Mrs R Forward v Guildowns Group Practice: 3314998/2022

EMPLOYMENT TRIBUNALS

Case No 3314998/2022

Between

Mrs R ForwardClaimant

Guildowns Group Practice (a firm)Respondent

Before

Employment Judge George

Date 2 September 2025

JUDGMENT

[1]The complaints of automatic unfair dismissal and detriment on grounds of protected disclosures are not well founded and are dismissed.

[2]The claimant was unfairly dismissed by the respondent.

[3]No later than 9 September 2025 the claimant is to send to the respondent and the tribunal and updated schedule of loss setting out the factual and arithmetic basis for the compensation she argues the respondent should be ordered to pay in respect of the successful complaint.

[4]No later than 23 September 2025 the respondent is to reply with a Counter-Schedule of Loss setting out the factual basis for any argument that compensation should be reduced on the grounds that the claimant’s conduct contributed to the dismissal or on the grounds that the claimant would have terminated in any event.

[5]The remaining issues on remedy will be decided at a remedy hearing to be held before the same panel by C.V.P. on 2 October 2025 with a time estimate of one day. The issues to be decided are those set out in para.199 of the following reasons.

REASONS

[1]In this hearing we had the benefit of a joint hearing file which ran to 832 pages. Page numbers in that file are referred to in these reasons as pages 1 to 832 as the case may be. There was a supplementary hearing file and page numbers in that file are referred to in these reasons as SB pages A1 to A37. The parties had also agreed a chronology and cast list.

[2]The claimant gave oral evidence and relied on two witnesses called in support of her allegations: Paula de Jonge and Christina Smith. The respondent relied on the oral evidence of four witnesses: Dr S Denton, Dr D J Beeharry, Dr C Oh (all partners of the firm and GPs in the Surgery run by the respondent) and Camilla Walker, at the relevant time the Finance Officer and then HR/Finance Manager with the firm.

[3]The claim was case managed by Employment Judge Manley at a hearing on 15 June 2023 and the provisional timetable provided for judgment and remedy to be delivered on Day 5 of what was then a 5 day time allocation. Unfortunately, lack of available judges meant that the original hearing was postponed and then, as sometimes happened, the best fit with available judicial resource meant that the panel were only able to sit on 4 days. The reduced time allocation meant that it was necessary to reserve our judgment and list a provisional remedy hearing. We apologise for the delay in finalising this written reserved judgment which is largely due to Employment Judge George having a period of leave during the summer months.

[4]Since the claimant has succeeded in her unfair dismissal complaint, the remedy hearing will proceed and we make directions for an updated schedule of loss and counter schedule of loss to enable the parties to prepare for it. Since they had originally been expecting the final hearing to cover issues of both liability and remedy, no additional statement or documentary evidence can now be put forward except with the permission of the tribunal. There is likely to be cross examination of the claimant and (to the extent that they give evidence relevant to remedy one or more of the respondent’s witnesses) at the remedy hearing. Any application for permission to rely on additional statement or documentary evidence should be made in good time before the remedy hearing.

The Issues

[5]The issues to be determined at the hearing remained those set out in the Agreed List of Issues at page 48 of the hearing file.

[6]It became clear, however, that both parties had proceeded on the basis that an email sent by the claimant on 6 April 2022 (page 387) should be taken as part of the exchange which was relied on as her protected disclosure. It is part of the series of correspondence so it made sense for it to be included and Mrs Buchanan Shill for the respondent took no objection to that.

[7]We omitted to clarify at the start of the hearing whether the parties were expecting us to decide on any adjustments to compensation because of contributory conduct or the likelihood that the employment would have ended in any event at the same time as deciding whether or not the claimant was unfairly dismissed. The latter is commonly referred to as the Polkey deduction after the redundancy case of Polkey v A E Dayton Service Ltd which explains the principle.

[8]We circulated a draft self-direction on the law for the parties’ information at the start of Day 3. At the same time we discussed with the parties what their expectations and preferences were about issues relating to conduct or Polkey deductions and it was agreed that any evidence or argument on those issues should be dealt with, if necessary, at any remedy hearing.

[9]To the extent that factual allegations were made in the witness statements but were not explored with witnesses in cross-examination it is not fair to the witness or the party on behalf of whom they were called to make a finding of fact that a particular allegation is well founded if they did not have the opportunity to respond to the allegation. The tribunal took steps to ensure that the parties’ respective cases on issues in the List of Issues were put to the other side’s witnesses. However, it is not the tribunal’s role to run a party’s case for them and if particular factual allegations were not thought relevant or were not the subject of cross-examination then we do not need to make determinations about them.

Findings of Fact

[10]We make our findings of fact on the balance of probabilities taking into account all of the evidence, both documentary and oral, which was admitted at the hearing. We do not set out in this judgement all of the evidence which we heard but only our principal findings of fact, those necessary to enable us to reach conclusions on the remaining issues. Where it was necessary to resolve conflicting factual accounts we have done so by making a judgment about the credibility or otherwise of the witnesses we have heard based upon their overall consistency and the consistency of accounts given on different occasions when set against contemporaneous documents where they exist.

[11]The claimant started work for the respondent as the practice Business Manager on 1 February 2017. Mrs Walker started her employment with the respondent on 29 August 2017. She was employed as a finance officer and initially she and the claimant appear to have had a very good working relationship. The partners from whom we have heard in all evidence were very complimentary about the work ethic and standard of work of both Mrs Walker and the claimant.

[12]The organisation of management responsibility in the practice means that some of the partners have particular areas of responsibility:a. Dr Colin Oh was and is the Senior Partner and Financial Lead for the practice.

b. Dr Beeharry (familiarly referred to as Betty) has been HR Lead Partner since 2017.

c. Dr Susan Denton was the Clinical Director of the Primary Care Network (PCN) from 1 July 2019 to 30 June 2023 which covers the relevant period.

[13]The practise is one of four GP practises which together make up one PCN. As we say, Dr Denton was the clinical director of the PCN during the relevant period in accordance with the PCN Directed Enhanced Service or DES. Dr Denton set out in her paragraph 8 to 12 the roles that partners and employees of the respondent had within the PCN. In particular, from May 2020 onwards Mrs Walker provided some HR and finance support to the PCN to support recruitment. She submitted quarterly claims to be made by the PCN to Dr Denton for checking and thereafter (after checking by the practice managers) to Procare Health limited, the GP Federation which acted as the “nominated payee”, held the bank account for the PCN and was, in effect, the gatekeeper to the PCN funding. Procare would check the quarterly claims and pay out to the respective practices.

[14]In about October 2021 Mrs Walker agreed to act as interim PCN Manager. Initially this was to have been for three months but when a permanent PCN Manager was recruited she stayed on an interim basis until 31 March 2022 to train them. It appears that, from that point, the PCN Manager was responsible for checking the quarterly invoices to Procare.

[15]The claimant was one of the four practise managers within the PCN and took the lead on a particular pilot. Her work with the PCN and Dr Denton’s role as Clinical Director mean that they attended a number of PCN meetings together.

[16]When staff from a particular practice (such as Mrs Walker) were allocated to PCN work, that would reduce the time they were available to work in their employer’s practice. We accept Dr Denton’s evidence (her paragraph 25) that, because they released Mrs Walker, the respondent was entitled to receive payments from transformation funding made available to PCNs by Guildford and Waverley Alliance Board and later from the Core PCN Funding. We accept that the framework for these payments had been agreed by the PCN representatives at meetings at which the claimant was, in general, present.

[17]Dr Denton gave evidence in her para.58 about the sort of “on-costs” which a practice might incur when work was undertaken by an employee for the PCN. Since this would incur a Practice Manager it seems it would include the practice being reimbursed for work carried out by her. The cost of matters such as supervision by practice staff and GP partners and administrative support would be absorbed by the practice and the rates applied to work undertaken by the practice staff would include an element to be retained by the practice on account of those costs.

[18]She explained the model of PCN funding in her paragraphs 18 and following. Staff reimbursement is outlined in a specification which is updated each year. It is also relevant to note that the GP partners are not given a salary but share the partnership profit (para.16 of Dr Denton’s statement).

[19]How this was used to fund Mrs Walker being released from the practice to work on PCN duties is described by her in paras. 34

[20]The claimant’s allegations of protected disclosure arise out of her belief about the way the PCN was funded and what were the legitimate ways for practices to bill for time spend by their staff on PCN work.

[21]We note the exchange between the claimant and CW on 4 January 2022: page 346. It appears that the reimbursement rate from the PCN was increased but there had been a delay in the correct rate to be paid through Procare. There were 3 care co-ordinators employed by the respondent engaged on work for the PCN but one was not entitled to the uplift as they had not been in post for at least 6 months (see SD para.37). The delay in the correct rate being paid meant that 2 care co-ordinators’ pay was not increased when that of the respondent’s other employees was but then was increased as from December 2021. This was the implementation of a decision taken the previous March for all employees (SD para.30) at a meeting at which the claimant was present.

[22]It is therefore not fair or true to say that CW had increased the care coordinators’ pay without authorisation. Not only was there the March 2021 meeting but Mrs Walker explicitly stated to the claimant that Dr Denton had authorised the increase. Furthermore, it does not appear to be something which required an exercise of discretion by CW as it resulted from the timing of implementation of a change which had happened some time previously.

[23]Nevertheless, a reasonable interpretation of what happened is that the Business Manager has not been kept informed that an increase was to be put into effect. CW responsibility for finance would have green lighted the actual payment because either she was handling the payroll at the time or Chantall, who reported to her, was doing so. However the authorisation was from SD one of the partners. Arguably, CW and Dr Denton did not keep the claimant informed about things which as Business Manager she should have been informed about. Dr Denton explains in her para.37 that the final approval had been given in early November 2021 but that she hadn’t been able to reassure the claimant at the time of the pay awards was that she was on annual leave and then, unexpectedly, in a quarantine hotel. Dr Denton states that the claimant had been present at the original meeting on 18 March 2021 (her para.30 and pages 228 to 231) when this was decided on. Nevertheless, the Business Manager should have been informed that the earlier decision was now being implemented. Her reaction may have been disproportionate but she reasonably felt excluded.

[24]It was during a PCN meeting between Mrs Walker and Dr Denton in January 2022 that the latter noticed that the former was not herself and CW explained that she thought that the claimant was looking to find fault with her (CW para.42 and SD para.72 and following). It is not necessary for us to make findings about everything that had happened to bring her to that point although we do make findings about the care co-ordinators pay rise and the alleged breach of the study leave policy. For example, we make no findings about the background to page 365. It is sufficient to state that Mrs Walker explained inter-personal problems she was experiencing with Mrs Forward but also with TS and PDJ. She wanted at that time to try to resolve them directly with Mrs Forward informally and Dr Denton suggested that CW speak to Dr Beeharry as the HR lead.

[25]Dr Denton emailed all of the partners following this conversation under the subject “Deputy managers ??” and said “Who are our deputy managers? I thought we were absolutely clear that we wanted Camilla in this role? It seems Tina and Paula are not treating her well and think they are deputy PMs. Has something happened whilst I was away? We don’t want to loose (sic) Camilla. She is going to speak to Betty today.”

[26]Page 352 is an email from DB to all of the partners entitled “HR update” in which she relays the conversation she has had with CW. This includes a description of actions that Mrs Walker alleges the claimant has done and about which she is unhappy (see, in particular points 2 and 3 on page 352). These included a complaint that she felt as though she was being accused of giving the care coordinators a payrise of her own accord, that she was being undermined and questioned by TS and PDJ, and that she felt like she is being pushed out of GGP.

[27]Both DB and CW said that CW wanted to try to deal with it informally and repair the working relations with her manager. We accept that is truthful evidence and find that this was CW’s expressed wish. It was also the reason why DB did not trigger an investigation – whether an internal one or one by an external investigator. However, it was imprudent to have circulated CW’s accusations including those about the claimant to the partners if they were not going to lead to a formal investigation. One obvious consequence would be the difficulty of finding a partner who was not previously involved in a developing situation to make a decision should CW take action under the grievance policy, or should the respondent take action against the claimant under the dignity at work policy or otherwise.

[28]Another reason that it was imprudent to circulate these accusation is the risk that all of the partners were subconsciously influenced by the allegations. We find that they were subconsciously influenced in a negative way against the claimant by awareness of these allegations which were not investigated. As will be seen, there is internal email traffic which suggests a presumption by particular partners that the allegations had merit or were well founded. Although the claimant did not know prior to resignation that CW had spoken to the partners informally and told them that she was so unhappy about the claimant’s behaviour toward her that she wanted to resign – and therefore that was not part of her reasons for resignation – the untested allegations were known to the partners and that is relevant when we consider whether or not they had a reasonable and proper cause for their actions.

[29]The claimant circulated an advertisement for a leadership course (see page 408). CW applied and was accepted and offered a place. On 27 January 2022 she emailed the claimant and said “I forgot to tell you I applied for this” and asked “are you happy for me to attend the virtual workshops” explaining that she would juggle the workload around work. In response, she received the email at page 410 refusing permission.

[30]Since CW did ask for permission before she accepted the place on the course, this was not technically a breach of the study leave policy. There is an unwritten logic that you might risk wasting your time if you apply for a course before you have any necessary permission to be released from work time. It is discourteous not to consult your line manager – even where they have notified you of the course and might, therefore, be reasonably presumed to be encouraging you.

[31]The claimant’s response was rather antagonistic: there was in implication in her words “you have no interest or desire in becoming a Practice Manager” that CW was being inconsistent. Some of what is said is potentially explicable as a misunderstanding but some appears to be written to close down further ambition to progress by CW.

[32]However, where the claimant stated “I’m curious to know whether you completed the application on GGP time” that was a gratuitous dig at Mrs Walker. She had no basis, so far as we have been told for the insinuation that CW was using work time for personal activities. Similarly, Mrs Forward had no reasonable basis for the comment “I sincerely hope that you did not seek authorisation from any of the partners regarding this leadership course application because to do so would have, again, undermined my authority as your line manager”.

[33]The claimant comes across in this email as very sensitive to slight about her position. There were other reasonable ways to raise this discussion but the two insinuations we refer to are not substantiated. It would be understandable for Mrs Walker to read this as implying misconduct where there is no basis for it. Otherwise the email is worded strongly. We consider this to be a disproportionate reaction to the discourtesy of not being consulted before CW applied for a place on the course.

