Ms L Haugh v Ayrshire and Arran Health Board: 4100880/2020
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4100880/2020
Between
Ms L HaughClaimantAyrshire and Arran Health BoardRespondent
Before
Employment Judge W A MeiklejohnMr G Fletcher (instructed by Solicitor) for respondentAyrshire and Arran Health Board for respondentDate 17 December 2020
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s claim of unfair dismissal does not succeed and is dismissed.
REASONS
[1]This case came before me for a final hearing, conducted remotely by video using the Cloud Video Platform, on 2, 3 and 4 November 2020. The claimant appeared in person and was accompanied by her daughter for emotional and technological support. The respondent was represented by Mr Fletcher.
Claim
[2]The claimant brought a claim of constructive unfair dismissal. This was resisted by the respondent whose position was that(a) there had been no repudiatory breach of contract,(b) if there had been a repudiatory breach, the claimant did not resign in response to this and(c) the claimant delayed too long in resigning and therefore affirmed her contract of employment. 4100880/2020 (V) Page 2[3]There was a dispute between the parties regarding the “last straw” event identified by the claimant and said to have occurred on 27 November 2019. The respondent contended that this was not of a nature which contributed to any foregoing cumulative breach of contract. Procedural history[4]The claimant lodged her ET1 claim form on 1 1 February 2020. She complained of “bullying and harassment". In their ET3 response form the respondent sought further and better particulars of the alleged acts of bullying and harassment.[5]A letter from the Tribunal to the parties dated 19 March 2020 (33-34) directed that the claimant must provide further written information “making it clear what the claimant relies upon as constituting a breach of the implied term of trust and confidence, giving dates".[6]The claimant responded on 5 April 2020 (35-38) providing details and dates of the alleged acts of bullying and harassment. The respondent then submitted amended Grounds of Resistance (39-46).[7]A preliminary hearing for the purpose of case management (before Employment Judge Doherty) took place on 3 June 2020. In the Note issued after that hearing (48-51) the claimant’s complaint was described (at paragraph 3) in these terms “The constructive unfair dismissal claim is made on the basis of an alleged breach by the respondents of the implied term of mutual trust and confidence in the claimant's contract of employment. That breach is said to be constituted by a series of events, culminating in a last straw event’. The claimant was required (by 17 June 2020) to “identify from the further particulars which she has already provided, what is the last straw incident which is relied upon".[8]That Note was not sent to the parties until 1 July 2020. In the meantime the claimant emailed the Tribunal on 16 June 2020 (47) describing the last straw incident as follows - 4100880/2020 (V) Page 3 “One of the managers (Pete Gilfedder) who conspired and made unsubstantiated allegations against me started frequenting the ward in which I was placed making me feel intimidated and increasingly more vulnerable at the fear of further false allegations being made. He was not previously visibly present within this ward environment.”[9]The claimant emailed the Tribunal again on 1 2 July 2020 (53-54) providing more detail of what she alleged Mr Gilfedder had done. She stated that - “ These actions took place the week commencing 25 th November. Unsure whether or not it was two or three days that week that he attended the ward due to the huge anxieties his presence caused me.” Application to strike out[10]At the conclusion of the claimant’s evidence, Mr Fletcher made an application to strike out the claim under Rule 37(1 )(a) of the Tribunal Rules - contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the “Rules”) - and it is convenient to deal with that here (although this entails some anticipation of matters set out in my findings in fact). Rule 37 so far as relevant provides as follows - u(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds - (a) that it is scandalous or vexatious or has no reasonable prospect of success....”[11]Mr Fletcher referred to the judgment of Lord Hope in Three Rivers District Council and others v Governor and Company of the Bank of England [2001] UKHL 16 (at paragraph 95) - “....it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible.” 4100880/2020 (V) Page 4[12]It was, Mr Fletcher argued, not credible that the claimant, having accepted a new Band 6 position with her new employer and agreed a start date, had no intention of leaving her Band 5 role with the respondent but for the alleged last straw. He referred to the sequence of events (which I will not rehearse here as they are set out below). He reminded me of the contract test as articulated in Western Excavating (ECC) Ltd v Sharp 1978 IRLR 27 (see paragraph 24 below).[13]Mr Fletcher directed me to paragraph 55 of the judgment of Underhill LJ in Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978- u....ln the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions -(1) What was the most recent act or (omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?(2) Has he or she affirmed the contract since that act?(3) If not, was that act (or omission) by itself a repudiatory breach of contract?(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reason given at the end of para. 45 above).(5) Did the employee resign in response (or partly in response) to that breach?”[14]Mr Fletcher pointed out that in her job application for the Band 6 role (S4-8) the claimant had stated her reason for leaving as “Relocating to Glasgow/Promotion”. Both of these had occurred. The real reason for the claimant leaving her job with the respondent had been to take up the promoted post she had been seeking since November 2016. T5. The last straw act complained of toythe claimant was not repudialory. It was not mentioned in the claim as originally pled. The claimant had no previous issue with Mr Gilfedder before the disciplinary process in 2019. It was an 4100880/2020 (V) Page 5 innocent act - the claimant alleged that Mr Gilfedder “smirked”. The subsequent alleged conduct of Mr Gilfedder could not be relevant as the claimant had already agreed the start date of her new job.[16]The claimant argued that the effective cause of her resignation had been an accumulation of events, including those occurring in 2019, which amounted to a breach of the implied obligation of trust and confidence. These included the ongoing disciplinary process. Mr Gilfedder’s actions had been the last straw.[17]After a short adjournment I gave my decision on the respondent’s application to strike out. I reminded myself of Rule 2 (Overriding objective) of the Rules - to deal with cases “ fairly and justly” which includes “so far as practicable... .ensuring that the parties are on an equal footing”.[18]Strike out is a draconian step, not to be taken lightly. The claimant did not have the benefit of legal representation and it was appropriate to allow her some latitude. Her evidence indicated that she had lost trust and confidence in the respondent and this included the disciplinary process which started in January 2019. The voluntary redundancy episode in April 2019 might have contributed.[19]The claimant took steps to find a new job, at Band 6, outwith the respondent. This resulted in her being offered and accepting her new position with Greater Glasgow Health Board (“GGHB”) in August 2019. Thereafter, subject to certain conditions being satisfied, it was always her intention to resign. Once a start date with GGHB of 2 December 2019 was agreed it was inevitable she would resign no later than 1 December 2019.[20]The incident alleged by the claimant to have occurred on 27 November 2019 resulted in the claimant bringing forward her leaving date by some four days. It did not of itself trigger the decision to leave. It was not a “last straw” in the normal sense.[21]I recognised that there might well be an issue of whether the claimant had affirmed the contract by remaining in employment with the respondent for more than six months after she had told others that the relationship had broken down irretrievably. However, could it be said (to quote Underhill LJ in Kaui} that she 4100880/2020 (V) Page 6 had “soldiered on” or was she carrying out a plan to leave upon which Mr Gilfedder’s alleged behaviour had only a minor effect?[22]I decided that(a) the claimant was entitled to cross- examine the respondent’s witnesses in relation to her allegation that the respondent’s behaviour had caused her loss of trust and confidence and accordingly(b) it was not appropriate to strike out her claim.
