[1]The claimant’s claim of disability discrimination is dismissed on withdrawal. RESERVED JUDGMENT[2]The claimant was not constructively dismissed. His complaint of unfair dismissal fails and is dismissed.
REASONS
[1]The claimant was employed by the respondent from 12 September 2011 to 3 July 2019. The respondent is a subsidiary of Biogen Inc, a multinational biotechnology company. At the time he left the respondent, the claimant was a Senior Area Business Manager.[2]In a claim form presented on 30 September 2019 after a period of Acas early conciliation from 5 July 2019 to 5 August 2019, the claimant brought complaints of constructive unfair dismissal and disability discrimination. The response was presented on 16 January 2019. The respondent defended the claim.[3]The claimant withdrew his complaints of disability discrimination on 20 April 2020. Hearing and evidence[4]The hearing took place by CVP. There was an agreed bundle of 730 pages (744 pages in the electronic copy). Page numbers in these reasons are references to that bundle (hard copy page numbering). (RJR) Page 1 of 18[5]On the first day of the hearing, a dispute arose between the parties about the issues in the case. Shortly before the start of the hearing, the claimant’s counsel produced a list of acts relied on by the claimant in support of his claim for constructive dismissal. There had been no preliminary hearing for case management, and this was the first time that the claimant had identified the acts which he said constituted breaches of contract entitling him to resign. The respondent’s counsel said the document was a re-pleading and a wholesale revision of the way in which the claimant put his claim in the claim form.[6]I encouraged the parties to have discussions about the list of acts relied on while I was reading the witness statements. However, there remained a dispute. I heard submissions from the parties’ representatives and decided that some of the acts included in the claimant’s list were not included in the claimant’s claim, and the claimant would require permission to amend to rely on them. Ms Boorer made an application to amend. For reasons given at the hearing, I refused the application. In short, I decided that it was not in line with the overriding objective for the claimant to be permitted to include at a very late stage matters which had not been referred to in his claim form. A revised version of the list of acts relied on was agreed on the morning of the second day of the hearing.[7]Reading the statements and dealing with the preliminary issues took up much of the first day of the hearing, and I did not begin hearing witness evidence until 15.50. I heard from the claimant first. On the second and third days of the hearing, I heard from the respondent’s witnesses: 7.1. Ms Barr; 7.2. Mr Jason Green; 7.3. Ms Winchurch; 7.4. Ms Fisher; 7.5. Ms Balatinacz; 7.6. Mr Steven Green.[8](In this judgment I have referred to Mr Jason Green and Mr Steven Green as Jason Green and Steven Green for clarity.)[9]The parties’ counsel made closing submissions. Ms Boorer provided written submissions and Mr Brown provided a written chronology of the grievance procedure.[10]There was insufficient time within the time allocated for me to deliberate and deliver judgment, and so I reserved judgment. I apologise to the parties and their representatives for the delay in promulgation of this reserved judgment, this reflects the general pressure of work in the employment tribunals at present.
Issues
[11]The issues for determination by me are whether the claimant was constructively dismissed and if so whether his dismissal was unfair. (RJR) Page 2 of 18[12]The acts relied on by the claimant as constituting constructive dismissal are set out below (with the numbering from the claimant’s list retained). The claimant relies upon the dismissal of his grievance appeal on 14 June 2019 as the final straw which caused him to hand in his resignation on 3 July 2019. The claimant said that he was particularly affected by the failure of the respondent to consider any steps to enable him to return to work. 1. Failure to support the Claimant’s developmenta. In November 2014 the Claimant was asked to apply for an internal secondment. However, the position went to another internal candidate because it was on her ‘development plan’ [98-99].b. In a meeting to discuss development with the Claimant on 20 April 2018, Libby Winchurch told him ‘if you try to catch a butterfly it will never happen but if you carry on gardening a butterfly might land one day’.c. The Respondent failed to put in place any proper development plan for the Claimant with realistic mid-term and long-term goals. 2. Failure to properly handle allegations of harassment and bullying within the Synergy team a. On 17 May 2017, the Claimant was referred to as ‘Tan FM’ on the Synergy WhatsApp group which he found offensive. No action was taken by the Respondent [418]. b. After the creation of the team charter, which was put in place following the Claimant raising concerns, the Claimant was referred to as the ‘KOC’ (keeper of the charter) on multiple occasions [417, 256]. Despite the Claimant raising with Libby Winchurch that he found this offensive, no action was taken. c. The Claimant’s informal concerns of bullying and harassment were not engaged with and the creation of the team charter in 2018 was used to paper over cracks without addressing the Claimant’s concerns 3. Failure to fairly handle the Claimant’s work-related stress and sickness absence a. The recommendations of the 30 January 2018 OH report [203-207] and 14 January 2019 OH report [354-357] were not implemented. In particular no stress risk assessment was ever undertaken. b. The Respondent unfairly insisted on the strict application of its policy on sick pay, despite the Claimant’s absence being caused by the Respondent’s inaction, them offering no steps to enable him to return to work from November 2018 onwards and the grievance process being unreasonably delayed. c. The Claimant was provided with no proposed steps for his return to work in the grievance process. 4. Failure to properly handle and respond to the Claimant’s grievances (RJR) Page 3 of 18 a. The Respondent’s failure to respond to the Claimant’s complaints on an informal basis resulted in him having no option but to raise a grievance. b. There were significant delays in the process, with the final appeal outcome only being completed 9 months after the Claimant’s original grievance, and the DSAR being completed after 4 months. c. There was a failure to address and investigate all of the Claimant’s concerns raised in his grievance and witnesses were not asked about crucial events, such as the ‘KOC’ comment.d. Both Jason Green and Steven Green relied on their own personal views and experience, rather than remaining impartial and properly addressing the Claimant’s concerns.e. No aspect of the grievance was upheld and the outcomes did not facilitate the Claimant’s return to work or resolve the underlying causes of his work-related stress.