[34]CW wrote a long email back (page 408). In a passage at page 408 – 409 she expresses sympathy for a difficult personal situation then being experienced by the claimant but she asks for “proper conversation”. Nothing in the bundle that evidences that the claimant followed up on that email or that that meeting ever took place. This email causes us to doubt Mrs Forward’s evidence that she had no knowledge of CW’s unhappiness – even if she was unaware that CW had spoken to two of the partners about it. Pages 364 – 365 suggest that CW attempted to speak to the claimant in February but we understand that after the family issues alluded to, Mrs Forward was ill and absent with Covid - 19. There was no further discussion following Mrs Walker’s attempts to discuss the situation which she referred to (page 408) as “exactly [the] sorts of comments that have made me feel like I’m being pushed out of my job without any idea of why it’s happening”. It is hard to believe that Mrs Forward was unaware of Mrs Walker’s unhappiness given that statement.

[35]Mrs Walker was sent a job plan for her role as Finance and HR Manager on 24 February 2022 by the Recruitment and Onboarding Coordinator (page 734). It had apparently been discussed with Dr Beeharry. The responsibilities within finance are set out on page 735 and those for HR and within the PCN are on page 736.

[36]One of the themes of the claimant’s complaints was that the respondent had allowed Mrs Walker to challenge, bypass and undermine the claimant. We find that this Mrs Walker had not set out to do this. We refer to our findings about the application for the leadership course – which was certainly suspected by Mrs Forward to be Mrs Walker overreaching – and Mrs Forward’s perception that Mrs Walker had authorised a payrise which had been authorised by a partner.

[37]Up to a point, the claimant’s nose was put out of joint because Mrs Walker’s changed role meant that she had direct contact with the partners which was a natural development. The claimant comes across as a person who sets considerable store by maintaining the formal hierarchy as important to the status and seniority of her role. CW had turned down the permanent role of PCN manager and that had been recruited to so CW’s involvement in the PCN had been going to decrease.

[38]On the other hand, the care co-ordinators pay rise was a situation where Dr Denton and Mrs Walker did not keep the practice business manager informed that a previously agreed on pay rise was to be actioned and that was something she ought to have been informed of.

[39]Then Dr Denton announced in about March 2022 that the PCN wanted to propose an additional role or expanded role for Mrs Walker working for two PCNs: North Guildford PCN (of which the respondent was a member) and East Guildford PCN. That is the context to the events of April to May 2022. Mrs Forward emailed the partners on 6 April 2022 with an agenda for the partners’ meeting the following day (page 387). The PCN proposal for CW’s role was to be discussed and the claimant explained that she had started looking at CW’s hours and overtime and said “Concerned about how stress (sic) she got last year and she said it was Guildowns (or GGP) and not the PCN”.

[40]It was clear from the claimant’s evidence and closing submissions that she was relying on the email of 6 April 2022 as one or part of her alleged protected disclosures. We accept that it should be regarded in that way despite not being within the List of Issues: that is how it was argued before us and it is part of a series of correspondence so makes no sense as a whole for it to be excluded.

[41]The claimant went on in that email to express concern about Mrs Walker’s overtime between March 2021 and December 2021 saying that CW did 153.75 hours overtime for GGP and 2.5 hours for PCN. She stated that GGP claimed 84 hours of CW’s time (i.e. from the PCN). Mrs Forward expressed the view that if CW takes on the role as PCN manager for East Guildford she should not claim any more overtime – implication we draw from that is that she means that CW should not claim any more overtime for doing GGP work. The relevant content of the mail is that CW had only claimed 2.5 hours from the PCN; GGP may not be claiming the right amount of time from the PCN and CW’s role for GGP with support staff should be capable of being done within her core hours without overtime. She also states “By the way I did not approve this amount, she only told me about 42.5 hours for July and August 2021” – meaning she implies that Mrs Walker had claimed unauthorised overtime.

[42]Dr Denton replied to the claimant on 6 April 2022 (page 391) advising her to clarify with Mrs Walker how she claimed her time from the PCN. She also outlines why the proposed role was needed by the PCNs and that Mrs Walker likes doing the work “we would be at risk of losing her by not agreeing to 1 day/week on this work (funded by the 2 PCNs to the practice”.” By this email she addresses the claimant’s concern about whether it is wise for Mrs Walker to spend increased time working for the PCN. At this point, Mrs Forward does not know about the previous complaints by Mrs Walker to Dr Denton and Dr Beeharry about her own conduct.

[43]The minutes of the partners’ meeting (page 397) are silent about the PCN proposal or any discussion about CW’s hours or overtime/overtime claims. DB was present and she broadly accepted in oral evidence the proposition that the information set out in the 8 April letter (page 400 & 401) had been expressed at the meeting. We do not think that any information other than that communicated in writing either on 6 April or 8 April was communicated orally on 7 April. It is not strongly contended by the claimant that anything additional of note was communicated orally on 7 April. The upshot seems to be that Mrs Forward was told to raise questions about overtime with Dr Oh, the Finance Partner, who hadn’t been present at the meeting as he was on leave.

[44]This gave rise to the 8 April email from the claimant to Dr Oh (page 400) in which says she is writing to him because she wants to have her facts straight. The claimant commented in the email that what she has explained could be deemed as gross misconduct as Mrs Walker “is paying herself and (sic) no preauthorisation for overtime.” She talks about sending a reminder about the rules of overtime “like I did today”.

[45]She stated that the proposal for CW to take on an expanded PCN finance work was “cost neutral” as CW would be paid £34.00 an hour but “in view of the amount overtime she had claimed this could end more costly than is proposed.” Pausing there, that is a concern which is difficult to understand as the 6 April letter and spreadsheet attached to the 8 April email suggested that only 2.5 hours of overtime had been charged against the PCN work. Secondly, if CW was doing overtime for GGP then – even if she were paid £34 per hour for PCN work, which it is now accepted she was not, she wouldn’t reasonably expect that rate of pay for overtime done as part of her GGP work. That would be governed by her contract of employment with GGP. The claimant now accepts that it was not £34 per hour it was £32 per hour and that was a gross pay rate of £26 per hour after deducting the costs of employing Mrs Walker (see her para.57).

[46]Regrettably there appears to be no variation to contract documents setting out Mrs Walkers’s changing role.

[47]The claimant stated to Dr Oh that she found it difficult to understand what overtime CW had claimed for GGP work and what for PCN and that she “has been paid at different rates”.

[48]She also referred to CW approving XCPs overtime (questioning whether that was in accordance with agreed practice for the approval of overtime) and end “Trust” – we infer she means with CW – “has broken down since the pay rises for care coordinators without any discussion or her knowledge.” CW was firm in her evidence that the claimant had forgotten that the pay rises for the carecoordinators had been discussed at a PCN board meeting and, as we find above, this evidence was supported by Dr Denton. We have found that Mrs Walker did not give pay rises to the care coordinators without “any” discussion or knowledge although the claimant was not have been aware that the decision was going to be implemented in December 2021. We accept that Mrs Forward was mistaken about Mrs Walker’s actions in relation to this matter to which she attributes the breakdown in trust between them.

[49]We consider the reference to three different rates of pay when doing work for the PCN; they are calculated and listed in the spreadsheet prepared by Mrs Forward and appended to her email to Dr Oh (page 401). Assuming the data in the spreadsheet to be accurate, it states that appears that the respondent has invoiced for Mrs Walker’s PCN times at three different rates of pay (gross of tax and national insurance) in three different months April 2021, May 2021 and June 2021.

[50]CW’s explanation before us was that the accounts assistant was experimenting with how to calculate the employee’s gross pay per hour starting back from the payment of £19 net per hour. She said that her pay slips demonstrate that she was not in fact paid 3 different rates of pay. This would not have been known to Mrs Forward when she started her investigation.

[51]The claimant also relies upon an alleged oral communication at the partners meeting on 14 April 2022. However, she gave no primary account of that meeting in her statement. According the agenda, Dr Oh was due to report on finance (page 418). In his witness statement (para.21) he refers to minutes of that meeting written by Mrs Forward (page 826) which after Finance record unrelated matters and then “no other major issues wrt finance”.

[52]Page 824 is an email sent contemporaneously by Dr Oh. It is evidence that, at the meeting, RF had expressed concerns about the PCN funding structure but her concerns as recorded by Dr Oh were about funds flowing from the Clinical Commissioning Group (CCG) to Procare to the PCN and then to GGP with “hidden managements fees” along the way. This is not evidence that Mrs Forward expressed concerns that GGP are claiming more than their fair share of the PCN funding vis-à-vis the other members of the PCN – which is one of the ways the alleged protected disclosure has been advanced before us (LOI 9.i. first bullet point – alleged fraudulently claiming monies for services provided through the PCN contract). The other way the alleged protected disclosure is put is as to an allegation of payroll irregularities (LOI 9.i. second bullet point).

[53]As a matter of fact, all bar a small amount of overtime claimed by and paid to Mrs Walker was authorised in writing before it was paid. The exception is that Mrs Walker does appear to have claimed overtime for unpaid lunchbreaks which she should not have worked through. The claimant argues that all overtime should have been authorised in writing before it was done but CW has produce some documentary evidence that other people got authorisation verbally before the overtime was done and authorisation was confirmed in writing later. This seems to us to be an inevitability of day to day office life.

[54]Despite the small amount of unauthorised overtime we refer to, Mrs Forward had no reasonable basis to allege that this was potential gross misconduct by Mrs Walker, because she did in fact authorise almost all of the overtime before it was paid. In particular, her statement that “most of it not approved by me” was simply not true based on Mrs Forward’s own emails that Mrs Walker located.

[55]Furthermore, this was presented by Mrs Forward as a personal matter concerning undermining of her authority and an alleged failure to follow procedures. We reject any suggestion that Mrs Forward genuinely thought that she was bringing alleged unauthorised overtime claims by Mrs Walker to the attention of the partners in the public interest.

[56]Her statement that CW will be paid £34 per hour is accepted by the claimant to be an error. She now accepts that £32 per hour were the reimbursement costs for the practice including the on-cost element and not what Mrs Walker was paid. Since she had seen the proposal at page 393 she should have realised was an error. She did not reasonably believe that information to be true because she should have realised from information available to her that it was not.

[57]However, to the extent that Mrs Forward communicated about what GGP was invoicing to Procare, we accept that she did, as a matter of fact, have the public interest element in mind. We say that because she also contacted the Head of Primary Care and Head of Contracts at Surrey Heartlands CCG to voice her concerns. That only makes sense if she genuinely thought that there was a misuse of public funds.

[58]Following Dr Denton’s suggestion that the claimant clarify with CW how she claimed her time from the PCN, Mrs Forward wrote to Mrs Walker (page 402). Although somewhat tersely worded, the email dated 11 April 2022 does formulate questions arising out the concerns the claimant expressed as set out on page 387.

[59]Mrs Walker replied as at the bottom of page 403 the following day saying that she was taken aback by some of this and providing answers immediately after the bullet point questions asked by Mrs Forward. Given the differences between her understanding of the situation and Mrs Forwards’, she is justified in saying there have been some huge communication breakdowns (the details of some are explained in her statement paragraphs 34 & 35). She concluded her email (page 407) saying that it had looked for a while as if Mrs Forward was actively trying to find evidence of wrongdoing and she did not know why; that she had tried to discuss things informally but the claimant had not responded and that it is difficult to interpret all this any other way than that she is being deliberately pushed out of her job. If not before then from this it would have been apparent to Mrs Forward how upset Mrs Walker was.

[60]Mrs Walker forwarded her response to Dr Denton and Dr Beeharry as it “involves PCN and HR issues” (page 403) describing the current situation as unsustainable. She says that she does not want to leave her job “but I don’t really know how to move forward any more” and states that if they would like her to continue she will need to “reduce my responsibilities, cease any line management of others and if possible” report to somebody else.

[61]This direct communication of 11 April 2022 from the claimant to CW was done following Dr Denton’s request that she clarify things directly. Compared with her previous emails, that at page 402 is not worded particularly poorly - were it viewed in isolation. We find that Mrs Walker, against the background of the communications about the care coordinators payrise and study leave application thought that this was a repeat of confrontational behaviour by the claimant. There was a partners meeting on 14 April 2022.

[63]Dr Oh and Mrs Forward gave conflicting accounts about whether or not he met with her to update her about his enquires into CW’s overtime, when any detailed enquires with CW were made and whether and whether the outcome was communicated to the claimant.

[64]Following the partners meeting, Dr Oh sent an email to all partners (page 824) This gives an indication of the discussion at it. He describes Mrs Forward as “getting quite emotional about losing line manager control of Camilla and intended she would resign if Camilla was treated as on a par as herself”. He stated that Mrs Forward was happy with an explanation given to her in the meeting about how funding was claimed. He also told the partners that the claimant had been going to reply to CW’s email (presumably that at the bottom of page 403) and would run it past Dr Oh before sending it; he explained that he wants her to keep it brief.

[65]Mrs Forward’s draft is at page 420-1. Dr Oh told her not to send that because he was aware of Mrs Walker’s 12 April 2025 email in which she said that she can’t continue any more. He took that step because he didn’t want the communication to aggravate the deteriorating relationship. However being told not to send this response to CW’s mail on 403 clearly upset the claimant and she regarded that as undermining her.

[66]The claimant’s response was lacking empathy – her draft response is about setting black and white rules. She wanted to set out her expectations for the future. Her proposed reply did not engage with what Mrs Walker had said (and we have found) were inaccurate allegations; or CW’s concerns about their relationship.

[67]Since Mrs Forward did not engage with the core concerns of Mrs Walker or her complaint about false allegations, it was reasonable for Dr Oh to tell the Practice Business Manager not to write in the words she proposed on page 421. However he did not propose an alternative detailed response to the claimant simply asking her to thank Mrs Walker for her response – which satisfied no one. We also do not see that he clearly communicated – certainly not in writing – that he had explored Mrs Walker’s overtime claims in detail to his satisfaction and the reasons why he was satisfied.

[68]Another piece of evidence about the partners meeting is in a mail from a different partner (page 436 – 437). He describes the claimant as saying that felt that Mrs Walker was “frequently undermining her by making decisions such as approving her own overtime and taking things straight to partners which should be going to Robin as her Line Manger (sic).” According to Dr Baker, the claimant made clear that she will not tolerate CW being treated as an equal to her.

[69]Our comment on this is that it is ultimately for the respondent’s to decide how to organise their business. However, the job titles, job roles and lines of reporting authority are important parts of an individual’s post. If those are to change, or if another’s role is to change which affects the reporting structure then it is liable to affect that individual’s standing and sense of self-worth. It is liable to affect whether they think they are valued. It sounds very much as though in the practice meeting on 14 April 2022 Mrs Forward was looking to the partners to establish grounds rules and to re-establish her authority over Mrs Waiver Some of what she was bringing to their attention was based on misunderstanding and her own management of Mrs Walker is worthy of criticism in some respects. Nevertheless, this was not true of everything and the problems she brought to her employer’s attention were met with weak management.