Applicable law
[23]Section 95 of the Employment Rights Act 1996 (Circumstances in which an employee is dismissed) provides, so far as relevant to this case, as follows - “(1) For the purposes of this Part an employee is dismissed by his employer if.... ....(c) 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.”[24]In Western Excavating (ECC) Ltd v Sharp 1978 IRLR 27 Lord Denning MR explained the contract test that applies in constructive dismissal cases as follows - “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case 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 the right to treat himself as discharged. He will be regarded as having elected to affirm the contract.” 4100880/2020 (V) Page 7[25]In Malik v Bank of Credit and Commerce S.A.fin compulsory liquidation) 1997 IRLR 462 the implied term of trust and confidence was expressed by Lord Nicholls of Birkenhead in terms that the employer should - “not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.
Evidence
[26]I heard evidence from the claimant. For the respondent I heard evidence from Ms M McBurnie, HR Manager, Mr W Lauder, General Manager, and Mr Gilfedder, Senior Nurse. The evidence in chief of each witness was contained in a written witness statement and these were taken as read in accordance with Rule 43 of the Rules.[27]I had a bundle of documents extending to 776 pages and a supplementary bundle extending to 73 pages. I refer to these above and below by page number, prefixed by “S” in the case of the supplementary bundle. Findings in fact[28]The claimant was a Band 5 Staff Nurse. She commenced employment with the respondent as a Community Psychiatric Nurse within the Community Addiction Team on 22 February 2010. In early 2014 the claimant was appointed as a Band 5 Staff Nurse within the Community Forensic Mental Health Team (“CFMHT”). In that role she was line managed by Mr B Hood, Team Leader, and Mr S McKenzie, Clinical Nurse Manager. Mr McKenzie’s line manager was Mr Lauder.[29]The respondent is the Health Board of NHS Ayrshire and Arran which is one of the 14 regions of NHS Scotland. NHS Ayrshire and Arran provides health and social care to the people of East Ayrshire, North Ayrshire and South Ayrshire and has its headquarters in Ayr. Secondment in 2014 4100880/2020 (V) Page 8[30]On or around 1 November 2014 the claimant, having applied successfully, commenced a secondment to Psychiatric Liaison. This was a Band 6 position which meant that the claimant would be paid as a Band 6 Charge Nurse for the duration of the secondment. That duration was understood by the claimant to be 6 months initially. 31 . This secondment was attractive to the claimant because she aspired to become a Band 6 Charge Nurse. She described the secondment opportunity as “of specific interest and where I hoped my career would remain”.[32]The respondent has a secondment policy (65-83). This provides that the period of secondment “must be agreed and clearly defined in a secondment agreement, signed by all parties, ie the seconding manager/organisation, the secondee and the host manager/organisation”. Appendix 1 to the policy is a form of secondment contract (74-79). Responsibility for putting the secondment contract in place rests primarily with the seconding manager (in this case Mr McKenzie). No secondment contract was put in place for the claimant’s secondment to Psychiatric Liaison.[33]Shortly after commencing her secondment the claimant became aware that she was expected to work on both Christmas Day and New Years Day. Working on Christmas Day was a problem for the claimant as a single parent with care of a (then) 12 year old daughter. She agreed a swap for Christmas Day with a colleague and approached the team leader (Ms F Mason). Ms Mason did not agree to the swap. This caused the claimant distress. She attended Occupational Health and was sent home.[34]The claimant contacted Mr Hood as Team Leader for her substantive post in CFMHT. Mr Hood proposed an informal meeting to try and resolve matters. In the event, that meeting took place while Mr Hood was on annual leave. It was attended by the claimant, Mr J Allan (a colleague), Ms Mason, Mr McKenzie and a representative from HR. According to the claimant Mr McKenzie’s behaviour at this meeting was unprofessional.[35]The outcomes were that(a) the claimant did not remain in the seconded post,(b) she was not returned to her substantive post in CFMHT and(c) she was 4100880/2020 (V) Page 9 placed within the Forensic Rehabilitation Ward for three months. According to the claimant, Mr Allan spoke to Mr McKenzie after the meeting and Mr McKenzie made a threat about the claimant’s future career.[36]In February 201 5 Mr Hood made the claimant aware of a Band 6 role within the Low Secure Forensic Ward becoming available. The claimant spoke to Mr McKenzie about this as he was the post coordinator. According to the claimant Mr McKenzie made it clear that the claimant should not waste her time applying as she would not be considered. Interim Band 6 role[37]In August 2016 an opportunity arose within CFMHT for an interim Band 6 role. The claimant was offered this, on a job share basis, by Ms D Maguire who was by then the Interim Team Leader. It was not a secondment as the claimant remained in CFMHT but it should have been documented.[38]When the claimant pressed Ms Maguire for the paperwork confirming the start date of her interim Band 6 role, Ms Maguire allegedly responded angrily, saying “Shut the fuck up. You need anxiety management. I told you I’d fucking fix it and I will.” The claimant regarded this as bullying by Ms Maguire contrary to the respondent’s Bullying and Harassment Policy (85-103).[39]According to the claimant this led to Mr McKenzie removing her from the interim Band 6 role in November 2016 and replacing her with a junior colleague from another area. The claimant sought to engage with Ms Maguire under the “Give Respect Get Respect” toolkit but, the claimant said, Ms Maguire “ignored my request” and chose to “escalate the matter” to Mr McKenzie. The emails relating to this had unfortunately been lost.[40]Mr Lauder said that the concerns raised by the claimant with Ms Maguire “appeared to refer to more than her individual concerns but pertained to others in the team”. Mr McKenzie arranged to meet with the claimant, her union representative and a representative from HR. A date was set which did not suit the claimant’s union representative and, according to Mr Lauder, the claimant and her union representative contended that the meeting was not in accordance with the “Give Respect Get Respect” policy. 4100880/2020 (V) Page 10 Claimant raises grievances 41 . On 1 5 November 201 6, on advice from her union representative and before the meeting proposed by Mr McKenzie had been rescheduled, the claimant raised a grievance against Ms Maguire and Mr McKenzie due to “the placement of a development Band 6 being put in place from out with the team and having my own development opportunity withdrawn. This appears to have been done in a closed process and I was not able to access this further opportunity” (349-350).[42]This led to an informal meeting on 5 December 201 6 attended by Mr McKenzie, Ms Maguire, the claimant and her union representative (who I understood to be Mr J Collatin) and Mr A Paul, Human Resources Advisor. This was a meeting under the respondent’s Grievance Policy as opposed to the informal meeting Mr McKenzie had been seeking to arrange.[43]At this meeting there was discussion about the start date of the claimant’s interim Band 6 role. I observe that this would not have been an issue if Ms Maguire had prepared the relevant paperwork timeously. Mr McKenzie, according to Mr Lauder, “made an offer to pay for 3 months Band 6 salary to try and resolve this matter as was within his authority at this point”. Following the meeting Mr McKenzie instructed Payroll to pay the third month of Band 6 monies as offered.[44]The claimant was again critical of Mr McKenzie’s behaviour during this meeting. She alleged that Mr McKenzie “was shouting and being aggressive” towards her. She also alleged that Mr McKenzie had asked her union representative to step out of the meeting and had made the threat that “there would be further consequences should this complaint be taken further”.