Ms L Thornton v Capital City College Group: 6000435/2025
EMPLOYMENT TRIBUNALS
Case No 6000435/2025
Between
Ms L ThorntonClaimantCapital City College GroupRespondent
Before
Employment Judge AdkinIn person for claimantMr P Keith (instructed by Counsel) for respondentDate 17 November 2025
JUDGMENT
(1) Claim for (constructive) unfair dismissal, pursuant to sections 95, 98 Employment Rights Act 1996 (“ERA”) is well founded and succeeds.(2) Compensation subject to 25% deductions under section 122(2) and 123(6) ERA to the basic and compensatory awards respectively and an ACAS uplift of 25% to the compensatory award only under s207(A) TULRC(A) 1992.(3) The Respondent is ordered to pay the Claimant £11,364.56, such sum comprised of:a. Basic award of £7,668.68 less a 25% deduction, making £5,751.51.b. Compensatory award of £5,987.25 to which ACAS uplift of 25% applied, then a 25% reduction applied, making £5,613.05. - 1 - Case Number: 6000435/2025
REASONS
[1]Following the successful claim of constructive unfair dismissal, subject to 25% reductions to the basic and compensatory awards but with a 25% ACAS uplift to the compensatory award confirmed in an oral judgment, the Respondent has asked for written reasons.
Summary
[2]The claim was presented on 6 January 2025 following the Claimant’s resignation dated 1 August 2024.
Evidence
[3]I have had the benefit of witness statements and live evidence from both the Claimant and her supporting witnesses Naela Begg and Carol Woodmason and also from the Respondent's witnesses: 3.1. Carl Boyd, Assistant Principal; - 1 - 3.2. Jasbir Sondhi, Principal; 3.3. Penny Reid, independent investigator 3.4. Samantha Liverpool, HR director.[4]There is a bundle of documents which I have received electronic and hardcopy which has some 722 pages with a few pages that have been added. Findings of fact History
Findings of fact
[5]The Claimant commenced employment as in English lecturer for the Respondent on 30 September 2024.[6]She worked nearly 10 years before she resigned, claiming constructive unfair dismissal. Contract[7]I have been taken to the contract of employment dated 17 October 2018 and in that set out that this clause 7.1 provides that the Claimant's place of work is King's Cross, but she may be required to attend work other places.[8]In fact, the Respondent has a number of sites in and around Central London and the Claimant taught at the Westminster Kingsway College at Victoria site has also been described in this hearing is the Westminster site. Victoria and Westminster are used interchangeably.[9]At one stage the Claimant appears to have taken on some responsibilities that were more like management responsibilities, for example, organising exams and room allocation and liaising with caterers and hospitality until changes that were made in the academic year 2023-2024.[10]By way purely of history back in June 2022 Ms Thornton and her colleague Ms Naela Begg submitted a report to the Principal Ms Jasbir Sondhi requesting onsite management report and various logistical problems are mentioned to do with examinations and so on.[11]Ms Begg is a counterpart to Claimant but teaching maths rather than English to chefs and other people doing vocational courses at that site.[12]Shaka Bunsie began as a curriculum manager at the DC and SH sites in summer 2022. Change in management[13]At the start of 2023-2024 that there was a change in the management team who were dealing with English and Maths which the Claimant was part of, and that team now was Carl Boyd, assistant principal who gave evidence at the tribunal; Mahdi Radmehr, who was head of School of English and maths; Chris - 2 - Lynch, curriculum manager, maths and Farzana Zaman was curriculum manager and the Claimant's direct line manager.[14]Ms Zaman was based at King's Cross and took a particular responsibility for managing GCSE English for 16 to 18-year-olds at the Westminster site that covered Claimant and another colleague. Ms Zaman was, in the view of the Claimant and Ms Begg, overly prescriptive in her requirements for the teaching. The Claimant suggested that it was bullying and professionally undermining staff who had hitherto been given a fair amount of freedom to teach. Praise[15]On the 23 November 2023 and the Claimant received an email from Mr Radmehr, her second line manager with can only described as effusive praise of recent results. The Claimant acknowledged the compliment, but also complained about chaotic rotation shifting timetables and work experience disruptions in her response.[16]Nevertheless, Mr Radmehr, copying his line manager, which was Mr Boyd and he added his own praise to the Claimant for her work. The Claimant was in response rather dismissive of that praise. Mr Boyd urged her to take the credit and emphasised that this is a good improvement on the previous year and a testament to her work. Observation by Ms Zaman[17]On 29 November Ms Zaman observed the Claimant teaching. After the class observation the Claimant had verbal feedback the same afternoon and did not receive her report seems to be a breach of the relevant to policy. The Claimant did not in her witness statement state that there was anything negative or remarkable about that feedback.[18]On 18 December, Ms Thornton emailed Carl Boyd about problems and requested a meeting. She did not receive a response to that.