[70]The absence of Mrs Forward’s name on the circulation list of page 734 gives the appearance that she was not fully consulted on the variations to Mrs Walker’s terms and conditions which were proposed to her in late February 2022. Updated terms were clearly needed. The correspondence about hours of work and the proposal that some of Mrs Walker’s time should be spent supporting two PCNs causes us to think that the respondent needed quickly to clarify hours of work and division of responsibility. Mrs Walker had asked on 12 April for that to happen. However Mrs Forward, as Mrs Walker’s line manager, should have been more involved in that.

[71]Dr Beeharry wrote to Mrs Forward and all the parties (page 824-825) which alludes to the queries about Mrs Walker’s overtime saying the latter had replied “about our queries”. Our point is that the documents do not suggest that the partners explained to Mrs Forward why they were satisfied. A step was taken to include a group email for HR/Finance management including himself and Dr Beeharry which the respondent’s evidence suggests was in the hope that email communications between Mrs Walker and Mrs Forward would not cause upset. There is a reference to the updated contract being finalised “as soon as we can clarify exact days/hours/pay for her PCN and GGP as per Robin’s emails”.

[72]Matters did not improve. The claimant’s witness statement and her oral evidence was that she regarded Mrs Walker’s explanation at page 403 as causing more concern because she read it as suggesting that GGP was creating profit at the expense of the other practices in the PCN without their knowledge or consent. On this point the claimant, we find, had forgotten or misunderstood the arrangement put before all the other practices in meetings at which she was present. See, for example, Mrs Walker’s explanation in her para.36 that GGP, with consent of other members of the PCN, were paid £18,000 for the cost of employing her for October to March 2022 plus just under £2,500 in recognition of administrative time and the impact on practice work of Mrs Walker being released. The claimant has not shown any basis for thinking a legal agreement to set up the PCN meant that such payments were improper or unlawful.

[73]On 21 April 2022, Mrs Forward asked for payroll files up to June 2020 to be added to the payroll folder (page 439). On the face of it that is unexceptional but Mrs Walker (after answering the query) forwarded the email to Dr Beeharry because she clearly regarded this as an attempt by Mrs Forward to continue her investigation into pay “Robin makes an accusation, then I provide evidence it’s not true, I receive no acknowledgement, apology or response at all and then Robin begins to look for another problem somewhere else.”

[74]She concluded by saying that she did not want to raise a formal grievance and did not want to leave but unless things improved she did not think she would have an option. Dr Beeharry forwarded this to the other partners commenting that it was a warning that “Robin is behaving erratically to lots of other staff members as well. … Robin is bordering on harassment. Her approach is very threatening.”

[75]Dr Beeharry consulted the practice’s legal advisers and the respondents have relied on an email she sent to her partners following a conversation with Croner (page 436).

[76]We remind ourselves that, in considering the acts relied on by the claimant as amounting to a breach of the implied term of mutual trust and confidence, we have to focus on what was known to Mrs Forward at the time. What Dr Beeharry told her partners was not known by Mrs Forward. Dr Baker’s email (page 436) is evidence about what Mrs Forward she said at the partners meeting and we find that, in effect, she was asking the partners to take action.

[77]What Dr Beeharry recounts being told by Croner’s must have been based on what she had told them. This was their interpretation of the factual situation that Dr Beeharry outlined to them. What is recorded is “What Robin is doing is reasonable management instruction as Camilla’s manager, Nothing wrong except her way of dealing with it. … Robin could be seen as singling Camilla out and looking only at hers…”

[78]It would be reasonable management instruction to ask for information to ensure that overtime was kept within budget and that staff were not overworked. The manner she went about it and her failure to reply to the detail Mrs Walker provided in reply caused the latter to think that she was being singled out. The partners have looked into it and are listening to Mrs Walker but not really taking on board Mrs Forward’s perspective despite her making it clear. The claimant felt undermined as a manager and those feelings were not without substance or without merit.

[79]Take, for example, CP’s overtime. The question raised by Mrs Forward was to question whether CP was authorising her own overtime. Mrs Walker replied saying that it had been with her say so – however this is poor practice. There was an exchange between Mrs Forward and Mrs Walker on 25 April 2022 page 454 – 455; C asking why overtime had been authorised for CP. Mrs Walker responded to explain what the overtime was for.

[80]Details are on the spreadsheet at page 498 and it is sufficiently regular (covering 30 mins before shift start time and 30 mins after the scheduled finish time) that it would raise questions in mind of reasonable employer that perhaps the individual’s workload is too great or that efficiencies need to be made to keep costs within budget. That particular request is unexceptional and Mrs Forward asked to review CP’s workload.

[81]However Mrs Walker clearly felt that it was part of a pattern of targeting her and creating unnecessary work when a workload review had been done about 6 months previously (page 453). In that email to Dr Beeharry, she offered to resign. That resignation was not passed onto the claimant and the partners continue to try to encourage Mrs Walker to think again.

[82]The claimant also made that request via the HR/Finance email group (page 458) and Dr Oh said that there were more pressing commitments saying “as the finance manager I have had no concerns and I strongly feel we should leave all this in the past”. He directed Mrs Walker to manage CP – which does not appear to take seriously that there might be a valid budgetary or workload reason for Mrs Forward to look into things. He describes this as an attempt to close the case and move the finance issues into the past (CO para.28)

[83]On the same day the claimant wrote the letter at page 462. Although not in the List of Issues, the claimant appeared also to rely on this letter as part of her alleged protected disclosures. However, rather than provide information relevant to that complaint, the letter sets out the claimant’s unhappiness and the reasons for it. There is no information about the way the practice was claiming or intending to claim monies for work done for the PCN. There is no information in it about Mrs Walker’s overtime claims. Mrs Forward states she has “a duty to monitor, report on and ultimately resolve any issues related to all agreed policies and/or protocols not being followed, which could pose a risk to the business,” but this is about her own responsibilities.

[84]In the first paragraph of her letter of 25 April 2022, she criticises the partners for “a less transparent way of working and a disregard for policies, protocol and reporting lines” and says that several situation she has brought to their attention had not been dealt with “professionally, fairly or to any satisfactory conclusions”. She states that she feels “undervalued, undermined, humiliated, side-lined, treated unfairly, singled-out and generally disrespected, and I truly don’t know why.”

[85]The difficulty of her relationship with CW is mentioned but she also explains why her relationship with the partners is under strain. She referred to a lack of satisfactory conclusion about various issues, confusion about her role and the reporting lines. She asks to meet with the partners to understand a mutually agreeable way forward. She says in her statement that the partners called an emergency Teams meeting and was told that the practice wanted to keep them both. However, the core issues were not addressed to her satisfaction.

[86]CO’s reaction to this is that “Robin would still not let go” (CO para.28 – 29). He stated that he realised that they were at risk of losing one of both of two key members manager staff.

[87]Croner suggest mediation. Dr Beeharry refused to accept Mrs Walker’s resignation and suggested that she take one week off (page 456). CW was certified unfit to work (page 463). Dr Beeharry’s reading of the situation was that it was a personality issue (DB para.22) however we think that the problem was compounded by weak management. We see from page 466 that Dr Beeharry offered mediation to CW and the claimant and both agreed.

[88]Offering the claimant mediation does not help with her relationship with the partners. It is an attempt to resolve her relationship with Mrs Walker. That was an important part of the problem but not the only part of the problem.

[89]According to the mediation report (page 520), the meeting happened on 12 May 2022. The report was sent to Mrs Forward and Mrs Walker on 16 May 2022.

[90]In the meantime, Mrs Walker explained her earnings and the overtime to Dr Beeharry in writing in an email on 29 April 2022 (page 502). She defended herself to Dr Beeharry against what Mrs Forward has said and raised the circumstances in which other members of staff had left describing matters which have upset her in some detail and said “I do not believe these are the actions of an emotionally stable person.” Dr Beeharry forwarded that to the partners saying that the email of pay and salaries would provide clarity (page 502). She did not comment on the rest of the email but Mrs Walker’s criticisms of the claimant were forwarded on as well. The evidence before us seemed to be that page 500 was probably the attached spreadsheet. We saw no evidence that that explanation of overtime was forwarded to or discussed with the claimant.

[91]Dr Oh was asked about page 500 and said that he did not recall when he had first seen it. His evidence was that he had gone through the pay and overtime with Mrs Walker and was satisfied. To some extent he appeared to be struggling with the detail of what happened looking back 3 years to the index events.

[92]For the purposes of the issues we need to determine it is not really important whether the partners were right or wrong to accept what Mrs Walker said. At the time they accepted her explanations and in part that involved accepting her word but they did not explain to the claimant the detail which they had found convincing. In part they appear to have thought that Mrs Forward did not understand how the PCN financing worked. We consider this a somewhat patrician attitude to say that they had looked into it and were happy so the Business Manager did not need to know the detail. Part of the motivation appeared to be to simply try and manage the claimant and Mrs Walker separately but when the claimant was supposed to be managing Mrs Walker that was not an effective solution.

[93]The claimant found the mediation session to be helpful (see her para.18). One of the things she states the mediator agreed with her on was that Mrs Walker should not attend the partners meetings. The mediator regarded it as successful and said an action plan had been provided with points of agreement in paras. 26 to 31 on page 524.

[94]The individual partners in the surgery are all busy GPs. To state the obvious, their primary role is to see and treat patients on a daily basis and their time is circumscribed by the routine of surgeries. It was no doubt challenging to have to manage these difficulties between senior members of staff. Part of what was agreed was for the parties to behave formally to each other and to have follow up meetings. However it was recommended that there be management follow-up meetings.

[95]Dr Beeharry invited both Mrs Forward and Mrs Walker to a face-to-face partners meeting. The claimant wrote following that suggestion on 17 May 2022 (page 531) with a list of concerns (page 533). Those include fundamentals such as that Mrs Walker does not report to the partners and her attendance at certain meetings including partners meetings was not needed.

[96]The claimant sent her concerns at 12.37. Dr Beeharry responded at 12.50 thanking her for being open and saying that she would reply in detail and asking to catch up tomorrow. Mrs Forward agreed. Dr Beeharry forwarded the claimant’s concerns to the partners (see DB para.28).

[97]Therefore when there was a telephone conversation between Dr Beeharry and Mrs Forward on afternoon of 18 May, that was Dr Beeharry’s response to the letter at page 533.

[98]However, in the meantime, Mrs Walker forwarded to Dr Beeharry an exchange she had had with Mrs Forward in the morning of 18 May 2022. The exchange is at 536 to 537 and Dr Beeharry forwarded it to the partners at 09.55 (page 542).

[99]The issue concerned Ms De Jonge and Mrs Smith’s access to Bright HR access. We don’t need to decide whether or not this was a false accusation against Mrs Walker. However, Mrs Forward did jump to the conclusion that Mrs Walker had to be responsible and the action had to be deliberate. The email starts “I am the practice manager and your direct line manager” and continues “If I find you have changed their permissions again, you leave me no choice but to lower your level of authority on Bright HR. Am I clear?” She later accepted that there might have been an error.

[100]This was sufficient to cause Mrs Walker to decide she was not confident that the relationship would work notwithstanding mediation and that she needed to leave. She resigned verbally to Dr Beeharry, who accepted her resignation.

[101]When DB informed the partners about the Bright HR allegation (page 542) she opened her email “Camilla in tears again. Another false accusation from Robin this morning.”

[102]Dr Denton’s comment on that is that she expresses herself uncomfortable with the wording and tone of the claimant’s email and says “Not sure how we move forwards from here? I really don’t want us to lose Camilla. I can see that us supporting Camilla might make Robin resign but how can we not support Camilla in this situation.?”

[103]Among the things mentioned in Dr Beeharry’s email reply is that she is going to suggest to Mrs Forward her idea of changing the structure of the management when she speaks to her that afternoon.

[104]We have quoted from emails between the partners from which we infer that they concluded that the claimant’s suspicions that Mrs Walker was mismanaging overtime (her own and CP’s) and failing to follow policy were wrong and unreasonable. However this led to a presumption that all that the claimant was saying was wrong and unreasonable. An example is Dr Beeharry referring to the Bright HR matter as “another false accusation this morning”. By this time, Mrs Walker was making serious allegations against Mrs Forward. There had never been a formal investigation or a formal decision about whether or not what she alleged raised the prospect of disciplinary action. The correspondence was sufficiently widely circulated that, had any formal action taken place, it would have been difficult to find someone impartial from among the partners.

[105]The claimant’s account of the conversation is in her para.20 (although she accepted that it had taken place on 18 May).

[106]Dr Beeharry did not respond to each point in the claimant’s email of the previous day (in her witness statement she stated she hoped that the partners could answer them at the following days’ partners meeting: para.28). She emphasised in oral evidence that she had strong memory of having extremely busy day. That is a common theme in the doctor’s recollection of their decision making and their conversations with their staff. On a human level that is entirely understandable but nevertheless it led to missed opportunities to address the claimant’s valid concerns while not determining her complaints about Mrs Walker where those were not made out.

[107]It is clear from her page 533 letter that Mrs Forward’s position was that she, as Business Manager was the conduit through which partners run the practice. That was a reasonable understanding. That meant that, from her perspective, there should be a funnel reporting into her (Mrs Walker, Mrs De Jonge and Mrs Smith and their teams) and a funnel reporting out from her to the partners – including to Dr Denton in relation to PCN work. The claimant was the lead practice manager for the PCN so were she to be cut out of the management chain in relation to Mrs Walker’s work for the PCN, that would probably change the content of her job role to some extent.

[108]Dr Beeharry’s account of the 18 May afternoon conversation is in her paragraphs 32 to 34. She had not had time due to the timeframe and work pressures to address each of the points in Mrs Forward’s letter of the previous day. She states in her para.34 that she had picked upon on the recommendation from the mediation report that there needed to be a revision of the organisational chart and (in her para.35) that she thought a total restructure was a good idea. Her evidence was that Mrs Forward agreed to put restructure on the agenda for the practice meeting the following day.

[109]Mrs Forward’s account of that part of the conversation is in her resignation letter (page 552). She wrote it the same day as the telephone conversation with DB and handed it in at the partners meeting on 19 May 2022 before the partners had said anything. The last event which happened prior to Mrs Forward’s resignation is the telephone conversation with Dr Beeharry.