[45]On 9 December 201 6 the claimant raised a further grievance (which was treated as a bullying and harassment complaint) against Mr McKenzie and Ms Maguire (S30-31 ). In summary her complaints were that -• The issue raised by the claimant was “trivialised” by Mr McKenzie. 4100880/2020 (V) Page 1 1• She had been told by Ms Maguire that her interim Band 6 role would be continued indefinitely until the other (Band 5) employee job sharing the interim Band 6 role returned to her substantive post.• Ms Maguire denied being aware of any issues prior to the meeting. The claimant also complained about Ms Maguire’s behaviour towards her at a line management/return to work interview.• Ms Maguire had denied that there was a communication issue between her and the claimant and had spoken to the claimant in a threatening tone.• Her integrity had been questioned in relation to travel expenses.• Ms Maguire had withdrawn training from her and this had been poorly communicated.• She felt “ignored, disrespected and undervalued" by Ms Maguire.[46]Mr Lauder emailed the claimant on 19 December 2016 (172) to advise that an investigation under the Bullying and Harassment Policy would be undertaken by Mr T Stevenson, a Senior Manager, and Ms McBurnie. Mr Collatin emailed Mr Lauder on 30 December 2016 (172) to query the involvement of Mr Stevenson.[47]When Mr Mackenzie became aware of the claimant’s second grievance he advised Payroll on 9 December 2016 not to pay the third month of Band 6 monies to the claimant. However this had already been processed by Payroll. On 16 January 2017 the claimant received an email from Ms C Reid, Payroll Officer (173) which referred to an overpayment of £119.77 and asked the claimant to make contact Todiscuss repayment”. The claimant took this up with Mr Lauder and he countermanded the repayment instruction. Dispute about investigation team[48]A meeting was set for 2 February 2017 but this did not suit the claimant as she had a job interview. The claimant said in an email to Ms McBurnie on 25 January 2017 (S35-36) that she was “struggling on a daily basis to work in this 4100880/2020 (V) Page 12 environment”. On 27 January 2017 Mr Collatin emailed Mr Lauder (S35) requesting a new investigation team as the appointed team had “prior briefing of the case” under reference to his being a “potential witness” and “moves to replace” him as the claimant’s representative.[49]This led to a tetchy email exchange between Ms McBurnie and Mr Collatin on 31 January 2017 (S37-38). Mr Lauder’s description of this as Ms McBurnie attempting “to resolve the issue to allow the investigation to progess” put an optimistic gloss on this exchange which did not seem to me to be justified.[50]On 14 February 2017 the claimant emailed Mr Lauder (S39) stating that since raising her bullying and harassment grievance “attending my place of work has become increasingly more difficult/challenging” and seeking his assistance in “identifying interim measures to facilitate me maintaining my attendance at work". Mr Lauder replied on 15 February 2017 (S39) confirming that he had “no issue” with the claimant pursuing a secondment. 51 . The claimant commenced a period of sickness absence on 16 February 2017. Her medical certificates referred to “anxiety with depression” as recorded in her Promoting Attendance & Wellbeing record (254).[52]There was an exchange of emails between Mr Collatin and Mr Lauder between 22 February and 6 March 2017 (251-253) in which Mr Collatin referred to the claimant’s current work environment being “unmanageable at present” and expressed the claimant’s interest in working in another community team. Mr Collatin also referred to the claimant having “reservations” about working in Woodland View due to Mr McKenzie’s visibility in this area. Woodland View is a mental health facility and community hospital at Ayrshire Central Hospital.[53]In his response Mr Lauder referred to Ward 8 (where the claimant had undertaken a number of shifts as a bank nurse) and asked Mr Collatin to approach the claimant about this. Mr Collatin indicated to Mr Lauder that this option had been discussed with Occupational Health and he believed that they would support an alternative placement away from both CFMHT and Woodland View. 4100880/2020 (V) Page 13[54]According to the claimant, she was ready to return to work in April 2017 but “no post was agreed so I had no option other than to stay off sick”. However, her absence was medically certified with her last certificate covering the period of two months from 3 May 2017.[55]Mr Lauder and Ms McBurnie met with the claimant and her union representative on 9 May 2017. Mr Lauder described the purpose of this meeting as being “to discuss her concerns, seek specifics that she w/sh[ed] a response to and explore potential acceptable solutions”. It was agreed that Mr Lauder should attempt to look at the claimant’s concerns on an informal basis so as to avoid the need for a formal investigation. A document was prepared (S53-54) recording the claimant’s “specific queries”[56]According to Ms McBurnie, the claimant believed that following her secondment to a Band 6 role in 2014 she should have been made a permanent Band 6 despite her substantive role being a Band 5 Staff Nurse.[57]Mr Lauder then met with Ms Maguire and Mr McKenzie to discuss the claimant’s concerns/queries with a view to providing a response to the claimant and hopefully resolving her initial grievance and her bullying and harassment complaint. Claimant returns to work[58]The claimant returned to work at the start of July 2017.[59]Mr Lauder and Ms McBurnie met with the claimant again on 5 July 2017. Mr Lauder provided the claimant with feedback from his meetings with Ms Maguire and Mr McKenzie. According to Mr Lauder, the claimant did not agree with that feedback and Mr Lauder offered her time either(a) to decide to accept the feedback and treat the matter as closed or(b) to decide not to accept it in which case the formal investigation would proceed. Mr Lauder said that it was apparent during the feedback that the claimant felt aggrieved that she was not continuing to work at a Band 6 level and that this was the only solution which would resolve her concerns. She was keen to have a community placement or to work in Psychiatric Liaison; however Mr Lauder pointed out that his only 4100880/2020 (V) Page 14 community service was CFMHT and that staff within Psychiatric Liaison were Band 6.[60]According to Ms McBurnie, it was acknowledged to the claimant that some of the communication by Mr McKenzie and Ms Maguire around the duration of her interim Band 6 role could have been better. There was discussion about where the claimant might be placed and she was given options by Mr Lauder and Ms McBurnie including Ward 8 and Elderly Mental Health at Ailsa Hospital. The claimant suggested returning to her substantive role in CFMHT but Mr Lauder and Ms McBurnie agreed that this was not an option given the formal concerns she had raised against Mr McKenzie and Ms Maguire. This was in my view a reasonable position for Mr Lauder and Ms McBurnie to take. 61 . Mr Lauder said that he was “perplexed” as to why the claimant should want to go back to CFMHT given that she had said she could not work with Mr McKenzie and Ms Maguire as, according to the claimant, they did not believe that she should be a Band 6 nurse. CFMHT was a small team, then based at Ailsa Hospital, working Monday to Friday and frequently in pairs when seeing individuals in the community. This would have involved the claimant being line managed by Ms Maguire and potentially paired with her.[62]Ms McBurnie expressed frustration that the claimant was not willing to accept any of the alternatives put to her and, when asked where she wanted to work, the claimant said that it was up to Mr Lauder and Ms McBurnie to find her a role. Ms McBurnie said that the roles they had identified were ones that the claimant, as an experience mental health nurse, could carry out.