Findings of fact
[13]The claimant joined the respondent on 12 September 2011 as an Area Business Manager. He was promoted to Senior Area Business Manager in 2014. This was a senior specialist medical sales role. The claimant worked in the East of England region on a product to treat multiple sclerosis (MS). He was a high performer and was very knowledgeable about the respondent’s product and MS more generally. He was an experienced and valued member of the team. Internal applications and the claimant’s development[14]In November 2014 the claimant was invited to apply for an internal secondment to the Global Salesforce Excellence Team. However, another internal candidate was appointed. The claimant’s line manager at the time was Lorraine Barr. She told the claimant in an email that the successful candidate ‘was able to apply before the deadline due to this kind of role being flagged in her development plan’ (page 98).[15]The claimant was hardworking and highly motivated and personal development was very important to him. He spoke to Ms Barr about his aspirations. She spoke to him regularly about his development and put him forward for development opportunities when they arose such as the Strategic Account Planning Process project. This was a high-profile project and working on it put the claimant in touch with senior managers across the group and across the EU. The respondent’s expectation was that employees would prepare their own development plan on the respondent’s Workday system (an example of a template was included at page 516), and that they would take responsibility for furthering their own development, for example by using their initiative to identify development projects or opportunities (page 513). Employees at the claimant’s level were not provided with a ‘step-by-step’ plan for promotion to the next level. The mid-year and end of year review documents did not include sections on development. (RJR) Page 4 of 18[16]In February 2016 the claimant had a year-end review with Ms Barr. She rated his performance as ‘delivering and exceeding expectations’ but he felt that he should receive a higher score. There were some discussions between them at this meeting and around this time about team dynamics but I find that the claimant did not say to Ms Barr that he was being bullied or harassed. Ms Barr coached the claimant about giving feedback and telling the team how he was feeling. She did not feel any further steps were necessary.[17]In around September 2016 the claimant applied for promotion to a National Sales Manager role. He was unsuccessful. Ms Barr arranged a meeting with the claimant, her manager and HR to debrief the claimant on how he had performed during the interview process. She also arranged for some external coaching to be provided to help the claimant to understand how he was performing and how he could improve. The coaching was provided because the claimant was a higher performer and the respondent wanted to support the claimant with his growth and development.[18]In March 2017 Ms Barr moved to the role of Commercial Director and Libby Winchurch became the claimant’s line manager. Ms Winchurch was a peer of the claimant who was the successful internal appointee to the National Sales Manager role which the claimant had applied for. Ms Barr became Ms Winchurch’s manager.[19]In around May 2017 the claimant applied for a role called Head of Field Force Effectiveness. The respondent gave the claimant a lot of support with the application process. Ms Barr met with him to discuss the role and expectations and to provide coaching and support. Nikki Fisher from the respondent’s HR department also met with him to help. Ms Winchurch helped the claimant with his CV and spent half a day role playing ahead of the interview. On 17 May 2017 Ms Winchurch and the claimant travelled back together from a conference in Scotland and they used the time for further planning for the interview. The claimant’s application was not successful. The hiring manager thought that the role needed advanced sales tracking and improvement skills which the claimant did not have. Ms Winchurch spoke to the claimant about the feedback from the hiring manager. Tan FM[20]During the journey back from Scotland on 17 May 2017, another employee messaged the team’s WhatsApp group, a group which included both Ms Winchurch and the claimant. The message said ‘How’s Tan FM going Libby’. It had a radio emoji and a ‘winking face’ emoji (page 418). Ms Winchurch replied saying ‘We have not stopped talking for the last 250 miles!!!’.[21]The phrase Tan FM had come up at a meeting a couple of weeks before the conference. It was used by a colleague who was a close friend of the (RJR) Page 5 of 18 claimant. As a regional sales team, the claimant and his colleagues spent a lot of time travelling between meetings and often shared journeys or called each other to chat while travelling. I accept Ms Winchurch’s evidence that the phrase was intended to convey the claimant’s ability to chat and entertain while on a long journey, like an entertaining radio show.