[19]Mr Boyd was effectively her third line manager, i.e. three up the management chain. He said accepted he was busy at the time and had off-site meetings. There was also a stage 3 disciplinary and that he was contending with any was also counting down to breaking for Christmas. He says that there were also strikes. Strikes[20]He said that there was a strike in January 2024. There was a conflict between him and the Claimant as to the distribution of the strikes. The Claimant says that there were a number of distinct periods of industrial action, which broke into three periods. There was a period in November, 3 days in January and then they were due to have further days in February, but the strike was called off. I did not have corroborative evidence on the strike point. It is not the most important point in the case, but the Claimant is very specific about this strikes - 3 - being distributed a number of different blocks, which I found had the ring of truth about it. I accepted what the Claimant said about that.[21]I did accept generally speaking the thrust of Mr Boyd’s evidence that the strikes were something that was adding to his significant workload in the New Year January 2024. Chaser[22]Ms Thornton resent her email to Mr Boyd having had no response.[23]Mr Boyd responded on 24 January. What he said is that the original email had bypassed his email and offered a meeting two days later on 26th of January, which I think the next time he was at the relevant site. This did suggest he was now giving this now a degree of priority.[24]That was too soon for the Claimant.[25]She had exams and had no cover classes and so in fact that meeting did not take place until 9 February. Enrolment investigation[26]In the meantime, there was an email chain was initiated on 29th of January by Mr Radmehr about a student enrolment question. The Claimant's view of this email exchange the relevant emails at page 175 is that he was deliberately trying to make her look bad by copying in the management team. In that email he said “could you please investigate this matter to do with enrolment or non-enrolment of the student and coordinate with Lorraine [Thornton i.e. the Claimant], to understand the reason behind the rejection” [insertion in square brackets][27]I accept that Ms Thornton was uncomfortable with this email and did not understand why Mr Radmehr had mentioned her in particular. There was nothing about this exchange that was unprofessional or suggesting the Claimant was being mentioned for negative reason. I accepted the position put forward by the Respondent. She was being identified as a member of the team who would be able to help to resolve the question, and there was nothing more to it than that. I suspect however that the underlying reason was the Claimant felt she did not have a particularly good relationship with Mr Radmehr and she is read into it a more negative, intention than was actually there. Complaint[28]What then happened is that an email exchange related to the Claimant was presented by her and described by her as a “case study” that she presented later. There was a huge amount of email going back-and-forth. I have not been provided with all the original emails that I have seen in table at page 548 to 552 - 4 - which shows the back and put forth, and the detail of that exchange. The content and the underlying complaint are not important for present purposes.[29]It is evident that that the email exchange goes on and that Ms Zaman is unhappy about the tone of an email from Claimant and at one stage, she said: Please read your email before responding to me Lorraine[30]The Claimant then writes to Ms Zaman and what seems to be a reply all email chain, “referring to the last two lines of your email. Please refrain from being so publicly and blatantly rude as this is totally uncalled for”[31]The Claimant continued to speak to her manager Ms Zaman in a disrespectful tone. Ms Zaman wisely suggested that she would take the matter offline for a telephone conversation.[32]That was at a later stage highlighted in the grievance investigation carried out by an external investigator Mrs Penny Reid, specifically that the Claimant was being disrespectful to her manager and arguably undermining her.[33]Returning to the chronology that “case study” email exchange on 2 February was sent to Mr Boyd by the Claimant. Meeting 9 February[34]A meeting with the Claimant and Ms Begg took place on 9 February, although Mr Boyd had what he describes flu -type symptoms and he had a meeting by video with his camera switched off.[35]There is some dispute about what happened in that meeting.[36]At the outset of the meeting it was suggested by Mr Boyd should be informal and that therefore there was not a need for a union representative. It seems the Claimant in this respect probably went along with that rather than being particularly happy about it. The union representative was not present and there was not a note taken of it.[37]In that meeting Claimant and Ms Begg raised various concerns and requested reinstatement of Shaka Bunsie as their manager.[38]Ms Thornton felt that their concerns were be dismissed and that Mr Boyd steered the conversation to negative matters, talking about poor results at the Westminster site. By contrast, Mr Boyden's recollection was this was not an emotionally charged meeting but more are informal airing of grievances and there were no action points and there was from his perspective not a decision to make.