[110]Relevant parts of that letter include: “It has become blatantly obvious to me and others that you are all so concerned that Camilla will leave, as this is what she intimates if she doesn’t get her way, that you do, knowingly or not, treat her differently. And therefore, you treat me differently.” “Today I had a conversation with Betty, who informed me that it has been suggested that a restructuring of the management team, or rather restructuring of my role, by taking responsibilities away from me and hiring-in a deputy or another Practice Manager, as a possible solution. …. What is so disappointing about this is,; not only is this a fundamental change to my terms and conditions, this avoids (again) actually managing Camilla properly. It has become increasingly obvious to me that you would prefer not to allow me to manage Camilla properly and would rather restructure the management team than do the right thing and support me as your Practice Business Manager. It has also become abundantly clear that you would prefer Camilla as the Practice Manager than myself.”

[111]The claimant’s oral evidence about the discussion about restructure included that Dr Beeharry had said, when asked what the claimant would do: “ ‘We want you to concentrate on the Estates project.’ This was all new to me and I was very taken back because this was a huge change not only for my role but it would have put whoever took this role as equal to me and I was also told by DB that she had already had this already discussed the restructure with CW.”

[112]The Estates project had been mentioned in an email from Dr Oh to his fellow partners (page 435) in which he said “I circulated details of the Estates to show how Robin will be increasing (sic) busy and will have less time to snoop around on what others are doing – I think Estates will become our key role for Robin.”

[113]This supports the claimant’s evidence of the way it was put to her by Dr Beeharry on 18 May 2022. The respondent’s case is that the claimant was told management structure would be discussed at the meeting; the first point on Dr Beeharry’s email at page 452 supports her evidence that no final decision had been made. Dr Oh disputed that the matter had been put to the claimant as meaning that she would not longer have an operational role. “She’s misinterpreted that conversation with BDB. Trying to work out solution for the line management for RF and CW. We wanted them both. Wanted RF to do what she was doing but she insisted on line managing CW. But CW having RF as line manager didn’t work. That was clear. We needed to pull that apart but keep them working together but hopefully not have this conflict. I don’t see why we’re trying to discuss RF just purely estates and nothing business management because whose going to run the business? RF was our business manager - she needs to run the business. This why we really shocked when she handed in her resignation.”

[114]We think that the wording of the emails “less time to snoop around”, and the realisation that they could not retain Mrs Walker if she was line managed by Mrs Forward, gives some weight to the argument that some of the respondent partners had made their minds up. Nevertheless, on balance it is more likely than not that the way it was described by Dr Beeharry to the claimant was that reorganisation would be discussed but the claimant reasonably inferred that any reorganisation would be likely to be one she regarded as side-lining her.

[115]When making our findings about the reasons for Mrs Forward’s resignation we give weight to the letter at page 552.a. Things said there correspond to LOI 3.a. – the claimant’s belief that she was not adequately supported in her role specifically with regard to Mrs Walker’s attitude and approach to the claimant were part of the reasons for her resignation;

b. Similarly, she stated more than once that she did not consider her complaints about Mrs Walker had been sufficiently investigated (LOI 3.b.) and that she regarded this as undermining her (LOI 3.c.). She stated that the partners were making things difficult for her in her line management of Mrs Walker because they did not want CW to leave.

c. Although she does not mention departure from policies (LOI 3.d), that underpins her complaints against Mrs Walker – admittedly some of her complaints were not well founded and she overstated her allegations against Mrs Walker in ways which were not objectively justified. HERE

d. Nevertheless, we accept that Mrs Forward’s perception that there had been breaches of policies and they had not been dealt with were part of the reason why she resigned because she referred to them in her earlier 25 April letter where she says things have not been dealt with “professionally, fairly or to any satisfactory conclusions.”

e. She mentions mediation failing in her resignation letter. When explaining in evidence what she meant by LOI 3.e., she said that it was a failure by the respondent by Mrs Walker complaining to Dr Beeharry about the Bright HR issue rather than a failure by the partners themselves. Indeed when she describes the mediation in the last paragraph on page 552 as a waste of time it is her anger at what she perceived had happened to the Bright HR access she was referring to.

f. LOI.3.g. – the belief that she had been excluded from initial discussions and the planning process for a reorganisation – as well as the fact of that plan - was undoubtedly the trigger for the claimant’s decision to resign.

[116]However, the claimant has not shown that that she was excluded. We say that because the initial discussion – between partners – was not one which needed to include their Business Manager. Affected employees need to be consulted before a final decision was made. We accept Dr Beeharry’s evidence that, in context of saying that the partners would look at the line management, they invited Mrs Walker to attend later. Mrs Forward was coming to the meeting first. That was the right way round.

[117]The question of whether sufficient people were interviewed in the grievance (LOI 3.i) is not relevant to the dismissal complaints because that postdated the decision to resign.

[118]Whether there were complaints by Mrs Walker about alleged bullying by the claimant and how they were handled (LOI 3.j.) likewise cannot have been a reason for resignation because the claimant was unaware of them at the time. As matter of fact, the partnership did not receive formal complaints and handled the complaints they did receive informally, as Mrs Walker asked them to.

[119]As to LOI 3.k., no different act has been specified or evidenced other that those already set out in LOI.3.a to h.

[120]We do not need to set out findings in relation to the grievance and grievance appeal because the actions taken then are not relevant to the dismissal or automatic unfair dismissal claims. Evidence about what was said and done on those occasions has been taken into account in making our findings about the core facts underlying the dispute. Law applicable to the issues in dispute

[121]Neither party had any observations on the draft self-direction on the law which we circulated on Day 3 and it is repeated here. The only addition we make is to note that, under the test for whether or not there has been a breach of the implied term of mutual trust and confidence, the burden is on the employee to show both that the employer behaved in a way which was calculated of likely to destroy or seriously damage the relationship of trust and confidence and that they had no reasonable and proper cause for that behaviour. Constructive Dismissal

[122]The first question is whether or not the claimant was dismissed. Dismissal includes the situation where an employee terminates the contract of employment (with or without notice) in circumstances in which they are entitled to terminate it without notice by reason of the employer’s conduct: s.95(1)(c) Employment Rights Act 1996. This is commonly referred to as constructive dismissal.

[123]To decide whether the employer had behaved in a way which entitled the employee to resign and consider herself to be dismissed the tribunal has to make findings of facts about the acts relied on by the claimant (in this case those set out in para.3 of the List of Issues on page 48) and then decide whether:a. The acts are conduct which goes to the root of the contract or which shows that the employer no longer intend to be bound by one or more of the essential terms of the contract;

b. The employer’s breach of contract (if any) caused the employee’s resignation in the sense that it was an effective cause of the resignation. Did it play a part in the employee’s resignation? Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

CA.

[124]In the present case, the claimant argues that she was unfairly dismissed because she resigned because of a breach of the implied term of mutual trust and confidence; a term implied into every contract of employment.

[125]The case of Malik v BCCI

[1998] AC 20

HL explains that the tribunal needs to ask itself whether the conduct we have found:a. Viewed objectively, was conduct which was “calculated or likely to destroy or seriously damage the relationship of confidence and trust” between employer and employee, and, if so

b. Whether the employer had no “reasonable and proper cause” for the conduct.

[126]The conduct may consist of a series of acts or incidents which cumulatively amount to a repudiatory breach of the implied term of mutual trust and confidence (see Lewis v Motorworld Garages Ltd

[1986] ICR 157

). Whether the conduct was ‘calculated or likely to destroy or seriously damage trust and confidence’ is judged objectively, from the perspective of a reasonable person in the claimant’s position:. Tullett Prebon plc v BGC Brokers LP

[2011] IRLR 420

, CA.

[127]Whether the employment tribunal considers the employer’s actions to have been reasonable or unreasonable can only be a tool to be used to help to decide whether those actions amounted to conduct which was calculated or likely to destroy or seriously damage the relationship of trust and confidence and for which there was no reasonable and proper cause.

[128]If that conduct is a significant breach going to the root of the contract of employment and the employee accepted that breach by resigning then they were constructively dismissed.

[129]Once they have notice of the breach, the employee has to decide whether to accept the breach, resign and claim constructive dismissal or to affirm the contract. Any affirmation must be clear and unequivocal but can be express or implied.

[130]If the claimant relies on a series of acts, one of which is said to be the ‘last straw’ then it can be helpful for the tribunal to ask this series of questions:a. 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?

b. Has he or she affirmed the contract since that act?

c. If not, was that act (or omission) by itself a repudiatory breach of contract?

d. If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the trust and confidence term?

e. If not then the tribunal may have to work back to the time when the employer’s conduct did breach the trust and confidence term and consider whether there was affirmation of the contract between then and resignation.

f. Did the employee resign in response (or partly in response) to that breach? Kaur v Leeds Teaching Hospital

[2018] IRLR 833

CA.

[131]Once the tribunal has decided that there was a dismissal we must consider whether it was fair or unfair in accordance with s.98 ERA 1996. It is for the employer to show the factual reason for the dismissal and that it was a potentially fair reason such as conduct. Then the tribunal must decide whether the dismissal was fair or unfair by considering;a. whether the employer acted reasonably or unreasonably in all the circumstances (including the size and administrative resources of the respondent);

b. determining the question in accordance with equity and the substantial merits of the case. Protected disclosure claims

[132]The structure of the protection against detriment and dismissal by reason of protected disclosures provides that a disclosure is protected if it is a qualifying disclosure within the meaning of s.43B ERA and is made by the employee in one of the specified circumstances. Here any disclosure was made to the employer so the determinative question is whether the disclosure was within the definition of s.43B ERA.

[133]Section 43B(1), as amended with effect from 25 June 2013, so far as relevant, reads as follows, “In this Part a ‘qualifying disclosure’ means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following — (a)…, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject; (c) …….”

[134]In Kilraine v London Borough of Wandsworth

[2018] ICR 1850

, Sales LJ explained what a disclosure must contain to be a qualifying disclosure (paragraphs 35 and 36), “35. …In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). … 36. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in [Nurmohammed], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.”

[135]Having made findings of fact about what was communicated, the series of questions we have to ask ourselves are:a. Did the employee subjectively believe that disclosing the information was in the public interest?

b. If so, was it is reasonable for them to hold that belief?

c. Did they genuinely believed that the information tended to show that there was a breach of a legal obligation (here the legal obligations of the GP practice in relation to “its contract with the NHS and overtime payments”)?

d. If so, was it reasonable for them to believe that.

[136]If the employee has made a protected disclosure then they are protected from detriment and dismissal by s.47B and s.103A of the ERA respectively.

[137]Section 103A, so far as is relevant, provides that: ''An employee who is dismissed shall be regarded … as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure''

[138]A dismissal case where the respondent has terminated the contract of employment involves a subjective inquiry into the mental processes of the person or persons who took the decision to dismiss. The classic formulation is that of Cairns LJ in Abernethy v Mott Hay and Anderson

[1974] ICR 323

at p. 330 B-C: "A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him which cause him to dismiss the employee."

[139]In a constructive dismissal case, the reason for the dismissal (if any) is therefore the employer’s reason for the conduct in response to which the claimant resigned: Salisbury NHS Foundation Trust v Wyeth (

UKEAT/0061/15

: paras: 30 & 31). The reason for the dismissal is thus not necessarily the same as something which starts in motion a chain of events which leads to dismissal.

[140]Where the claimant has the right not to be unfairly dismissed, the legal burden of proving the principal reason for the dismissal is on the employer although where the claimant alleges that protected disclosures were the reason or principal reason for the conduct which caused her resignation, she must show some evidence that that was the reason. Then it is for the employer to show what the reason was: Kuzel v Roche Products Ltd

[2008] IRLR 534

CA at paragraphs 56 to 59

[141]In a discriminatory constructive dismissal claim, guidance was given to how to approach the situation where an employee resigned for more than one reason, not all of which consisted of discrimination. “Where there are a range of matters that, taken together, amount to a constructive dismissal, some of which matters consist of discrimination and some of which do not, the question is whether the discriminatory matters sufficiently influenced the overall repudiatory breach so as to render the constructive dismissal discriminatory. … it is a matter of degree whether discriminatory contributing factors render the constructive dismissal discriminatory.” De Lacey v Wechseln Ltd

[2021] IRLR 547

, EAT para.69.

[142]In principle, the same approach applies to the question of whether the reason or principle for an alleged constructive dismissal was the making of more or more protected disclosures. Did any of the employer’s conduct done on grounds of protected disclosures sufficiently influence the overall repudiatory breach that it can be said that the reason or principle reason for the alleged constructive dismissal was the making of protected disclosures. Conclusions on the Issues

[143]We now set out our conclusions on the issues, applying the law as set out above to the facts which we have found. We do not repeat all of the facts here since that would add unnecessarily to the length of the judgment, but we have them all in mind in reaching those conclusions.

[144]In this, as in many constructive unfair dismissal complaints, the claimant relies upon a series of acts or incidents and argues that cumulatively they amount to a repudiatory breach of the implied term of mutual trust and confidence.

[145]Those alleged acts have been codified into paragraph 3.a. to k. of the List of Issues (page 48 – 49). We start by recapitulating our findings on each type of alleged conduct and then step back and consider whether the claimant has shown that those acts as found, viewed objectively from the vantage point of the reasonable person in the claimant’s position, amount to conduct which was intended or likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee. The second stage of the test is to consider whether, in that event, the claimant has shown that the employer did not have a reasonable or proper cause for their actions. Actions in this sense means steps that the employer did take or steps which the reasonable person in the claimant’s position would have wanted them to take but which they did not take.

[146]Broadly speaking, the complaints raised in LOI 3.e (alleged failure to investigate complaints about overtime) are the complaints about Mrs Walker which did require investigation and this alleged act is therefore a subset of LOI 3.b. Furthermore, the extent to which we think the respondent failed to support the claimant (LOI 3.a.) is inherently linked with their handling of her concerns about overtime.

[147]LOI 3.a.: What the respondent failed to do here to support the claimant in her role, specifically with regard to managing Mrs Walker is exemplified by the direction not to send the response she drafted (see para.65 to 68) to Mrs Walker’s email (see para.59). However, the partners (it was Dr Oh who was dealing with this particular correspondence on behalf of the partners) did not guide her or direct her as to an alternative beyond an acknowledgment. That caused further strain to the relationship between the two women because, from Mrs Walker’s perspective, she had received no meaningful response to her concerns about the relationship and Mrs Forward felt she had been directed not to manage her direct report and did not understand why.

[148]That draft response arose in the chronology after partnership meeting of 14 April and Mrs Forward was to respond on behalf of partnership. Dr Oh’s evidence was that he investigated the claimant’s concerns raised about overtime and so on. We have found that the findings were not explained to Mrs Forward so that she could accept them – but neither was she told that she was no longer responsible for the budgetary and workload consequences of authorising overtime. Her draft response may have been insufficient or poorly judged in that it didn’t address Mrs Walkers concerns that she felt she was working under unjustified suspicion. However, by the respondent not directing Mrs Forward what to reply instead they impliedly told her to forget everything that she had brought to them and left uncertainty about her role in the future.