[22]The claimant was included in the discussion on 17 May 2017 as he was part of the WhatsApp group. He did not make any comment at the time, probably because he was driving. However, he was offended by the term and spoke about this to the colleague who had used it first. The claimant’s colleague immediately responded to say that he would stop using it and would tell the team not to use it again. There was no evidence of the term being used again or of the claimant complaining about it. Transfer request and adverse event report[23]The claimant continued to speak to Ms Winchurch on a regular basis about his development and promotion plans. She regularly saw formal feedback about him and discussed his aspirations with him. The claimant’s mid-year and end of year reviews with Ms Winchurch in 2017 and 2018 included a development discussion. The expectation remained that the claimant would write up the details of his development plan on the respondent’s system, and take responsibility for furthering his own development.[24]In late 2017 an Area Business Manager role came up for the Wales and West Midland area. The claimant spoke to Ms Winchurch and asked to transfer to that role. He said he wanted a new challenge. She spoke to Ms Barr and they decided not to approve the request because it would mean much more travel for the claimant and it would not help his wish to progress. Ms Winchurch explained this to the claimant.[25]The claimant had time off for a scheduled operation from 5 September 2017 to 2 October 2017. When he returned to work he discovered that a colleague had reported an adverse event about the drug he worked on. An adverse event is where a patient suffers some form of reaction to a drug. There are strict reporting requirements in relation to such events. The claimant spoke to Ms Winchurch about this on 19 October 2017. He was unhappy about the report being made by his colleague rather than him because he thought that it undermined him. I accept Ms Winchurch’s evidence that the claimant’s colleague had to report the event within 24 hours, in line with internal and regulatory requirements.[26]Ms Winchurch did not agree with the claimant that his colleague had undermined him in any way but because the claimant was upset by the incident, she offered to speak to the claimant’s colleague with him, or on his behalf. The claimant said he would prefer to speak to her himself. The claimant emailed Ms Winchurch the following day (20 October 2017) to say, ‘Thank you being my check and balance and listening to me on how I feel’ (page 155). Ms Winchurch later spoke to the claimant’s colleague (RJR) Page 6 of 18 who told her that the claimant had discussed the issue with her. Ms Winchurch understood that this had resolved things. The claimant’s sickness absence November 2017[27]The claimant was signed off sick with work related stress from 17 November 2017. Ms Winchurch texted the claimant on 17 and 20 November 2017 to offer to chat but the claimant did not take her up on this (page 157). The claimant was signed off sick until 11 February 2018.[28]On 4 January 2018 the respondent’s HR manager Nikki Fisher contacted the claimant to tell him about his sick pay entitlement. She explained that he would be entitled to 100% of salary until 15 January 2018 and thereafter to 75% of salary while on sick leave. She said that the respondent could apply for cover under the Income Protection Scheme and that this would require a review by the respondent’s occupational health provider (page 179).[29]The claimant saw the respondent’s occupational health provider and a report was prepared dated 22 January 2018 (amended on 30 January 2018) (page 203). The report recorded that the claimant had been unsuccessful in his application for an internal role and that he had felt undermined when he returned to work from sick leave in October 2017. He said he felt he had not been fitting in and was unsure about his responsibilities. The occupational health adviser said that the claimant had seen his GP, and been prescribed medication and that he had had CBT via the respondent’s medical insurance. She said that he seemed very down. The adviser recommended a stress risk assessment and a further review by OH in four weeks, at which time she hoped to be able to recommend a phased return to work. She said that a stress risk assessment would enable the claimant and his managers to identify the source of the stress and anxiety to eliminate or reduce it as much as possible. The claimant’s return to work[30]The claimant returned to work on 12 February 2018 on a phased return (pages 212). At a return-to-work meeting with Ms Fisher and Ms Winchurch on 14 February 2018, relationship issues were discussed, and the claimant confirmed that his working relationship with his colleague who had made the adverse event report was causing him concern. Ms Fisher agreed to arrange a meeting between the claimant and his colleague (to be attended by their line managers, one of whom was Jason Green) to discuss ways of working and avoid problems in the future (page 215). The meeting took place on 15 March 2018. Ways of Working were agreed and recorded (page 230). The respondent thought that the meeting had addressed the difficulties and the relationship had improved.