Ms L McCulloch Hood v Home Improvements (St Andrews) Ltd: 4100837/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4100837/2025Venue DundeeHearing 27 and 28 October 2025
Between
Ms L McCulloch HoodClaimantHome Improvements (St Andrews) LimitedRespondent
Before
Employment Judge J ShepherdMr C Evans (instructed by Solicitor) for claimantMr L Anderson (instructed by Solicitor) for respondentDate 12 November 2025
JUDGMENT
The judgment of the Tribunal is as follows. Oral reasons were given at the hearing in accordance with rule 60(3) of the Employment Tribunal Procedure Rules 2024. Full written reasons are now provided at the request of the parties.[1]The claim for constructive unfair dismissal is not well founded and is dismissed.[2]The claim for breach of contract in respect of notice pay is not well founded and is dismissed.[3]The claims for constructive unfair dismissal and breach of contract having been dismissed, no award is made pursuant to s.38 Employment Act 2002 in respect of the failure to give a statement of employment particulars.
REASONS
[1]This is the claim of Ms Lynne Hood v Home Improvements (St Andrews) Ltd. At the outset of the hearing the Tribunal clarified with the parties that the only claims pursued by the parties were that of constructive unfair dismissal and a breach of contract claim for notice pay. In the event that either or both of those claims are successful the claimant also seeks an award for failure to provide employment particulars pursuant to s.38 Employment Act 2002.[2]The Tribunal had before it a joint hearing bundle running to 97 pages, an updated schedule of loss, and some accompanying documentation relevant to remedy.[3]The Tribunal heard evidence from Ms Lynne Hood on her own behalf, who will be referred to in this judgment as the claimant, and on behalf of the respondents Mr Norman Hood, who is referred to as Mr Norrie Hood which for consistency the Tribunal will also adopt in this judgment, Mr Gary Hood, and Ms Sarah Wilson.
Findings of Fact
[4]The claimant had first commenced employment with the respondent company from around the age of 19 and she had more recently been in continuous employment with the company for around 25 years. It is a family business, originally started by her father, and latterly run by her two brothers, Norrie and Gary Hood, as Directors of the business. The company also employs a number of other members of the Hood family. It has two DIY stores in Blairgowrie and St Andrews. The claimant was employed to manage the Blairgowrie store and in the latter stages of her employment she was employed to work Tuesday and Wednesday from that store, in addition to working Saturdays and Sundays at the St Andrews store.[5]Norrie and Gary Hood, whilst they continued to be Directors of the company and responsible for its management, had in recent years taken a step back from the day to day running of the business. They both spent significant periods out of the country and the company was generally run on a day to day basis by its employees, many of whom are also members of the family. Gary Hood still attended the office at the St Andrews store on a fairly regular basis, but was not in regular attendance at the Blairgowrie store. Norrie Hood did not regularly attend either store.[6]The claimant had a close relationship with her brother Norrie Hood, describing him in evidence as having taken good care of her over the years. She had never had such a close relationship with her other brother, Gary Hood, but both the claimant and Gary Hood gave evidence that there had been no particular difficulties between them, whether in the workplace or generally, until December 2024.[7]In late November 2024 a full time member of staff at the Blairgowrie store handed in her notice and subsequently left. This meant that there were a number of days throughout December that needed to be covered by other employees until a replacement could be found. The claimant agreed to change her working pattern so as to cover the weekends at the Blairgowrie store and one day during the week during December, instead of working two days during the week at Blairgowrie and weekends at the St Andrews store, until another member of staff could be found. The respondent also slightly reduced the opening hours at the Blairgowrie store to accommodate the claimant who had to travel some distance to get from her home to the Blairgowrie store. Despite the reduction in days and working hours the respondent continued to pay the claimant on the basis of her original contractual 5 days a week and there was no reduction in her pay. She was also paid for her petrol to cover the commute to Blairgowrie.[8]In around early December the claimant prepared a note of the dates that needed to be covered by employees from the St Andrews store during December, being 9, 10, 11, 18, 23, 24, 31 December. That note was in the bundle at pg 73. Ms Wilson, who is Norrie Hood’s daughter and the niece of the claimant and Gary Hood, was normally employed as the office manager at the St Andrew’s store. Ms Wilson covered some of those days and she took a photo of the note on her phone when she attended the Blairgowrie store and printed out a copy of it for the St Andrews store so that they knew which dates needed to be covered at Blairgowrie. Gary Hood saw that note at some point in early December and it was Gary Hood who attended the Blairgowrie store to provide cover on a number of those dates, in addition to Ms Wilson and another employee from the St Andrews store.