

[170]The Claimant has been adamant throughout (since presenting the claim on 18 August 2023) that Sunita was present. The Claimant says that part of her recollection about the incident is that she, the Claimant, made contemporaneous records and was intending to discuss the matter with Sunita (before making a report).

[171]Broadly speaking, there are three possibilities.171.1 Firstly, that the words were not uttered at all, which is R3’s position.

171.2 Secondly, that the words were uttered, and this was the only time R3 made any comments of that nature in front of the Claimant.

171.3 Thirdly, that the words were uttered, but it was not an unusual event for such words to be uttered by R3 in the Claimant’s presence.

[172]If the third of these options was correct, then that would raise the possibility that R3 might have said these words but R3 did not remember the specific occasion mentioned by the Claimant in which she uttered them. By the time the complaint to the tribunal (for which the Notice of Claim letter was 28 September 2023) was brought to R3’s attention, it was several weeks later and a lot had happened since. The Claimant had resigned, and so had R3.

[173]If the third of these options was correct, it would also explain why no report by the Claimant was made on 28 June 2023 itself, or at any time prior to suspension, or in her detailed letter of 30 June 2023, or in any of the other correspondence which she sent either prior to her resignation, or in response to the invitations to the grievance meetings, including her son’s detailed email of 17 July 2023.

[174]However, neither side argues that the third of these options was correct.

[175]We have to assess whether the Claimant has proved on the balance of probabilities, that the remark was made. We take into account that the earliest Page 36 of 62 written record of the complaint was the claim to the tribunal on 18 August 2023. As well as not writing to the Respondent about it, or to Ofsted, the Claimant did not notify the person appointed to investigate the grievance.

[176]We take into account that the Claimant was adamant throughout the litigation that the comment was made on 29 June and that included when her written witness statement was sent to the respondent in 2025. Following exchange of witness statements, no new documents, disclosed by either side, shed any additional light on the alleged date of the incident, prior to the Claimant’s deciding in the hearing room on Day 1 of the final hearing, that - in actual fact - the alleged incident took place on 28 June rather than on 29 June 2023. So her revised allegation was that the incident did not happen the day immediately before she was suspended, but was two days before she was suspended.

[177]During cross-examination, upon being asked about why she had not made any written record of such a comment, especially given that she had stated that she regarded it as a safeguarding issue, the Claimant mentioned for the first time that she had written about it in a red folder and then placed that red folder in her locker at work. She said that when her husband had collected her belongings from work, only her laptop had been retrieved, and not her paper records (including the red folder). This was the first time there been any mention of any red folder. She did not ask the Respondents about the folder when her husband did not bring it home with the lap top. She did not purport to demand that the Respondent supply it to her, either at the end of her employment, or as part of the disclosure exercise in this litigation. It is not something she referred to in her written witness statement.

[178]The Claimant and Ms George had worked together since Ms George became manager in 2010. In other words, by 28 June 2023, they had worked together for 13 years. It is notable that, if the Claimant’s position is correct, during those 13 years Ms George had not made racist remarks of this type (the type which caused the Claimant to believe that a safeguarding report to Ofsted was required), but shortly after the claimant had written without prejudice letters alleging that she had grounds for a constructive dismissal claim, Ms George made such a remark.

[179]Furthermore, on the Claimant’s case, R3 did not make this particular remark to the Claimant in private (or so that the pupil was the only other person who could hear), but she made it also in front of another colleague, Sunita. On the Claimant’s account, she, the Claimant, could see how upset Sunita was, but, if the Claimant’s account is correct, then Sunita’s presence did not prevent R3 making this comment.

[180]The Claimant does not have any corroboration for her allegation, and R3 and R1 do not have any corroboration for R3’s denial. Neither side has produced witness Page 37 of 62 evidence from Sunita; either side had the opportunity to approach her and ask her to be a witness if they thought her version of events would support their own account. Thus the lack of corroboration is pretty much a neutral factor. Although we do observe that, since the nursery has closed down in any event, it could not have been suggested (and it has not been argued) that the reason Sunita did not give evidence to support the Claimant’s version of events is that she had fears about losing her job.

[181]Taking account of the circumstances in which they were produced, we place very little weight on the documents between [Bundle 80 and 82], because the authors of the notes have not given witness evidence, there is no contemporaneous email traffic establishing the provenance of the notes, they are (or purport to be) summaries of what was (allegedly) discussed rather than detailed notes of specific questions/answers, and the interviewees have not been called as witnesses. All that being said, it is true that the notes record Sunita giving praise to Gina, and the notes also include Bullying/discrimination? Sunita has not noticed any since being at the nursery. and it is true that the Claimant has not called Sunita to refute what the notes attribute to her.

[182]The Claimant has failed to prove on the balance of probabilities, that the act referred to in Section 4 of the list of issues did occur. For that reason, the harassment claim fails. Was the Claimant dismissed?

[183]Dealing next with section 1 of the list of issues, we are satisfied that the reason for the Claimant’s resignation was that she had been suspended and that she not been supplied with any additional information about any specific allegations against her or any details of the disciplinary process, despite the fact that she had asked for these on 30 June. The lack of a reply to that 30 June email (sent late on a Friday evening, after 10pm) by the following Thursday morning was a significant influence on the Claimant’s decision.

[184]We are satisfied that the Respondent, by its actions of suspending the Claimant did act in a manner that was calculated or likely to destroy the relationship of trust and confidence between the Claimant and the Respondent. Furthermore, this was compounded by the failure to respond at all to the Claimants 30 June query. It did not even supply a holding response.

[185]Our reasons for the decisions described in the previous paragraph are as follows. 1.1.1.2 On or about [30] June 2023 unjustly suspending the claimant; Page 38 of 62 1.1.1.4 The respondents failing to provide the claimant with reasons for suspending her despite her requests made on 30 June and 6 July 2023;

[186]We discuss the matters raised by paragraphs 1.1.1.1, 1.1.1.3 and 1.1.1.5 of the list of issues later in these reasons.

[187]However, to explain our findings about the reason for the resignation and the decision that the resignation was in response to a fundamental breach of contract, it is sufficient to start the analysis at 1 June 2023.187.1 On that day, the Claimant informed Mr Eracleous that she wished her employment to end in return for a payment. Although he denied in oral evidence that this topic was discussed between them that day, in the findings of fact we explained why we found that it did.