[31]Ms Barr also had a meeting with the claimant, at his request, after he returned to work. This took place on 26 February 2018. Ms Barr was (RJR) Page 7 of 18 encouraging and supportive of the claimant. I find that the claimant did not raise any concerns about his treatment by the team or by Ms Winchurch during this meeting.[32]Ms Winchurch also spoke to the claimant to support him during his return to work, for example on 8 and 9 March 2018 when he was beginning to see customers and colleagues again (pages 224 to 225). They continued to discuss development and the claimant’s wish to be promoted. Ms Winchurch helped the claimant update his CV and write covering letters, and spoke to potential hiring managers on his behalf. In a meeting with the claimant on 20 April 2018, Ms Winchurch told the claimant that development was like butterflies: ‘If you try to catch a butterfly it will never happen but if you carry on gardening a butterfly might land one day’. The comment was intended to reassure the claimant that he was doing everything right to get a promotion, but sometimes you have to be patient and get on with the day job while you wait for the right job. By this time, the claimant was working on another high-profile project called FACE as well as the Strategic Account Planning project, and Ms Winchurch felt that this was a good way of giving him visibility to future hiring managers.[33]In May 2018 the claimant nominated Ms Winchurch for a ‘Big Recognition’ award to thank her for her honesty, feedback and the time while he was catching up with everything (page 247). He also nominated his colleagues on the synergy team for awards.[34]In June 2018 Ms Barr sent the claimant an email thanking him for his May performance and saying she was delighted to have him back (page 242). The Team Charter[35]On 25 June 2018 the claimant’s team had a team training meeting called ‘Optimising Team Working’ (page 243). It was facilitated by an external consultant. The respondent was organising this for all teams but Ms Barr felt it would be good for the claimant’s team to have this training to build on the recent discussion between the claimant and his colleague. The meeting included a session on communicating effectively with different personality types, which were referred to as colours. The claimant was ‘blue’. During the meeting the team put together a Team Charter which set out agreed ways of working. One of the operating guidelines was ‘Let go of the past and move forward together’ (page 388). The claimant was nominated as ‘Keeper of the Charter’ which had the acronym ‘KOC’. The claimant was referred to as the KOC, for example in an email on 11 July 2018 (page 417) and the term was used again at a meeting on 16 July 2018 (page 256). I accept that the claimant found this term offensive because when said out loud it sounded like he was being called a ‘cock’. However I find that he did not expressly raise his concern about this with Ms Winchurch. If he had done, Ms Winchurch would have taken steps to address the claimant’s concern, as she did when the claimant raised concerns about the adverse event report. (RJR) Page 8 of 18[36]On 12 July 2018 the claimant and Ms Winchurch had a mid-year review meeting (page 248) in which she was very positive about the claimant’s achievements. In August 2018, while the claimant was on a 6-week paid sabbatical Ms Winchurch texted the claimant to say that he had ‘smashed’ his targets and to let him know the ‘good news’ about his bonus payment for the second quarter of the year (page 257).[37]On 21 November 2018 the claimant had a meeting with Ms Winchurch. When communicating about arrangements for the meeting, the claimant said: ‘It would be great to allocate some time to discuss development. As you know this is a big driver and motivator for me. It will [be] great to have a clear development plan in place (like you said earlier on in the year, still waiting for the butterflies to land). It would also be great to discuss role clarity and responsibilities and senior ABM project. I know we discussed this before about a change in senior ABM project but be good to link this into my development plan.” (page 266).[38]During the meeting Ms Winchurch felt the claimant was exasperated and frustrated that he had not been promoted. They discussed options such as an office-based role. Ms Winchurch understood that the claimant would input the matters they had discussed into his development plan, but she did not chase this as the claimant was still getting back to full health and capacity after his period of sick leave. They also spoke about working relationships within the team. The claimant said that he felt he would not be ‘heard’ unless he copied Ms Winchurch into an email. Ms Winchurch asked the claimant to explain why he did not feel ‘heard’. He referred to an issue he had raised about the meeting minutes being prepared with inconsistent formats, and another occasion on which a member of the respondent’s medical team had been accompanied by one of the claimant’s colleagues to a meeting with a customer when the claimant thought it was his responsibility to make the introduction. The claimant’s second sickness absence and grievance[39]In November 2018 the claimant was signed off sick with work related stress. He did not return to work.