[39]He says a lot of time was taken up with the “case study” which I have referred to that. He did not come to the conclusion was an urgent welfare concern and - 5 - saw this as a discussion about management and communication rather than a cry for help.[40]The best record that meeting is contained within the joint grievance, which was submitted in April. Various matters are recording there to do with the management of the site.[41]The Claimant and Ms Begg felt that they were “discriminated against” and that is not a reference to race and sex discrimination, but rather unfair treatment compared to how other people being treated. There were matters that were raised by Mr Boyd, which the Claimant felt were criticisms of them. It seems that each side of this were raising matters that were in their own agenda.[42]It seems to be clear that it was not taken forward at that stage as a formal grievance and the Claimant followed up by sending an email to Mr Boyd, reminding him that he congratulated her a couple of months before and suggested that that was inconsistent with the questions about performance were now being raised.[43]What the joint grievance says and I have no reason to doubt this, is that the Claimant and Ms Begg came away from that meeting and then into the half term in February feeling dejected. Second observation[44]The Claimant was then subject to a second observation by Ms Zaman on 21 February 2024.[45]Ms Zaman suggested to her superiors anecdotally that there were performance concerns about the Claimant, but yet again she there was no written document relating to the observation, despite the fact that the policy says that should be done within five days. King’s cross meeting[46]On around 28 February 2024 Ms Zaman wrote to the Claimant requesting her attendance at the meeting at King's Cross. In that email she noted that allowances have been made the Claimant not attending meetings at King's Cross and she'd accommodated her by MS Teams meetings. She said were now approaching the end of the year and were adopting specific standardised teaching approaches and that she felt be more effective if the Claimant could attend King's Cross in person.[47]At a later meeting Claimant suggested that this email was nasty. It is difficult to see how she could possibly have thought that, since the tone of the email was perfectly professional. The request was appropriate and it was within the within the terms of the Claimant's contract to attend the site at Kings Cross.[48]Its fair to say that the Claimant did not like the standardisation approach that was being pursued by Ms Zaman and she felt that was unethical and inappropriate and a restricted her freedom as a teacher. She felt she had to differentiate and teach the different students appropriately to their needs and - 6 - this was a point of principle the two women disagreed on. The communication above was in itself was not wrong or inappropriate.[49]It was mentioned in the grievance process that the Claimant was upset about her approach to standardisation leading her to write at one stage “what the hell is this more standardisation”. Sick leave[50]By 12 March, Ms Thornton and Ms Begg both went on strike in stress-related sick leave. The Claimant did not return to work before her resignation. Birthday holiday allegation[51]There was an exchange of emails 17 and 20, 24 March 2024 not involving the Claimant, but about her among managers, which she received a couple of months later through a DSAR request.[52]This related to a couple of points that Mr Radmehr had shared with his line manager Mr Boyd. He suggesting that students had said that the Claimant was not on sick leave, she was just taking a holiday to celebrate her birthday and the Claimant took a negative view of this because Mr Boyd did not come back and reject that allegation.[53]The Claimant says that teenagers just do say the sorts of things without foundation.[54]Mr Radmehr also suggested that the Claimant had a relatively light workload and judged by the numbers of learners, which the Claimant took exception to. She says that the number of learners is only one factor in workload and that she had a full timetable chart, which I accept. Grievance[55]Formal grievances were submitted by Ms Begg and the Claimant Ms Thornton on 16 April 2024.[56]They complained that they suffer discrimination from Mr Radmehr and Carl Boyd are two separate documents in relation to each individual. This is discrimination meaning unfair treatment generally compared to others rather than discrimination corresponding to the definition in the Equality Act 2010.[57]There was not a complaint as such, against Ms Zaman. It is clear from the narrative however that the genesis of the complaint was the detailed complaint about her in that way that they have been dealt with and so that that is contained within the wording of the grievance.[58]The Claimant says that she was dissuaded from including Ms Zaman as a subject of the complaint by the trade union. She now suggests this was because Ms Zaman was a member of the union. That is only something emerging in this hearing. I have not seen evidence just the Respondent would have been aware of that at the time. - 7 - Mediation rejected[59]There was a very short meeting on the 19th of April with Samantha Liverpool, HR. They discussed whether or not mediation is appropriate. The conclusion taken was that it was not. Meetings with Principal[60]There were then two different meetings with the principal Ms Sondhi on the 10th and 17th of May. We have a note of the second meeting but not the first.