187.2 We accepted the Claimant’s evidence that he told her to put the request in writing if she wanted the Trustees to consider it. (We also found that he was not seeking to encourage this and that, on the contrary, he made clear to her that, as far as he was concerned, she was not at risk of redundancy and there were no plans to bring in a contractor to run the service.)

187.3 The Claimant’s letter of 18 June 2023 [Bundle 67] was the Claimant’s followup. It was written on a without prejudice basis. The discussion on 1 June 2023 (according to the local authority’s notes) was initially about the possibility of redundancy. On balance of probabilities, as early as 1 June, the Claimant stated that, even if she was not made redundant, she would seek a severance that was of a similar size to a redundancy package. However, even if that was not said on 1 June, what the Claimant wrote on 18 June 2023 was not specifically about redundancy payment but rather was alleging that she had grounds to bring a claim for constructive dismissal and suggesting a settlement.

187.4 As we said in the findings of fact, at the time of the 18 June 2023 letter, we are satisfied that the Claimant was contemplating litigation. We are satisfied that what she said on 1 June and wrote on 18 June were intended as settlement proposals. Mr Eracleous did not accept the proposals, but nor did he state that he or R1 were unwilling to engage in settlement discussions; that is, he did not say it on 1 June 2023 and he did not say it at any time prior to the 18 June letter. Our decision is that the Claimant’s oral comments on 1 June 2023 and the letter of 18 June 2023 were – at the time they were communicated - without prejudice.

[188]We do take into account that Mr Eracleous did not necessarily have the authority to simply unilaterally refuse the Claimant’s without prejudice proposals and that – since that was a decision for the Trustees to make – he was not necessarily Page 39 of 62 intending to imply to the Claimant that her settlement proposals would find favour with the Trustees. However, regardless of the reason that he did not say (words to the effect of) “do not raise this matter again, and if you do then it might be treated as misconduct”, the fact is that – far from saying anything similar to that – he specifically told her that the points she raised on 1 June 2023 would have to be put in writing if she wanted them to be considered by the Trustees, and that is what the Claimant did.

[189]For the avoidance of doubt, we are not suggesting that Mr Eracleous or R1 was necessarily willing to offer a payment to the Claimant, and we are not suggesting that Mr Eracleous or R1 thought that the Claimant had grounds to succeed in a claim. However, in the knowledge that the Claimant was asserting grounds for litigation, R1 had the option of telling the Claimant that it was not willing to engage in any without prejudice discussions. Such a refusal could have (but did not necessarily have to be) accompanied by open correspondence which set out its position on any points raised and/or which told the Claimant that the Claimant should bring a grievance if she wanted to make any complaints about the way in which she was treated. They did not take either option, either before or after 18 June 2023 (prior to her resignation).

[190]On 19 June 2023, Mr Eracleous referred to the last time they spoke and queried why the claimant wished to accelerate her departure. Even if he believed that there had been a later change of heart by the Claimant (since 1 June), he was mistaken, as the Claimant’s email of 28 June [Bundle 71] informed him.

[191]On 23 June, Mr Eracleous sent the letter [Bundle 70]. As discussed in the findings of fact, it made no counter-offer and asked the Claimant to write to him by 30 June 2023. It was a without prejudice letter at the time it was written. The letter did not – for example – inform the Claimant that she could raise a grievance if she wished to do so. However, and in any event, the decision to suspend the Claimant was made before there was any further response from the Claimant, whether open or without prejudice.

[192]The Claimant’s email of 28 June was sent/received after the suspension decision was made, but before it was communicated to the Claimant. The Claimant’s 28 June letter (like her 18 June letter) made no specific points about being unwilling to work or to perform her duties.192.1 She alleged that there had been a breakdown of trust and confidence, but, to paraphrase the letter and to put it in legal terms, while she alleged there had been a repudiatory breach of contract, she suggested she was still considering whether she would accept that breach by resigning or else would waive that breach by continuing to work. Page 40 of 62

192.2 After sending that email on the Wednesday morning, the claimant worked normally until she was suspended on the Friday.

192.3 Nothing in the 28 June email demonstrated any unambiguous impropriety. It was still part of the chain of correspondence about possible settlement. The email was, at the time it was written, a without prejudice document.

[193]As mentioned, before the Claimant sent that 28 June email, the Respondent had decided to suspend her

[194]The first suspension letter [Bundle 72], referred to the claimant’s email “earlier today”.194.1 That is clearly intended to refer to the email before 9am on 28 June. There is no mention in the letter that the Trustees’ decision to suspend the claimant had been made the previous day rather than in response to the 28 June letter.

194.2 The alleged suspension reason in that letter, is that the Trustees were not confident that the claimant was able to carry out her duties “comfortably without disrupting colleagues”.

194.3 However, there was no proper basis for that alleged belief. All that is mentioned in the minutes is that R3 had been crying. There was no mention of any other employee apart from R3 having been upset by anything the Claimant had said or done. Furthermore, the full context for R3 crying is not mentioned, which is that having submitted her resignation, R3 had been persuaded by the Claimant to retract the resignation on the suggestion that the two of them would become joint managers. While it is understandable that the Claimant’s apparent change of heart on that issue would be frustrating for R3, it is not necessarily a proper basis for disciplinary action, still less for a suspension. (For whatever reason, Mr Eracleous seemed to think – or at least told the others – that the Claimant had first suggested becoming joint manager in June 2023; however, that is not what R3 told the tribunal hearing. We know from the local authority minutes that she retracted her resignation prior to 1 June 2023, and her evidence was that she retracted it after the Claimant suggested becoming joint managers).

[195]Our finding from the minutes, and the evidence as a whole, is that the employer was not contemplating the possibility of making any finding that the Claimant had had been treated badly by the employer. That was not the purpose of the investigation that was discussed on 27 June 2023. The hearing bundle index refers to “Meeting Notes re above Grievance on the 30th June 2023”, but that is not what the documents on [Bundle 80 to 84] were. Page 41 of 62

[196]Rather, without having any specific information about any specific wrongdoing committed by the Claimant (or any detailed information about what wrongdoing by the Respondent was referred to in the Claimant’s 18 June without prejudice letter), the employer formed the intention to interview other staff to collect information. This was without any specific examples of misconduct being given to the interviewers (DD and EE) as being the subject matter of any disciplinary investigation. Rather, our decision is that the employer intended to see what would turn up, based on comments made by other individuals in response to open-ended and wide ranging discussions in meetings, and then potentially formulate allegations of misconduct against the Claimant and call the Claimant to an investigation meeting (or go straight to disciplinary hearing).