[40]On 10 December 2018 the claimant submitted a formal grievance (page 293). He raised complaints about insulting and undermining behaviour by colleagues, a lack of development support, and concerns around job security and sick pay. He said that the respondent’s Anti-bullying and AntiHarassment policy required that allegations of bullying and harassment be taken seriously. He asked for acknowledgment and support with ongoing work-related stress, for the bullying culture and atmosphere to stop, and for him to be moved to another team. (RJR) Page 9 of 18[41]Some of the complaints related to Ms Winchurch, so Ms Barr took over line management of the claimant and became his point of contact. On 12 December 2018 Ms Barr arranged for Jason Green (Sales Associate Director) to hear the claimant’s grievance. He was due to be on holiday from 14 December 2018 to 7 January 2019 but as there was a company shutdown over Christmas Ms Barr did not believe this would hold things up significantly.[42]Ms Barr wrote to the claimant on 13 December 2018 to inform him that Jason Green would be hearing his grievance and that he would be invited to a grievance meeting in the new year (page 326). On 7 January 2018 the claimant’s solicitors wrote to the respondent to ask for all correspondence to go through them (page 353).[43]On 10 Jan 2019 the claimant was referred to OH again. A report dated 14 January 2019 was sent to the respondent (page 354). The report recorded that the claimant thought he had returned to work too soon in 2018 and felt under pressure to do so. He felt that the team charter was not working as expected, lines of responsibility were blurred and he felt bullied and harassed. He had not been successful in his applications for new roles, and his career was not progressing. The occupational health report recommended an open, honest and constructive discussion about the claimant’s concerns, and referred to a stress risk assessment and mediation with those colleagues with whom the claimant perceived there to be a conflict. The advisor recommended that the claimant was fit to attend meetings for a stress risk assessment and said it may be prudent to carry this out before the claimant’s return to work. A phased return to work was also recommended. No formal stress risk assessment was carried out by the respondent, and the respondent said in its ET3 that this would have been done once the claimant was considering returning to work. Ms Barr said the grievance process was intended to be an opportunity for open, honest and constructive discussion as recommended in the Occupational Health report but I find that the grievance process was not a stress risk assessment. The focus and approach required for the grievance would be primarily on what had happened, whilst the stress risk assessment would focus on what could be done to address the claimant’s present concerns and facilitate his return to work.[44]The claimant’s grievance hearing with Jason Green took place on 1 February 2019. The claimant was accompanied by his union representative. The respondent had initially suggested 23 January 2019 but the claimant’s solicitors did not confirm this date. The claimant could not make the second date proposed by the respondent which was 25 January 2019. The respondent suggested 29 January 2019 or 1 February 2019 and the claimant’s solicitors chose 1 February 2019.[45]On 8 February 2019 Jason Green sent the claimant the partial grievance outcome (page 374). Jason Green wanted to respond to the claimant quickly on those matters where he could, rather than delaying the outcome because of some matters which required more investigation. The partial (RJR) Page 10 of 18 outcome dealt with the complaints about sick pay, the personal development plan and the possibility of a move to another team. The claimant’s complaints were not upheld and Jason Green declined the requests for extended sick pay or a change of role. He suggested that the claimant should explore the group income protection scheme.[46]The claimant appealed against the partial outcome on 22 February 2019 (page 381). He asked what suitable adjustments based on the occupational health reports could be made to enable his return to work.[47]Between the first and second grievance outcome letters, Jason Green interviewed the colleagues and managers who had been named in the claimant’s grievance.[48]On 21 March 2019 Jason Green sent the claimant the second part of the grievance outcome (page 434). This set out the outcome on the behaviourrelated aspects of the grievance. Jason Green found that the team had been supportive of the claimant on his return to work and in relation to communications and ways of working generally.[49]On the same day, the respondent’s HR department sent the claimant a letter confirming that his sick pay would come to an end on 27 March 2019 (page 437). The letter said that if the claimant would like to explore the income protection scheme, HR would be happy to support him with this.