[61]It was explained the Claimant that someone been recruited to her role during to cover her absence temporarily.[62]The first meeting was particularly emotional. Ms Sondhi formed the impression that both complaints did not like the new managers and wanted to revert to previous manager Shaka Buncie. In that meeting Ms Sondhi floated the possibility of a temporary management change, but then worried that they were getting close the end of term and worried about making changes.[63]It seems that having floated change of management this was not pursued at the time and there was a further meeting a week later on 17th of May 2024.[64]We do have minutes of this second meeting at which the Claimant attended with Ms Begg, Carol Woodmason (trade union representative) and Ms Sondhi with notes take by Habiba Kareem.[65]Ms Thornton suggested transfer to another site, although not King's Cross because that's where management was that she wanted to avoid. Ms Sondhi explored with the Claimant whether she would stay at the Victoria site if there was a change in management and Claimant said a lot had happen and that she did not really know. She did say that when it was mentioned that there was going to be a change in management at the previous meeting it made her feel better.[66]There were also there was also a discussion about Claimant's colleague Ms Begg’s issues. There was a discussion about problems and a discussion about workload. The Claimant raised issues with the current line manager and mentioned specifically multiple managers had failed the “duty of care”, Mahdi Radmehr, Ms Zaman, Carl Boyd.[67]Ms Sodhi suggested that changes were expected by September and also interim solutions could be implemented sooner.[68]The union representative this meeting suggested a dedicated line manager for Maths and English at Soho Victoria site.[69]At the close of the meeting Ms Sondhi proposed putting together a plan to address these issues and promised a proposal by the following week. She stated that she will prepare a proposal sent by Wednesday. She asked Ms Begg and the Claimant to review it once received, to discuss amongst - 8 - themselves and let her know that thought. After that she said they could reconvene to discuss the next best steps Follow up[70]Despite the fact that there were discussions with the Principal Ms Sondhi, of interim solutions and a proposal to be put forward that that is not what occurred.[71]On 17 May the Claimant received a subject access request which she was unhappy about as alluded to above.[72]On 21 May 2024 the Claimant received an email from Ms Liverpool in HR in which it was confirmed that the grievance was serious and an external investigating appointed. The intention to have a thorough and impartial review. Ms Sondhi had decided that it was better to have an external reviewer since Mr Boyd reported directly to her and to maintain impartiality. The letter acknowledged that this would be a time of uncertainty and stated that steps would be taken to protect confidentiality.[73]What letter does not do is explain in the interim what would happen as to working arrangements as regards the Claimant’s reporting line and place of work. It does say “if you have any questions or require further information, please do not hesitate to contact Samantha Liverpool” External investigator & delay[74]Two days later an external investigator Mrs Penny Reid was instructed.[75]It became clear quickly that she would not be able to do the investigation until mid-to-late June. The Claimant is critical of that, and said that someone else should be instructed once this problem became clear. Union follow up[76]On 6 June 2024 Carolyn Woodmason, UCU representative wrote on behalf of both women to say as a matter of urgency. “As a matter of urgency, please can we be provided with a clear timeline particularly as the end of the academic year is fast approaching”.[77]As to interim arrangements she wrote as follows: “it has been requested by the Lorraine and Naela that they be moved to teach English and maths to access/creative media students at Soho/Victoria next year for them to be managed by Access. When will they be informed of the decision as to when this whether this will be granted timelines should have been completed and sent to staff now. Therefore a delay in this decision will cause timetabling issues for department. This is a reasonable request based on their current situations”. - 9 -[78]She added: “Ultimately, it is unfair to keep staff 'in limbo' for protracted periods of time when a solution could be found. Staff should be treated with dignity and respect – the college's own code of conduct states this as does the Dignity at Work Policy. Moreover, the college has a legal duty to manage work-related stress. Staff should feel they understand where they can expect to be at the start of the new academic year, 2024-25. I look forward to your response to the points/questions raised.” Principal’s reply[79]On 11 June 2024 Ms Sondi replied: “Teaching Assignments and Management Requests The request for Lorraine and Naela to teach English and Maths to Access/Creative Media students at Soho/Victoria and to be managed by Access is under consideration. We understand the importance of timely decisions for timetabling purposes and aim to provide a definitive response