[9]At some point after preparing this original note the claimant had later amended it to also include the dates of the weekend of 28 and 29 December along with a note that read “Jorja left ongoing”. This was a reference to a member of part time staff who had worked weekends at the St Andrews store but who had handed in their notice and had worked their last weekend at St Andrews on 21 and 22 December. The claimant therefore anticipated that she would return to working weekends at St Andrews from 28 December onwards. The claimant did not discuss this with either Norrie Hood or Gary Hood, but she left the revised note behind the counter at the Blairgowrie store believing that Gary Hood would see the note and appreciate that the store would also now need cover on 28 and 29 December.[10]I find that Gary Hood did not see that revised note prior to 28 December and was not aware either that the claimant was intending to return to working weekends at the St Andrews store on 28 December, or that cover was required at Blairgowrie for that weekend. Gary Hood and the other employees at the St Andrews store continued to work on the basis of the claimant’s original note.[11]On the morning of 28 December the claimant returned to doing her weekend shifts at the St Andrews store. She opened up the store that morning. Ms Wilson was also working at the store that day. She did not usually work weekends at St Andrews but was scheduled to work that day as she believed she needed to provide cover for Jorja who had left the previous weekend. Ms Wilson was therefore not expecting to see the claimant at the St Andrews store that day.[12]At around 11.45am that morning Ms Wilson asked the claimant if another member of staff, Kathryn, was working at the Blairgowrie store that day. The claimant said no, that Gary Hood was due to be working at Blairgowrie that day. Ms Wilson said that she did not think that Gary Hood was going to the Blairgowrie store that day and said that she would telephone him to find out. Ms Wilson then went to the office intending to make that call. As she did so, Gary Hood came into the St Andrews store as he was intending to pick up some logs for his log burner. He walked straight through the store, noticed that the claimant was in the store, but did not speak with her. He was surprised to see the claimant in the store as he thought she was due to be working in the Blairgowrie store that day. He entered the office where Ms Wilson was sitting at the desk and started to ask her who was working at the Blairgowrie store that day.[13]As he did so, the claimant then entered the office and said to Gary Hood “What are you doing here you are supposed to be in Blairgowrie”. The claimant then referred to the amended note that she had left under the counter. Gary Hood said that he had not seen any such note. The claimant referred to having phoned Kathryn to ask whether she had seen the note and she said that she had, so told Gary Hood that he must also have seen it. The claimant was agitated and was speaking with a raised voice. An argument ensued, with Gary Hood again denying seeing the note and the claimant insisting that he must have seen it. Gary Hood asked why the claimant had not phoned him instead of Kathryn if she wanted him to work at Blairgowrie that day. The claimant referred to having a puppy at home that she needed to look after, as a reason for returning to work at the St Andrews store, and Gary Hood replied that he didn’t care about that but that he did care about the Blairgowrie shop being closed on a Saturday.[14]Ms Wilson was present in the office for this part of the altercation between her aunt and uncle and the Tribunal found that she was a credible witness as an independent observer of events who had no reason to be untruthful about what had happened between her aunt and uncle. At this point in the argument she left the office to tell another employee in the store, who was due to start their lunch break at 12pm and would be likely to come through the office to get to the staff room, that they should wait and not enter the office at that time.[15]After Ms Wilson left the argument between the claimant and Gary Hood briefly continued and Ms Wilson could hear that by this time both parties were raising their voices at each other. Mr Hood then pointed at the door and in a raised voice told the claimant to get out of the shop. The claimant was very upset about being told to leave. The claimant did leave and returned home. Gary Hood also left the shop and went straight to Norrie Hood’s house to tell him what had happened. Both the claimant and Gary Hood were upset and shaken following their altercation.[16]Having heard Gary Hood’s version of events, Norrie Hood then attempted to make contact with the claimant by telephone on 28 December to discuss matters with her but the claimant did not answer her phone. The following day, 29 December, the claimant did not attend work at either store. Gary Hood went to open the Blairgowrie store on that day. There he found the revised version of the claimant’s note setting out dates to be covered underneath a number of invoices. That was the first time Gary Hood had seen that version of the note. Norrie Hood attempted to again make contact with the claimant by phone on 29 December and sent her a text message asking her to call him.