[63]Mr Lauder and Ms McBurnie agreed to speak to Mental Health Senior Managers to ascertain if there was an opportunity for the claimant to work within their area while they looked for a permanent post. This resulted in the claimant being offered a placement within the South Ayrshire Community Mental Health Team (“SACMHT”) on 10 July 2017. Psychiatric Liaison posts[64]In June 201 7 nine posts in Psychiatric Liaison were advertised and the claimant submitted an application. She attended for interview on 24 July 2017 and was 4100880/2020 (V) Page 15 unsuccessful. Only 7 of the 9 posts were filled. The claimant was concerned because the chair of the interview panel, Ms J Stewart (now Barrett), was aware of the “ongoing management issues”, ie her own situation. The claimant was critical of what she described as “multiple discrepancies” on her interview scoring sheet (486-488) including the incorrect statement that she had “no degree” and the corresponding inaccurate score.[65]The claimant was correct about this inaccuracy but there was no other evidence, apart from the claimant’s own opinion, to suggest that the claimant had been treated unfairly during the interview process.[66]The claimant raised her concerns with Ms S Rosher, Assistant HR Director. They met on 5 January 2018. Thereafter Ms Rosher emailed the claimant on 25 January 2018 (329-330) stating she had spoken with Ms Barrett and was satisfied with the feedback she provided. It was apparent from her reply on 30 January 2018 (331 ) that the claimant was unhappy with this response.[67]There was a further meeting between Ms Rosher and the claimant on 22 February 2018 after which Ms Rosher spoke to Dr M Cameron who had been chair of the panel which dealt with the interviews for and appointments to the Psychiatry Liaison posts. Ms Rosher emailed the claimant of 19 March 2018 (443) stating that the decision not to appoint her had been a “decision of the panel which was based on your interview”. Further dialogue[68]Mr Lauder met with the claimant again on 7 August 201 7 to seek her feedback regarding the original grievance and the bullying and harassment complaint. He met with the claimant informally in late September 2017, and then formally, accompanied by Ms McBurnie and with the claimant accompanied by Ms S Hunter, her union representative, on 13 October 2017. This was to seek the claimant’s formal response as originally sought on 5 July 2017.[69]In the meantime the claimant’s placement with SACMHT came to an end on 29 September 2017 and Mr Lauder arranged for her to work with the Occupational Health flu vaccination programme as from 2 October 201 7. This was supporting work as a registered nurse but not as a mental health practitioner. 4100880/2020 (V) Page 16[70]At the meeting on 13 October 2017 Mr Lauder maintained his position that the claimant should not return to CFMHT. He offered Ward 8 in Woodland View. The claimant agreed to this but changed her mind after the meeting. Mr Lauder asked the claimant to provide a formal response regarding her grievance and any future placement by 27 October 201 7. 71 . Following this meeting Mr Lauder sent an email dated 13 October 2017 to the claimant (S40) setting out his rationale for refusing to agree to the claimant returning to her substantive post in CFMHT. Again, I believed that this was a reasonable position for Mr Lauder to take.[72]On 27 October 2017 the claimant emailed Mr Lauder (S41-42) referring to his rationale for his decision and stating - 7 strongly feel that it prioritises Stuart [McKenzie] and Donna [Maguire] over myself and is yet another punitive measure for raising a complaint.”[73]Mr Lauder gave the claimant a further week to provide her formal response regarding her grievance/future placement. He understood the claimant’s position to be that while she had not rejected his decision, she still wanted to return to CFMHT.[74]Mr Lauder then emailed the claimant on 3 November 201 7 (31 8-31 9) asking her to report to Ward 8 on Monday 6 November 2017. The claimant’s response was to submit a grievance against Mr Lauder (298-317). The consequence of this was that the status quo was maintained, ie the claimant remained in Occupational Health. Grievance against Mr Lauder[75]The claimant’s grievance against Mr Lauder was considered at a grievance hearing on 7 February 201 8. This was chaired by Ms T Bowers, Head of Service - Mental Health and Learning Difficulties, who was accompanied by Mr B Lorimer, HR Manager. The claimant was accompanied by her trade union representative, MrCollatin. 4100880/2020 (V) Page 17[76]The management case (333-408) was presented by Mr Lauder and Ms McBurnie. The claimant’s case (408-429) was presented by Mr Collatin. No witnesses were called.[77]The grievance outcome was contained in Ms Bowers’ letter to the claimant dated 23 February 2018 (434-436), confirming a decision communicated verbally on the day of the hearing. The claimant’s grievance was not upheld. Ms Bowers decided that it had been reasonable for Mr Lauder not to return the claimant to her substantive role and to seek alternative arrangements while formal processes were ongoing. Grievances against Mr McKenzie and Ms Maguire[78]A meeting took place on 2 May 2018 in connection with the claimant’s complaints against Mr McKenzie and Ms Maguire. This was chaired by Ms D Sinclair, Senior Nurse, East Partnership accompanied by Ms A Potts, HR Manager (the replacements for the original panel of Mr Stevenson and Ms McBurnie). The claimant was accompanied by her trade union representative, Ms Hunter. A note of the meeting was prepared (446-460).[79]The grievance investigation panel thereafter met with Mr McKenzie and Ms Maguire and interviewed seven witnesses. Grievance outcomes (undated) were provided (S43-47 in respect of Ms Maguire and S48-52 in respect of Mr McKenzie). The claimant’s grievances were not upheld. According to Ms McBurnie, the grievance panel met with the claimant on 10 July 2018 to provide feedback from the investigation.[80]It was apparent from the findings contained in the grievance outcomes (S46-47 and S51-52) that the witnesses had not been supportive of the claimant’s allegations. In both outcomes the conclusion was expressed in the same terms "It is understood that often discussions and meetings can be difficult for all parties as we try to understand concerns and seek solutions. It is the Investigating Officers view that every effort has been made to listen to Lynn's concerns. 4100880/2020 (V) Page 18 It is regrettable that Lynn’s concerns had not been addressed as she would have wished however there is no evidence to suggest that [Donna/Stuart] acted in a bullying manner towards her. The investigating officers do not feel that Lynn has been treated unfairly and she has not been disadvantaged financially. ” 81 . On 28 October 2018 the claimant wrote to Ms A Shevlin, Senior Manager, East Ayrshire Health & Social Care Partnership (472-488), to appeal against the outcome of her complaints against Mr McKenzie and Ms McBurnie. The appeal panel comprised Ms Shevlin and Ms D Callaghan, HR Manager. The claimant’s appeal was not successful. I had no information as to when this appeal took place nor any documentation in relation to it. Sickness absence[82]The claimant commenced a period of sickness absence on 26 July 2018 and remained on sick leave until 30 November 2018. Meeting on 12 December 2018[83]Mr Lauder and Ms McBurnie arranged to meet with the claimant and her trade union representative, Ms Hunter. This was preceded by a meeting between Mr Lauder/Ms McBurnie and Ms Hunter to discuss the options proposed to be offered to the claimant - Community Nursing, Adult inpatient or Mental Health Elderly. There was also discussion about the claimant completing redeployment forms to make her eligible, as a displaced member of staff, for any vacant positions to which she could be matched.[84]The outcome of the meeting with the claimant on 12 December 2018 was that Mr Lauder agreed to write to colleagues to seek opportunities for a community placement but in the meantime the claimant would be placed in Ward 10 at Woodland View. This was an inpatient role which the claimant reluctantly accepted. According to Ms McBurnie, Ms Hunter supported this and encouraged the claimant to complete redeployment forms. Incident on 14 January 2019 4100880/2020 (V) Page 1 9[85]The claimant reported to Ward 1 0 on 14 January 201 9. On that date there was an incident within the hospital grounds involving the claimant and Ms Maguire. There were contemporaneous but conflicting accounts of this.