[50]The claimant appealed against the second grievance outcome letter on 4 April 2019 (page 440). In this appeal letter, the claimant explained that in the previous mediation meeting, he had been advised not to focus on the past. The claimant’s data subject access request[51]The claimant received responses to his data subject access request on 19 April 2019 (page 451) and 17 May 2019 (page 489). He first made the request on 31 January 2019 (page 380). The respondent’s HR department replied on 7 February 2019 and requested reasonable search parameters and time frame (page 373) which the claimant provided on 19 February 2019 (page 379). On 21 March 2019 the respondent updated the claimant that IT professionals had been engaged to assist with the request and the response was expected by 19 April 2019 (page 431). The claimant’s grievance appeal[52]Steven Green (Finance Director UK and Ireland) was appointed to hear the claimant’s appeal. The appeal meeting took place on 10 May 2019 (page 470). The date of 24 April 2019 was offered first but this was changed twice to accommodate the claimant’s request for a change in venue and his union representative’s availability (pages 447 and 464). (RJR) Page 11 of 18[53]Steven Green reviewed Jason Green’s decision in full, considered the underlying documents and re-interviewed relevant individuals including Ms Fisher who was on maternity leave at the time.[54]The grievance appeal outcome was sent to the claimant on 14 June 2019 (page 505). Steven Green recognised that the use of the terms KOC and Tan FM caused the claimant upset. The term KOC was to be changed and a different name adopted. Steven Green did not consider these matters to constitute bullying or harassment. He upheld the original grievance outcome.[55]At the claimant’s request, the respondent reviewed the claimant’s sick pay entitlement. On 26 June 2019 the respondent’s HR department wrote to the claimant to say that he should have received a further 4 days sick pay and this payment would be made. The claimant’s resignation[56]On 28 June 2019 the claimant resigned with effect from 3 July 2019 (page 509). He said the trust was ‘completely broken’ and the respondent had done very little to help and support him to return to work. He said the impact on his health and family had been exacerbated by the way the respondent dealt with the grievance process and his time off sick due to work related stress.[57]The claimant notified Acas for early conciliation on 5 July 2019 and Acas issued the early conciliation certificate on 5 August 2019. He presented his claim to the tribunal on 30 September 2019.
The law
[58]The definition of dismissal in section 95(1)(c) of the Employment Rights Act includes constructive dismissal. This is a dismissal where the employee terminates the contract of employment in circumstances where they are entitled to terminate it without notice by reason of the employer’s conduct.[59]Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 set out the elements which must be established by the employee in constructive dismissal cases. The employee must show: 59.1. that there was a fundamental breach of contract on the part of the employer; 59.2. that the employer’s breach caused the employee to resign; and 59.3. that the employee did not affirm the contract, for example by delaying too long before resigning.[60]The claimant relies on breaches of the implied term of trust and confidence. This is a term implied into all contracts of employment that employers (and employees) will not, without reasonable or proper cause, conduct themselves in a manner calculated or likely to destroy or seriously (RJR) Page 12 of 18 damage the relationship of trust and confidence between the parties. Whether there has been a breach of the implied term is a highly contextspecific question, and is to be considered objectively, from the perspective of a reasonable person in the claimant’s position (Tullett Prebon plc v BGC Brokers LP 2011 IRLR 420).[61]In Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 Underhill LJ set out guidance on the questions to be considered where an employee claims to have been constructively dismissed and where there are said to be a number of repudiatory breaches. Those questions are: 61.1. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, the resignation? 61.2. Has the employee affirmed the contract since that act? 61.3. If not, was that act (or omission) by itself a repudiatory breach of contract? 61.4. If not, was it nevertheless a part of a course of conduct comprising several acts and/or omissions which, viewed cumulatively, amounted to a breach of the implied term of trust and confidence? 61.5. If so, did the employee resign in response (or partly in response) to that breach?[62]If a constructive dismissal is established, the tribunal must also consider whether the reason for the dismissal is a potentially fair reason, and whether the dismissal is fair in all the circumstances, pursuant to section 98(4) of the Employment Rights Act 1996.