[17]Norrie Hood called the claimant again on 30 December and was able to speak with her on that occasion. By then he had heard Gary Hood’s version of events and the claimant told him her version of events during this conversation. This was an amicable conversation and Norrie Hood explained that he felt he was caught in the middle with two differing accounts from his brother and sister. During that conversation the claimant told Norrie Hood that she felt she may have overreacted during the altercation because of her PTSD. Norrie Hood had not previously been aware that the claimant was being treated for PTSD but assumed that this was a reference to the impact of violence towards her by her former husband.[18]There was a further, fairly lengthy, telephone call between the claimant and Norrie Hood on 3 January 2025. Norrie Hood told the claimant that some new staff had been found for the Blairgowrie store and asked whether she would go in to train them. The claimant said that this was not a problem as long as Gary Hood would not be there. The claimant told Norrie Hood that she could not work with Gary Hood again and did not even want to see him. Norrie Hood explained that it wasn’t possible to ensure this as Gary Hood was a Director of the business and would still be attending the office at the St Andrews store. Norrie Hood explained that they were undertaking a stock take at the St Andrews store that weekend and asked if she would be able to work. The claimant explained that she had made plans for the Saturday but agreed to work from St Andrews on the Sunday on the basis that Norrie Hood reassured her that Gary Hood would not be there as he would be working at the Blairgowrie store that day.[19]Also during this conversation Norrie Hood discussed with the claimant about her working hours going forward. Although the claimant was being paid on the basis of the 5 day, 35 hour week that she used to work, that had then been cut down to 4 days a week and then more recently to 3 days a week when she was having to travel more to Blairgowrie to cover weekends during December. The opening hours of the Blairgowrie store had also been reduced to accommodate the claimant. The claimant was therefore only working around 25 hours per week but was still being paid for 35 hours. Norrie Hood asked the claimant to make up some of the reduced hours in the St Andrews store, although she would still be working less than the 35 hours she was being paid for.[20]During this conversation the claimant agreed to return to work at the St Andrews store on 5 January 2025. Norrie Hood explained that Gary Hood would not be there that day as he would be working at the Blairgowrie store.[21]The claimant went into the St Andrews store on 5 January and worked a full day there without incident. During that day she asked Ms Wilson to provide her with information as to what her hourly rate of pay was.[22]The following day, on 6 January 2025, the claimant had a further telephone conversation with Norrie Hood. The claimant told Norrie Hood that she had been looking at other jobs and could earn £24 to £25 per hour cleaning glasses at St Andrews University and asked if the company would therefore increase her rate of pay. She referred to everything she had done for the business over the years. The claimant also said that she was not happy about making up further hours as Norrie Hood had suggested in their conversation on 3 January. Norrie Hood asked for some time to think about her request for a payrise.[23]Norrie Hood looked at the job that the claimant had referred to but noted that it paid £24 – 25k per annum, rather than £24 to £25 per hour, which was a similar wage to the one the claimant was already being paid. He also looked at other manager roles as a comparison and considered that the claimant was being paid a fair wage for the job she was doing, particularly taking account of the fact that she was not currently working the full 35 hours she was being paid for. Norrie Hood therefore contacted the claimant to say that he would not agree to increase her wages. The claimant said she wanted to think about this. She then called him back within around an hour to tell him that she was handing in her notice. She said that she did not feel appreciated. Norrie Hood asked if the claimant was leaving with immediate effect or wanted to work her notice and the claimant confirmed she did not wish to work any notice.[24]On 9 January 2025 Norrie Hood sent a text message to the claimant asking if he could pick up the shop keys or did she want to hand them in? The claimant then put them through his letter box later that day.[25]On 16 February 2025 the claimant sent a text message to Norrie Hood telling him that she had sold her house. The message thanked him for everything he had done for her throughout her life. Norrie Hood replied to say she did not need to thank him, that’s what big brothers are for.[26]On 25 February 2025 the claimant commenced ACAS early conciliation which ended on 8 April 2025 and later filed the ET1.