[197]The second suspension letter of 30 June, drafted on the Respondent’s behalf by its external HR advisers, contains some standard paragraphs about, for example, having considered alternatives to suspension. There is no suggestion in the minutes of 27 June that any alternatives to suspension, were considered, and our decision is that none were considered. (Given the small number of staff which R1 had, and the nature of the nursery work, there probably were no alternative duties that could have been offered to the Claimant; however, that does not change the fact that no alternatives were actually considered.)

[198]The letter goes on to say that there would be an investigation to decide whether there was substance to the allegations in which case there would be a disciplinary hearing. It says that if there was to be no disciplinary action when the claimant will be informed about when to resume work. In terms of “substance” to the “allegations”, in context that is a reference back to the suggestion that the suspension was because of: your current behaviour, attitude towards your employers the increasing demands to be paid to leave, unfounded claims and the disruption to the workplace,

[199]However, there are no specific details of any such allegations. Ie it gives no examples of “current behaviour” or “attitude” or “unfounded claims” or “disruption”. As we have just mentioned, we are satisfied that R1 had decided, at the meeting in the evening of 27 June 2023, that it was going to gather information first – without specific details of alleged misconduct by the Claimant – and formulate the misconduct allegations after that.

[200]Prior to suspending the Claimant on 30 June, there had been no prior warnings or comments to the Claimant that her behaviour needed to be modified. Neither the manager nor the trustees had raised any performance issues or conduct issues with her. It had not been alleged to the Claimant that there was any breakdown in working relationships between the Claimant and her colleagues. Page 42 of 62

[201]Our finding is that the reason that there had been no such warnings or comments is that the employer did not believe that there were such issues. R1 and R3 did not believe that either Sunita or Shampa had resigned because of the Claimant’s acts or attitudes.

[202]In relation to Nisha’s resignation, on R3’s account, she, R3 and Nisha and the Claimant had jointly agreed to resign. In other words, on R3’s account, Nisha’s resignation was not because the Claimant was allegedly treating the Claimant badly.

[203]It is notable that R1 has failed to disclose the resignation letters for any of Nisha or Shampa or Sunita. In fact, it is the Claimant who has been in contact with Nisha and Shampa and who has persuaded each of them to disclose documents to her that were generated by R1. The documents significantly undermine any claim by R1 that, as of 27 June 2023, it had any grounds for a good faith belief that any other employee had left because of the Claimant.

[204]To the extent that the employer now seeks to justify the suspension by arguing that Claimant had used her phone at work, a short and simple answer is that she had requested her manager’s permission and been granted that permission.

[205]To the extent that the employer now seeks to justify the suspension on the basis that the Claimant was unwilling to collect children from downstairs and escort them upstairs,205.1 Firstly, there was no consideration about whether or not that was because of any medical reason.

205.2 Secondly, and more simply and more fundamentally, the Claimant and her manager, R3, had discussed the situation and the manager was content to collect the children from downstairs. It was not an issue of any description, still less was it misconduct by the Claimant.

[206]We are satisfied that the reason for the suspension was simply that the Claimant had made without prejudice offers seeking termination of her employment in return for an agreed sum of money.

[207]The suspension was carried out without any warning to the Claimant that if she persisted in making such requests then it might be treated as misconduct and/or grounds for the Respondent to take any unilateral action to suspend her or discipline her or to potentially consider dismissal.

[208]The decision to suspend her was made on 27 June 2023 by which time the Claimant had made only one written request for a settlement agreement, and - as we have said - we are satisfied that this was a follow up to having been told to put her oral request (made on 1 June 2023) in writing if she wanted Mr Page 43 of 62 Eracleous to discuss it with the other trustees. The decision to suspend her was made before she replied to the rejection of her 18 June proposal, and, in any event, her reply (of 28 June) said that she was going to consider her position and take legal advice.

[209]Thus at the time the claimant was notified of the suspension (on 30 June), there was a fundamental breach of contract, and had she resigned without more ado then the would have amounted to a constructive dismissal.

[210]The fact that the claimant left it 6 days does not mean that she waived the breach. On the contrary, the Claimant requested clarification and the Respondent failed to provide any. Not only was it reasonable for the Claimant to wait to see if clarification came before taking the decision to resign, but our decision is that R1’s failure to reply to the 30 June communication from the Claimant further compounded the fundamental breach that occurred at the point of suspension.

[211]We do not ignore the fact that the organisation is a small one and that the Trustees are all volunteers or that Mr Eracleous, who was the main point of contact with the Claimant, worked full-time (not for R1).

[212]All that being said, when an employer suspends an employee - allegedly for disciplinary reasons – it is under an obligation to make sure the employee is promptly informed of the reasons for suspension and of what will happen to investigate the alleged misconduct.

[213]There was not even a simple acknowledgment to say to the Claimant that her 30 June email was acknowledged and to set a time scale for when a substantive response would be provided

[214]Thus the Claimant’s resignation on 6 July 2023 was in direct response to a fundamental breach of contract and amounts to a constructive dismissal

[215]For the avoidance of doubt, the email on 6 July operated to terminate the contract and the two emails on 7 July are not relevant as far as termination date is concerned.

[216]Further, for the avoidance of doubt, while the list of issues suggests that there was a request for clarification of suspension on 6 July, there was not. There was a request for clarification on 30 June only. List of issues paragraph 1.1.1.5: The respondents failing to deal with the claimant’s grievances of 9 September 2022, January 2023 and/or 26 June 2023 in a timely manner.

[217]Following the resignation e-mail Mr Eracleous did contact the Claimant offering to discuss. We find that there was no suggestion from R1 that it was willing to Page 44 of 62 allow the Claimant to retract the resignation, but rather - in context - his email was seeking specific clarification about whether the Claimant’s intention was to resign with notice or to resign without notice.

[218]R1 has failed to disclose the documentation giving the Croner consultant their terms of reference. To the extent - if at all - that R1 seeks to argue that Croner were appointed to investigate any disciplinary issues that led to the Claimant’s suspension, we do not accept that suggestion.

[219]On the face of the Croner report itself - and in particular paragraph 3 - it is clear that the consultant believed that they were dealing with a grievance, and specifically with the contents of the Claimant’s 30 June 2023 email, rather than with any disciplinary allegations raised by the employer.

[220]It is not the case, that R1 invited the employee to retract her resignation to give the employer a chance to investigate the grievance.

[221]In so far as the 30 June communication should properly have been treated as (in part) a grievance:221.1 R1 did take steps to have the grievance element investigated reasonably promptly and the Croner report was produced around 27 July 2023.