[149]Although Dr Oh stated that he investigated the concerns to his satisfaction, the only record of any outcome or of any explanation to the claimant is in his email at page 824 where he states that the claimant accepted Dr Lloyd’s explanation about PCN finances. They did not formally investigate the claimant’s concern or produce a formal outcome or reply to her (which would have dismissed them). She may not have been happy with it but the lack of a reply left her in limbo. This created uncertainty for the claimant.

[150]Among the concerns raised by the claimant were some which appear objectively to be based on a misunderstanding – or a failure to remember – what had been agreed at PCN level about the proper level of charges by a member GP practice for work done by its employees. On the one hand, the claimant combined communications which asked normal management matters –although at times she gave written instructions in a very challenging and assertive style. On the other hand she made accusations and insinuations of possible serious wrongdoing for which she had insufficient evidence. Those were understandably upsetting for CW to receive.

[151]Nevertheless, the claimant reasonably expected to be supported in matters such as her wish to control overtime and to ensure overtime policy was clear and strictly adhered to. The partners did not distinguish between what was reasonable management instruction and what could reasonably be objected to by Mrs Walker. They attempted to managing a deteriorating situation informally in the hope that things weren’t as bad as they in fact were. We can see this was a difficult situation for the respondent because the partners are busy GP’s whose priorities are providing a service for patients.

[152]The claimant wanted them to direct that she was in the right. However, they did not think she was in the right – while not having given a formal (or detailed informal) answer to C’s concerns and not having investigated Mrs Walker’s concerns at all. We appreciate that Mrs Walker consistently said that she did not want to make a formal complaint. We also do not forget that the claimant did not know that Mrs Walker had complained of bullying or resigned prior to her own resignation. LOI 3.a. should be confined to the acts of which Mrs Forward was aware. However she was aware that she was being treated differently to Mrs Walker because she said so in her resignation letter (para.113). We do think it is fair to say that LOI 3.a. is made out in the sense that the respondent did not support her adequately.

[153]Our findings in LOI 3.a. overlap with those on LOI 3.b., c. & e.. They did investigate the claimant’s complaints to their own satisfaction – and given the evidence we have received we think they had reasonable grounds for being satisfied for the most part – however they didn’t report those findings to the claimant and their investigations depended heavily on the explanations of Mrs Walker. We can see that would undermine the claimant in the sense that she would feel that she had drawn to their attention matters she suggested showed financial irregularity and that they had been swept under the carpet with the claimant being told informally at a partners meeting that she didn’t understand how the PCN finances worked.

[154]The complicating factor is that some of the matters raised by the claimant were things she was mistaken about and obviously mistaken about. Some of the things she said (such as the comment about it being deemed gross misconduct) were not justified by the information she had. Nevertheless, the core concern raised by the Business Manager was that the overtime policy needed to be clear because overtime needed to be controllable and because excessive use of overtime might disguise the need to formally increase hours, recruit more staff and might lead to overwork and stress.

[155]The fact that only some of her concerns were objectively justifiable means that the unqualified support she was hoping for would perhaps not have been reasonable to expect. However, she was entitled to expect impartial and clear answers to the questions she raised. She was entitled to expect the respondent either to support her efforts to do her job or to tell her what she was doing wrong. In managing the situation as weakly as they did the respondent did undermine the claimant.

[156]As the complaint in LOI 3.d. (permitting Mrs Walker to depart from policies and procedures) was explained to us, it is a reference to the study leave policy, the policy that overtime should be pre-authorised, and procedures in respect of pay increases. In closing, Mr Forward also referred to procedures regarding unpaid breaks because it emerged that Mrs Walker’s calculations for her own overtime meant she had submitted a claim for hours including what should have been an unpaid lunch break.

[157]Although the claimant drew to the respondent’s attention her view that the CW had breached the study leave policy by not speaking to her before applying for a place on a course, the letter in which she did so does not ask them to take action. Had she thought it a matter worthy of formal reprimand she could have taken action herself. She refused the application when it was made (before CW accepted the place) and we have found that CW was not, in fact, in breach of the policy.

[158]This matter is relatively innocuous and there is no conduct of the respondent which could reasonably be said to undermine the claimant in respect of the study leave application.

[159]As to the payrises, we are satisfied that the only thing that Mrs Walker could have done differently would be the courtesy of informing the Business Manager that payrises for the care-coordinators which had previously been properly authorised were now going to be put into effect following clarification of the appropriate rate by Procare. The was no departure from agreed procedures in relation to that.

[160]As to the overtime policy, the claimant had authorised almost all of the overtime in writing – before it was paid but sometimes after it had been done. There was evidence that, whatever the written policy, there was an informal practice of verbal authorisation in advance and written authorisation later which was adopted by others than just Mrs Walker. Mrs Forward does not appear to have noticed the unpaid breaks point when authorising overtime herself and it is not mentioned in the claimant’s original communications to her employer. The respondent cannot be criticised for not specifically looking into it. However, it might have come up had there been robust analysis of the overtime claims.

[161]More to the point is that the claimant wished to send a strong message about the overtime policy in the future and was told not to do so. There are other ways they could have handled this – for example by insisting that she send the message to all staff.

[162]The respondent’s reasons for not letting the claimant emphasize the overtime policy and not letting claimant send the draft page 420 were tied up with their acceptance that Mrs Walker’s complaints were justified. Mrs Forward regarded that as undermining her line managerial authority. The fact that the claimant didn’t know that Mrs Walker had spoken to two partners expressing her unhappiness and her perspective that the claimant was bullying her and trying to force her out of the business is relevant to the acts she can rely on as amounting to a breach of the trust and confidence term. However it is irrelevant to the question of whether there was a reasonable and proper cause for the respondent’s actions because that might be something unknown to the employee.

[163]We do sympathise with the dilemma an employer has where a valued employee (in this case CW) tells them that they wish to resign because they have been bullied by the Business Manager (another valued employee), but do not wish to complain. However the choice open to such an employer is binary. This is something that the non-legal members, in particular, with their industrial experience, view as an important part of the employer’s role as managers of the employee in the position of this claimant. They either have to provide welfare support to the person bringing the complaint but carry on as though the allegations have not been made or they have unilaterally to decide to investigate them regardless of the employee’s wishes because of their seriousness.

[164]What this respondent did was circulate the complaints widely to all potential decision makers – while not investigating them because they were informal – meaning that they were at least predisposed to support Mrs Walker and some partners had decided that the claimant’s allegations were false. That meant that that the claimant’s concerns that their trust in her was eroded was well founded despite never being aware of Mrs Walker’s allegations. This is relevant to whether or not the claimant has shown that the respondent had no reasonable or proper cause for their actions.

[165]It is not objectively justifiable for the respondent to support Mrs Walker’s view that she is experiencing bullying in preference to the claimant’s that she is attempting reasonable but robust line management because they did not investigate whether the claimant had bullied Mrs Walker by making allegations or genuinely (even if sometimes misguidedly) raised concerns which were worthy of investigation.

[166]What they failed to do was let her carry on managing. They failed to make it clear that she was Mrs Walker’s line manager and yet did not determine whether there was a valid reason to remove Mrs Walker from the claimant’s line management.

[167]LOI.3.f. is not made out. The actual outcomes of the mediation were limited and were for Mrs Walker and the claimant to abide by. The claimant argues that that Mrs Walker breached the outcomes by going to the partners in relation to the Bright HR exchange (see paras.98 to 102 above). However Mrs Walker went to the HR lead partner to complain about the claimant’s intemperate email. That email itself does not comply with the mediation outcome that they would be formal with each other.

[168]There are valid criticisms of the respondent’s actions within the scope of LOI 3.g.

[169]When the claimant wrote to Dr Beeharry on 17 May 2022 with a list of concerns on page 533 she set out why she regards the partners’ management of Mrs Walker is undermining her. Although these are our words not hers, she said she was finding it difficult to do her own job which includes ensuring that CW is not being overloaded and feels cut out of what Mrs Walker will be allocated to do for the PCN. This is not simply about the relationship between CW and herself but also about the relationship between the claimant and the respondent. On 17 May Dr Beeharry and Mrs Forward agreed to talk on 18 May. We do not repeat our findings about the events of 18 May 2022 but refer to paras.98 to 114.

[170]In the conversation on 18 May 2022, Dr Beeharry raised the question of a management restructuring which would have taken Mrs Walker away from the line management of the claimant. This would have reduced Mrs Forward’s management responsibilities and her job role. We accept Dr Beeharry’s evidence that she did not and could not definitively state that there was a final plan. It was to be discussed at the partner’s meeting the following day. It appears to have been in the early stages of development. Nevertheless the inter-partners’ email correspondence suggests a general acceptance that it was the only way to retain both the claimant and Mrs Walker. The concept fits with Dr Oh’s previous email which suggested an enhanced responsibility on the part of Mrs Forward for the Estates project which would mean that she was unable to manage finance. We accept that no final decision had been taken.

[171]Compared with the strict terms of LOI3.g. therefore, the claimant has not shown that she was excluded from initial discussions – at least not beyond preliminary ones between partners (see para.116 above). She was asked to put reorganisation on the partners meeting for 19 May to have a discussion about line management at which she was to be present. The reason that the partners took that step was that the mediation which they hoped had succeeded in repairing the relationship between their Business Manager and HR/Finance manager appeared to have failed; in order to keep two valued members of staff they needed to try another option.

[172]Does that act on 18 May 2022 (the last in time) of itself breach the implied term mutual confidence? Despite some evidence that Dr Oh thought that they were going to have to remove line management of Mrs Walker from Mrs Forward, we have accepted that what she was told was that they would discuss a reorganisation involving a change in management structure. On its own that would not seriously damage or destroy the relationship of trust and confidence. The last act in time does not of itself breach the implied term.

[173]However, the undercurrent which was apparent to the claimant was that this involved the partners, in effect, taking sides when there had been no open and objective investigation of Mrs Walker’s complaints. This means that the actions of the respondent in seeking to resolve this with a reorganisation were worthy of criticism and added something to the totality of their actions. The proposal, if implemented, would have reduced the authority of her role and undermined the claimant and raising it would make anyone in her position feel insecure. The proposal to remove line management did add to the reasons for the claimant’s resignation.

[174]The respondent had some grounds for suggesting a change in line management. They had tried mediation and it had failed and Dr Beeharry, certainly, saw no other way to retain two employees that they valued and needed. However, they had not done the ground work that mean they could reasonably pick a side and yet the flavour of their correspondence causes us to find that they had decided that Mrs Walker’s complaints were well founded. See for example Dr Beeharry’s comment (page 542) “Camilla in tears again. Another false allegation”. This was one sided.

[175]LOI 3.i, j, and k. were not known to the claimant before her resignation and cannot contribute to any breach of the implied term.

[176]We then consider whether there was a repudiatory breach of contract before the 18 May 2022 conversation. Taking all of our findings on the other matters into account, we are satisfied that there was.

[177]The respondent had failed adequately to support the claimant in her role by directing her not to write to her direct report asserting her own right to control changes to the latter’s contractual work, including hours, days or work and pay, not to write directing that overtime must be pre-authorised (both Mrs Walker’s and CP’s) and, in general, to follow policies strictly. They gave her this direction but did not provide her with an alternative. They did not distinguish between the claimant’s reasonable management instructions and allegations and tone of correspondence which could reasonably be objected to by Mrs Walker. They failed to give a detailed outcome to the claimant about her concerns concerning Mrs Walker’s overtime and her role in claims against PCN funding. They failed to address Mrs Forward’s concerns that Mrs Walker’s increased PCN role would impact adversely on her GGP role and that it should, in any event, be reporting and answerable to Mrs Forward.

[178]These were actions which over March to May 2022 were likely to and did seriously damage or destroy the trust and confidence between Mrs Forward and the respondent. She had set out her concerns about the impact on her relationship with her employer and how she felt orally in the partners meeting on 14 April 2022, in her letter of 25 April 2022 (explaining that she did not know why she felt undervalued and disrespected) and – following mediation – what she understood to be the status quo which needed restating in her letter of 17 May 2022. The response from the respondent was, bluntly, to fudge the issue.

[179]The one-sided attitude of the partners by which they the complaints of Mrs Walker accepted as probably justified when they had not informed Mrs Forward about them or asked for her explanation about them causes us to accept that they did not have a reasonable and proper cause for their actions. We accept that it was a difficult situation – even without the other pressures upon them due to the nature of their patient-facing work. Illness and leave played their role in the availability of individuals from time to time. However, unless unfairly targeting one individual, managing overtime and workload was a reasonable management instruction and they did not distinguish between that and unreasonable behaviour and simply tried to shut the discussion down.

[180]We accept that the respondent wanted to retain both employees. Their conduct was not calculated to destroy trust. To find that conduct was likely to seriously damage or destroy trust and confidence is a high bar. It would be a repudiatory breach of contract which is tantamount to showing the employer no longer intends to be bound by a fundamental term of the contract. However, that is not inconsistent with the partnership wanting to retain the claimant in their employment. That is because they indicated to her that they wished to do so but not uphold the management structure or support her actions as a manager and therefore they were not upholding her authority.

[181]The last act was to propose a reorganisation which, if implemented, the claimant correctly identified would dilute her operational role and remove line management of Mrs Walker. This added something to the whole which amounted to conduct which was likely to seriously damage the relationship of trust and confidence between them and Mrs Forward.

[182]Comments directly from partners such as “Camilla in tears again. Another false allegation.” And comments written by Mrs Walker which were circulated directly to partners such as “I do not believe these are the actions of an emotionally stable person” were bound to and did influence the partners to take sides. The comment from Dr Oh that the claimant would have “less time to snoop around on what others are doing” and from Dr Denton that “how can be not support Camilla in this situation” show that they had taken sides. In those circumstances they did not have a reasonable and proper cause for their actions.

[183]We do not overlook that within these proceedings there are a number of accusations made by the claimant against Mrs Walker which not only were not well founded but which she ought to have known were not matters of concern.

[184]Our point is that the respondent failed to look in a clear sighted way and objectively and impartially at the dispute. Whether, had they done so, they would have had a reasonable and proper cause for proposing a reorganisation or for some other action is relevant to the remedy issue of whether the claimant would have remained in employment had she not resigned, had the breach of contract not occurred and, if so, for how long.

[185]The claimant was dismissed.

[186]The respondent has not put forward any potentially fair reasons for dismissal. Our reasoning for our finding that they did not have a reasonable and proper cause for their actions is also relevant to whether the dismissal was fair or unfair in all the circumstances. We conclude that it was not. The claimant was unfairly dismissed.