shortly. We appreciate your patience and assure you that this matter is being given high priority”[80]The reference to timetabling purposes must have been a reference to timetable for the next academic year, i.e. August/September 2024. Union reply[81]On 18 June 2024 Regine Pilling wrote behalf of the union chasing (presumably in the absence of Ms Woodmason) “As you know this will be 3 months from the submission of grievances and both members of staff have felt unable to return to work due to work-related stress. The time it has taken to investigate the grievances is adding to their anxiety and stress, as outlined by Carolyn. With the end of the teaching year fast approaching, both members are looking to the new academic year – both unsure of who will be there (sic) manager and whether the causes of the work-related stress will have been managed” HR reply[82]By way of reply on 20 June 2024 Samantha Liverpool wrote “due to various contingencies I am unable to give a specific timeframe” - 10 - Investigation[83]On 2 July 2024 the Claimant interviewed by external investigator Penny Reid. Departures[84]On 4 July 2024 there was an email from Mr Boyd to the team (including the Claimant) confirming that Mr Radmehr was leaving and that he was moving to a new role. Summer break slows investigation[85]On 10 July 2024 Mrs Reid discovered that Paul Jervis, one of the witnesses in the investigation was only available that afternoon and thereafter not available for interview until after the summer break. Summer break[86]The second week in July was the end of term. Staff would not return until the last week in August.[87]On 24 July 2024 Ms Liverpool sent an email notifying that there was delay because “key witnesses” not available: Due to the summer holiday season, key witnesses are currently on annual leave, which has impacted on the investigator’s ability to gather all the necessary information and statements required for a thorough investigation.[88]There was no indication as to any interim arrangement as to the Claimant’s management, nor was it confirmed which site she would return to at the end of August.[89]After that there was no communication to the Claimant, who reports that she was in recovery but desperate to be moved to another site. She said she could face going back to VC (Victoria) or being in the same dept as Farzana Zaman in the new academic year of 2024/5. Resignation[90]On 1 August 2024 the Claimant resigned by a letter sent by email. In it she wrote: After 10 years of being an English Lecturer at the WKC Victoria site, I wish to resign due to the ongoing bullying I have received this academic year and the failure of CCCG to deal with this in a prompt, caring and professional manner. Up to this academic year I had been very happy in my job and was a well-respected member of staff. This last year has been nothing short of hell due to the professional sabotage I have received from the E&M Managers who were based at the King’s Cross site: - 11 - Mahdi Radmehr (HOS for English and Maths), Carl Boyd (Assistant Principal for E&M) and Farzana Zaman (Curriculum Manager for English). I have endured what I consider to be a coordinated smear campaign. You are aware that my Grievances were submitted on the 16th of April 2023. I had previously tried to settle matters informally with the Assistant Principal (Carl Boyd) where I sent a case study and email on the 2nd February outlining how CCCGs ‘Dignity at Work’ Policy was being contravened. Carl had a pattern of not getting back to me (from December 2023) and when he finally did, it was to intimidate and not offer support. To exacerbate this, my job was advertised days after I had been signed off (I had initially been signed off for 3 weeks on the 12th March). I consider these to be malicious actions which had a detrimental effect on my mental health, causing me to be signed off until this present day. Subsequently, every time I escalated my complaints higher, each management layer of the institution failed me. After a meeting with HR on 29th April, I then had 2 informal meetings with the Principal of WKC (Jasbir Sondhi). On the 10th May I asked to be transferred to a different site as I needed a fresh start away from these managers in the E&M department. This was reiterated in a meeting on the 17th May where Jas promised to get back with a plan for next academic year by Wednesday 22nd May. I am still waiting for this response. There seems to be a pattern of CCCG managers and HR not getting back to me and shelving my complaints.[91]She complained about the delays in the DSAR request and the apparent disciplinary matter being contemplated against her revealed in it.