221.2 However, the report itself was not sent to the Claimant and the communications inviting her to meetings with the grievance investigator were not sent until after termination of employment.

221.3 In any event, the length of time to produce the grievance outcome report is irrelevant to the constructive dismissal arguments because this all happened after the Claimant had resigned on 6 July.

221.4 As was we have already, regardless of whether the 30 June letter was also a grievance, it contained a request for clarification of the suspension reasons and the alleged disciplinary issues and processes; the fact that R1 (on some unknown date, but potentially after the resignation) stage decided to appoint Croner to respond to the letter as a “grievance” does not excuse the failure to reply to the letter promptly as it related to the disciplinary procedure.

221.5 However, insofar as it was a “grievance” it would not have been reasonable to have expected the employer to have concluded the grievance process by 6 July. The 30 June letter should have been at least acknowledged, but saying that the grievance element should have been acknowledged adds nothing to the decision that we have already made that the failure to respond to the part of the letter that related to suspension / disciplinary matters was part of the conduct that led to there being a constructive dismissal on 6 July. Page 45 of 62

[222]To the extent that the constructive dismissal allegation is partially based on a failure to respond to the 9 September 2022 collective grievance, our decision is that the Claimant did get a clear response by letter dated 5 October 2022. Furthermore, the Claimant was aware of the steps that R1 was taking to move the nursery upstairs. In itself, there was no breach of contract based on a failure to respond to the points raised by the 9 September 2022 letter. The letter did not state that there was a right of appeal, but the Claimant did not write back to the Trustees to argue that the response was insufficient and or failed to address any particular points that had been raised. Mr Eracleous was entitled to believe that no further reply was necessary; the employer was under no obligation to issue a further response to the collective grievance letter in the absence of anything further from the employees.

[223]The tribunal is persuaded that the lack of any formal feedback or response to the Claimant following the 24 January document - which was compiled by the Claimant and R3, and then submitted to the trustees by R3 - was unreasonable conduct by the employer. Regardless of whether the employer agreed with the points that were made, they were serious issues that required a response. The Claimant mentioned, for example, that she would like to be paid sick pay and that was not a point raised in collective grievance letter. She also stated that she was ignored in relation to important issues connected to the safety of the children. To the extent Mr Eracleous suggests that had been answered by the 5 October letter, it is such an important point that the employer ought to have attempted to find out if this was referring to something that had supposedly occurred since 5 October. The comment about being told (by trustees) “if we don’t shut up, there is the door” was new, and while Mr Eracleous claims he asked the other Trustees about it, and they all denied it, he neither gave that information to the Claimant, nor asked her to clarify who was alleged to have said it and when.

[224]However, although the conduct of ignoring the 24 January 2023 document was unreasonable, we do not consider that the specific issue of R1’s failure to provide a written response (or any response) to it would – in itself - have led to the Claimant resign. In terms of how the Claimant and Mr Eracleous interacted with each other during the academic year 2022/2023, there is some similarity between what the Claimant says and what Mr Eracleous says though each of them are commenting from their own perspective.224.1 On the Claimant’s account, she requested clarification of her terms and conditions various times over the last 12 months or so of her employment.

224.2 On Mr Eracleous’s account, whenever he saw the Claimant she harked back to the private letter he had sent to Ms George (intended for her eyes only) in summer 2022 and made comments about it which he considered unreasonable. Page 46 of 62

224.3 A lot of what the Claimant writes in the January 2023 document is lacking in specific details (of date, time, place, etc, and exact words said by which person). Rather she gives her opinion of what she regards as an ongoing situation, which she is suggesting has lasted for a very long period of time. The Claimant had worked there for 18 years and we do not think that she was raising anything that was, from her perspective, “new” in the January document. At the time, both the Claimant and R3 seemed to have the same perspective, namely that there were ongoing issues which R1 needed to address, and which had been raised previously. It seems to us that while the Claimant thought there were ongoing issues (and she alluded to that in the 18 June without prejudice letter), the lack any specific response to that 24 January document did not cause her 6 July resignation. List of issues paragraph 1.1.1.3: On 29 June 2023 the third respondent saying to an Indian colleague, Sunita Bowpowsingh, as she was tending to a child who had dropped off a table, “Indians eat off the table anyway”;

[225]We have already stated that our finding of fact was that the Claimant has failed to prove that R3 did use this phrase. Therefore, it was not part of the Claimant’s reason for resigning and was not conduct by R1 that contributed to a fundamental breach of contract.

[226]For completeness, it is not something that was mentioned at the time as part of her reason for resigning. List of issues paragraph 1.1.1.1 Inform Christiana Kromidias of “Enfield Early Years” that the claimant had resigned and /or that the claimant would be “sacked within 6 months of the nursery being taken over”. The claimant’s case is that Ms Kromidias said these things to her (the first in front of the third respondent and her colleagues Gina and Nisha) on 1 June 2023. The claimant contends that Ms Kromidias must have been told these things by the respondents;

[227]In terms of what the local authority had been told by the Respondents, we accept that it was the Claimant’s genuine interpretation that she was told by the local authority employees that they believed she had resigned.

[228]We are not satisfied that the Respondents actually did tell the local authority that the Claimant had resigned. It is certainly not what is written on [Bundle 62].

[229]Regardless of whether the Claimant misunderstood what the local authority staff told her, or regardless of whether the local authority misunderstood the information given to them by the Respondents, there was no breach of contract on R1’s part in connection with the discussions between Mr Eracleous and the local authority about the future of the nursery. Page 47 of 62

[230]The local authority provided advice to R1 about the need for new staff and about the possibility of contracting out the service. Had there been a firm plan by R1 to contract out the service, then there would have been a statutory right for the Claimant to be consulted and she would potentially have transferred to the new employer rather than being dismissed. However, we are satisfied that there was no firm plan to contract out and there was nothing to consult the Claimant about at that stage.

[231]Furthermore, even if the Claimant is correct – that on 1 June 2023, she was told that that the local authority thought she had resigned, and/or that the nursery might go to a new contractor - when the Claimant spoke to Mr Eracleous, he made it clear to the Claimant that R1 did not think that she had resigned and R1 was not planning on closing the nursery.