[187]LOI 9. concerns whether the claimant made qualifying disclosures within s.43B ERA. If she did, then they were protected disclosures because they were made to her employer.

[188]Her claim is that the words she used were information that GGP had sought to misapply or otherwise abuse monies from the PCN. The communications relied on by the claimant do not tend to show that. The information in the communications on 6 April 2022, 7 April 2022 and 14 April 2022 does not support that factual case (see for example paras.41, 43 to 52 above). If anything the information tend to show that GGP may be underclaiming overtime which they are paying for but which may be done to benefit the PCN, that Mrs Walker’s overtime claim is unclear, and that she may be failing to follow internal procedures in relation to her overtime claims.

[189]The claimant argues that para.212 in the grievance appeal (page 704) shows acceptance that there was a whistleblowing. The Face 2 Face Consultant does appear to say that. However the primary evidence about what the claimant communicated does not set out the level of specificity which is later set out in Dr Oh’s explanation in the grievance appeal hearing (para.211 on page 704) which the grievance appeal officer commented on. We note para. 213 – the Face 2 Face Consultant did not see any evidence about a failure to protect the claimant as a result.

[190]It may be that the claimant’s explanation of her concerns developed over time. However, the communications relied on within this litigation do not contain sufficient detail and specificity to amount to a disclosure of information that tends to show the alleged wrongdoing.

[191]Furthermore, if the claimant was genuinely concerned that GGP might be misclaiming from Procare – and her contact with the Head of Primary Care and Head of Contracts at Surrey Heartlands CCG supports her evidence that she was – we reject her evidence that she genuinely believed that the communications she made tended to show that wrongdoing – it was not what she communicated. Furthermore, it was not reasonable for her to have that belief, given the lack of specificity in the communications.

[192]It was also not reasonable for her to have that belief, given her involvement in meetings during which the financial arrangements were discussed and approved by all practices within the PCN. We accept Dr Denton and Mrs Walker’s evidence about how PCN funding worked. The practice was able to decide how to allocate within their accounts a pre-authorised sum for reimbursement of wages and on-costs. The claimant knew or ought to have known enough about that internal allocation of funds that was not reasonable for her to think that what she communicated disclosed wrongdoing.

[193]The communications about payroll irregularities seem to have been on 8 April 2022 rather than 14 April 2022 (see para. 44 & 45, 51 & 52). Where she did refer to payroll irregularities, the majority of what she says (such as the hourly rate Mrs Walker would be paid, whether she had been paid overtime which was not authorised, Mrs Walker approving overtime for CP and authorising payrises for care-coordinators) are accusations which she could not reasonably believe showed the alleged wrongdoing of misapplying monies from the PCN. She had authorised almost all of the overtime – albeit after the event overtime; she had been aware that the care co-ordinators were to receive a payrise and how much that would be – she only lacked knowledge that it was to be implemented - and she had used an incorrect hourly rate in one of her allegations (see para.56 above).

[194]Furthermore, those issues were concerned with Mrs Walker’s personal conduct and the undermining of the claimant’s authority (see para.55 above). The mere fact that all funding of the practice is public funds does not mean that any communication of information about a GP surgery’s accounts is made in the public interest or reasonably believed to be made in the public interest. That is particularly so when the claimant was incorrect about much of what she said. Her allegation of potential gross misconduct was not objectively justified and that should have been known to her.

[195]Finally, the evidence before us falls short of explaining the nature of any legal obligation between the GP practice and the NHS. To the contrary, the evidence of PCN meetings held between representatives of the practices which made up the PCN suggest that they were aware of and setting out to comply with the accounting standards in place. They needed to do so in order for claims to be reimbursed. The claimant has not shown the nature of the alleged legal obligation or why her complaints about Mrs Walker tended to show that it was breached.

[196]LOI.9.i. was not a qualifying disclosure because it was not reasonable for her to believe that the communications tended to show the alleged wrongdoing. There was insufficient detail and specificity in the communication and the claimant has not been able to show what was the alleged legal obligation she asserts was breached.

[197]LOI.9.ii. was not a qualifying disclosure because, to the extent that the claimant communicated that information, it concerned Mrs Walker’s own conduct and whether the claimant’s position was undermined. Those were personal matters and drawing them to the respondent’s attention could not reasonably be believed to be in the public interest. Furthermore, much of what the claimant disclosed she ought to have known was inaccurate: consequently it does not tend to show and could not reasonably be believed to tend to show the alleged wrongdoing.

[198]The complaint of automatic unfair dismissal fails because not the claimant did not make any qualifying disclosures. She did not make any protected disclosures.

[199]The issues to be determined at the remedy hearing are: a. If there is a compensatory award, how much should it be? The Tribunal will decide:

Findings of Fact

[1]What financial losses has the dismissal caused the claimant?

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

[3]If not, for what period of loss should the claimant be compensated?

[4]Is there a chance that the claimant’s employment would have com to an end anyway if the breach of contract had not occurred, or for some other reason?

[5]If so, should the claimant’s compensation be reduced? By how much?

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

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

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

[9]If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?

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

[11]Does the statutory cap apply? b. What basic award is payable to the claimant, if any? c. 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? Approved by:

Findings of Fact

[1]This remedy hearing was scheduled when we reserved our judgment at the end of the liability hearing. We had the benefit of the original liability hearing file and also a remedy hearing file. Page numbers in the remedy file are referred to as page 1 to 214 as the case may be. In this reserved remedy judgment, page numbers in the liability hearing file are referred to as LB page 1 to 832.

[2]We heard evidence from the claimant who confirmed the truth of a “statement of fact in relation to request for specific disclosure” which she had prepared on 21 September 2025 and which set out some details of her plans for her future career and the circumstances in which her employment with the subsequent employer came to an end. The claimant gave evidence and confirmed as true to the best of her knowledge and belief not only the contents of that statement but also the contents of a list of the jobs that she had applied for from June 2022 onwards (page 212), the schedule of loss at page 213 and the rationale for her schedule of loss set out at page 82. This was a rationale provided with an earlier schedule of loss which has since been updated but it set out the factual basis upon which she said losses should be calculated.

[3]The respondent relied upon the oral evidence of Dr Denton, who confirmed the truth of a witness statement prepared for the remedy hearing. Both the claimant and Dr Denton were cross examined. Ms Beattie had prepared a written skeleton argument with an annex analysing our reserved liability judgment and relied on two authorities Frith Accountants Limited v Law

[2014] ICR 805

and Ahunanya v Scottish & Southern Energy Plc (

UKEAT/0540/08

[4]Unfortunately, due to an administrative error on the part of the tribunal, the non-legal members were told the day before the hearing that it had been postponed and they were stood down for 2 October 2025. Separately, Ms Edwards had to make arrangements to deal with a medical issue involving a close family member. The non-legal members only received an email informing them of the error and that the hearing was going ahead on the morning that the hearing was due to start. The arrangements that Ms Edwards had made to deal with the medical issue could not be undone at short notice as a result of which she was unexpectedly unavailable to sit on the one-day hearing on 2 October 2025.

[5]Judge George and Mr Hough started the hearing and explained the situation to the parties. We explained the normal provisions for panel composition and read out the provisions of s. 4(9) Employment Tribunals Act 1996 which provides that where a tribunal is to be composed of more than one member the tribunal may proceed in the absence of one or more of the members chosen to compose it if the parties to the case agree and at least one of the members who was present is an Employment Judge. We also explained to the parties the provisions of the Presidential Guidance on Panel Composition, paragraphs 8 and 13 in particular, and explained that a change of circumstances such as the non-availability of the tribunal member might mean that the decision about panel composition could be taken afresh in which case Judge George would take into account the parties wishes but could decide that it was appropriate in the interest of avoiding delay to proceed with Judge sit alone. We informed the parties that Ms Edwards is the employee side representative.

[6]The parties were given time to consider and both sides agreed to proceed with a two person panel. That is what we did. Issues

[7]The issues to be decided were set out in paragraph 199 of the reserved judgment and are as follows:

[8]If there is a compensatory award how much should it be? The tribunal will decide:a. What financial losses has the dismissal caused the claimant?

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

c. If not, what period of loss should the claimant be compensated?

d. Is there a chance that the claimant’s employment would have come to an end anyway if the breach of contract had not occurred or for some other reason?

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

f. Did the ACAS Code of Practice on disciplinary and grievance procedures apply? If so, did the respondent or the claimant unreasonably fail to comply with it and is it just and equitable to adjust any award payable to the claimant?

g. If the claimant was unfairly dismissed did they cause or contribute to dismissal by blameworthy conduct?

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

i. Does the statutory cap apply?

[9]The parties agreed that the correct calculation for the basic award led to an award of £4,282.50 subject to any adjustment of the award to take account of conduct of the claimant before dismissal under section 122(2) ERA. Law applicable to the remedy issues

[10]Section 123(1) Employment Rights Act 1996 (ERA) sets out the statutory provision for calculation of the compensatory award and provides as follows: “Subject to the provisions of this section and [sections which limit or reduce the amount of the compensatory award] the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”

[11]This requires us to consider the effect of the unfair dismissal and whether the connection between that and its consequences was sufficient to found a claim that loss flows from it. If we are of the view that there was more than one cause of the loss, the respondent is only responsible to the extent that their contribution is material to the causes of the loss.

[12]In Whelan v Richardson HHJ Peter Clark (page 324F to H) said as follows: “Each case must depend upon its own facts. … Compensation is to be assessed in such a way as to compensate the employee, not penalise the employer, in relation to the compensatory, as opposed to an additional or special award. Neither party should gain a ‘windfall’. Compensation must be that which is just and equitable. Parliament has thereby granted a discretion to industrial tribunals which ought not to be placed in a straitjacket by too rigid statements of principle handed down by this tribunal in appeal decisions. However, that discretion must be exercised in accordance with clear principles, to some extent imported into this field from the common law by the words of the statute.” And then at page 325G to 326 D the EAT sets out 5 points of principle: “(1) The assessment of loss must be judged on the basis of the facts as they appear at the date of the assessment hearing (“the assessment date”). (2) Where the applicant has been unemployed between dismissal and the assessment date then, subject to his duty to mitigate and the operation of the recoupment rules, he will recover his net loss of earnings based on the predismissal rate. Further, the [employment] tribunal will consider for how long the loss is likely to continue so as to assess future loss. (3) … where the applicant has secured permanent alternative employment at a lower level of earnings than he received before his unfair dismissal [... h]e will be compensated on the basis of full loss until the date on which he obtained the new employment, and thereafter for partial loss, being the difference between the pre-dismissal earnings and those in the new employment. All figures will be based on net earnings. (4) Where the applicant takes alternative employment on the basis that it will be for a limited duration, he will not then be precluded from claiming a loss down to the assessment date, or the date on which he secures further permanent employment, whichever is the sooner, giving credit for earnings received from the temporary employment. (5) As soon as the applicant obtains permanent alternative employment paying the same or more than his pre-dismissal earnings his loss cannot be revived if he then loses that employment either through his own action or that of his new employer. Neither can the respondent employer rely on the employee’s increased earnings to reduce the loss sustained prior to his taking the new employment. The chain of causation has been broken.”

[13]Nevertheless, the statute directs the tribunal, when deciding what is just & equitable to have regard to the loss sustained by the claimant “in so far as that loss is attributable to action taken by the employer”. This is an important consideration. There may come a point where losses are no longer attributable to the action of the employer: Courtaulds Northern Spinning Ltd v Moosa

[1984] ICR 218

EAT.

[14]The legal principle that a claimant must take reasonable steps to mitigate their losses is found in s123(4) ERA: “(4)In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.”

[15]The burden of proof in relation to an allegation of failure to mitigate loss is at all times on the respondent. We do not understand the case relied upon by the respondent to say otherwise. Ahunanya is an example of a case where it was found that the respondent had shown a failure to mitigate loss by a claimant who had accepted part-time employment and ceased to look for full-time employment.

[16]The three main questions for the ET to consider are – Gardiner-Hill v Roland Berger Technics Ltd

[1982] IRLR 498

:a. What steps were reasonable for the claimant to have taken in order to mitigate their loss;

b. Whether the claimant acted unreasonably in failing to take those steps; and,

c. To what extent, if any, the claimant would actually have mitigated their loss if they had taken those reasonable steps.

[17]On the authority of Polkey v A E Dayton Services Limited

[1987] IRLR 503

, compensation may be reduced on the basis that had the employer taken the appropriate procedural steps which they did not take then that would not have affected the outcome. In principle, this also applies to the situation where the respondent has shown that, had the unlawful action not take place, the loss would have occurred in any event.

[18]The provisions of s.122(2) and 123(6) of the Employment Rights Act 1996 set out the powers of the tribunal to reduce any basic and compensatory awards because of conduct or contributory fault respectively which we are asked to use in the event that we conclude that the dismissal was unfair.

[19]In assessing contribution the tribunal should in turn:a. Identify the relevant conduct;

b. Assess whether it is objectively culpable or blameworthy;

c. Consider whether it caused or contributed to the claimant’s dismissal; and

d. If so, determine to what extent it is just and equitable to reduce any award

[20]Ms Beattie referred us to Frith Accountants Ltd v Law [2014] I.C.R 805 EAT in which the EAT confirmed that it was open to a respondent to argue that a constructive dismissal was caused or contributed to by culpable conducted on behalf of an employee. Although it would be unusual for a constructive dismissal to be caused or contributed to by any conduct on the part of the employee, particularly where the repudiatory breach involved a breach of the implied term of mutual trust and confidence, it is clear that Langstaff J, did not rule that out. Indeed, at paragraph 9, he said that “It will be unusual though there is no test of exceptionality” for such a situation to arise.

[21]The EAT decision in SPI Spirits UK Ltd v Zabelin

[2023] EAT 147

makes clear that for the grievance provisions of the ACAS Code of Conduct to be engaged, a grievance needs to be in writing (relying on paragraph 32 of the Code – see para.80 of the judgment in Zabelin.

[22]Zabelin is also authority for the proposition that whether the grievance provisions of the ACAS Code or the disciplinary provisions or both sections of the Code should have been followed by the employer is to be judged not by reference to what we have determined in the liability judgment but by reference to what happened at the time. This is logical because to be an unreasonable failure to comply with the Code the employer (and employee) either did or ought to have realised that they should comply with the Code.

[23]Subject to that, guidance to the steps to take were set out in Rentplus v Coulson

[2022] EAT 81

:a. Is the claim one which raises a matter to which the ACAS Code applies?

b. Has there been a failure to comply with the ACAS Code in relation to that matter?

c. Was the failure to comply with the ACAS Code unreasonable?

d. Is it just and equitable to award an uplift because of the failure to comply with the CASC Code and, if so, by what percentage, up to 25%? Finding and conclusions on the issues

[24]We have regard to, but do not repeat, the details in the reserved liability judgment which was sent to the parties on 2 September 2025 (page 1).