[86]Ms Maguire’s account was contained in a document (494) which was undated but referred to the date of 14 January 2019, and also referenced an alleged prior incident “last nigh? which suggested that, on the balance of probability, the document was prepared on 14 January 2019. Ms Maguire alleged that the claimant had shouted at her and described being distressed by “this unwanted and unsolicited interaction”.[87]The claimant’s account was recorded in a file note dated 1 4 January 2019 (S58) prepared by the Ward 10 Interim Clinical Nurse Manager, Mr D McGill. The claimant told Mr McGill that she had noted a colleague staring at her and had said “Hi”. That had been the extent of the interaction. Disciplinary investigation[88]Ms Maguire reported the incident to Mr McKenzie. This led to a disciplinary investigation conducted by Ms S Hackney, Service Manager - Mental Health South, supported by Ms L Hamilton, HR Advisor. On 18 January 2019 Ms Hackney wrote to the claimant (61 1 -61 2) inviting her to an investigative meeting on 25 January 201 9. The allegation was that the claimant “shouted at a member of staff in a public place which is not in line with the organisational values and could bring the organisation into disrepute”.[89]Ms Hackney and Ms Hamilton met with the claimant, accompanied by Ms Hunter, on 25 January 201 9. According to the note of this meeting (588-593) the claimant expanded on her earlier account by stating that Ms Maguire had said “Are you intimidating me?”. The claimant denied what she was alleged to have said to Ms Maguire and told Ms Hackney/Ms Hamilton that there had been no witnesses.[90]Ms Hackney and Ms Hamilton thereafter met with Ms Maguire, Mr Gilfedder and Ms L Smith on 15 February 2019 and with Mr McKenzie on 12 March 2019. On 29 March 2019 Ms Hackney wrote to the claimant (613) advising that a disciplinary hearing was to be convened. 4100880/2020 (V) Page 20 91 . In the meantime, the claimant commenced a period of sickness absence on 4 February 2019. This continued until 19 May 2019. Offer of voluntary redundancy[92]Ms Rosher wrote to the claimant on 1 April 2019 (550-551) advising that she was within a group of employees who were to be offered voluntary redundancy (“VR”). This group comprised employees who had been displaced for various reasons. Ms Rosher’s letter told the claimant that - “As you are currently on the redeployment register and fall within the group that we have agreed will be offered VR, I am writing to advise you of this opportunity.”[93]The claimant expressed her interest in VR but was then told that she would not be considered as she did not fit the criteria. Ms McBurnie described this as an “admin error”. The claimant approached Mr D Thomson, Associate Nurse Director, evidently to no avail. In her email to Mr Thomson of 21 May 2019 (564- 565) the claimant said - “Once again, I feel that I am being discriminated against and this is yet further retribution from the organisation. Is it not enough that I have again fallen victim to Donna Maguire and Stuart McKenzie’s vindictive and malicious allegations/behaviours/actions which has led to a Disciplinary Hearing, which is just ridiculous.” Claimant emails Prof Borland[94]The claimant sent an email to Prof H Borland, Nurse Director, on 14 May 2019 (562) in which she -• Spoke of being at her “wits end”.• Said with reference to her complaint against Mr McKenzie and Ms Maguire that “the retribution has been unthinkable”.• Stated that “relations between myself and the organisation have completely broken down to a point of no return”. 4100880/2020 (V) Page 21[95]Prof Borland was confused by the claimant heading her email “Whistleblowing” and there was an exchange of emails on 15 May 2019 (561) in which the claimant clarified that she was referring to “decisions/actions from management which has resulted in me being off sick for lengthy periods and placed in a department not utilising my skills and experience”.[96]As well as working within the Occupational Health department the claimant was consulting as a patient with Dr J Paterson, Consultant in Occupational Medicine. Dr Paterson’s note of 15 May 2019, which I understood to relate to a consultation with the claimant on that date, records - “Not sleeping well Only getting a couple of broken sleep. Very worried about job move before end of appeal. Is looking for another job as her solution. ...” Claimant raises formal complaints[97]The claimant emailed Mr Lauder and Ms L Kenmuir on 14 May 2019 (S59) attaching complaints against Ms Maguire (S60), Mr McKenzie (S61), Ms H Leggat (S62) and Ms Hackney (S63). The claimant emailed Mr Lauder and Ms Kenmuir on 31 May 2019 (S64) stating her intention to report Mr Gilfedder to the Nursing and Midwifery Council (“NMC”) in relation to his fitness to practice.[98]The claimant’s evidence was that the matters were “never investigated”. Mr Lauder’s evidence was that he passed the email about Mr Gilfedder to Mr Thomson, being Mr Gilfedder’s line manager, and that Mr Thomson said that he would await contact from the NMC. Mr Lauder also said that he had advised the claimant of this and had invited her to meet with himself and an HR Manager to discuss her concerns (as per her emails of 14 and 31 May 2019).[99]Mr Lauder also said that he met with the claimant and her trade union representative, along with a representative from HR, during October 2019. At this meeting the claimant raised a number of new concerns relating to the disciplinary process. Mr Lauder agreed that he and Ms McBurnie would look into these matters and they did so. Investigative interviews were completed by 15 November 201 9. An email was sent to the claimant and her representative 4100880/2020 (V) Page 22 on 26 November 2019 seeking to arrange a meeting to provide feedback. This email was not available.[100]I accepted Mr Lauder’s evidence about this. The claimant was not correct in saying that her concerns were not investigated. It may be however that in light of her resignation on 27 November 2019, Mr Lauder’s invitation to arrange a meeting did not reach her. Disciplinary hearing[101]On 23 May 2019 Ms L Falconer wrote to the claimant (566-567) advising her that a disciplinary hearing had been arranged for 12 June 2019. The allegation against the claimant was expressed in the same terms as in Ms Hackney’s letter to the claimant of 1 8 January 2019 (see paragraph 87 above). Ms Falconer told the claimant that the disciplinary panel would comprise herself as chair accompanied by Ms J Whiteford, Clinical Nurse Manager and Mr M Hogarth, HR Manager.[102]The disciplinary hearing did not proceed on 12 June 2019 and there was a further postponement (both due evidently to the non-availability of a witness, Ms Smith) before the hearing eventually took place on 25 September 201 9. The panel then comprised Ms E Young, Assistant Director of Public Health, Mr I Sey, Head of Infrastructure Services and Ms L Crum, HR Manager. The claimant was represented by Ms Hunter.[103]Ms Young wrote to the claimant on 2 October 2019 (698-699) to advise her of the outcome which was expressed in these terms - “The panel concluded.... that the outcome is that there is no case to answer, given that Donna (who raised the complaint) and yourself both stated, at the meeting, that whilst voices were raised due to the distance between you, this was not to the extent that it could be considered shouting. The allegation is not upheld, however, a conversation did take place which was of concern and the panel remind you to be mindful of the organisation's values moving forward.” 4100880/2020 (V) Page 23 1 04. The claimant complained that the panel "chose to wait for the maximum 7 days to deliver the outcome to me in person at my place of work, which was extremely daunting and embarrassing”. I did not find any particular significance in the timing or manner of communication of the panel’s decision. However, it was unsatisfactory that it took until 2 October 2019 to advise the claimant of the outcome of what should have been a relatively straightforward disciplinary process which started on 18 January 2019. The respondent’s Management of Employee Conduct Policy (104-138) did not appear to set any particular timescale for the disciplinary process, although I could not be certain on this point as it was apparent when I reviewed the copy of the policy within the bundle after the hearing that it was incomplete; it appeared that every second page had been omitted.