[232]The Tribunal considers the willingness of the local authority to become involved in discussions between the Claimant and R1 about settlement / severance to be surprising. However, we have not heard from the employee concerned and we need say no more about it beyond the fact that the local authority’s own notes confirm that they did communicate to Mr Eracleous that the Claimant wished to have a discussion. In any event, the local authority’s involvement does not amount to a breach of contract by R1 for multiple reasons, including that it was at the Claimant's request that the local authority officer spoke to Mr Eracleous about the possibility of there being a severance agreement for the Claimant; it was not a discussion initiated by R1 (or R3, for that matter).

[233]On 1 June 2023, R1 did not breach the Claimant’s contract when Mr Eracleous spoke to the local authority, or when Mr Eracleous spoke to the Claimant. Fairness

[234]Thus the claimant has not successfully demonstrated that all the alleged components of the alleged breach of trust and confidence succeeded.

[235]However, there was a constructive dismissal and our decision is that the dismissal was unfair.

[236]R1 had no reasonable grounds to believe that the Claimant’s conduct what such that dismissal would have been within the band of reasonable responses.

[237]The Respondent had no reasonable grounds to believe that the situation was such that the working relationships had irretrievably broken down in such a way that dismissing the Claimant for “some other substantial reason” would have been within the band of reasonable responses.

[238]Furthermore a fair procedure had not been followed prior to the conduct which caused the constructive dismissal. As we have already stated, no specific Page 48 of 62 examples of disciplinary issues were stated to the Claimant at the point of suspension, or when she asked for clarification.

[239]Thus the dismissal was unfair Section 3 of list of issues – notice pay

[240]The dismissal was also a breach of contract. There was a repudiatory breach of contract by the Respondent which the Claimant accepted when she resigned.

[241]Given the Claimant’s length of service, she was entitled, by statute, to a minimum of 12 weeks’ notice. She did not have a contractual entitlement to any longer period of notice Paragraph 6.5 of list of issues: When these proceedings were begun, was the respondent in breach of its duty to give the claimant a written statement of employment particulars or of a change to those particulars?

[242]The Respondent failed to supply the Claimant with the particulars required by Section 1 of the Employment Rights Act 1996. Next Steps

[243]At the end of our liability decision with reasons, we informed the parties that, at the remedy stage:243.1 The Tribunal would deal with any application for reinstatement or reengagement.

243.2 The Tribunal would decide, in connection with the unfair dismissal, what would have happened but for the unfair dismissal insofar as that is relevant to the calculation of the compensatory award.

243.3 The Tribunal would decide whether there had been any contributory fault on the Claimant’s part such that it should reduce either the basic award and/or the compensatory award.

243.4 As well as any other remedy issues for the unfair dismissal complaints. Remedy Reasons Law - Remedy

[244]The purpose of compensation is to provide proper compensation for the wrong which we found the Respondent to have committed. The purpose is not to provide an additional windfall for the Claimant and is not to punish the Respondent. Page 49 of 62

[245]For financial losses, we must identify the financial losses which actually flow from complaints which we upheld. We must take care not to include financial losses caused by any other events, or losses that would have occurred any way.

[246]Interest is not available for any of the complaints which we upheld.

[247]Section 123(4) ERA requires that tribunals apply “the same rule concerning the duty of a person to mitigate his loss as to damages recoverable under the common law”. Where the employee has mitigated, a tribunal should give credit for sums earned.

[248]When assessing the amount of any deduction for the employee's failure to mitigate their loss, the tribunal does not reduce the compensatory award that it would otherwise make by a percentage factor. The correct approach is to make a decision about the date on which the claimant would have found work had they been acting reasonably to seek to mitigate their losses, and then make an assessment of what income they would have had from such work.

[249]So the approach is:249.1 Consider what steps it would have been reasonable for the claimant to have had to take to mitigate their loss;

249.2 Ask if the claimant failed to take reasonable steps to mitigate their loss;

249.3 Decide to what extent would the claimant have mitigated their loss had they taken those steps

[250]It is for the Respondent to prove that the Claimant has unreasonably failed to take appropriate steps, and that – on balance of probabilities - had those steps been taken, then the losses would have been mitigated. Adjustments to award

[251]S122(2) ERA states that where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly. Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.

[252]In relation to compensatory award, S123(6) states that where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the Page 50 of 62 complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding. Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

[253]For conduct to be the basis of a finding of contributory fault under S.123(6) ERA, it must have the characteristic of culpability or blameworthiness. This was established in Nelson v BBC (No.2)

1980 ICR 110

. The conduct must also have a causal link to the dismissal.

[254]In Hollier v Plysu Ltd

1983 IRLR 260

, the EAT said that the contribution should be assessed broadly and should usually fall within the following categories: wholly to blame (100 per cent); largely to blame (75 per cent); employer and employee equally to blame (50 per cent); employee slightly to blame (25 per cent). There would be a zero reduction where the Claimant has not contributed at all by blameworthy conduct. Polkey

[255]Section 123(1) provides tribunals with a broad discretion to award such amount as is considered just and equitable in all the circumstances, having regard to the loss sustained by the claimant because of the unfair dismissal. However, compensation for unfair dismissal under s.123(1) cannot include awards for noneconomic loss such as injury to feelings (see the House of Lords decision in Dunnachie v Kingston upon Hull).

[256]As part of the assessment, the tribunal might decide that it just and equitable to make a reduction following the guidance of the House of Lords in Polkey v AE Dayton Services

[1987] IRLR 503

. For example, the tribunal might decide that, if the unfair dismissal had not occurred, the employer could or would have dismissed fairly; if so, the tribunal might decide that it is just and equitable to take that into account when deciding what was the claimant’s loss flowing from the unfair dismissal.

[257]The Polkey assessment will usually be concerned with facts and matters known to the employer at the time of dismissal, but it is not necessarily limited to such facts. The tribunal may have to take into account facts which the employer might have found out if it had acted fairly, and/or future events which may have occurred if the employer had acted fairly. Polkey requires an assessment of the chances of different scenarios unfolding rather than to make decisions, on the balance of probabilities as to what would/would not have happened.

[258]In making such an assessment the tribunal, there are a broad range of possible approaches to the exercise. Page 51 of 62258.1 In some cases, it might be just and equitable to restrict compensatory loss to a specific period of time, because the tribunal has concluded that that was the period of time after which, following a fair process, a fair dismissal (or some other fair termination) would have inevitably taken place.

258.2 In other cases, the tribunal might decide to reduce compensation on a percentage basis, to reflect the percentage chance that there would have been a dismissal had a fair process been followed (and acknowledging that a fair process might have led to an outcome other than termination).

258.3 If a tribunal thinks that it is just and equitable to do so, then it might combine both of these: eg award 100% loss for a certain period of time, followed by a percentage of the losses after the end of that period.