Conclusions
[63]I have applied these legal principles to the facts as I have found them, to reach the following conclusions, using the approach set out in Kaur v Leeds Teaching Hospitals NHS Trust. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, the resignation?[64]The claimant says that the dismissal of his grievance appeal on 14 June 2019 was the final straw which caused him to hand in his resignation on 3 July 2019 and that he was particularly affected by the failure of the respondent to consider any steps to enable him to return to work. Has the employee affirmed the contract since that act?[65]The claimant did not affirm the contract between receiving the grievance appeal on 14 June 2019 and resigning on 3 July 2019. He was on sick leave and took some time to consider his position. He did not have any communications with the respondent during this period which affirmed the contract. If not, was that act (or omission) by itself a repudiatory breach of contract? (RJR) Page 13 of 18[66]The claimant says the grievance appeal outcome and the failure to consider steps to enable him to return to work was a breach of the implied term of trust and confidence. I need to consider whether, in dismissing the claimant’s grievance appeal and failing to consider steps to enable the claimant to return to work, the respondent, without reasonable or proper cause, conducted themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties.[67]The claimant’s counsel submitted that the grievance appeal outcome was itself a breach of the implied term of trust and confidence because: 67.1. not all points were addressed; 67.2. there was no proper explanation about how the conclusions were reached; and 67.3. it failed to address next steps to facilitate the claimant’s return to work.[68]I have concluded that the grievance appeal letter dealt with the claimant’s key concerns, and provided an explanation as to how its conclusions were reached. In the letter of 14 June 2019, Steven Green addressed six different complaints under separate headings, referred to relevant documents and gave examples of behaviour by the respondent’s managers which he regarded as appropriate. It is clear from his letter why he reached the conclusions he did. They were his conclusions based on the evidence he had heard and read during his investigation of the appeal.[69]The grievance process overlapped with the claimant’s absence on sick leave. The grievance appeal did not deal with next steps to facilitate the claimant’s return to work. The claimant saw the grievance process as the means by which his concerns about past treatment would be resolved and a plan made to enable him to return to work. The respondent did not focus on plans to return in the grievance, and did not carry out a stress risk assessment as recommended by OH. However, it was reasonable for the respondent to address these first before coming on to a stress risk assessment and to consider steps to facilitate the claimant’s return to work. The claimant remained signed off sick by his GP during this period, and the occupational health report of January 2019 recorded the claimant’s view that he had returned to work too soon the previous year. Suggestions in the grievance appeal process about how the claimant could return to work might have come across as pressure from the employer to return. Further, the claimant’s grievance concerns were about what had happened, and a mediation or ways of working approach was more likely to focus on moving forward. It would have been difficult for the parties to conduct the sort of dialogue required for the stress risk assessment prior to the conclusion of the grievance process.[70]It would have been better for the respondent to have explained more clearly to the claimant the distinction between the grievance process and the stress risk assessment and its proposed timetable for dealing with (RJR) Page 14 of 18 both, so that he knew what to expect from the grievance appeal outcome, particularly given the length of time the grievance process took. However, the respondent’s failure to do so and the failure to deal with return to work issues in the grievance appeal outcome were not calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties. Viewed objectively, the grievance appeal outcome was not a breach of the implied term of trust and confidence. It was a genuine attempt to address the concerns the claimant had raised, even if the claimant did not agree with the conclusions reached. Was it part of a course of conduct comprising several acts and/or omissions which, viewed cumulatively, amounted to a breach of the implied term of trust and confidence?[71]I have therefore gone on to consider whether the grievance appeal outcome was part of a course of conduct which amounted to a breach of the implied term of trust and confidence.[72]I have considered my findings of fact in relation to each of the groups of alleged acts or omissions which the claimant relies on as amounting to a breach of contract, as set out in the issues above. I have then considered whether the acts that I have found to have occurred amounted to a breach of the implied term, individually or cumulatively.[73]The first group of acts are alleged to demonstrate a failure to support the claimant’s development. I have found that the claimant was unsuccessful in his application for an internal secondment in November 2014, and that Ms Winchurch used a butterfly analogy when talking to the claimant in April 2018. The butterfly analogy, viewed objectively, was not unsupportive. I have found that there was no written development plan for the claimant but I also found that this was in line with the respondent’s practice of encouraging employees to lead their own development. I also found that the claimant’s managers and the HR team provided the claimant with significant support, particularly in respect of his application for the Field Force Effectiveness role. Overall, the respondent did not fail to support the claimant’s development. None of the matters as I have found them which the claimant relied on in this group of acts were, viewed objectively, calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties, and the respondent had reasonable and proper cause for its actions.