[105]The claimant believed that there were flaws in the disciplinary hearing and process and Ms Hunter asked Mr Lauder and Ms McBurnie to investigate. On 1 5 November 2019 Mr Lauder and Ms McBurnie met with Ms Young. They also met with Ms Hackney and Ms Hamilton who had presented the management case at the disciplinary hearing. They (Mr Lauder and Ms McBurnie) concluded that the disciplinary investigation and hearing had been carried out in line with the respondent’s Management of Employee Conduct Policy. They attempted unsuccessfully to arrange a meeting with the claimant to provide feedback. Claimant applies for new job 1 06. On 4 July 201 9 the claimant submitted an application to GGHB for the position of Senior Unscheduled Care Nurse - Mental Health Services (S4-8). This was a Band 6 role. In her application the claimant stated her reason for leaving as "Relocating to Glasgow/ Promotion”. The claimant was offered and accepted this position on 28 August 2019. 1 07. GGHB sent a “Preferred Candidate” email to the claimant on 2 September 2019 (S9-10). This detailed the pre-employment checks which GGHB would carry but. These included two written references and Disclosure Scotland Screening (which required the claimant to hold membership of the PVG - Protection of Vulnerable Groups). 4100880/2020 (V) Page 24[108]On 18 November 2019 Ms E Grimshaw, Recruitment Adviser, GGHB emailed the claimant (S1 1) enquiring about her PVG membership. The claimant replied on 26 November 2019 in these terms - “Sorry for the late reply. I have just returned on shift and opened your email. I received my updated PVG eventually and have spoken to the manager and agreed a start date of 2/12/19.”[109]The claimant was unable to state exactly when her conversation with her new manager had taken place but she accepted that it must have been between 1 8 and 26 November 2019. She was due to work for the respondent on 30 November 2019 and 1 December 2019. She accepted that agreeing a start date in her new job of 2 December 2019 meant that she had decided to leave the respondent no later than 1 December 2019. Her intention was to avoid a break in employment. Claimant resigns[110]According to the claimant there were two interactions with Mr Gilfedder prior to her resignation on 27 November 2019. The first was in the week before she resigned. Mr Gilfedder had looked directly at the claimant through the glass window in the door of the small duty room in Ward 1 0 and "smirked”. He entered the room, ignored the claimant, and made "exaggerated conversation” with others. He turned his back on the claimant in "blatant disregard”.[111]The claimant’s description of the second interaction was that Mr Gilfedder entered the same room and "totally disrespected me by making his presence known and displaying unprofessional behaviour whilst I was on the phone”. The claimant alleged that Mr Gilfedder "spoke over me in a loud volume which was distracting and off putting and hung around the office when there was no clinical need”.[112]Mr Gilfedder’s evidence was that he was "at a total loss” in relation to the first alleged interaction. His diary confirmed his recollection that he had not been in Ward 10. He did visit Ward 10 on 8 November 2019 to see the Deputy Charge Nurse. He noticed the claimant on the phone but "had no interaction with the claimant whatsoever”. 4100880/2020 (V) Page 25[113]Mr Gilfedder said that he was again “at a loss” in relation to the second alleged interaction. He made the point that the claimant would not know whether there was a “clinical need" for him to visit the ward. He also disputed the claimant’s assertion that he would “not generally have any great need to be within the ward environment”. As Senior Nurse he had “every right to be on any ward at any f/n?e”and said that he was “very visible” to his nursing colleagues.[114]As mentioned above (at paragraph 96) the claimant had evinced an intention in May 2019 to report Mr Gilfedder to the NMC. Her attitude to Mr Gilfedder was reflected in an email she sent to Ms Hunter on 18 July 2019 (688) - “Pete Gilfedder is in with Cathy at the min and rm struggling being near him due to his lies.”[115]It was not easy to reconcile the evidence of the claimant and Mr Gilfedder as to what occurred in the days prior to the claimant’s resignation. I believed that Mr Gilfedder had not knowingly done anything to upset the claimant. I considered that it was more likely than not that the claimant had seen Mr Gilfedder(a) not long before and(b) again on 27 November 2019 and had reacted negatively. I was not persuaded that Mr Gilfedder had done anything to upset the claimant. The claimant’s view of Mr Gilfedder was coloured by her perception that his involvement in the disciplinary process was part of a management conspiracy against her.[116]Whatever the cause, the result was the claimant’s resignation on 27 November 2019. She wrote to Mr Lauder (708) in these terms - “Formal Resignation- Constructive Dismissal Please accept this letter as formal notice of my forced resignation of position as Staff Nurse within NHS Ayrshire and Arran, with immediate effect. The reason for this is that I believe I have been constructively dismissed due to the following:• Bullying and discrimination As you are aware, I have attempted to address and resolve matters regarding the above on many occasions, but without success. It is evident that I do not 4100880/2020 (V) Page 26 have equal opportunities within this Board for progress/promotion despite my capabilities, competency and passion, or security within my current post within the company where I remain displaced. As such, I have been left with no alternative but to resign. I feel it would be clear to conclude that the employee/employer relationship has irreparably broken down to a point whereby I feel that I have lost all trust within this Board and find it unsafe and intolerable to continue to remain an employee. Finally, should you wish to discuss a mutually agreeable settlement in order for closure, I would be happy to discuss this with you. ...” 1 1 7. The claimant took up her new Band 6 role with GGHB on 2 December 201 9 and remained in that position. Comments on evidence[118]It is not the function of the Tribunal to record all of the evidence presented to it and I have not attempted to do so. I have sought to focus on those parts of the evidence which had the closest bearing to the issues I had to decide. I have not, for example, referred (apart from once, in May 2019) to the consultations which the claimant had with Dr Paterson of Occupational Health.[119]The respondent’s witnesses were credible and gave their evidence in a straightforward way. They (in particular Mr Lauder) were prepared to acknowledge when things could have been handled better and that was to their credit. 1 20. The claimant told the truth as she saw it. Her belief that she was poorly treated by some of her managers was clearly genuine and had a profound effect on her. It was the prism through which she viewed events from 2014 onwards. Submissions 121 . The claimant submitted that it was clear that she had resigned due to her loss of trust and confidence in the respondent and the other breaches of contract on their part, including retaliation for having raised a grievance. There had been repeated involvement of the same managers and that indicated collusion. 4100880/2020 (V) Page 27[122]The claimant described herself as “trapped” from the day when the alleged incident in January 201 9 was reported. She felt unable to leave her employment with the disciplinary hearing hanging over her. She anticipated that she would have to disclose this in any job application (although, in the event, one of her referees for the GGHB job told her it did not have to be declared).[123]The claimant said that she reached the point where she had been “disadvantaged enough” Her only option was to find a job outwith the respondent. She described the effective cause of her resignation as “an accumulation of events". The respondent had created a hostile working environment for her and she had been “forced out”.[124]While she described her relationship with the respondent as having “broken down” in May 2019, she still had hope. She wanted to stay, but did not want to make “rash decisions”. She had to keep her options open and so applied for a job elsewhere. She described accepting the GGHB job as “another option for me”.