Relevant law
[27]The law in relation to unfair dismissal is contained in the Employment Rights Act 1996 (‘ERA’). Section 94(1) states that an employee has the right not to be unfairly dismissed by his employer. Section 95(1)(c) states that an employee is dismissed if the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. This is commonly known as “constructive dismissal”.[28]In Western Excavating Ltd v Sharp 1978 IRLR 27, the Court of Appeal set out the general principles in relation to constructive dismissal. Lord Denning stated that “An employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The employee in those circumstances is entitled to leave without notice or to give notice, but the conduct in either case must be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”[29]It is well established that there is an implied term in every contract of employment of mutual trust and confidence between employer and employee. In Malik v Bank of Credit and Commerce International SA [1997] IRLR 462, the term was held to be, “The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”[30]A breach of the implied term of trust and confidence may consist of a series of actions on the part of the employer that cumulatively amount to a repudiation of the contract. The last straw does not, of itself, have to amount to a breach of contract or be a fundamental breach in its own right – Lewis v Motorworld Garages Ltd 1986 ICR 157, CA.[31]The Court of Appeal in Omilaju v Waltham Forest London Borough Council 2005 ICR 48 confirmed that to constitute a breach of trust and confidence based on a series of acts, the act constituting the last straw does not have to be of the same character as the earlier acts, nor does it have to constitute unreasonable or blameworthy conduct, but the last straw must contribute to the breach of the implied term of trust and confidence. An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely but mistakenly interprets the act as destructive of her trust and confidence in the employer. The test of whether the employee’s trust and confidence has been undermined in this context is an objective one.[32]In Kaur v Leeds Teaching Hospitals NHS Trust 2019 ICR 1 the Court of Appeal clarified that an employee who claims unfair constructive dismissal based on a continuing cumulative breach is entitled to rely on the totality of the employer’s acts notwithstanding a prior affirmation of the contract, provided that the last straw forms part of the series. The effect of the final act is to revive the employee’s right to terminate her employment based on the totality of the employer’s conduct.[33]The claimant must prove that she resigned in response to the breach of contract but the repudiatory breach or breaches need not be the sole cause provided they are an effective cause. Where there is more than one reason why an employee left a job it is necessary to examine whether any of them was a response to the breach, and not necessarily the principal or main cause of the resignation Wright v North Ayrshire Council 2014 IRLR 4.[34]An employee may lose the right to rely on any fundamental breach if she delays in terminating the contract and is considered to have affirmed the contract after the breach. The parties’ submissions[35]Mr Evans and Mr Anderson gave full and helpful submissions on behalf of the parties. For the sake of brevity the Tribunal does not repeat those submissions here but has have taken full account of them and the authorities to which the Tribunal was referred. Analysis and conclusions Constructive dismissal[36]The Tribunal finds that there was a heated argument between the claimant and Gary Hood on 28 December 2024. That argument was initiated by the claimant asking why Gary Hood had not gone to the Blairgowrie store that day. She was agitated and insisting that he would have seen the amended note that she left at the Blairgowrie store, and was seeking to blame Gary Hood for the misunderstanding that had occurred. As Gary Hood had not seen the revised version of the note he was understandably also agitated by this and unhappy about the way the claimant was speaking to him. Matters then escalated on both sides, with both sides genuinely believing that they were in the right. As a result, both parties were emotional and agitated, both raised their voices during the altercation, and the argument culminated in Gary Hood telling the claimant to leave as he did not like the way he was being spoken to. The Tribunal does not find that either party behaved in an overtly aggressive way, although emotions were clearly heightened.[37]The Tribunal did not accept that Gary Hood behaved in such a way that was intended or likely to put the claimant in fear of her safety during this exchange. Nor did the Tribunal accept that Gary Hood deliberately got close to the claimant in a threatening way or gave any indication at all that he was likely to be physically violent towards the claimant. However, the Tribunal also accepts that, as a sufferer of PTSD after a history of a violent former partner, the claimant genuinely felt the sensation of fear and lack of safety as the argument developed. Whilst she may not have recognised the reason for this impact upon her at the time, only knowing how she felt in the moment, she was able to reflect on her reactions later when she discussed the incident with Norrie Hood which is why she told him that she may have overreacted due to her PTSD. That is not to minimise the upset that she felt as a result of this incident.[38]The Tribunal finds that both the claimant and Gary Hood were upset and shaken after this incident. The Tribunal accepts the claimant’s evidence in that regard and also that of Gary Hood which was corroborated by Ms Wilson observing him to be shaken and upset as he left the store and the evidence of Norrie Hood that on arrival at his house shortly after the incident it was apparent that he was shaken.