[259]There is no one single “one size fits all” method of carrying out the task. In Software 2000 Ltd v Andrews and ors

2007 ICR 825

, the EAT, noted that the relevant principles included:259.1 in assessing compensation for unfair dismissal, the employment tribunal must assess the loss flowing from that dismissal, which will normally involve an assessment of how long the employee would have been employed but for the dismissal

259.2 if the employer contends that the employee would or might have ceased to have been employed in any event had fair procedures been adopted, the tribunal must have regard to all relevant evidence, including any evidence from the employee

259.3 there will be circumstances where the nature of the evidence for this purpose is so unreliable that the tribunal may reasonably take the view that the exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on the evidence can properly be made. Whether that is the position is a matter of impression and judgement for the tribunal

259.4 however, the tribunal must recognise that it should have regard to any material and reliable evidence that might assist it in fixing just and equitable compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to make a deduction

259.5 a finding that an employee would have continued in employment indefinitely on the same terms should only be made where the evidence to the contrary Page 52 of 62 (i.e. that employment might have been terminated earlier) is so scant that it can effectively be ignored.

[260]The tribunal must act rationally and judicially, but its approach will always need to be tailored specifically to the circumstances of the case in front of it. When performing the exercise, the tribunal must also bear in mind that when asking itself questions of the type “what are the chances that the claimant have been dismissed if the process had been fair?”, it is not asking itself “would a hypothetical reasonable employer have dismissed”? It must instead analyse what this particular respondent would have done (including what are the chances of this particular respondent deciding to dismiss) had the unfair dismissal not taken place, and had the respondent acted fairly and reasonably instead.

[261]As the EAT noted in Granchester Construction Ltd v Attrill

UKEAT/0327/12

. .261.1 In paragraph 26, the EAT notes: we accept that the Tribunal's approach in looking at a reasonable employer rather than at the actual employer was in error and was likely to understate the extent of the deduction that fell to be made.

261.2 In paragraph 27, when considering the approach to adjustments for contributory fault and/or Polkey, the EAT suggested a tribunal should: consider what facts and matters the employer would probably have accepted for itself, reasonably, having carried out the investigation that would have been carried out had a proper procedure been followed.

[262]More generally, Attrill considers the approach to making adjustments when deductions to reflect both contributory fault and Polkey might be appropriate. If a tribunal provisionally decides on a percentage reduction to reflect contributory fault, then it is not necessarily an error for the tribunal to decide that applying that full percentage reduction to the compensatory award might not be just and equitable if a Polkey reduction (which takes account of the same conduct by the employee) is also being made. In other words, the tribunal might decide to make a smaller reduction for contributory fault than it might otherwise have made.

[263]However, in Attrill, the EAT noted that if the logic just described would not mean that the smaller reduction should be applied to both the basic award and the compensatory award if the Polkey reduction was applied only to the latter. ACAS

[264]Section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 provides. (2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— Page 53 of 62(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employer has failed to comply with that Code in relation to that matter, and

(c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.

[265]So, a failure to comply with a Code has to be an unreasonable failure for this provision to have effect. Some failures might not be unreasonable, and so that is one of the decisions the Tribunal has to make.

[266]The ACAS Code of Practice on Disciplinary and Grievance Procedures is a Code to which section 207A(2) potentially applies.

[267]The correct approach is to first consider if there was an applicable code, and if so, decide if the party (in this case, the Respondent) had obligations under the code, and, if so, if it breached them. Then decide if that breach was unreasonable. If so, then decide if there should be an uplift, and fix the amount.

[268]The maximum is 25%, and that might be – but is not necessarily – appropriate in cases where there is a complete failure. However, taking into account whether there was partial compliance, and other relevant factors, including the Respondent’s size and resources, and the reasons for the default, then the uplift (if any) can be fixed at any appropriate figure which does not exceed 25%.

[269]The award must be proportionate. If the amount produced by the (provisionally) appropriate percentage would lead to an uplift which was disproportionately high, the Tribunal must reduce the award to an amount which is proportionate, so as to ensure that, in the words of the statute, the award is actually “just and equitable”. Employment Act 2002

[270]Section 38 Employment Act 2002 specifies that the Tribunal must award compensation to an employee where, on a successful claim being made under any of the jurisdictions listed in Schedule 5, the employer was in breach of its duty to provide full and accurate written particulars under section 1 ERA. The relevant jurisdictions include unfair dismissal and breach of contract.

[271]The relevant date is the date on which the claim was presented. So if the requirement to supply particulars was supplied later than required, but had been done prior to the claim’s presentation, then there is no compensation under section 38. Whereas, if the defect was cured prior to the date of the hearing, but after presentation of the claim, then section 38 does apply. Page 54 of 62

[272]Where the tribunal finds that the employer breached its duty to provide full and accurate employment particulars, it:272.1 must award the minimum amount of two weeks’ pay (subject to exceptional circumstances which would make an award or increase unjust or inequitable), and

272.2 may, if it considers it just and equitable in the circumstances, award the higher amount of four weeks’ pay.

[273]A week’s pay is calculated in accordance with sections 220 to 229 ERA. It is limited to the cap applied by section 227. The date of calculation, if the employee was no longer employed by the time the claim was presented, is the effective date of termination of employment. Findings of fact for Remedy

[274]Our assessment is that, but for the termination of the Claimant’s employment, the nursery would have remained open during the next academic year. It is speculative as to whether R3 would have stayed on or not, though, in principle, prior to 1 June 2023, she had agreed with the employer that she would retract her resignation, and agreed with the Claimant that she and the Claimant would be joint managers. However, even had R3 left, if the Claimant had remained employed, then our assessment is that there is a 100% chance that the nursery would have remained open for the academic year 2023/2024.

[275]It is unclear whether Sunita would have been willing to stay on. That might have depended on what shifts she would have been offered.

[276]However, Mr Eracleous had made clear that it was his intention to keep the nursery open, and we are satisfied that he would have been able to recruit the comparatively small number of staff needed to supplement the Claimant, even if neither R3 nor Sunita returned after the end of Summer term, in July 2023.

[277]The local authority had also supported keeping the nursery open if possible.

[278]It is true that the numbers of pupils were down in comparison to previous years in which there was a new intake. This time, as of early July, there were 10 children signed up to start in September 2023, compared to the 48 that they had had in peak years.