[125]Mr Fletcher invited me to review the submissions he had made on strike out. This was a constructive dismissal claim based on an alleged last straw. The claimant had been ordered to provide details of the alleged last straw and had done so. However, that evidence was not reliable. The claimant had not challenged Mr Gilfedder’s version of events.[126]It was apparent that by 27 November 2019, the date of the alleged last straw event, the claimant had already agreed a start date with her new manager at GGHB. Accordingly Mr Gilfedder’s alleged conduct could not have been her reason for leaving.[127]Mr Fletcher referred to paragraph 21 of Lord Dyson’s judgment in London Borough of Waltham Forest v Omilaju [2005] 1 All ER 75 - “If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and 4100880/2020 (V) Page 28 confidence, but the employee does not resign his employment. Instead he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.”[128]Mr Fletcher argued that, in the present case, the alleged final act (the conduct of Mr Gilfedder) did not influence the claimant’s decision to leave. It would be an error of law to consider the earlier conduct.[129]Mr Fletcher referred to paragraph 18 of the Employment Appeal Tribunal’s decision in Chandok v Tirkey [2015] IRLR 195- “,...a system of justice. ...requires each party in essence to know what the other is saying, so they can properly meet it.. . . That is why there is a system of claim and response, and why an Employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.”[130]Mr Fletcher submitted that the claimant had brought a last straw case. However, apart from the alleged conduct of Mr Gilfedder, the claimant had identified no breach of contract(a) between accepting the new job in August and leaving in November 201 9 and(b) between May and August 2019, ie during the period when she decided to leave.[131]Mr Fletcher argued that there had been no breach of contract by the respondent. The erroneous offer of voluntary redundancy could not be a breach - the offer was withdrawn because the claimant had not completed redeployment paperwork. Mr Fletcher highlighted Mr Lauder’s evidence that the claimant had sent him an email on 4 March 2019 advising that she would not complete the forms and was taking legal advice.[132]In any event, Mr Fletcher contended, if there had been a breach the claimant had affirmed the contract. She had “soldiered on”. When the claimant’s complaints against Ms Maguire and Mr McKenzie were not upheld following 41 00880/2020 (V) Page 29 investigation (S43-47 and S48-52) on 10 July 201 8 it was clear that the claimant could not return to the CFMHT, but she did not resign.[133]Once the claimant had achieved her ambition of securing a Band 6 position, it was not credible that she would have turned it down in favour of remaining in a Band 5 job with the respondent. By 2 October 2019 the threat of disciplinary action was no longer hanging over the claimant. Mr Fletcher contended that the claimant had changed the date of the alleged last straw event. Her evidence was neither credible nor reliable.
Discussion
[134]I reminded myself of the terms of section 95(1 )(c) ERA (see paragraph 23 above). For the claimant to be entitled to resign and treat herself as constructively dismissed, there had to be conduct by the respondent which entitled the claimant to resign without notice.[135]That conduct did not have to be the effective cause of the employee’s resignation. In Wright v North Ayrshire Council [2014] IRLR 4 Langstaff J (as he then was) quoted from the decision of the Employment Tribunal in that case where it said “....the correct approach is to ask what was the effective cause of the resignation” and he continued (at paragraph 20) - “ That demonstrates the error. Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause. ” 1 36. It was not fatal to the claimant’s case that she had another reason for resigning, apart from the alleged breach of contract by the respondent. The availability of her new Band 6 position was clearly a reason for the claimant’s decision to resign. She had applied for that position because she wants to progress in her career. She felt that progress was being blocked by the respondent. She had lost confidence in the respondent - that was clear from what she said to Prof Borland on 14 May 2019 (see paragraph 93 above). 4100880/2020 (V) Page 30[137]I considered whether that loss of confidence was the result of a repudiatory breach of contract by the respondent. From the time when the claimant’s Band 6 secondment to Psychiatric Liaison in 2014 was brought to a premature end, things had gone wrong for her -• She had not been returned to her substantive post in CFMHT in November 2014.• Mr McKenzie was dismissive of her interest in a Band 6 role in the Low Secure Forensic Ward in February 2015.• She was removed from her interim Band 6 role in CFMHT in November 2016.• Her treatment by Mr McKenzie at the informal meeting on 5 December 2016 had caused her to submit a second grievance.• She regarded Mr McKenzie’s instruction to payroll to recover an alleged overpayment from her as retaliatory.• The respondent had taken an excessive amount of time to deal with her grievances against Mr McKenzie and Ms Maguire.• She had been unsuccessful in her application for one of the Band 6 posts in Psychiatric Liaison.• She had not been permitted to return to her substantive post in CFMHT.• She had been placed for a lengthy period in Occupational Health where she was unable to utilise her skills as a mental health nurse.• She had been told in November 2017 to report to Ward 8, leading to her grievance against Mr Lauder which was not upheld.• Her grievances against Mr McKenzie and Ms Maguire were not upheld, and her appeal was unsuccessful.• On 14 January 2019, her first day in Ward 10, a disciplinary allegation which she regarded as malicious was raised against her (and she contrasted the 4100880/2020 (V) Page 31 length of time taken to move this from investigation to disciplinary process with the time taken to deal with her own grievances against Mr McKenzie and Ms Maguire).• She received an offer of voluntary redundancy which was withdrawn.• She believed the disciplinary hearing and process were flawed.[138]The claimant’s health was adversely affected. She had significant spells of sickness absence - from 22 February to 3 July 2017, from 26 July to 30 November 2018 and from 8 April to 26 May 2019 (556). Her medical records (728-736) disclose 14 consultations with her GP between November 2014 and May 2019 where the reason is recorded as “anxiety with depression" and/or “stress at work".[139]The claimant’s belief that she had been poorly treated by the respondent since November 2014 was genuine, and not without some substance. The requirement in the respondent’s secondment policy for a signed secondment agreement had not been complied with. She had been displaced from her substantive post for an extended period. The time taken to deal with her grievances against Mr McKenzie and Ms Maguire had been excessive, even allowing for the claimant’s absences. The time taken to deal with the disciplinary process in 2019 had also been excessive.[140]In fairness to Mr Lauder and Ms McBurnie, I was satisfied that their efforts to find a solution to the problem of where the claimant should work, given the difficulties which had arisen in her relationships with Mr McKenzie and Ms Maguire, were also genuine. I considered that the claimant’s engagement with this process was less than wholehearted. It was hard to see what prejudice there would have been to the claimant in complying with the invitation to complete the redeployment paperwork. Had she done so, it seems likely that the offer of voluntary redundancy in April 2019 would not have been withdrawn and these proceedings would have been avoided.[141]The claimant could only succeed in her constructive unfair dismissal claim if there had been conduct on the part of the respondent which, to quote Lord Denning in Western Excavating, had been “sufficiently serious to entitle [her] 4100880/2020 (V) Page 32 to leave at once”. The conduct relied on by the claimant was said to be in breach of the implied term of trust and confidence. I looked at the various elements of this alleged conduct with a view to determining if that implied term had been breached.[142]It seemed to me that the events of November 2014 and February 2015 were superceded by the claimant being offered an interim Band 6 role within the CFMHT in August 2016. The claimant aspired to a Band 6 role and was given one, albeit on an interim basis. The sequence of events which led to the alleged loss of trust and confidence effectively began when the claimant’s interim Band 6 role was removed in November 2016. This led to her first grievance on 15 November 2016 and, following the meeting on 5 December 2016, her second grievance on 9 December 2016.[143]When these were eventually investigated, the investigation panel found that the claimant had not been bullied by Mr McKenzie and Ms Maguire and had not been treated unfairly. It was apparent from the outcomes (S43-47 and S48-52) that the witnesses interviewed during the investigation had not been supportive of the claimant. The process took much too long, and I will return to this point, but I formed the view that(a) the correct people had been interviewed and(b) conclusions had been reached which were supported by the findings made following those interviews. The claimant did not agree with those findings and chose to appeal but there was nothing here which came close to conduct by the respondent entitling the claimant to leave at once. 1 44. The instruction from Mr McKenzie to payroll to recover the alleged overpayment appeared to stem from a misunderstanding as to the start date of the claimant’s interim Band 6 role. That misunderstanding might have been avoided if Ms Maguire had dealt with the paperwork timeously. This was unfortunate but certainly not conduct by the respondent entitling the claimant to resign at once.[145]The claimant was clearly perplexed as to why she was unsuccessful in her application for one of the Band 6 posts in Psychiatric Liaison when she had undertaken a placement there in 2014 and felt she had performed well at interview. She was correct in her assertion that there was some inaccuracy on her scoring sheet where she was noted as not having a degree. However, Ms 4100880/2020 (V) Page 33 Rosher looked into the matter and provided feedback. The claimant may not have accepted that but there was no conduct by the respondent in response to which the claimant had been entitled to resign. 1 46. The decision by Mr Lauder that the claimant should not return to her substantive post followed dialogue with the claimant between August and October 2017. Mr Lauder provided the claimant with the rationale for his decision on 13 October 2017. I did not understand the claimant to dispute that Mr Lauder was entitled to tell her to report to Ward 8. There was no breach of contract involved in his doing so and indeed, given his “grave concerns” about the working relationships within the CFMHT, it was a reasonable decision for him to take.[147]The length of the claimant’s placement in Occupational Health was perceived by the claimant as a disadvantage visited upon her by management. That was understandable but not entirely fair comment. The effect of the claimant submitting a grievance against Mr Lauder when he told her to report to Ward 8 was to preserve the status quo. This remained the position between early November 2017 and the grievance outcome on 23 February 2018. Thereafter the claimant had a period of sickness absence of some four months in July/November 2018. The status quo and sickness absence periods accounted for more than half of the time the claimant spent in Occupational Health. I found no breach of contract by the respondent in relation to the length of the placement.[148]The claimant was clearly unhappy about the disciplinary allegation made against her in January 2019 and the process which followed. However, apart from the time taken to deal with the matter, I found nothing which amounted to unreasonable conduct by the respondent, and certainly not conduct in response to which the claimant had been entitled to resign.[149]The time taken by the respondent to deal with the claimant’s grievances of November/December 2016 was unsatisfactory. The grievance hearing did not lake place until 2 May 201 tL The grievance was concluded with feedback to the claimant on 10 July 2018 - more than nineteen months after the second grievance was submitted. Matters were then delayed by the claimant’s sickness absence before her unsuccessful appeal. Some delay was caused by the 4100880/2020 (V) Page 34 claimant’s objection to the original grievance panel and also by her sickness absence between February and July 2018.[150]I considered that this was an example of the tension which Western Excavating had resolved. Unreasonable conduct by an employer is not enough to constitute constructive dismissal. There has to be a breach of contract. That can be a breach of an express or implied term. Delay in progressing a grievance may well be unreasonable behaviour but unless it demonstrates that the employer “no longer intends to be bound by one or more of the essential terms of the employment contract” it will not be conduct in response to which the employee may resign and claim to have been constructively dismissed.[151]I did not believe that the evidence demonstrated that the respondent no longer intended to afford the claimant the right to pursue her grievances. The time taken was unreasonable but that was not enough. The respondent made an effort to resolve matters informally. When that did not succeed, a grievance panel was appointed. When objection was taken to that panel, a replacement panel was appointed. Matters were delayed by the claimant’s sickness absence in 2017. The respondent was seeking a suitable placement which would have enabled the claimant to continue her career as a mental health nurse. It was understandable that the claimant’s perception of the delay was negative but, viewed objectively, it did not amount to “a significant breach going to the root of the contract”.[152]The delay in bringing the disciplinary process to a conclusion was unfortunate but appears to have been due, at least in part, to the non-attendance of one of the witnesses causing the disciplinary hearing to be rescheduled twice. There was no breach of contract by the respondent in this regard.[153]Having come to the view that none of the individual matters complained of by the claimant amounted to a breach of contract by the respondent, I considered whether they could be said to amount in cumulo to a repudiatory breach. I asked myself whether the evidence showed that the respondent had without reasonable and proper cause conducted itself in a manner calculated or likely to destroy the relationship of confidence and trust between employer and employee. 4100880/2020 (V) Page 35[154]If that question was answered based on the claimant’s perception, it would be an unequivocal “yes”. However, that was not the test. The correct approach was to view the evidence objectively. The respondent did attempt to find a solution to the problems flowing from the difficulties which arose between the claimant and her colleagues in the CFMHT. This was a small team and Mr Lauder’s view that the claimant should not return to it, but should be placed elsewhere, was “reasonable and proper cause” for his actions. The claimant’s grievances were investigated and outcomes communicated. The disciplinary process flowed from an allegation which the respondent had to investigate. The decision to progress to a disciplinary process was not arbitrary or malicious.[155]Approaching matters in this way, I concluded that the respondent’s conduct when viewed cumulatively did not amount to a repudiatory breach of the obligation of trust and confidence.[156]Having found no repudiatory breach of contract by the respondent, it followed that the claimant had not been entitled to resign without notice. Her departure on 27 November 2019 was a resignation and not a constructive dismissal. Based on my findings at paragraph 114 above, there had been no “last straw” event.[157]As I found no repudiatory breach I did not require to address whether the claimant had affirmed the contract by continuing to work rather than resigning before she did. 4100880/2020 (V) Page 36[158]For the reasons set out above I decided that the claimants complaint of constructive unfair dismissal did not succeed and fell to be dismissed.