[92]She carried on and complained about delay in the investigation, substantially setting out the matter above, then: We are now at the beginning of August, and no senior member of staff has got back to me about the upcoming academic year which starts in several weeks’ time. I can’t go into the rest of the summer break and the 2024/5 academic year with this level of uncertainty and the prospect of the same bullying treatment being perpetuated. I am aware that Mahdi has now left the institution (although I have not been personally told this, and that Carl has been moved to the Soho site. However, Farzana still seems to be my Curriculum Manager for English and has spread rumours about me in both speech and writing (in emails, from the SAR and what colleagues have told me). I am also aware that there have been complaints about her from other colleagues, yet she is still in a management position. - 12 - The damage to my professional reputation has made my wellbeing at work deteriorate. … … I consider this failure to act with compassion and promptness to be a serious breach of my contract. The mutual trust and confidence which is implied in my contract is void, as is the failure to provide a safe and healthy working environment. … Real wellbeing is an employer taking swift and ethical action. It would have been Carl taking my concerns seriously, Jas keeping her promise of getting back to me when she said she would and offering alternative plans, a member of SMT contacting me over the summer to give me an update on the start of the new term and what it would look like. HR response[93]By an email on 2 August 2024 Samantha Liverpool invited the Claimant to reconsider. New role[94]The Claimant started a new role on 2 September 2024 at Pentonville prison. She earns less in this new role. Investigation report outcome[95]On 23 September 2024 Mrs Reid submits her investigation report to HR.[96]The “Confidential investigation report” included Mrs Reid’s conclusion that early intervention/transparent conversations might have prevented matters from escalating given that Ms Thornton & Miss Begg felt unheard. She made the point that there had been significant changes implemented from August 2023 and grievances might have followed in any event.[97]She concluded that there was no evidence of my progression, constant criticism, bullying, intimidation and/or gas lighting.[98]She concluded that Mr Boyd did not action meeting as quickly as she would have expected, given that he had the ability to de-escalate matters. That part of the grievance (neglect from senior management) was partly upheld[99]She concluded that there was no wrongdoing on the part of Ms Zaman and proposed a mediation. Did not consider a change of line manager required.[100]She wrote “Communication needs to be improved, other as there are instances where emails are gone unanswered. This exacerbates the situation for employees who are already feeling isolated”[101]The report with appendices was over 250 pages in length. - 13 -[102]The report was provided 3 December 2024 Begg receives partial summary of investigation report, although it was not provided by the Respondent to the Claimant at that stage.[103]On 17 July 2025 the Claimant received a full investigation report via court bundle. This was 15 months after the grievance was raised. ACAS[104]Stepping back in the chronology, on 29 October 2024 the Claimant initiated ACAS Early Conciliation. Submissions[105]I received oral submissions from both parties. Law Constructive Unfair Dismissal
Law
[106]Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is taken to be dismissed by his employer if “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.[107]It is established law that(i) conduct giving rise to a constructive dismissal must involve a fundamental breach (or breaches) of contract by the employer;(ii) the breach(es) must be an effective cause of the employee’s resignation; and (ii) the employee must not, by his or her conduct, have affirmed the contract before resigning. Fundamental breach[108]In this case the Claimant claims breach of the implied term that the employer should not, without reasonable and proper cause, conduct itself in a way that is calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence that exists between an employee and her employer (Malik v Bank of Credit and Commerce International SA [1997] ICR 606, per Lord Steyn 621)). In these reasons the terms “serious breach”, “fundamental breach” and “repudiatory breach” are interchangeable.[109]In considering the question of constructive dismissal the primary focus is on the employer’s conduct, not the employee’s reaction to it. In other words, what amounts to a serious breach is to be judged objectively not by the subjective view of the employee.[110]Merely unreasonable conduct is not sufficient to amount to a serious breach (Bournemouth University Higher Education Corporation v Buckland 2010 ICR 908 CA). Buckland made clear that attempts to make amends by an employer do not undo a fundamental breach and if an employee chooses to - 14 - reject the offer to make amends and resign they can still do so. It is open to an innocent employee to waive or accept the breach such that the employee relation continues (per Sedley LJ).[111]It is irrelevant that the employer does not intend to damage this relationship, provided that the effect of the employer’s conduct, judged sensibly and reasonably, is such that the employee cannot be expected to put up with it (Woods v Car Services (Peterborough) Limited [1981] ICR 666).[112]It is not however enough to show that the employer has behaved unreasonably although “reasonableness is one of the tools in the employment tribunal’s factual analysis kit for deciding whether there has been a fundamental breach” (Buckland).[113]Even where the employer’s actions do amount to a repudiatory breach of contract, the employee can only claim constructive dismissal if his or her resignation was caused by the breach. Thus an employee who waits too long before resigning, or otherwise acts in such a way as to indicate that he or she would wish the contract to continue, will be taken to have waived the breach and affirmed the contract.