[279]That being said, we accept the Claimant’s evidence that usually, after the start of term, the numbers increased over the first few weeks. We also take account of the fact that July 2023 was still a few weeks before the year was due to start in September, and so there was the chance to increase number even before the start of the year. In any event, when the Claimant had asked about redundancy Page 55 of 62 on 1 June 2023, Mr Eracleous had been adamant that he believed that the nursery would remain open, and, after the Claimant’s 18 June letter, it was still the Trustees’ opinion that the Claimant was being unreasonable in seeking redundancy or other severance terms. Furthermore, in May, Mr Eracleous had sought to talk Nisha out of ending her employment at the end of the July 2023 term.

[280]Even if pupil numbers were down, there was the option of operating with fewer staff than they had had at peak times (there had been 4 when the collective grievance letter was written, and 4 when Shampa and Nisha were both there).

[281]If we were wrong in our assessment that the nursery would have remained open from September 2023, then our unfair dismissal calculation would have had to take account of what the Claimant’s financial losses were in the scenario that it closed. She would have been entitled to pay during the consultation period, then notice pay, and then redundancy pay.

[282]Given that it is our decision that there was 100% chance of the nursery remaining open, we have to consider the possibility of the Claimant’s departure in circumstances that did not amount to an unfair dismissal. That could include voluntary resignation (so not a constructive dismissal) or an actual dismissal that was not an unfair dismissal.282.1 We do not make any reduction for either of these possibilities in light of our assessment about mitigation of losses. That is, we only need to consider the possibility of termination prior to April 2024.

282.2 The Claimant was not going to voluntarily resign in circumstances in which she, the Claimant, did not regard it as constructive dismissal and she was taking legal advice at the time. The issues that she had raised in her January grievance may or may not have had merit, but, at the time, R3 agreed with her. The Claimant had not had clear responses to the comments that she made about being ignored over safeguarding, or about wanting to have a written contract.

282.3 There was no fair basis for the Respondent to dismiss the Claimant. The Claimant had not refused to carry out her duties and we have rejected the Respondent’s assertions that other staff were finding her difficult to work with. The Respondent treated the Claimant’s without prejudice comments as unreasonable, but without offering her the opportunity to state her allegations clearly, on an open basis (for example, as part of a formal grievance) and have them investigated. Page 56 of 62

[283]To her credit, the Claimant did act promptly to try to replace her income. She obtained a job working in John Lewis. She worked 10 hour shifts. She was there for two weeks and earned about £700 net in total, £350 per week.

[284]We criticised the Respondent earlier on in our reasons for its failure to disclose documents that were plainly relevant. It is only fair that we criticise the Claimant and/or her advisers for failure to disclose full documentation about the John Lewis job and about any medical advice that she received at the time.

[285]The Claimant is in serious breach of the Tribunal’s orders for disclosure of payslips, job offer, correspondence, etc about the job. We do not accept that she did not have any documents about it. Her correspondence (and that written by her son on her behalf) to the Respondent in June and July had stated that the Claimant was seeking legal advice. There is therefore no good excuse for failing to have payslips from work that she did for a reputable employer in August. Similarly, she ought to have been able to produce GP notes to show that she took medical advice and that the advice was to leave the job.

[286]However, on balance, we accept her evidence on oath about the circumstances of the job and her departure from it.

[287]Her decision to leave the John Lewis job did not amount to an unreasonable failure to mitigate. She made a good faith attempt to do the job, but it required her to be on her feet throughout the shift. Having tried to do this for 2 weeks, she followed medical advice and gave it up.

[288]Shortly after leaving John Lewis, the Claimant applied for a job in a nursery setting. She was ultimately unsuccessful. We make no criticism of the Claimant for being unsuccessful; she did her best to get that job. However, she claimed to us that her experience of being rejected for that job put her off applying for jobs in any other nursery setting. Her assertion was twofold:(i) that it was her perception that, after she revealed the circumstances of her termination of employment with R1, the recruiter’s attitude towards her changed and

(ii) that she did not wish to put herself through that again.

[289]We do accept that it was right and proper that the Claimant disclose, to the nursery to which she applied, her employment history. Indeed, our assessment is that she would have had to do that to whenever applying for any job working with children or vulnerable adults.

[290]The Claimant successfully applied for work with an organisation called Alpha Care Specialists Ltd. She would have had to disclose her work history to that organisation (which took her on) just as she did to the nursery (which rejected her). Page 57 of 62

[291]So, having left R1’s employment, she made 3 attempts to get work, two of which (John Lewis and Alpha Care) were successful.

[292]We have calculated her income from Alpha Care as follows. We have looked at the payslip on [Bundle 229] which showed year to date figures as of 31 March 2024. The gross pay for that year to date was £3384.12 and that is also the net as there were no tax or employee national insurance deductions.

[293]It is a 6 month period, and we convert the average pay in that 6 month period to a weekly average which is [£3384.12 x 12/6 x 1/52] = £130.16 per week.

[294]We do not ignore the facts that in that period, some of those earnings were for periods in which the Claimant was undertaking training, and some of those earnings were for periods in which the Claimant was on paid time off as annual leave.

[295]However, her hourly rate was £11 per hour, so the average earnings of £130.16 per week meant that she was working just under 12 hours per week, on average. Analysis and Conclusions for Remedy

[296]We do not consider that there should be a Polkey deduction, for the reasons mentioned in the findings of fact.

[297]Further, the Claimant has not contributed to the dismissal by any blameworthy conduct. She sought to have a without prejudice discussion and the Respondent did not wish to make an offer; it was entitled to make no offer. However, rather than tell her to put in a formal grievance, in open correspondence, and rather than warn her that it did not wish to have any further without prejudice discussions, it suspended her. The Respondent has failed to prove that her colleagues did not wish to work with her; the comments she made in September 2022 were comments that all her colleagues agreed with, and the comments she made in January 2023 were comments that R3 agreed with. Asking for written terms and conditions, and asking for contractual sick pay, are not examples of blameworthy conduct.

[298]In terms of ACAS uplift, we have to consider both the grievance part of the ACAS Code and the disciplinary part.

[299]For the disciplinary first, the Claimant was suspended on Friday 30 June, and, six days later, 6 July 2023, she had still not received proper details of the reasons for the suspension, or the disciplinary allegations against her, or the process that would be followed. We consider that to be a breach of the requirements of the Code. However, the employer is managed by volunteers who have full-time jobs. In all the circumstances, taking into account the size of the employer and the Page 58 of 62 duration of the delay, we do not consider it to be an unreasonable failure such that an award of an uplift would be appropriate.