[25]The claimant resigned on notice on 19 May 2022. She was placed on garden leave on full pay until the expiry of that notice on 18 August 2022 which was therefore the effective date of termination. Her resignation letter dated 18 May 2022, which was handed to the partners the following day (LB page 552), was taken as a grievance by the respondent. An informal meeting was held between the claimant and the respondent and Mrs De Jonge and Mrs Smith on 14 June 2022. A further meeting was held with the claimant on 11 August 2022.

[26]A formal grievance was raised on 12 August 2022 which was investigated and the grievance outcome is at LB page 652. The investigator was instructed on behalf of the respondent’s HR/ legal advisers Croner Face2Face as someone independent from the partners. The grievance was not upheld. The investigator had convened a grievance hearing on 24 August 2022. The claimant appealed and a separate person was instructed on behalf of Croner Face2Face to conduct a grievance appeal hearing (the report starts at LB pager 682). The appeal outcome was sent to the claimant on 18 October 2022 (LB page 721). The appeal was dismissed.

[27]The claimant started looking for alternative employment in June 2022 when she realised that her meetings with the respondent were unlikely to lead to her withdrawing her resignation or that withdrawal being accepted. She was successful in obtaining alternative employment. The details of the roles that she applied for are at page 212. Six roles are listed there including the one that she accepted at Witley and Milford Medical Practice. This was a parttime role at £60,000 pro rata which she states was £48,000 per annum. She started that employment on 19 August 2022, the day after her employment with the respondent ceased.

[28]She had also been offered a full-time position in Harley Street but this was a private employer that did not provide an NHS pension scheme. Although the full-time annual salary was £55,000, accepting that position would require her to cover the expense of travelling into central London. She decided that it was more beneficial to take the part-time role that was with the NHS, preserve her pension, and had less travel.

[29]After she had accepted the role at WMMP two positions that she had applied for contacted her to see if she would interview. One of them is a full-time position but at a lower annual salary than her part-time position with WMMP. The other was an application she had made in July 2022 for a full-time role at £55,000 per annum. In September 2022 she was contacted by the HR Department and was invited to interview. However, she had already accepted and started the role at WMMP and her oral evidence was that she considered herself to be committed to her employer and unwilling to let them down by changing so shortly after starting.

[30]It is therefore apparent that, out of the six jobs that she applied for, she was interviewed for two jobs and offered both positions and was called for interview in two others. This demonstrates that she was a strong candidate and provides some support for the respondent’s argument that experienced practice managers were in short supply at the relevant time. In the counter schedule of loss (page 86), they argue that there were full-time positions for similar roles around the time of the claimant’s resignation and produced documents at pages 106 to 109.

[31]Since the claimant’s salary with WMMP was part-time pro-rata’d there was an ongoing loss - subject to the respondent’s arguments about causation and/or failure to mitigate loss.

[32]The claimant was dismissed by WMMP on 23 May 2024. The letter of dismissal at page 180 states that she was paid until 28 May 2024. From 19 August 2022 to 27 May 2024 is 92 weeks. In her alternative employment the claimant was therefore earning less than she had prior to the end of her employment with the respondent for that period of 92 weeks.

[33]The claimant argues that her losses would continue at that level because, on her case, there was no failure to mitigate loss and she had intended to work with the respondent until she was 67 years old. The respondent counters with evidence that the claimant had told them from the outset of her employment on more than one occasion that she intended to retire on 4 November 2024 when she was 60 years old. The claimant stated that at the time she made those comments she did not know whether she would be financially able to retire and that it was merely an aspiration.

[34]She said in the schedule of loss rationale that, prior to her mother’s passing May 2021, retiring at 60 years might have been attractive but there was less reason to do so since her mother had sadly died of Covid. However, we note that the claimant told the respondent in an appraisal carried out at the end of 2021 that she still was working towards a 2024 retirement.

[35]We do not need to make findings about the circumstances in which the claimant’s employment with WMMP ended; it is enough to describe it as an unpleasant employment experience on her account. In her statement she described herself as, since then, having become completely disillusioned with general practice: “If I wasn’t broken after my experiences at GGP, I was definitely broken after my exit from WMMP, and I needed to take a career break for an indefinite period of time, as I was not and I am still not, in a good place physically or mentally. I have not worked or received any earned income since I left WMMP in May 2024. I am still very passionate about the NHS and intend to return to work in some capacity in early 2026 but not in the General Practice sector. While on a career break I still needed an income and as I was unable to work I had not choice but to access the 1995* segment of my NHS Pension, which I did on my 60th birthday.”

[36]The 1995 pension scheme she mentions closed to all members in 2015 and she was enrolled in a new scheme known as the 2015 NHS pension scheme which is a career average scheme. She argued that it was not relevant that she had taken some of her pension from the 1995 scheme because that was something she could have done and continued to work in any event whether or not she had remained with the respondent. We accept that.

[37]The claimant was cross-examined about her decision to take a career break. We find that her experience at the respondent did not mean that she had to take a career break because she looked for alternative work at that time. The claimant accepted that. She accepted that it was her experience at WMMP that meant that she took a decision not to look for alternative work but to take a career break. From that point she had therefore no earned income. She registered as a locum but did not obtain any shifts through that route. What financial loss has the claimant shown?

[38]The respondent argued first that the claimant’s losses stopped when the WMMP job came to an end because there was a breach of causation and she had chosen not to seek work of any kind – even work which would have mitigated any ongoing loss which, during employment by WMMP, was still attributable to their actions. Secondly, they argued that the claimant would have retired in any event on 4 November 2024 so any losses would end at that point – if they were not found to have ended before.

[39]The claimant argued that she would have worked until 67 years of age and would have remained employed by the respondent until that age.

[40]Our conclusion on this is that the chain of causation was broken on 28 May 2024 when her employment by WMMP ended. The claimant had had an ongoing loss while employed by WMMP and the difference between her salary with the respondent and salary with WMMP was attributable to the actions of the respondent throughout her employment with the subsequent employer. However, she chose to take a career break after the end of her employment on 28 May 2024. She may have had perfectly good reasons from her perspective to take a career break. Nevertheless, it is clear from her evidence that an unpleasant work experience with the subsequent employer was the entire cause of that decision and it was not caused by this respondent’s actions in any meaningful way. At the point of dismissal from WMMP this respondent was still responsible for an ongoing loss. However, the claimant chose (for reasons unconnected with the conduct of this respondent) not to seek alternative employment to replace the lost income with WMMP and, potentially, avoid any ongoing loss for which this respondent was still responsible. That decision broke the chain of causation. After that point any loss of earnings was not attributable to the actions of this respondent.

[41]Therefore, we do not need to decide whether the claimant would have retired aged 60 on 4 November 2024 or aged 67 years of age. The losses stop before either potential retirement date.

[42]In principle, subject to any arguments which may succeed on why the compensatory award should be adjusted, the claimant has shown losses starting on 19 August 2022 and ending on about 27 May 2024 which is the date we take for ease of calculation. That is 92 weeks.

[43]The parties have put forward competing figures for the alleged net loss of income. Page 110 is the last complete month of the payslip of the claimant’s employment by the respondent. It shows gross salary of £5,333.24 and (after deduction for employee’s NIC, Income Tax and “basic NHS pension”) a net pay of £3,393.95. However, our reading of the payslip is that the deduction of £666.66 in respect of “basic NHS pension” is a contribution made by Mrs Forward to her own pension and therefore represents part of her salary which was paid into the pension on her behalf. That contrasts with the additional figure for “Employer pension this month” shown in the right-hand column of £766.92 for that month.

[44]The first conclusion we draw from that is that the notional pension contribution by the employer was 14.38% of gross (766.92 ÷ 5333.24 x 100 = 14.38).

[45]The value of her remuneration to the claimant in this month after deduction of tax and employee’s National Insurance was £3,393.95 plus her contribution of £666.66 to her pension which equals £4,060.61. That monthly figure multiplied by 12 and divided by 52 makes a net weekly figure of £937.06.

[46]We have a payslip from WMMP for the month to 28 April 2023 at page 112. This is obviously from the following year and the basic pay of £4,084.60 a month gross is an annual salary of £49,000 a year (rather than £48,000 p.a. referred to in the claimant’s statement and oral evidence). Other relevant figures from this payslip are that the total net payment after deduction of tax, National Insurance and the employee’s pension contributions was £2,786.35. The employee’s pension contributions were £408.46, therefore the total remuneration after tax and National Insurance paid to the claimant (or into the pension on her behalf) is £3,194.81. Multiplying this by 12 and dividing by 52 we get £737.26 per week.

[47]We are doing this exercise because the parties have different figures and we need to investigate the underlying arithmetic in order to decide between them. We appreciate that we are comparing income from the replacement employment from April 2023 with income from the employment with the respondent from 2022. There may have been an increase in salary if only for the cost of inflation in the meantime which makes these figures inexact. The claimant has claimed ongoing losses of £156.36 per week (page 80). The respondent argues that the losses while employed by WMMP were £140 per week (page 87). The difference between the figures, including what the claimant paid from her own wages into her pension on our calculations, imperfect though they are, is £199.80 a week. This seems to us to be a reasonable assessment of the claimant’s losses due to reduced earnings and we adopt it since it is higher than both the parties figures even though it is imprecise. The difference appears to be because the parties have deducted Mrs Forward’s own contributions to her pension as well as her employer’s which (given our decision on the appropriate way of evaluating pension loss) would undervalue her loss of earnings. Evaluating pension loss

[48]The claimant in an older iteration of the schedule of loss (page 80) estimated a loss of annual pension of £2,298.43. This was calculated as set out at page 82 to 83 on the basis that she would have added 1/54th of her pensionable salary of £63,998.88 to her pension pot annually had she remained with the respondent whereas the pro-rata reduced salary with WMMP meant that a lesser figure was added to her pension pot annually. The parties are agreed that the difference between the two figures is £241.94. The difference between their respective estimates of the pension loss is that the claimant argues that she should get that difference until pensionable age of 67 years. The respondent argues that she should receive that for the 21 months of her employment with WMMP.

[49]We do not consider that this is the correct method of assessing pension loss in this case. We have consulted the Presidential Guidance principles for compensating pension loss (10 August 2017) and the 4th Edition of the 3rd revision of the Principles for Compensating Pension Loss from 2021. The claimant has a defined benefit scheme. The scheme that we are concerned with is the 2015 scheme which is a career average scheme. We consider that, since we have found that there is a relatively short period of loss of 92 weeks, this can be assessed using the contributions method as recommended in paragraph 5.30 of the 4th Edition 3rd Revision of the Principles. We understand that, in paragraph 5.33, the authors suggest that 18 months and above would probably not be short but also bear in mind that the claimant was largely able to mitigate her pension loss by obtaining another job within the NHS so that she was able to continue to contribute into the defined benefit scheme.

[50]As we understand the 2015 career average scheme, every year that the member continues to pay into the 2015 scheme through their employment with the NHS, 1/54th of the gross annual salary in that year is added to the annual pension benefit that they will eventually receive on retirement. This means that, in her last year with the respondent, 1/54th of £63,998.88 was added - not to her pension “pot”7 - but to the annual figure that she would receive as a benefit. Indeed, details of the 2015 scheme are set out at page 92 of the Pension Principles. When the claimant started work for WMMP 1/54th of her annual pensionable salary of £50,934 was added annually to the amount that her income from the pension would be once she retired and had access to the benefits. That means that, for every year her pension is paid to her (from whenever she retires to her death), that annual pension benefit will be less because the annual increase was calculated on the basis of a smaller salary for the years during which her annual salary was lower. That reduction for the 92 weeks of employment with WMMP was attributable to the actions of the respondent. The question is how to evaluate the loss.

[51]The figure the respondent puts forward is not a one off loss but the figure that the claimant would lose every year from when she takes the pension to her death. In order to compensate her using that figure one would need to apply a multiplier to it from the Ogden tables making assumptions about when she retired. Similarly, the claimant also mistakes the reduction in the eventual pension income for an annual loss before retirement.

[52]However, we think that given the relatively short period of loss we can assess the pension loss by the difference in notional contributions to the pension. Both employers were contributing 14.38% (doing the comparison between the gross monthly salary and the employer’s contributions in the payslips at page 110 and page 112). The claimant’s gross weekly pay from the respondent was £1,230.69 based on the payslip at page 110. Her gross weekly from WMMP was £942.60 based on the payslip at page 112. The difference between those two figures is £318.09. 14.38% of £318.09 is £45.74. That is the difference between the notional employer’s contribution to the claimant’ s pension every week. Subject to arguments on mitigation of loss, Polkey and conduct, that should be awarded for all of the weeks during which the claimant has shown she experienced loss. Loss of Statutory Rights 7 Which usually means the lump sum used to purchase an annuity.

[53]In terms of future loss, it is conventional to award a sum for loss of statutory rights. This is compensation for the lost value of the right not to experience unfair dismissal and the loss of the right to long notice. It is not strictly assessed with reference to the claimant’s personal circumstances but is commonly between £250 and £500. The claimant had five years and six months’ service in a relatively well paid role. Although she has not claimed loss of statutory rights, she has suffered a loss for which she should be compensated. We think it right that she should be awarded the sum of £500. Failure to mitigate loss

[54]The claimant has shown that losses which are attributable to the acts of the respondent continued until her dismissal from WMMP with effect on 28 May 2024 but we found that her decision not to seek alternative employment for reasons unconnected with the respondent broke the chain of causation at that point. Separately, the respondent argues that, prior to the end of her employment with WMMP, the claimant had acted unreasonably in failing to take such steps as were reasonable to mitigate her loss. In particular, they argue that she did this by accepting part-time work and stopping to look for full-time work which would have extinguished the ongoing loss.

[55]As we explain in paragraph 27 above, the claimant has produced information at page 212 about jobs that she applied for prior to accepting work with WMMP. Two on that list (number 2 and number 6) are potential employers whom she had applied to and who had contacted her after she had accepted the alternative position with WMMP to offer an interview. Number 6 is a position offered at a lower annual salary than the part-time role at WMMP. The claimant did not act unreasonably in failing to be interviewed for that role because it would not have reduced her loss. Similarly, we accept that she did not unreasonably in not accepting the full-time position at Harley Street at an annual salary of £55,000 (£5,000 per annual less than her salary with the respondent but £6,000 per annum more than her part-time salary with WMP). The reason we accept that is because the terms overall were less advantageous as she would not have been able to pay into the NHS pension scheme and she would have incurred increased travel costs.