[39]On the basis of the evidence the Tribunal heard it does not find that Gary Hood’s behaviour during that altercation was calculated or likely to make the claimant feel unsafe in the workplace.[40]The lack of cover at Blairgowrie that day was due to a genuine miscommunication. The claimant believed she had left a note that would indicate that cover was required as she intended to return to the St Andrews store. Mr Hood had not seen that note so believed that the claimant was continuing to cover weekends at the Blairgowrie store until a new employee was found.[41]On the basis of the findings of fact the Tribunal has set out, the Tribunal concludes that the respondent, whether by the actions of Gary Hood on 28 December 2024 or otherwise, was not guilty of conduct that amounted to a significant breach going to the root of the claimant’s contract of employment; nor which showed that they no longer intended to be bound by one or more of the essential terms of the contract.[42]The respondent did not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between itself and the claimant.[43]Mr Anderson was correct to point out that the case that had been advanced on behalf of the claimant was that the breach of the implied term of trust and confidence relied upon by the claimant was confined to the actions of Gary Hood on 28 December. The Tribunal clarified that to be the case with the parties at the outset of the hearing. However, in submissions Mr Evans advanced an alternative argument that this is a last straw case and that the claimant now seeks to rely upon events following the incident of 28 December.[44]Although the case had not been advanced on that basis the Tribunal has nevertheless considered that argument. The Tribunal does not find that the actions of the respondent following 28 December, whether taken on their own or cumulatively, amount to a breach of the implied term of trust and confidence. Norrie Hood made numerous efforts to discuss the incident with the claimant and to facilitate her return to work. As the claimant agreed to return to work on 5 January, and did so without incident, Mr Hood was entitled to conclude that there had not been an irretrievable breakdown between the claimant and her employer.[45]There was little dispute between the claimant and Norrie Hood about the conversations that had taken place between them in January 2025 leading to her resignation. The Tribunal concludes that the claimant had decided to resign because of a combination of the incident between herself and Gary Hood on 28 December, the fact that she was being asked to again increase her hours to make up for the shortfall from the 35 hours she was being paid but did not wish to do so, and the refusal by Norrie Hood to award her any pay rise as she had requested. As the Tribunal does not find that any of those matters amounted to a breach of contract by the respondent, whether cumulatively or separately, it follows that the claimant’s claim for constructive dismissal does not succeed and is dismissed. Breach of contract – notice pay[46]Having found there was no breach of contract by the respondent entitling the claimant to resign and treat herself as dismissed it follows that the breach of contract claim with regard to notice pay must also fail and be dismissed. The claimant accepts she resigned with immediate effect on 6 January 2025. Norrie Hood asked the claimant if she wished to work any notice period but she stated she did not and she is therefore not entitled to receive any payment in respect of that notice period in the absence of any breach of contract by the claimant. Failure to give statement of employment particulars[47]The claim brought under s.38 Employment Act 2002 can only succeed in circumstances where the tribunal finds in favour of the claimant in a relevant claim, it cannot be pursued as a freestanding claim. As the Tribunal has not upheld the claimant’s claims it therefore follows that it can make no award in respect of the respondent’s admitted failure to provide employment particulars to the claimant.[48]The Tribunal is reassured to hear that the respondent now acknowledges its duty to provide employment particulars and has sought since the bringing of this claim to rectify the lack of such particulars for its employees. Conclusion and closing remarks[49]In conclusion, the claims therefore do not succeed and are dismissed. The Tribunal does not underestimate the emotional toll that the circumstances of this case will have had, not only upon the parties but upon the wider family members involved given the nature of this family business.[50]The Tribunal understands the claimant’s genuinely expressed sentiment that at the conclusion of her employment she felt unappreciated and it is regrettable that such long service within the family business has ended in this way. That said, it was also clear to the Tribunal from the evidence of the respondent’s witnesses that the claimant’s contribution to their business over many years was extremely important and was valued as such, she having clearly contributed to the success of this family business, and that they too regret that matters have come to this. The Tribunal can only express the hope that all parties can have empathy and understanding of the hurt feelings on all sides and that everyone can move forward from this and rebuild the family relationships upon which the success of the business was originally founded.[51]The Tribunal was grateful to the representatives, Mr Evans and Mr Anderson, for the careful and respectful way they presented the parties cases, and to Ms Hood and to all of the witnesses for the respondent who presented their evidence in a measured and respectful way in difficult circumstances.