[300]For the grievance, Mr Eracleous testified that, had he seen the 24 January 2023 document at the time, he would have treated it as a grievance. Our finding of fact was that he did see it. Therefore, by his own acknowledgment, it ought to have been treated as a grievance. It was not treated as a grievance, or, at least, none of the requirements of the ACAS code for dealing with grievances was complied with. As we said in the liability decision, it was bad practice that the Claimant received no written response or acknowledgment. However, what happened in practice, at this small employer, where all the individuals had known each other for many years, was that matters were often dealt with by oral conversations. R1 failed to call the Claimant to any formal meetings to address her concerns. There was no written outcome, or right of appeal. However, in all the circumstances, including the fact that the lack of response was not an immediate cause of the Claimant’s resignation, we do not think it would be just and equitable to apply any uplift in relation to the January grievance.

[301]In relation to the 30 June letter, which was treated as a grievance (albeit R1 did not tell the Claimant they were treating it as a grievance until after the constructive dismissal), there was back and forth correspondence inviting the Claimant to a meeting, and inviting her to make written representations to the Croner consultant if she did not wish to attend the meeting. We do not say that R1 acted perfectly in connection with that. Our view is that the fact that different names (Peninsula and Croner) were mentioned in the correspondence is minor, and the Claimant (or her son) could have easily sought clarification if needed. A major breach of the ACAS code was the failure to supply the Claimant with the outcome once the report was completed. That being said, the Claimant also failed to comply with the Code in that she refused to attend the meetings, and her son wrote (with her authority) to make that unambiguously clear. So, for the 30 June grievance, it would not be appropriate to apply any uplift in the Claimant’s favour, or any reduction in the Respondent’s favour.

[302]The Claimant has not acted reasonably to mitigate her losses. The onus is on the Respondent to prove this, and it has done so.

[303]We do not disbelieve the Claimant’s account that she felt embarrassed when she was not successful in the application for the job in a nursery, around August or September 2023. We do not disbelieve her when she says it was her perception that the reason she was unsuccessful was the information she supplied about her reasons for leaving R1 (including that she had been suspended at the time of her resignation).

[304]The fact is, however, that she only had one piece of data to go on. That was the only nursery job she applied for. She was successful in her applications for a job Page 59 of 62 for a retailer (the only such job she applied for) and in a job working in adult care (the only such job she applied for).

[305]Even though she felt embarrassed by the one rejection that she did have, she had several options available to her to try to replace the income she had been receiving from R1. A person who is under a duty to mitigate their losses is under a duty to try just as hard to try to replace the income from their previous employment as they would have done if they had no expectation of a potential award of damages or compensation.

[306]The Claimant could have tried applying for more work in nursery settings; the fact that she was unsuccessful in one application might just have been because one person who was better suited also applied. Furthermore, even if it was because this particular employer was put off by the information about what had happened with R1, it does not follow that every prospective employer would have had the same view.

[307]She also had the option of applying for jobs in a different sector altogether (not working with either children or vulnerable adults). As we have said, we do not criticise her for leaving the specific John Lewis job that she did obtain, because it did not suit her medical condition. However, the fact that she obtained it shows that she did have suitable skills to be appointed to work in other sectors, and she made no attempt to obtain work in (say) retail (or anything else) that might not have required her to be standing throughout a 10 hour shift.

[308]She also had the option of applying for jobs in the adult care sector that would have provided more hours than she was able to get from Alpha Care. We accept that she is telling the truth when she tells us that part of the reason her paid hours were so low is that she had to travel between clients’ homes and was not paid for that, and we accept her evidence that – for that reason – she could not have carried on working for Alpha Care and also supplemented her income by taking a second job.

[309]However, we do not accept that there were no other jobs, that were potentially suitable for the Claimant, that offered more than 12 hours a week (or more than £130.16 per week).

[310]Had the Claimant been able to show that she had been applying for jobs, and been unsuccessful, that would be one thing. However, she has no evidence of doing that, and she accepts that she was not making applications for other work. She argues that, once she had secured the job with Alpha Care, she did not wish to put herself through the risk of further rejection from other employers. However, applying for work does always carry with it the risk of rejection. She has provided no medical evidence, and we do not accept, that the experience of receiving job rejections placed her mental health at risk. Page 60 of 62

[311]She only applied for 3 jobs after leaving the Respondent (and was only rejected in one of those applications) and that is not reasonable in circumstances where her income prior to termination was £442.32 per week (net) and her income after dismissal was more than £300 per week less than that. Her net weekly income was about 30% of that prior to termination. In those circumstances, reasonable efforts to mitigate would require more than applying for just 3 jobs.

[312]We think that even if a combination of the embarrassment of being rejected from the nursery job in around late August or early September, and the fact that she might have wanted to try Alpha Care for a few weeks, to do some training, and to find out how many hours work might be available, meant that it was reasonable not to do more to look for work in the period up to the end of December 2023, it was unreasonable to fail to make a lot of effort to get better paid work from January 2024 onwards.

[313]Our assessment is that, had the Claimant been making all reasonable efforts, from January 2024 onwards, to replace the income that she had had with the Respondent, then – on balance of probabilities – by April 2024, at the latest, she would have been able to completely replace the weekly income that she had had while working for the Respondent.

[314]Thus, for the loss of income, in addition to the period covered by the notice period (for which we will award damages for breach of contract), we will award a further 26 weeks’ loss of income. Calculations

[315]The Claimant’s gross pay was £500 per week from R1, and the net pay was £442.32.

[316]She worked for R1 for 17 complete years, giving her a multiplier of 25.5. The basic award for unfair dismissal was 25.5 x £500, which is £25,500 £12,750.

[317]For the notice pay, the Claimant would have earned 12 x £442.32 net during the notice period. That is £5307.84. In fact, she earned £700 from John Lewis, and so the net loss was £4607.84.

[318]For the 26 weeks for which we are awarding compensation for unfair dismissal, instead of earning £442.32 per week, she earned £130.16. So the aggregate loss for 26 weeks was £8168.16.

[319]In addition, we award £450 for loss of statutory rights, bringing the figure to £8618.16.

[320]We award the standard two weeks’ pay in accordance with section 38 of the Employment Act 2002. So that is £500 x 2, which is £1000. Page 61 of 62

[321]The Claimant had no benefits in the relevant period and the Recoupment Regulations do not apply. Approved by:

REASONS

6 May 2025 ........................................................................................................... FOR EMPLOYMENT TRIBUNALS Page 62 of 62