[74]The second group of acts relate to a failure to properly handle allegations of harassment and bullying. I have not found that the claimant raised allegations of harassment or bullying with his managers in respect of the use of the term ‘Tan FM’. He spoke directly to his colleague who apologised and the term was not used again. Similarly, I have found that the claimant did not raise concerns with his manager about the use of the term ‘KOC’. I do not consider that the Team Charter was a means of papering over cracks without addressing the claimant’s concerns. The Team Charter was a supportive measure which was being introduced to all teams. Further, when the claimant did raise concerns, his managers (RJR) Page 15 of 18 addressed these directly. For example, when he raised concerns about the adverse event report incident, a Ways of Working meeting was arranged. None of the matters relied on in this group of acts (as I have found them) were calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties, and the respondent had reasonable and proper cause for its actions.[75]The third group includes acts which the claimant says amount to a failure to fairly handle his work-related stress and sickness absence. I have dealt above with the failure to provide proposed steps for return to work in the grievance process. In relation to sick pay, the respondent did apply its policy on sick pay to the claimant. When the claimant queried this, the respondent investigated his sick pay position, and corrected a mistake it found. The failure to apply a discretion to extend sick pay was not conduct which was calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties, and the respondent had reasonable and proper cause for its actions, namely its policy.[76]I have found that the respondent did not carry out a stress risk assessment as recommended by its occupational health provider in both January 2018 and January 2019. I have dealt above with the failure to implement the later recommendation. The first recommendation for a stress risk assessment was made in the OH report of 30 January 2018. The claimant returned to work shortly after that report, and no formal stress risk assessment was carried out. It would have been better if, despite the claimant’s return to work, a formal stress assessment had still been carried out in 2018. That might have been a process through which the claimant would have felt more able to communicate his concerns, and which could have avoided some of the issues which arose later. However, the claimant’s manager and HR did have a detailed return to work meeting with the claimant which led to him raising some concerns, and the Ways of Working meeting being arranged. This broadly achieved the aims of the stress risk assessment. For these reasons, I have concluded that the failure to implement the first recommendation for a stress risk assessment after the claimant’s return to work in 2018 was not conduct calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties.[77]Finally, the claimant relies on acts which he says amounted to a failure to properly handle and respond to his grievance. These are listed above in the list of issues as 4a to 4d (4e in respect of the grievance appeal having already been considered as the last act relied on).[78]Issue 4a is the respondent’s failure to respond to the claimant’s complaints on an informal basis, which the claimant says resulted in him having no option but to raise a grievance. I have not found that there was such a failure by the respondent. I found that the claimant did not make a complaint to his manager about the Tan FM and KOC comments. When the claimant did raise concerns they were addressed. (RJR) Page 16 of 18[79]Issue 4b concerns delays in the grievance and subject access request process. The grievance appeal outcome was completed 6 months (not 9 months as the list of breaches said) after the claimant made his grievance complaint. Overall, this is a lengthy period. However, looking at the time taken for each stage, and the regular contact the respondent had with the claimant and his solicitor during this time, I have not concluded that the delay in the grievance was conduct which, viewed objectively, was calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties. The respondent’s responses to the subject access request were provided some two months and three months after the claimant provided search parameters. The respondent provided the claimant with an update after a month, the standard response period, and informed the claimant of the reason for the delay, which was that specialist IT professionals had been engaged. Again, this was not conduct which was calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties.[80]Issue 4c is that there was a failure to address and investigate all of the Claimant’s concerns raised in his grievance and witnesses were not asked about crucial events, such as the ‘KOC’ comment. I have concluded above that the grievance appeal was a genuine response to the key concerns the claimant made. The written evidence about the KOC comment was considered. The appeal dealt in more detail than the stage one grievance outcome with the claimant’s complaint about the KOC comment and recommended that the acronym be replaced across the respondent’s business. The fact that Steven Green did not ask witnesses about the term did not, viewed objectively, amount to a breach of the implied term.[81]Issue 4d is that Jason Green and Steven Green relied on their own personal views and experience, rather than remaining impartial and properly addressing the claimant’s concerns. This is not supported by my findings of fact. Both Jason Green and Steven Green conducted detailed investigations into the claimant’s concerns. Jason Green had been involved in the Ways of Working meeting with the claimant and his colleague in March 2018 and was the line manager of the claimant’s colleague. However, his approach to the grievance investigation did not suggest that he had prejudged the claimant’s grievance. His findings were re-considered by Steven Green who had no connection with the claimant’s colleague. Overall, the grievance and appeal process were impartial and did properly address the claimant’s concerns. They did not amount to a breach of the implied term.[82]I have not concluded that any of the acts or groups of acts relied on by the claimant amounted to conduct which was calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties. I have also stepped back and considered my findings about all of the acts which the claimant complains about to consider whether cumulatively they amounted to a breach. I have concluded that there was not a cumulative breach of the implied term. Looked at in the round, the respondent’s conduct was not conduct which was calculated or likely to (RJR) Page 17 of 18 destroy or seriously damage the relationship of trust and confidence between employer and employee.[83]In the light of my conclusion that there was no breach of the implied term, the claimant’s complaint of constructive dismissal fails; his employment terminated by resignation. As he resigned and was not dismissed, the claimant’s complaint of unfair dismissal cannot succeed and is dismissed.