Conclusions
[114]A crucial question is whether the Claimant was dismissed?[115]Was there breach of the implied term of trust and confidence?[116]At the outset of the hearing the following five matters were identified as amounting to the serious breach: unwarranted management criticism and berated by SMT; no response from Carl Boyd; no response to email of 2 February 2024; failure to revert to the Claimant following Principal meetings in 10/17 May 2024; failing to deal with Claimant’s request to move to another site.[117]I have dealt with each in turn. Management criticism[118]First, the Claimant was subject to unwarranted criticism and by senior management team? I found that this was in part misinterpretation by Ms Thornton of what was being said, in particular by Mr Radmehr.[119]The Claimant had a legitimate concern that she was being criticised by management. There was a potential disciplinary matter in relation to her absence but was thrown up by the DSAR result, although that did not come to anything.[120]Mr Boyd did not deny that Ms Zamar had portrayed the Claimant as a poor performance case and yet she had not documented the two observations she had made of the Claimant. That was a breach of the Respondent’s policy. I have treated this last point with some circumspection since this seems to be a - 15 - matter that has become more important in the hearing than had been at the time.[121]I do not find that management criticism in itself was serious breach of contract, but did provide the background which led to the Claimant initiating a grievance process. No response from Mr Boyd[122]The Claimant contacted Carl Boyd on 18 December and there was no response.[123]It is accurate to say that there had been no response and until his reply of 24 January 2025 but there were some reasons for that. He was busy, it was a busy time, this is not without cause. No response email[124]No response to email of 2 February. In fact that was discussed in the seems that those matters were discussed on 9 February directly, which was a response. Grievance resolution[125]The grievances raised on 16 April 2024 followed on from the meetings on the 10th and 17th May. Ms Sondhi said that she was going to come back with proposals. That did not happen. It is right to say that there was an email from HR saying that there was going to be an investigation.[126]It is also right to say however that there was discussion of interim solutions, i.e. some interim arrangement in terms of who the Claimant should report to and where she should work pending resolution of the grievance. No interim arrangement was implemented despite the fact that it was being chased in the Claimant's behalf twice by the union. Failure to deal with request to move site[127]The Claimant asked to move to another site and what I should say the Claimant is a little slightly equivocal on this point in the internal discussion. It seems that she had some doubts about that, but it is clear that there was an expectation that there was going to be an interim arrangement. That interim arrangement did not happen. Breach of implied term[128]The question is: was that a breach of the implied term of trust and confidence? In other language did the Respondent behave in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent?[129]I do not find that the Respondent behaved in a way was “calculated” in the sense of deliberate calculation, but I do find that the Claimant was placed in a - 16 - very difficult situation. She originally raised concerns about line management as early as 18 December. She had gone off sick in March 2024, raised a formal grievance in April 2024. In the meetings on the 10 and 17 May 2024 the Principal had mentioned an interim solution and led the Claimant to believe that there was going to be a formal proposal with days. This did not happen. and that was chased appropriately by the union on 6 June. They were told it was under consideration on 11 June.[130]It was further chased by the union on 18 June highlighting the end of the teaching year is approaching and that was met with “various contingencies” email on 20 June. That email contained no specific timeframe.[131]The email of 24 July 2024 from Ms Liverpool explaining that the investigation was not going to be resolved before the summer break. That email contained no resolution of interim arrangements. I find that this was “final straw” and the Respondent’s conduct cumulatively by that stage did amount to a serious, fundamental breach of contract.[132]It was not the delay in the investigation, nor the use of an external investigator which amounted to a breach. The delay was an unfortunate factor, partly due to the timing of the investigator starting shortly before the summer break.[133]The matter which was fundamental was that the Claimant was left in a situation where, having complained in December and formalising this as a grievance in April, and been left in May with the idea that this was going to be dealt with in the interim, that by 1 August 2024 she was three weeks away from going back to work and there was still no interim working arrangements as regards management or which site she was going to be working at.[134]This was not a case where the allegations being made were so serious that suspension or removal were an absolute requirement. What was necessary was a decision to be made to end the limbo. The absence of a decision in my view without reasonable or proper cause, left the Claimant in limbo. The union communications on this point were not engaged with. That was the serious breach. Resignation[135]I find that the Claimant did not waive the breach, given the grievance was pending. She resigned in response to the breach, as the letter of resignation made clear. Conclusion on liability[136]This is not a situation in which any potentially fair process leading to a dismissal had been followed.[137]This was a constructive dismissal and it was an unfair constructive dismissal.