[56]When considering whether the respondent has shown that the claimant has failed to mitigate her loss the first question is what steps would the claimant or a reasonable employee in the claimant’s position have taken in order to mitigate their loss and we think that such a reasonable employee in the claimant’s position would not have turned down the opportunity to be interviewed for the role that is number 2 on page 212. Had she been successful she would have been in a full-time role at at least £55,000 per annum, possibly more, which would have reduced the ongoing losses.

[57]We therefore have to consider whether she acted unreasonably in not going for an interview. This requires us to consider her subjective reasons, which were that she had showed commitment to WMMP and it was important to her to start employment immediately at the end of her employment with the respondent in order to preserve continuity of employment and seniority.

[58]We think this second argument is weak as she was still looking for jobs within the NHS and a short gap between employment’s in the NHS would not, as we understand it, break continuity. Although it is understandable that she might not wish to let WMMP down, which she states she had found via personal contact, the amount of her ongoing losses would have been significantly reduced. Based on the gross weekly pay that the parties agree the claimant enjoyed with the respondent, her gross annual salary was £63,998.88. Had she been successful in being appointed to the role at number 2 on page 212, her ongoing annual losses would have reduced from nearly £15,000 per annum to just under £9,000 per annum; a reduction of about a third. This is not a trivial amount. We consider that the claimant did act unreasonably in not accepting an interview for that role.

[59]We accept the respondent’s argument that the claimant had a high conversion rate of interviews to offers. Of the six posts she applied for she was interviewed for two posts and offered the role in both of them. She was offered an interview in two of the other positions. That demonstrates that she was a strong candidate and when we come to the last stage of the test for failure to mitigate, we consider that had the claimant not acted unreasonably, had she instead gone for the interview, then it is more likely than not that she would have been appointed and the amount of her losses would have been reduced by £6,000 gross per annum, or approximately a third.

[60]For ease of calculation, we apply a one-third reduction to the amount of losses that she has shown for that failure to mitigate.

[61]The final question is when would she have obtained that alternative role. She was called for interview in September 2022. The claimant has set out on page 212 the length of time it generally took for her applications to be converted to interviews and then job offers. However, this particular role appears to have taken from July 2022 the date of the application to September to invite the claimant for interview. Taking a conservative view, we think it is safe to say that by approximately the end of the year the claimant had she had been interviewed for that post would probably have been appointed and started work. We therefore reduce her compensation for failure to mitigate after an initial 20-week period that she would have been in the role at WMMP. Had she not failed to mitigate her losses then after that period those losses would have been reduced by about one-third up to the 28 May 2024 when they ceased altogether as we have previously explained. Would the claimant’s employment have terminated in any event had the breach of contract not happened?

[62]Doctor Denton, in her witness statement, argues strongly that the respondent, had the claimant not resigned, would have taken disciplinary action against her for gross misconduct which probably would have ended in dismissal after an investigation by an independent investigator. We accept that, had they carried out a disciplinary investigation, they would probably have used an independent investigator as they did for the grievance. The respondent’s argument is that they would have completed any such action and dismissed the claimant no later than the date on which her employment ended in any event.

[63]However, we do not accept that the respondent has shown that they would probably have taken disciplinary action against her or dismissed her. We are not satisfied that there is evidence to which it is right to attach weight either to assess a percentage chance of this happening or to support a finding that it would certainly have happened at a particular date.

[64]The reason that we reach this conclusion is that when we analyse the respondent’s proposed counter factual it relies not merely on the claimant not resigning. The argument would have to be that the repudiatory breach that entitled her to resign had not occurred but, instead, they took action against her which led to a fair dismissal. We refer back to the liability judgment for full details of the factual basis of the conclusion that there was a repudiatory breach of the implied term of mutual trust and confidence. In summary, the claimant had not been supported sufficiently in her role as line manager of Mrs Walker. She believed her concerns had not been sufficiently investigated and she believed there was justification that the partners were contemplating reducing the authority of her role in a reorganisation.

[65]There are two main reasons why we are not satisfied that the respondent’s present protestations are reliable as evidence of what they would have done in that situation. In the first place, they may still have been working with the situation that Mrs Walker had resigned. What they actually did when the claimant resigned was, first, to convene a meeting with her, Mrs De Jonge and Mrs Smith to try to explore whether there were any circumstances in which the three of them would agree to return to work for the respondent. At that point there was institutional knowledge of the complaints of Mrs Walker and quite a lot of the information had been passed over to the partners generally as we set out in our reserved judgment. It is inconsistent with their case now for them at the time to have explored with those three former employees whether there could be a mending of workplace relationships to allow them to return to work.

[66]Furthermore, Mr Forward drew our attention to several paragraphs in the witness statements of Dr Oh, Dr Beeharry and Dr Denton, for the liability hearing which emphasised how highly regarded the claimant was. Those attempts to retain the claimant and that high regard is not consistent with the case they now advance that there is a 100% chance that she would have been dismissed in any event before the end of August 2022. In order for this to be something that is just and equitable to take into account in reducing compensation, their action would have to lead to a fair dismissal.

[67]That is not to say that we disagree that some of the actions of the claimant could, potentially, have been regarded as contravening the Code of Conduct and Dignity at Work policies of the respondent. The point we make is that the contemporaneous evidence suggests that they would not in fact have taken that action against her.

[68]There is therefore no deduction from compensation applying the principles of Polkey v A E Dayton Services. Conduct

[69]The claimant argued that none of her conduct was blameworthy in the manner that is necessary in order for it to lead to an adjustment to the compensation.

[70]The respondent argues that it can be demonstrated that in a number of respects the acts of the respondent which amounted to the repudiatory breach of conduct was so connected with the claimant’s actions that it can be said that the claimant’s conduct contributed to her own constructive dismissal. They rely on Frith Accountants v Law as authority for the principle that although it would be unusual for a constructive dismissal to be caused or contributed to by any conduct on the part of the employee, particularly where the repudiatory breach involved a breach of the implied term of mutual trust and confidence, it should not be ruled out. Langstaff J expressly stated that there was no test of exceptionality.

[71]We remind ourselves that it is inherent in a finding of a breach of the implied term of mutual trust and confidence that the employer had no reasonable or proper cause for their actions. That does not in our view exclude a finding that it is just and equitable to make a deduction on grounds that the claimant’s conduct contributed to the respondent’s actions even if ultimately, they had no reasonable and proper cause for it. These should be factors relevant to whether it is just & equitable to make a deduction for culpable conduct in these circumstances.

[72]As Ms Beattie argues in her skeleton argument, the way the respondent dealt with their investigation into allegations of fraudulent overtime claims by Mrs Walker that had been made by the claimant contributed to the fundamental breach of contract. However, as we explain in the liability judgment, there were a mixture of matters that the claimant put forward that she ought to have realised were not true and matters which were genuine and reasonable grounds to seek clarification. She did not limit her descriptions in the communications she raised with the partners to asking for clarification but stated that some matters were potential gross misconduct. The secrecy adopted by the respondents which contributed to undermining the claimant’s position was caused by them trying to keep apart two individuals whose working relationship was under pressure and then deteriorating. A significant factor in that were the allegations which the claimant ought to have known were untrue and unjustified.

[73]We accept also the point that the claimant had written a poorly judged draft response (see liability judgment paragraph 148) which caused the respondent to inform her not to send it. We found at the liability stage that their poor management incrementally amounted to a breach of the implied term of mutual trust and confidence but there is a connection with blameworthy conduct by the claimant as they mishandled a difficult situation that was partly of the claimant’s own making. It is clear that what Mrs Walker was particularly upset about were unfounded allegations, for example, about not having proper authorisation for the care co-ordinators’ pay rise or the insinuation that she had made an application for a training course during work time.

[74]However, we do not think that it is right to say that the entire situation was that of the claimant’s making. Indeed, that would undermine our conclusion at the liability stage that the respondent had no reasonable and proper cause for their actions. The relevant conduct is the making of allegations which she ought to have known were untrue along with reasonable requests for clarification and drafting a response to Mrs Walker which did not address the latter’s concerns about the deteriorating relationship with Mrs Forward. The partnership mishandled their response to that and so that conduct did contribute to the acts which breached the implied term of mutual trust and confidence.

[75]We do think that it is just & equitable that there should be some deduction from compensation to take account of the extent to which the claimant contributed to the situation. Doing the best we can, we assess that contribution at 25% and make a 25% reduction from both the basic and compensatory awards for conduct. ACAS uplift/reduction

[76]The claimant argues for an uplift on, or compensation of, 25% (page 213) for a failure to treat the letter of 25 April 2022 (LB page 462) as and her resignation letter of 19 May 2022 as grievances. She argues that the respondent unreasonably failed to comply with the Code of Conduct as regards grievances in their handling of the letter of 25 April 2022 which they should have regarded as a grievance but did not. She also argues, in respect of the resignation letter, they convened a grievance process eventually but failed to disclose particular relevant document or documents the claimant says were relevant, during the course of that process. She argues that that failure contravene the Code of Conduct principle that the parties should be open and transparent with each other.

[77]The claimant’s argument on ACAS is slightly different in the final schedule of loss at page 213 where she argues there was a failure to investigate the grievance which the letter of 25 April represented when compared with the original schedule of loss at RB page 80 which, at page 83, argues that the failure was withholding of crucial evidence.

[78]Conversely, the respondent argues for a 25% reduction on the basis that the claimant had unreasonably failed to put in the grievance prior to her resignation.

[79]The claimant remained an employee until 18 August 2022. Although Ms Beattie said in argument that the resignation letter was treated as a grievance that led to an informal meeting. Then a more formal written grievance was put in and that was the subject of the investigation. The various usual stages were carried out when it was investigated by the independent investigator. Therefore, most of the grievance investigation took place during the claimant’s garden leave.

[80]We reject the claimant’s arguments that an alleged lack of transparency investigating the grievance through August to the conclusion of the appeal process in October 2022 is a breach of the ACAS Code. She complains of the failure voluntarily to put forward the emails and other documents which evidence Mrs Walker’s complaints about the claimant. However, the independent investigator was investigating the claimant’s grievance and one does not normally expect an employer to start to investigate the grieving person or to volunteer information that is critical of that person if it does not address the issues in the grievance. Overall, the independent investigation was done in accordance with the Code of Conduct.

[81]We do think that the letter of 25 April 2022 at LB page 462 meets the definition of a grievance because it is a statement of the claimant’s concerns about things that are happening at work which she wants to bring to her employer’s attention. Therefore, the ACAS Code of Conduct on grievances is applicable to this situation.

[82]We go back to the liability judgment and remind ourselves about what happened after this letter was sent and what the claimant was seeking by it. In the final paragraph she asked to meet with the partners to discuss matters and to arrange a meeting with her. As we see from RB page 16, paragraph 85 of the liability judgment, they arranged a partner meeting by Teams at which they sought to reassure her. They therefore responded in the manner she asked, albeit informally. However, the informal stage of a grievance is nevertheless the right first stage to take, according to the ACAS Code of Conduct.

[83]The next thing that happened was to focus on mediation between the claimant and Mrs Walker. It is true that, in our judgment at paragraph 88, we point out that this overlooked the claimant’s concerns about her relationship with the partners. But, nevertheless, with the consent of the claimant, her concerns in that letter were being addressed through an attempt to mediate what she and Mrs Walker wanted out of their relationship. Following the mediation the claimant sent a detailed list of concerns (see paragraph 95 of the liability judgment) and this was only two days before she eventually resigned. For reasons which are largely due to pressure of work, Dr Beeharry had not given a substantive response but had engaged with the claimant and it was during those conversations that she explained to the claimant that the partners would put reorganisation on the agenda for the partners meeting. This was the step which precipitated the claimant’s resignation.

[84]So, looking at whether there was a breach of the Code in the respondent’s handling of the letter of 25 April, we think there was no breach of the ACAS Code relating to grievances. They had the informal meeting she asked for and then arranged mediation which was a practical step, albeit not one which addressed the part of the claimant’s concerns that related to her relationship with her employers. There was an ongoing process of engagement. The claimant’s list of concerns at LB page 533, sent on 17 May, might be regarded as renewing or formalising her dissatisfaction with how things had been handled and her explanations to why the mediation was not sufficient. Dr Beeharry responded very quickly to indicate that it would be taken seriously so although meetings had been arranged in the two days between then and when the claimant resigned, that does not seem to us to amount to a breach of the Code of Conduct, given the timescale.

[85]In any event, we do not consider that there was an unreasonable breach of the ACAS Code of Conduct. This is a different and specific test to the question of whether, by these actions, the respondents were cumulatively acting in a way that amounted to a breach of the implied term of mutual trust and confidence. We are looking at their actions set against particular paragraphs in the Code of Conduct. Taking into account the fact that there had been mediation, that there was engagement throughout, albeit engagement that focused on only part of the problem, and that they are principally engaged in running a busy GP practices, we do not think that, if there was a technical breach it was an unreasonable one that means it is just and equitable to make an award of additional compensation.

[86]For those reasons we do not think it right to award an uplift of compensation under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.

[87]The converse argument is that the respondent says the claimant should have put in a formal grievance. Arguably she could have waited until she had a response to the second letter, at LB page 533, before resigning. However, the principal argument raised by the respondent was that there had been no grievance at all and that we reject because the letter of 25 April 2022 meets the definition of a grievance.

[88]If one looks at this narrower point about whether the claimant should have waited for a response to the letter at page 533 of the 17 May before deciding to resign, we think that the claimant was in a position where she was deciding whether or not to resign in response to a repudiatory breach and it is difficult to say in those circumstances that, if she did not let a grievance run its course, that was an unreasonable failure. The classic definition of a repudiatory breach is that the respondents have behaved in a way that means that it is intolerable for the employee to remain in employment. Even if it could be said that the claimant breached the Code of Conduct in relation to grievances by not seeing the grievance out, she was not unreasonable in that action because she was party to a contract of employment that had been breached.

[89]The losses therefore that we will calculate are:71.1 20 weeks at £199.80 per week net of tax and national Insurance loss of earnings.

71.2 20 weeks at £45.74 per week loss of pension.

71.3 72 weeks at ⅔ of the net loss of earnings to take account of the failure to mitigate.

71.4 72 weeks at ⅔ of £45.74 per week loss of pension contributions to take account of the failure to mitigate.

71.5 Loss of statutory rights in £500. 72 To that total there should be applied a 25% reduction for contributory conduct. The agreed basic award is £4,282.50. There will be a 25% reduction for conduct from that under section 122 ERA. 73 There are no further adjustments to the compensation under section 207A Trade Union and Labour Relations (Consolidation) Act or by reason of an application of the principles in Polkey. Approved by: