The Judgment of the Tribunal is that the claimant was not dismissed by the respondent under section 95(1)(c) of the Employment Rights Act 1996 (“the 1996 Act”), and the Claim is dismissed.
REASONS
[1]This Final Hearing was arranged to address a claim of constructive unfair dismissal. It was heard both in person, and with four witnesses appearing remotely. E.T. Z4 (WR)
Preliminary Matters
[2]The claimant sought in an email sent on 21 October 2022 to be represented by Ms Ross, who was originally intended also to be a witness for her. That was stated to be as the claimant was very anxious. It was raised in argument before me, and Mr MacDougall objected to that, in brief summary on the basis that Ms Ross was a former employee of the respondent, and there was a potential for conflict. I considered that it was essentially for a party to choose representation, that strong grounds would be needed for that choice to be prevented from being acted upon under the overriding objective, and that Ms Ross could therefore appear for her in that capacity, but that that could complicate the giving of evidence as well, if that were desired, although it could be addressed by having her evidence heard first. After discussion, and checking that the claimant was aware that not having Ms Ross’s evidence may lead to potentially relevant evidence not being heard, the claimant confirmed that she would not call Ms Ross as a witness.[3]There was a discussion as to having one more of the witnesses appear remotely, as she was on holiday in Perthshire. The claimant objected to that, referring to the fact that she had changed her own holiday plans to appear. I agreed that the witness could appear remotely, such that four of the five witnesses for the respondent be able to do so, as it did not appear to me to prejudice the claimant in all the circumstances.[4]It was also agreed by the parties that the respondent lead its evidence first, which was convenient for a number of reasons including the nonavailability of the remote hearing facility on the last day for evidence, although the onus of establishing dismissal falls on the claimant.[5]Two additional late documents were received, and a decision as to a further one deferred until it was clear whether it would be relevant, and if so on what basis. In fact it did not arise as an issue.[6]There was also a discussion as to losses, and that was discussed between parties over the lunch break, the hearing having commenced at 11.30am. It was anticipated that the issue would be agreed between parties sufficiently. It later was.[7]Before evidence was heard I explained to the claimant and her representative, who was not legally qualified or experienced in Tribunal advocacy, the process of the giving of evidence, including rules as to asking questions in chief and cross examination, referring to documents in evidence so that they were before the Tribunal, leading all the evidence as adding to it later, after the evidence is closed, is allowed only in exceptional circumstances, and about submissions. I explained that I could assist during the hearing to an extent in light of the terms of the overriding objective, in that the respondent was represented by an experienced Advocate, but not so as to become the adviser of the claimant as if her solicitor.[8]The evidence concluded on the afternoon of 27 October 2022. Mr MacDougall provided a written submission which he adopted, and it was agreed that Ms Ross, who had not had an opportunity to consider all of it over the lunch break, be given until 7 November 2022 to provide a written submission of her own, which she duly did. Both of the submissions were helpful.
The evidence
[9]The parties had prepared documentation in the form of a single Bundle, which was added to at the start of the hearing, most but not all of which was spoken to in evidence. The respondent’s witnesses were Ms Mhairi Dingwall, Ms Lisa Anderson, Ms Anne MacDougall, Ms Ellen Stott and Ms Emma Scott. All save Ms Dingwall gave their evidence remotely. The claimant gave evidence, as did her husband, in person. The hearing was therefore in the form of a hybrid hearing. I was satisfied that it had been conducted properly.
The Issues
[10]At the commencement of the hearing the Tribunal proposed the following as the issues in the case:(i) Did the respondent dismiss the claimant in terms of section 95(1)(c) of the Employment Rights Act 1996 (“the 1996 Act”) and in that regard has the respondent, without reasonable and proper cause, conducted itself in a manner calculated or likely seriously to damage or to destroy the relationship of trust and confidence between the respondent and claimant?(ii) If so, what was the reason or principal reason for the dismissal?(iii) If that reason was potentially a fair one under section 98(1) and (2) of the 1996 Act was it fair or unfair under section 98(4) of that Act?(iv) In the event that any claim succeeds to what remedy is the claimant entitled having regard to (i) losses sustained, (ii) contribution and (iii) whether there could have been a fair dismissal from a different process.[11]The parties agreed to the issues proposed, and I sought to explain the nature of those issues to the claimant and her representative in what may be described as layman’s terms.
The facts
[12]The claimant is Mrs Shelley Gill. Her date of birth is 4 November 1985.[13]The respondent is National Schizophrenic Fellowship (Scotland) Limited, which trades as Support in Mind Scotland.[14]The respondent supports those with mental health difficulties in Scotland. It is a charity, and has about 60 employees.[15]The DBI team contacts those in distress from matters such as bereavement, or trauma involving themselves or someone close to them, listens to them, and seeks to refer them to sources of further assistance, in order to lessen the distress that they feel.[16]The respondent is funded by the Scottish Government.[17]The respondent employed the claimant as a Senior Co-ordinator. Her employment commenced on 16 March 2020 as a Co-ordinator, and she was promoted in around September 2021. No contract of employment or statement of particulars for the claimant was provided to her.[18]The respondent had a Handbook which was provided to the claimant. It included a grievance procedure, and a Bullying and Harassment Policy. It also included a provision as to conflict of interest, which sought to require an employee to disclose a second job, including employment or other activity whether remunerated or not.[19]As a Senior Co-ordinator the claimant managed the Co-ordinators, amongst other duties set out in a Job Description. She was a part of the Distress Brief Interventions (DBI) team. She worked 28 hours per week. She also volunteered periodically at Women’s Aid in Inverness, and advised the respondent of that when she commenced employment.[20]The other Senior Co-ordinator was Ms Mhairi Dingwall. Initially the claimant and Ms Dingwall had a good working relationship. On 7 October 2021 the claimant received a message from Ms Dingwall with some client information attached by electronic communications system called Facebook messenger. The claimant did not consider that to be a safe way to do so. She thought that her relationship with Ms Dingwall became less good when she raised that with her.[21]In or around early November 2021 a meeting was held with the Scottish Government, which noted that some of the managerial roles were not filled. As a result of that some changes in the management were made, including for Ms MacDougall and Ms Anderson.[22]Shortly before 17 November 2021 the claimant heard Ms Dingwall state to the Co-ordinators in an online meeting something to the effect that what the claimant had earlier said to them about how personal information was taken from the client details on an email to refer the client to them, and transferred to the respondent’s computerised system, was not the correct way to do so and that the point in a conversation with a client a question about the client’s safety was asked was not how she had been told. The claimant felt undermined by those comments, and upset by that. She raised them, and related issues which included work done by Ms Dingwall when on holiday, with her manager Ms Lisa Anderson remotely by Teams on 17 November 2021. They had a similar conversation in the Inverness office of the respondent the next day. Ms Anderson said that she would speak to Ms Dingwall on 22 November 2021.[23]On or shortly before 18 November 2021 the respondent decided to appoint Ms Dingwall to the role acting up as Project Manager, which had become vacant after the occupant, Ms Anderson, had been promoted to a role as National Project Manager. The decision to appoint Ms Dingwall to the role was made jointly by Ms Anderson and Ms MacDougall. The two potential candidates for it were Ms Dingwall and the claimant, both of whom were Senior Co-ordinators. They considered that Ms Dingwall had more relevant prior managerial experience for the role than the claimant, and was performing well in the role, whereas the claimant had they thought experienced some difficulties. The duties that Ms Dingwall was to perform included some of those of a Senior Co-ordinator, as no new Senior Coordinator was at that stage to be appointed. Ms Anderson told the claimant of Ms Dingwall’s new role when speaking to her on 18 November 2021.[24]On 19 November 2021 the claimant spoke to Ms Anne MacDougall, the Area Manager of the respondent and Ms Anderson’s line manager. She raised her concerns with Ms MacDougall, who sought to be supportive of her.[25]Ms MacDougall spoke that day to Ms Anderson and they both agreed that after Ms Anderson had spoken to Ms Dingwall on 22 November 2022, she would then meet both the claimant and Ms Dingwall as it was a matter which needed to be sorted out immediately.[26]Ms Anderson met Ms Dingwall on 22 November 2021, who said that there were different ways of working and she had not intentionally undermined the claimant. Ms Dingwall was upset at that time.[27]Attempts to arrange a meeting between the claimant, Ms Anderson and Ms Dingwall were not initially successful as the claimant was off sick with Covid-19.[28]On 24 November 2021 the claimant emailed Ms MacDougall to request a brief chat before the meeting referred to in the following paragraph. She said that she wanted to resolve matters and move on. In the morning of that meeting and before it took place Ms MacDougall spoke by telephone to the claimant and sought to be supportive of her[29]A meeting was arranged involving the claimant, Ms Dingwall, and Ms MacDougall on 25 November 2021. A note of it taken by Ms MacDougall is a reasonably accurate summary. Both the claimant and Ms Dingwall agreed on a way forward as set out in that note. It was emailed to those who attended and Ms Anderson by email that same day. The claimant did not intimate any issues with the note.[30]An issue arose as to how to manage the first contact from a client or prospective client. Clients would be referred by third parties, including Accident and Emergency departments, GPs. police officers and others. It was essential that the first contact with that client be made within 24 hours of such a referral. It was suggested that a trial take place whereby the Senior Co-ordinators would seek to contact the prospective client first, before passing them to the Co-ordinators to manage more directly.[31]On 13 December 2021 Ms Anderson emailed the DBI team, including the Co-ordinators, setting out some “wee changes” which set out the roles each of the claimant, Ms Dingwall, and Ms Anderson would perform.[32]On 16 December 2021 Ms Dingwall emailed the DBI team to state that the trial referred to at paragraph 18 above was to cease, and that they would revert to the previous method of allocating clients to the Co-ordinators to contact directly.[33]Both the claimant and Ms Dingwall had been asked by Ms Anderson to prepare a weekly sheet showing their working day. Its purpose had been to monitor workload and related matters. It was in the Exel format. On 20 December 2021 Ms Anderson sent an email to the claimant referring to the sheet from the previous week and asking for it, saying that Ms Dingwall had prepared it in a different format, which she had found easier. That format was Word.[34]On 21 December 2021 the claimant sought some time off in lieu (TOIL) by email to Ms Anderson, who approved it by return email. The claimant did not enter that TOIL on the electronic sheet for her. The claimant made another request for TOIL on 7 January 2022 which Ms Anderson similarly approved.[35]The role of Project Manager which Ms Dingwall was acting up in was advertised. The claimant did not apply for it. Ms Dingwall did and was appointed to it.[36]On 25 January 2022 the claimant request TOIL of two hours for 8 February 2022. Ms Anderson approved it and added “You better not be going for a job interview!”. That remark was intended to be a joke. Later that day the claimant emailed about work being finished at 17.38. Ms Anderson replied the next day to ask why she was working that late. The claimant replied to explain about her printer not working, and uploading an interview result. Ms Anderson replied mentioning that “don’t worry about doing everything all at once though”, and mentioned a catch-up.[37]On 1 February 2022 the claimant was working at home, but unwell with an upset stomach. She exchanged emails with Ms Anderson.[38]On 8 February 2022 the claimant exchanged further emails with Ms Anderson. An issue had arisen following an audit of those with Protection of Vulnerable Groups (PVG) disclosure approvals. It had been discovered that some staff did not have that approval, and should not work with clients until they did. Changes to process took place to ensure that those who did have PVG approval, including the claimant, had that contact.[39]On or before 10 February 2022 the claimant was discussing matters with Ms Tracy Houston, another employee of the respondent. Ms Houston said that Ms Dingwall was trying to contact her and ended the call with the claimant quickly. Ms Houston later prepared an email to state that Ms Dingwall had only been making an enquiry, referring to her as “she”, but in error sent that to Ms Dingwall, who was upset at what she thought was a discussion about her behind her back by the claimant and Ms Houston. Ms Anderson was informed by Ms Dingwall, who sought to investigate it and asked the claimant about it. The claimant explained what had happened and denied that she had not been talking behind Ms Dingwall’s back.[40]On 15 February 2022 the claimant emailed Ms Dingwall requesting annual leave and TOIL, which Ms Dingwall responded to that day not accepting the former request for reasons she gave in that message.[41]On 17 February 2022 the claimant emailed a colleague Ms Maguire about taking over some of her duties when the claimant was to be on holiday. She said to get in touch if there was anything she wished to talk through. Ms Maguire asked for a call to run through the tasks.[42]On 18 February 2022 the claimant sent an email to Ms Dingwall and Ms Anderson with regard to her workload, which she said was for two senior co-ordinators, and that she was voicing her concerns as Ms Anderson had asked her to.[43]Ms Anderson was concerned at or around that time as she felt that the claimant was not following her instructions to conduct initial calls with prospective clients, and then pass those who responded to her coordinators, but was delegating that role to the co-ordinators. She contacted Ellen Stott of HR of the respondent with regard to her concerns, and a meeting was arranged with the claimant, Ms Anderson and Ms Stott on 22 February 2022. Ms Anderson did not pass to Ms Stott the claimant’s email of 18 February 2022. Ms Anderson informed the claimant verbally of the meeting on 22 February 2022.[44]The meeting was held with a view to resolve some tensions and find a way of working going forward. Ms Stott considered that it was an informal meeting as the first stage in a performance management process (the policy for which, if any, was not before the Tribunal). It was held remotely by Teams. The claimant intimated her concerns that she had been undermined, and in relation to the level of her workload. Ms Anderson raised her concerns with the claimant not following instructions. The claimant argued that the instructions were not reasonable, or workable, in summary.[45]The claimant had attended the remote meeting alone, but with her in the house was her husband who heard her becoming distressed and passed her a note during the meeting to ask about whether she needed a companion. That was raised by Ms Stott, after which the meeting continued without him. Ms Stott stated that it was not helpful for the claimant not to follow instructions from her managers. Latterly points were agreed for a way forward which included the claimant trialling the changes for one – two weeks and feeding back on them, a weekly check with Ms Anderson, and following the instructions given earlier to deal with client referrals in the first instance herself, not delegating that, but if she could not informing Ms Anderson before the end of that day. Ms Stott prepared a day or so afterwards a draft note of that meeting, but did not send it to the claimant or Ms Anderson at that time. It is a reasonably accurate note of the meeting.[46]Later that same day at 7.16pm Ms Anderson emailed the claimant to state that she had made the decision to remove her from certain Teams management duties, which she set out. She also said that allocations to the team would be by email. She made those changes as she thought that they would reduce the workload and stress for the claimant.[47]Ms Stott was not aware of those changes being made at the time. When she became aware of them she restored access to Teams for the claimant as she considered that Ms Anderson had been wrong to act as she did in removing such access.[48]On 23 February 2022 the claimant started a period of sick leave. The GP fit note referred to work related stress. She did not return to work. She remained on sick pay for the period to the termination of her employment.[49]Colleagues of the claimant wished to send her get well soon messages. Ms Dingwall sent the card after 16 days. It did not include all of the individual messages.[50]The claimant sought documentation from the respondent in a series of emails in April 2022, including by email to Ms Stott on 26 April 2022 in which she referred to a potential grievance. Ms Scott sought to obtain that information and contacted the IT provider TSG to do so. She provided some documentation by email on 18 April 2022.[51]Ms Emma Scott, Area Manager for Dumfries and Galloway of the respondent, conducted an investigation into allegations that the claimant had accessed confidential client information whilst on sick leave, and had taken a second job without informing the respondent. The source of those allegations was Ms Anderson and Ms Dingwall, both of whom she interviewed. Her investigation commenced on 27 April 2022.[52]On 27 April 2022 the claimant was offered employment by an organisation named MCR Pathways as a Mentor Services Co-ordinator. The claimant accepted that offer.[53]On 28 April 2022 the claimant was informed of the investigation by Ms Stott, who informed her that access to Teams had been suspended temporarily pending that investigation.[54]On 4 May 2022 the claimant and Ms Stott exchanged emails with regard to the investigation and the allegations involving a potential data breach. In emails Ms Stott passed some of the requested documentation to the claimant, including staff notes in relation to her, and separately the respondent’s Handbook.[55]On 8 May 2022 the claimant sent an email to Ms Stott intimating her resignation on one month’s notice. She referred to her discussions with Ms Dingwall, Ms Anderson and Ms MacDougall, and what she had seen in notes produced, that she had been targeted by management, micromanaged, bullied and worn down to a point she was suicidal She referred to the notes she had been provided, which she said contained lies which had been fabricated. She referred to the investigation into a data breach, which she said showed a priority on management to remove her from her position.[56]The claimant did not intimate a formal grievance before doing so, but had expressed an intention to do so.[57]Ms Stott acknowledged the resignation by email the following day. She accepted it by email dated 12 May 2022, and made reference to the grievance, after another email that day from the claimant explaining why she had decided to resign.[58]On 16 May 2022 the claimant started her new employment. She was paid a higher salary when doing so than that which she had received at the respondent.[59]Ms Scott’s investigation report was dated 31 May 2022. She did not meet with the claimant as she understood that it was not appropriate to do so when the claimant was on sick leave. She understood that the claimant’s email account had been used to access different sets of data, being data sets, managers folders, closed files, referrals to the respondent, and handover details, which amounted to a total of 16 files. She understood that the access had been on various occasions in the period 14 – 21 April 2022 at times between 10pm and 6am. She understood that the documentation accessed included confidential and private information held on clients.[60]The investigation report concluded that there should be formal disciplinary action on the allegations. Formal disciplinary action did not take place as the claimant had resigned.[61]The claimant’s employment with the respondent terminated on 8 June 2022.[62]The claimant was later appointed to a new role with an organisation named Brake.[63]The claimant’s husband started a dog-boarding business in about March 2022. The claimant helped out in it from time to time. The claimant had also held a role at Women’s Aid in Inverness during her employment with the respondent, and formed a charity.[64]The claimant commenced early conciliation on 23 May 2022 and received the Certificate for the same on 6 June 2022. The Claim Form in this claim was presented to the Tribunal on 29 June 2022.[65]The claimant’s net pay at the respondent was £1,389.39 normally per month, or £320.63 per week. Her pay was £173.92 per week during the twelve week period prior to the termination, when the claimant received sick pay. The respondent’s submission[66]Mr MacDougall provided a written submission shortly before lunch on 27 October 2022, and the following is a very basic summary of it. He set out the statutory test, and referred to authority on the matters raised. He also set out a chronology. He argued that there had been no fundamental breach of contract. He argued that that had not been established from matters in November 2021, the alleged targeting of the claimant, or the issue as to data breach being investigated. He argued that in any event there was no causation, as the claimant had resigned when she had a new job to go to. He also argued that there had been too long a delay. If there was a finding of unfair dismissal, he argued that there had been no loss, save any statutory rights, but that should be reduced because of the likelihood of dismissal and related matters. The claimant’s submission[67]The following again is a basic summary of the written submission that was helpfully provided. The claimant had been constructively dismissed. The law on that was summarised, and a chronology provided. The respondent had “gaslit” the claimant. The most obvious evidence of that was not passing on a get well soon card for 16 days. The respondent had not provided her with support. It had given her an excessive workload. The claimant had been isolated from the team, and removed from Teams on 22 February 2022 which had left her feeling suicidal. Contact notes had not been made at the time. The claimant had three children to support, and a mortgage, and had resigned after finding new employment. Her claim for constructive dismissal should succeed. The law (i) Unfair dismissal
The law
[68]Section 95 of the 1996 Act provides, so far as material for this case, as follows: “95 Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) only 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.”[69]Section 98 of the Act provides, so far as material for this case, as follows: “98 General(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. …………… (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”………………..[70]The onus of proving such a dismissal where that is denied by the respondent falls on the claimant. From the case of Western Excavating Ltd v Sharp [1978] IRLR 27 followed in subsequent authorities, in order for an employee to be able to claim constructive dismissal, four conditions must be met:(1) There must be a breach of contract by the employer, actual or anticipatory.(2) That breach must be significant, going to the root of the contract, such that it is repudiatory(3) The employee must leave in response to the breach and not for some other, unconnected reason.(4) She must not delay too long in terminating the contract in response to the employer's breach, otherwise she may have acquiesced in the breach.[71]In every contract of employment there is an implied term derived from Malik v BCCI SA (in liquidation) [1998] AC 20, which was slightly amended subsequently. The term was held in Malik to be as follows: “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.”[72]In Baldwin v Brighton and Hove City Council [2007] IRLR 232 the EAT held that the use of the word “and” following “calculated” in the passage quoted above was an error of transcription of the previous authorities, and that the relevant test is satisfied if either of the requirements is met such that the test should be “calculated or likely”. That was reaffirmed by the EAT in Leeds Dental Team Ltd v Rose [2014] IRLR 8, which also held that the test was an objective one: “The test does not require a Tribunal to make a factual finding as to what the actual intention of the employer was; the employer's subjective intention is irrelevant. If the employer acts in such a way, considered objectively, that his conduct is likely to destroy or seriously damage the relationship of trust and confidence, then he is taken to have the objective intention spoken of…”[73]The law relating to constructive dismissals was reviewed in Wright v North Lanarkshire Council [2014] ICR 77, which in turn referred to Meikle v Nottinghamshire Council [2004] IRLR 703 on the issue of causation. The reasonableness or otherwise of the employer's actions may be evidence as to whether there has been a constructive dismissal, although the test is contractual: Courtaulds Northern Spinning Ltd v Sibson and Transport and General Workers' Union [1988] IRLR 305, Prestwick Circuits Ltd v McAndrew [1990] IRLR 191. Where the alleged breach of trust and confidence consists solely of an exercise of a discretion granted to the employer an employee who is disadvantaged by it can only challenge it by showing that no reasonable employer would have done so IBM UK Holdings Ltd [2018] IRLR 4 (applying Braganza v BP Shipping Ltd [2015] IRLR 487).[74]Where it is argued that there was a final straw, being a last act in a series of acts that cumulatively lead to repudiation, that last straw must not be entirely trivial – Kaur v Leeds Teaching Hospitals NHS Trust [2018] IRLR 833. The questions that a Tribunal should ask were summarised as follows: “(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?........ (5) Did the employee resign in response (or partly in response) to that breach?”[75]If there is such delay before the resignation indicating that the individual has acquiesced (affirmed is the term used in English law) in any breach, there will not be a dismissal. The leading case on that principle is W E Cox Toner (International) Ltd v Crook [1981] IRLR 443. In Bunning v GT Bunning and Sons Ltd [2005] EWCA Civ 104 there was a finding of detriment because of pregnancy, but not that there had been a constructive dismissal, as there had been acts which amounted to affirmation.[76]In Sharp it was held that the employee must make up his or her mind “soon”, to avoid affirmation or acquiescence. Delaying too long can amount to acquiescence, but there is not set period of time. It is an issue of fact and circumstance.[77]One issue of relevance in the assessment of delay is where the employee has been off sick during the period. The issue has been addressed in a number of authorities, but not in a manner that is always easy to reconcile.[78]In Bashir v Brillo Manufacturing Co [1979] IRLR 295 a two-month delay while off sick and claiming sick pay was held not to amount to affirmation.[79]In el-Hoshi v Pizza Express Restaurants Ltd UKEAT/0857/03 the employee was off sick with depression for three months after the alleged repudiation, submitting sick notes and receiving sick pay; his claim for constructive dismissal was allowed to proceed as there was no affirmation, the EAT saying that receipt of sick pay is at best a neutral factor which should not prejudice the employee's rights.[80]In Fereday v South Staffordshire NHS Primary Care Trust UKEAT/0513/10 it was held that the employee had affirmed after a delay of six weeks while receiving sick pay, it being said that such receipt is not necessarily a neutral factor, depending on the facts.[81]In Hadji v St Luke's Plymouth UKEAT/0095/12 a period of four months between repudiation and resignation, spent on sick leave (but with the complication that the employee did not receive sick pay), was held to constitute affirmation, in the light of consideration being given by him to possible alternative roles within the organisation, up to the eventual decision to leave.[82]In Chindove v William Morrison Supermarkets Ltd UKEAT/0201/13 a period of sickness absence of six weeks before resigning was held not to amount to affirmation. The then President of the EAT indicated that, as a general principle, a tribunal might be more indulgent towards the period of delay because the need to make a decision one way or the other is arguably less pressing than if the employee is continuing actually to work for the employer. That case also addressed the factor of someone looking for a new job as there were financial commitments to meet.[83]In Mari (Colmar) v Reuters Ltd UKEAT/0539/13 the claimant was in a senior position, was off sick with stress and when she returned claimed that she was given no work commensurate with her position and was badly treated by the employer and fellow employees. She went off sick again, this time for 19 months, at the end of which she resigned and claimed constructive dismissal. She had claimed sick pay for 39 weeks during this period. The employer argued that she had affirmed her contract and the tribunal agreed. The employer relied on her receipt of sick pay as only one of four factors showing affirmation, the others being (i) her insistence on having access to work email reinstated, (i) her request to be considered for permanent health insurance payments and (iii) continuing discussions with the employer about other matters consistent with wishing to return to work. The EAT considered the case law, held that the case was not one of constructive dismissal, and that each case would be dependent on its own facts.[84]Breach of the implied term as to trust and confidence set out above is inevitably a fundamental breach amounting to repudiation - Morrow v Safeway Stores Ltd [2002] IRLR 9.[85]If there is held to be a dismissal, there must then be consideration of what the reason, or principal reason, for that dismissal was, and if it was a potentially fair reason under section 98(2) whether or not it was fair under section 98(4) of the Employment Rights Act 1996 Savoia v Chiltern Herb Farms Ltd [1982] IRLR 166. It is possible, if somewhat unusual, for a dismissal under section 95(1)(c) to be fair. In that regard the Tribunal should take account of the terms of the ACAS Code of Practice on Disciplinary and Grievance Procedures, so far as relevant. Observations on the evidence[86]The witnesses for the respondent are addressed in the order in which they gave evidence (i) Mhairi Dingwall[87]Ms Dingwall was I consider seeking to be honest in her evidence. I considered that she was generally reliable in what she stated. There were criticisms of her in the submission, including over a get well soon card, but they had not fully been raised in cross examination, and it did not appear to me that the matter was one of “gaslighting” as the claimant alleged. Messages exchanged as to client information being sent by electronic means did not appear to me to be a basis for the change of attitude the claimant claimed. There was also reference in submission to the pleaded case, but that was not pled by Ms Dingwall herself, but by the respondent. These were I considered at the highest minor matters. (ii) Lisa Anderson[88]There was one aspect of Ms Anderson’s evidence I had difficulty with. It was that she said that she had sent her email at 7.16pm on 22 February 2022 to help the claimant. That was not the impression Ms Stott had formed, as she reversed it very quickly, and thought that it had been a decision borne of frustration. I agree with Ms Stott. The timing of the message, about three hours after the claimant’s message which in effect stated that she was not following the agreement reached at around 1.30pm that day, was the context. The message itself did not state that it was to help the claimant, but read as if it was some form of action against her. I address it further below. This was an important matter, and as I could not accept Ms Anderson’s evidence about it I did require to consider carefully whether her other evidence was credible and reliable. That was all in the context where Ms Anderson had sought advice from HR when considering that the relationship with the claimant was, as it was paraphrased by Ms Stott “unworkable”. It appeared to me however from the terms of emails sent and the evidence overall that Ms Anderson was seeking to support the claimant in general terms, and did not seek to have her leave. I did not consider that the allegation of micro-managing the claimant was made out, nor those relating to threatening behaviour or similar. There were allegations of gaslighting against Ms Anderson, but I did not consider that they had been made out. (iii) Anne MacDougall[89]Ms MacDougall was I consider seeking to be honest in her evidence. I considered that she was reliable in what she stated. I considered that she gave her evidence convincingly, and her seeking to support the claimant had been genuine. I did not consider that the allegation that she had been threatening towards the claimant was correct. (iv) Ellen Stott[90]Ms Stott was I consider seeking to be honest in her evidence. I considered that she was reliable in what she stated. She sought to assist the claimant generally, and as stated reversed Ms Anderson’s decision. She sought to assist the claimant in relation to an oral subject access request, and she also handled the resignation with sympathy and consideration, giving more time before accepting it. (v) Emma Scott[91]Ms Scott was I consider seeking to be honest in her evidence. I considered that she was generally reliable in what she stated, so far as it went, but her conclusions did not have the benefit of comment from the claimant and were therefore in the nature of preliminary ones. (vi) The claimant Shelley Gill[92]Mrs Gill was, I concluded, seeking to be honest, but there were some aspects of her evidence that were not reliable. I do accept that she felt substantially distressed by the matters about which she complained, and that that distress was genuine. But there were a number of the allegations she made that I did not accept. For example, her pleadings alleged that Ms MacDougall made her feel that she was causing problems and that Ms MacDougall dismissed her concerns. There were also allegations in relation to a meeting on 25 November 2021, and a further allegation that the claimant was prevented from seeing notes of the meeting. That was not the evidence of Ms MacDougall, who was adamant that that had not happened, and I preferred Ms MacDougall’s evidence on that. It was clear that the email sent by Ms MacDougall itself attached the notes of the meeting, such that it was clear that the claimant had not been prevented from seeing them but had been sent them. I did not consider that there was the ambiguity as to that the claimant said that there was. The claimant claimed that she was the only member of staff who required to fill in a daily log, but that was not accurate. Ms Dingwall did, as was also spoken to by Ms Anderson. The basis of the allegation that this was like an unofficial punishment does not exist.[93]There are some aspects that the claimant is correct about, to an extent. Her responsibilities were changed a number of times. She felt that the workload was for two senior co-ordinators, and set that out in an email on 18 February 2022. That email was not passed on to Ms Stott who held an informal mediation meeting with the claimant and Ms Anderson four days later. Ms Anderson did then remove the claimant from part of the Teams system, which Ms Stott quickly reversed, but which itself caused the claimant substantial distress as her husband verified most convincingly. The claimant went off sick on the following day, and did not return to work.[94]The resignation was some time later, on 8 May 2022, and then came with a month’s notice so as to expire on 8 June 2022. In the intervening period, from early April 2022 when off sick, the claimant sought further work. That was understandable, but whether sufficient for this claim is a matter I address below. What is worthy of comment is that the claimant received a formal offer of new employment on 27 April 2022, which she accepted. She was aware that she would be working for the new employer, and did so from 16 May 2022. It is therefore most surprising that her resignation on 8 May 2022 gave a month’s notice, and referred to her sick leave and annual leave, as a result of which she continued to be paid sick leave until the employment terminated on 8 June 2022. The reason she was not working for the respondent in fact on 16 May 2022 and onwards is not that she was unable to do so from illness, but because she had another job she was working in. I accept that she thought that she could do so because her doctor had said that she could not work at the respondent, such that this was not deliberate, but it was not the correct step to take. She ought to have known that, in my judgment, even if in fact she did not. I consider that what she did in that regard was wrong.[95]A further matter that requires consideration is the allegation that the claimant accessed confidential client information when she was on sick leave, and that that was or could have been a breach of data protection legislation. I consider that there was evidence that entitled an investigation, but was satisfied with the claimant’s explanation that she had used her work laptop for searching for other employment and related matters, and that she had not in fact looked at confidential client or other information. I address it further below. A separate allegation was that she had been working in a second job. I accept her evidence on that, which was firstly that the business was that of her husband, which was supported by documentary evidence and his own oral evidence, and also that her actual involvement was very minor indeed. (vii) Dominic Gill[96]I consider that Mr Gill’s brief evidence was obviously credible and reliable.
Discussion
[97]This case had a limited financial value. Although the claimant had sought a sum of £25,000 in her schedule of loss that was not based on a proper understanding of what sums a Tribunal can award in a claim of constructive dismissal. No other claims were presented. The claimant was at that stage acting as a party litigant, and latterly had her friend assisting her, such that her not fully understanding how remedy is assessed is understandable. It became clear however that her claim in financial terms was to a basic award, and a compensatory award limited to loss of statutory rights, for the reasons set out below. Its financial value, if it succeeded, was not high because of that. This was however a claim that both parties treated as being of importance to them, and it is clear that matters heard by the Employment Tribunal had a value to each of the parties beyond the purely financial.[98]I answer the issues as follows: Did the respondent dismiss the claimant in terms of section 95(1)(c) of the Employment Rights Act 1996 (“the 1996 Act”) and in that regard has the respondent, without reasonable and proper cause, conducted itself in a manner calculated or likely seriously to damage or to destroy the relationship of trust and confidence between the respondent and claimant?[99]It is I consider helpful to state again that the test is an objective one. Neither the subjective intention of the respondent, nor the subjective perception of the claimant, are determinative, although they can be considered within the evidence as a whole. In assessing matters objectively I take into account the circumstances of the respondent’s undertaking. It involves seeking to assist those who can be in acute states of distress. That leads to its own stresses and pressures for those providing the service to them. What may seem to be more minor matters in another context can be perceived to hold great significance in this context, and that is a factor I can take into account. But the test remains an objective one.[100]The test has different elements within it. It refers to the employer not having reasonable and proper cause for its acts – if it does, there is no dismissal even if there is a fundamental breach of contract. It also refers to conduct likely (the relevant term in this context as I did not consider that there was any calculation by the respondent) seriously to damage or destroy the relationship of trust and confidence, to paraphrase. The onus falls on the claimant to establish her case. More than what may be regarded as unreasonable conduct is required.[101]I shall address first of all the various matters of which the claimant complained. (i) The claimant’s view that she was being undermined by Ms Dingwall[102]From the subjective standpoint of the claimant I can see why Ms Dingwall’s comment to staff as to not doing what the claimant suggested was thought to be undermining her, but it was quickly confirmed that that was not the intention, and the claimant appears to have accepted that at the time. It was I consider a minor misunderstanding that was quickly resolved. Nevertheless I can see that what was said to colleagues could have been expressed more considerately and that some form of sense of being undermined was reasonable on the part of the claimant. That was heightened by the disclosure almost immediately after the issue was raised that Ms Dingwall had been promoted to the role of Project Manager on an acting basis, such that the issue about which the claimant had complained was made in respect of her manager, which she had not known at the time she initiated the complaint. (ii) Changes to the claimant’s role[103]It is true that there were a number of changes to the claimant’s role from time to time. That is not surprising in the circumstances of what the respondent does. It had an increasing level of work to do. It had the issue of PVG documentation that needed to be managed. It sought to find solutions for those issues. It has a reasonable margin of appreciation to decide such matters, and it is not for me to substitute my view for that of the respondent, provided that what they do is within the range of that which is reasonable. I consider that it was. The claimant accepted in evidence that reference to her duties being “slashed” was not entirely apt. She had pled, and maintained, that she was the only one who had to do daily work sheets, but that is not correct, as Ms Dingwall was required to as well, as was made clear to the claimant by an email referring to a different format of that. I accept that the claimant found the pace of change and extent of it difficult, but did not consider that there was any material issue with the changes in role looking at matters objectively. (iii) The response by Ms Anderson In November 2021[104]I do not consider that Ms Anderson disbelieved the claimant, rather she was seeking to put matters in context. That context was that Ms Dingwall had just, unbeknownst initially to the claimant, been promoted to the position of acting Project Manager. Ms Anderson sought to find a solution to the issue, and in doing so made it clear that she wished the claimant to remain in employment. That is fortified by some of the messages she sent. (iv) The response by Ms MacDougall in November 2021[105]I prefer the evidence of Ms MacDougall on this point. I consider that she was seeking to support the claimant, and to calm matters down for her, which was a role she had performed previously when the claimant had been anxious about some point. This occurred for both calls in November 2021 on these matters, and I did not accept the claimant’s allegation that Ms MacDougall threatened her with her probationary period. I prefer the evidence that this was an explanation that at that stage in the new role of Senior Co-ordinator perfection of performance was not sought, to paraphrase the evidence. (v) The meeting on 25 November 2021[106]I consider that the note of the meeting is reasonably accurate. The claimant was not refused representation as I do not find that she sought it. It was an informal meeting. It is unfortunate that Ms MacDougall and the claimant thought that it was a mediation meeting but Ms Stott thought that it was an informal meeting as the first stage in performance management. Ms Stott was not a mediator formally. But it makes little difference in practice. The meeting was explained at the start as trying to find a way forward. That succeeded. There was a solution found for matters going forward which all present agreed to. Nothing formal at that stage was required as a result. Ms MacDougall sent the note of the meeting to the claimant, who acknowledged it. She did not ask about any further notes if she thought that that was what the email referred to. Her pleadings about how the meeting was held are not supported by a reading of the email, or the evidence overall. (vi) Messages in January 2022[107]There were messages about TOIL. I did not consider that Ms Anderson’s reference to better not be going for a job interview was anything other than a light-hearted joke. It had an exclamation mark. It was part of other evidence of such similar jokes being made. If Ms Anderson genuinely wanted the claimant to leave, she would not have said that at all, but kept quiet in the hope that any job interview would lead to the claimant’s departure. The claimant was not acting on a reasonable basis if she regarded that as any form of a threat. (vii) The renewed instruction to the claimant to make the first call to clients in February 2022[108]It was clear that there was, in effect, such an instruction, confirmed about 8 February 2022. The details of it were not entirely simple, partly as there was a somewhat different rule for Fridays, but the key part was for the claimant to respond to a client referral within 24 hours. The claimant’s concern at that was that the referrals were increasing, with 11 on one day, possibly 13 on another, and that that workload was unreasonable for her, on top of her other duties. She also thought it wrong to impose it when Coordinators had free time to help, and that the clients would not be receiving the service that they should as calls would have to be terminated earlier than they otherwise would.[109]It seemed to me firstly that it would not be clear whether all those in respect of whom referrals had been made would answer a telephone call, secondly if they did how long each call would take, but that generally it could be about 15 minutes or more, thirdly that if there were safeguarding issues, such as comments as to suicidal ideation, the call could take about an hour, and fourthly there was a possibility that in those circumstances one person could not perform all the calls if there were say 11 long calls to make in one day. Against that, the respondent was seeking to manage a difficult situation. There was no certainty in how to do so to best effect. It was then addressed at the meeting referred to below. I do not consider that the instruction can be said to be so unreasonable as to amount to one that a reasonable employer could not give. I consider that there was a reasonable and proper cause for the instruction in general terms. If it then became clear that it would not be practicable to work, that was another issue. In fact the matter was addressed shortly afterwards at the meeting on 22 February 2022, addressed further below. (viii) The discussion held on 10 February 2022[110]The discussion between the claimant and Ms Anderson was held as Ms Dingwall had been upset to receive a message sent, in error, by another staff member Ms Houston, who had been discussing issues with the claimant. Ms Dingwall was concerned that the claimant and Ms Houston had been speaking about her behind her back, and raised that with Ms Anderson. Ms Anderson investigated that, as was entirely reasonable. She spoke to the claimant on 10 February 2022, and asked her for an explanation. It was not, I consider, an interrogation as alleged, but simply seeking to find out what had happened. Ms Anderson did not accuse the claimant of malicious behaviour. (ix) Email of 17 February 2022[111]There was also an allegation that the claimant had had to contact another colleague Ms Maguire and give her training, but the emails about that did not support such an allegation. It was simply to be a chat about what duties she would do when the claimant was on holiday. This was entirely sensible, and part of steps often taken to cover someone’s annual leave. It did not indicate different treatment of the claimant in my view. (x) The meeting on 22 February 2022[112]I prefer the evidence for the respondent that the note is a reasonable accurate record of the meeting. It seems to me that the claimant did not fully recall some aspects of the evidence, and she accepted that she had had some concerns over that which she discussed with her GP, who latterly advised that that may be an effect of her distress and the stress she suffered. The context of the meeting was a concern on the part of Ms Anderson that the claimant was not following instructions. It appeared to me that that was the case, and it was not seriously disputed by the claimant, whose position was rather that the instruction was not a reasonable one or a reasonable use of the resources. There was therefore a difference of view between the claimant and Ms Anderson.[113]What I consider important is that the meeting ended in agreement on three matters, the last of which was that the claimant would act on the instructions, make the calls herself, and if she found she could not do them all, tell Ms Anderson. Ms Anderson would then either allocate them to others or make them herself. That was the safety mechanism referred to above. It was I consider a reasonable way to resolve the difference of view, and that is supported by the claimant’s agreement to it at the time, in my view.[114]The difficulty is that the claimant did not then follow up on that agreement according to its terms. At around 4pm that same day, the meeting having ended around 1.30pm, she still had some calls to make. She tried to call Ms Anderson but there was no answer on her phone. Rather than send a message electronically, which would have accorded with the agreement reached, she decided to allocate calls to Co-Ordinators. She ought not to have done so without Ms Anderson’s approval. She ought to have informed Ms Anderson of the issue, and if there was a delay or other difficulty that was a matter for Ms Anderson. I consider that the claimant ought not to have taken matters into her own hands, and made the decision that she did, so shortly after agreeing, in effect, not to do that.[115]For completeness I should also say that I accepted the evidence for the claimant and Mr Gill that he had not been present at the meeting, but intervened when he heard his wife becoming distressed during it. (xi) The removal of the claimant from certain aspects of Teams late on 22 February 2022[116]As addressed above I consider that Ms Anderson’s email which removed the claimant from certain aspects of Teams, which was a method of communication with the team she worked in, and other matters, was not an appropriate or reasonable act. It was not to support the claimant, as Ms Anderson claimed in evidence, but was in reaction to the claimant’s message, which had been sent to her at 16.08. It was doubtless borne of frustration but that is not really the point. It cut off the claimant from the Teams software package. Given the background of the meeting that day and the matters discussed at it, doing so was bound to cause the claimant concerns and distress. It did, and to a material extent as Mr Gill explained movingly in his evidence.[117]Although “gaslighting” was a term used in the evidence, and part of the allegations made by the claimant, it is more a term coined colloquially. It is not directly part of the law on constructive dismissal, although it is a factor to take into account, as if there is deliberate behaviour of such a kind that can breach the implied term as to trust and confidence. The closest the evidence on it came was this email from Ms Anderson. It had a material effect on the claimant. It did not appear to me that there was sufficient other evidence of similar conduct excluding the claimant, deliberately blaming her for what had originally been an instruction, or similar matters.[118]The claimant went off work sick on the following day, 23 February 2022, and did not return to work. Whilst off sick, she started to look for other jobs by 4 April 2022. (xii) The investigation into alleged data breaches on 27 April 2022[119]Given the disclosure of the possibility of data breach, involving confidential information, an investigation was entirely reasonable. The allegation of having another job of some kind when off sick was also a matter entirely reasonable to investigate, given the terms of comments on social media referring specifically to the claimant. As that investigation was being undertaken it was entirely reasonable to suspend the claimant’s access to the system for that reason, all the more so as she was on sick leave at that time. (xiii) The circumstances cumulatively at the time of the claimant’s resignation on 8 May 2022.[120]The claimant exchanged messages with Ms Stott about a potential grievance. She sought documents for that to assist her. That included some records of Teams chats, which were produced to her. The claimant considered, pled and gave evidence as to “blatant lies in that document”. In reality there was one material entry, dated 16 February 2022, which the claimant said was from 8 February 2022, but which was indicative of concerns held by the claimant when they were held not by her but by Ms Dingwall. The claimant believed that the document had been made up for a subject access request response, including as it was not in date order. I did not accept the claimant’s evidence in this regard. It made no sense to me why Ms Dingwall would deliberately lie in such a document, or fabricate it for such a purpose. The claimant did have issues with full accuracy of memory. Ms Dingwall is likely to have made the entry at about the time to record what she thought had been said. It is more likely that it is correct, or if not that she was incorrect by making some form of error, but I did not consider that it was a deliberate lie or fabrication.[121]The claimant had started to look for other jobs. She did not wish to resign without having another one to go to, as there is a mortgage to pay, and a family to support. She was successful, and a formal offer of a new position was made to her on 27 April 2022. She resigned by email on 8 May 2022, as dealt with above.[122]It appears to me that the answer to each of the points identified in Kaur which are not exhaustive of the issues for dismissal, are: “(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?” The investigation into data breach. “(2) Has he or she affirmed the contract since that act?” No “(3) If not, was that act (or omission) by itself a repudiatory breach of contract?” No. The respondent had reasonable and proper cause for undertaking an investigation into a suspected data breach, and when it was suggested that the claimant was running a business or involved in that, when off sick. “(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?........” No. I consider that looking at the position both individually in relation to the decision set out in the email sent at 19.16 on 22 February 2022, and collectively for issues where the claimant’s evidence is accepted including that email, that there is not sufficient to hold that there was a repudiatory breach of the term as to trust and confidence.”[123]Whilst the decision to send that email was itself a wrong one, and caused great distress, it must be seen in the context firstly of the fact that the claimant did not resign at that stage, rather she raised the issue with Ms Stott, and secondly the very quick action rightly taken by Ms Stott to reverse it. It is also considered in the context of the claimant’s own message that day to Ms Anderson, which was not following the process agreed not long beforehand that same day. This was the issue that came close to being repudiatory, but I concluded that it did not reach the threshold either in isolation or cumulatively with other aspects. Whilst there had been some matters of which the claimant held the subjective view that they had been bullying or micro-managing or similar, some matters could have been handled better, and there was the claim of being undermined addressed above, I did not find that they were either individually or cumulatively with that email are sufficient to amount to something that was a breach of the term as to trust and confidence. This was far from a straightforward matter, and the claimant did have arguments in her favour, but I consider that in all the circumstances they do not meet the test explained in the authorities set out above. In light of that, there is no dismissal in law, and the claim must fail for that reason. The point was not however a simple one, and I have addressed the other issues fully because of that. “(5) Did the employee resign in response (or partly in response) to that breach?” If I am wrong in that I addressed this issue. I consider that the claimant did resign partly in relation to the 22 February 2022 email from Ms Anderson. Delay[124]Lest I be wrong in that matter, I then addressed the separate issue of whether the claimant delayed unduly in resigning such that she acquiesced in any breach. If I take, for this purpose, as the last act in a series as a final straw being the email on 22 February 2022, being the last act of the respondent which is potentially a basis for breach of the implied term (the data breach issue not being such a breach), the period from then to the resignation was to 8 May 2022. That is something over 10 weeks. The claimant was off sick during that period, but she was well enough to apply for jobs, attend interviews, and receive and accept the offer of the new job. This is a case somewhat on the borderline, and that line is not easy to define given the authorities set out above, but it appeared to me that in all the circumstances there was too long a delay. The claimant knew from 27 April 2022 that she was moving to a new role. The delay from then onwards, to her resignation on 8 May 2022, was not explained. She gave a month’s notice, and was paid statutory sick pay during it. Her doing so was I consider wrong, as I have addressed. It appears to me that the period from 27 April 2022 to 8 May 2022 was beyond one on which an employee may have what may be summarised as a reasonable latitude to consider her position, including seeking alternative employment, such that there was acquiescence in law.[125]In all the circumstances I considered that the test for a dismissal under section 95(1)(c) was not met for this other reason. If so, what was the reason or principal reason for the dismissal?[126]This issue does not now arise, but if I had required to determine it would have found that it related to the claimant’s conduct in sending her email on 22 February 2022 which was not in accordance with the agreement reached earlier that day. If that reason was potentially a fair one under section 98 of the 1996 Act was it fair or unfair under section 98(4) of that Act?[127]This issue also does not now arise, but had it in the absence of any form of process before removing the full access to Teams it would have been held to have been an unfair dismissal. In the event that any claim succeeds to what remedy is the claimant entitled having regard to(i) losses sustained,(ii) contribution,(iii) whether there could have been a fair dismissal from a different process.[128]This issue does not now arise either, but I have commented on the value of the claim above, and add some brief comments on it for clarity. There was no suggestion that the remedy should include re-instatement or reengagement. The claimant had two years of complete service with the respondent. Her gross pay was £1,662.13 per month, the equivalent of £383.57 per week. The basic award should the claim have succeeded is £767.14, being one week of pay for each of the two continuous years of the claimant’s employment.[129]The claimant commenced new employment during her employment with the respondent. There was no financial loss after the termination of employment, and the parties agreed that the claimant’s wages and other sums for holiday pay had been paid in full. That therefore left only an award for loss of statutory rights. Given the claimant’s circumstances I consider that an award of £300 would have been appropriate. I would not have reduced that for any reason. It did not appear to me that there was anything in the issue of the second job, once the explanation for the social media posts was given. I accepted the respondent’s evidence with regard to her use of the laptop, and the evidence as to what if anything had been viewed by the claimant was limited. There was in my judgment no realistic possibility of a fair dismissal from either of those matters. The claimant did not contribute to her dismissal, if a dismissal had been found. I would also not have reduced any award on account of the failure to present a formal grievance given all the circumstances, although the claimant might have been well advised to have done so.
Conclusion
[130]I have not been able to find in favour of the claimant, who had the onus of proof as to there having been a dismissal, and it follows that I must dismiss the Claim.[131]For the avoidance of doubt, I do not wish to give the impression in doing so that how the respondent handled matters accorded with best practice. It did not. Firstly, the claimant did not have any statement of particulars of employment required by section 1 of the Employment Rights Act 1996, or a written contract. No separate claim was presented for that, and as the claim that was made has failed no award for it could have been made if it had been, but all employees now have an entitlement to that at the start of their employment, and for the claimant the entitlement was after eight weeks of employment.[132]Secondly the claimant had a valid opinion as to what was or was not practicable to achieve in relation to handling client calls, and it did appear that her views were not treated with the full consideration that they might have been. Although it was possible that the trial would have worked successfully, it was also possible that it would not. Matters depended on factors outwith the control of the respondent, such as how many referrals there were in any one day, and how many responded to the call. Matters also depended on what the circumstances of each call were, and if many were of the more serious kind it is possible, if not probable, that not all could have been handled by one person. But there was a process put in place for that at the meeting on 22 February 2022, which I consider was reasonable, and it is not for me to substitute my view for that.[133]Thirdly, there was a lack of clarity around the meeting on 22 February 2022, and fourthly the email sent by Ms Anderson on 22 February 2022 after it has been discussed above. The respondent may wish to consider these aspects, the fact that an employee felt so distressed by what had happened, and consider whether improvements to process might be made in future.[134]Finally, I would like to add that although my analysis requires to lead to dismissal of the claim, that does not detract from the view I formed both of how conscientiously the claimant conducted the job that she had with the respondent, and how strongly motivated she was by a desire to provide the best service she could to those referred to the respondent. That was admirable, as was and is her charity work at Women’s Aid, and the charity she established called Acts of Kindness. It is always sad when such an employee feels the levels of distress she and her husband described, all the more so when the work itself is within the context of the Distress Brief Interventions team.