[138]The claim succeeds. - 17 - Remedy & deductions from award Chance of resignation[139]I accepted the Respondent’s argument in principle that there was a chance that the Claimant would have resigned irrespective of what the communication about interim solution was. I accepted that there were reasons why she was generally unhappy. I did not accept that this was a very high level of likelihood. It is clear to me from the letter of resignation that the Claimant was particularly upset about the Principal not getting back to her about offering a plan for the next academic year, although I accept that this is one of a number of points of concern raised in that letter.[140]Doing the best that I can, I find that had Ms Sondhi followed up on her promise in the days after 17 May 2024, with an explanation of the "interim arrangements" there was a good chance that this would have provided sufficient clarity to mean that the Claimant would have remained in employment pending the outcome of the grievance. I accept that there was a chance she would have left before the start of term at end August 2024 which I evaluate at 25%. Accordingly I reduced losses September - December by 25%[141]I also accept the Respondent's argument that, following the outcome of the grievance, there was a chance that the Claimant would have not accepted it and resigned. The outcome was communicated to Ms Begg on 2 December 2024. My finding is that had the Claimant remained in employment that is when she would have received partial outcome to the grievance. I find that there was a chance that the Claimant would have resigned at that point. I think she would have found it difficult to accept the investigation finding that Ms Zaman was not at fault.[142]On the other hand by this stage she would have been working under interim arrangements for three months. There has to be some chance that she would have settled into some new arrangements. She would also have been partway through an academic year, which to my mind would make it slightly less likely that she would have resigned at the point and less likely that other roles would been available at that point. I think there was a fair chance that the Claimant would have resigned in December 2024. I evaluate that possibility at 50%. Accordingly I have reduced losses from January 2025 by 50%. Contributory fault[143]A reduction to a compensatory award for contributory fault may be made where an employee has caused or contributed to a dismissal - and their conduct has been culpable or blameworthy.[144]The Respondent argued for 75% contributory fault, whereas the Claimant argued for 25%, but did not contest the principle.[145]I did not accept all of the Respondent’s arguments, but I did accept that the Claimant had partly contributed to the difficulties in her relationship with Ms Zaman, by the disrespectful tone of her email correspondence for example. - 18 -[146]The reason for the dismissal primarily was the Respondent's delay in dealing on an interim basis with the Claimant's grievance. The reasons for that are primarily management inaction. I accept, however, that the difficulties in the relationship were the background to this and set the stage for that management inaction to occur.[147]I found that the appropriate reduction is 25%. Mitigation of loss[148]The Claimant has produced evidence of correspondence with two potential other employers. The constraints on her are a desire to work Monday/Wednesday/Friday. On Tuesday/Thursday she works as a yoga instructor and also carries out some caring responsibilities for elderly parents live nearby.[149]The principal way in which the Claimant mitigated her loss in the short term was to take up a role at Pentonville prison, which she currently does. Her hours are fractionally below 50% of the full-time equivalent - 0.47%. The Claimant only needed to take reasonable steps to mitigate her loss.[150]I find in practical terms taking the job at Pentonville prison was a reasonable stopgap. It seems to me however that the Claimant had the opportunity over the course of that academic year to apply for alternative roles. It was reasonable of her to start with try to fit in at roles with her existing commitments.[151]I accept the Respondent's submission in general that there are opportunities to work as an English lecturer across London, the area that the Claimant might reasonably expect to work.[152]Ultimately I find that the Claimant might have had to accept some variation in her current arrangements in order to accommodate a working pattern for a better paid role. Recognise that is not something particularly attractive to her and it that would be necessarily very easy to do it quickly. I find by the beginning of the academic year starting in September 2025 the Claimant, had she explored broadly the options available to her as part of reasonable steps to mitigate her loss, would have identified sufficient work to mitigate her loss generally. It follows that September 2025 marks the end of her period of loss. ACAS[153]The Respondent argues that the proposed ACAS uplift under section 207A ERA 1996 should not succeed in the basis that the reason for the constructive unfair dismissal was not delay in the grievance per se, but delay in the interim arrangements. I do not understand the regime to be that the breach of ACAS code is causative of the cause of action being brought.[154]I derived some assistance from Rentplus UK Ltd v Coulson [2022] EAT 81, [2022] IRLR 664 and considered the following questions.[155]Is the claim one which raises a matter to which the ACAS code applies – yes. - 19 -[156]Has there been a failure to comply with the ACAS code in relation to that matter? Yes – there was unreasonable delay.[157]Was the failure to comply with the ACAS code unreasonable? Yes, it was not challenged that Ms Begg did not receive partial outcome until 2 December 2024. The Claimant herself did not receive the report until July 2025. No adequate explanation has been put forward for this delay.[158]Is it just and equitable to awarding up this because of the failure to comply with the code and if so percentage at 25%? I considered whether it is relevant that the Claimant resigned before there was any unreasonable delay in the process itself. There was in this case a deliberate and unexcused delay. The Claimant had to use a subject access request to try to get the report. No explanation put forward for this. It seems to me that it is just and equitable for there to be the maximum 25% uplift.