Mrs A King v Wirral Borough Council: 6001206/2025

EMPLOYMENT TRIBUNALS

Case No 6001206/2025

Between

Mrs A KingClaimant

Wirral Borough CouncilRespondent

Before

Employment Judge McCarthy

In person for claimant

Date 12 May 2026

JUDGMENT

[1]The complaint of unfair dismissal is not well-founded and is dismissed.

[2]The complaint of unauthorised deductions from wages is not well-founded and is dismissed.

REASONS

[1]The claimant was employed by the respondent local authority from 1 August 1995 until her resignation which became effective on 1 September 2024.

[2]By a claim form presented on 13 January 2025 (early conciliation having stated on 19 November 2024 and ended on 31 December 2024) the claimant complained that she had been unfairly dismissed (by way of a “constructive dismissal”) and that unauthorised deductions had been made to her wages with respect to sick pay whilst she was on sickness leave.

[3]In her claim form the claimant had also complained of a failure to pay accrued holiday pay, but this complaint had previously been dismissed upon the claimant’s withdrawal of this complaint earlier in the proceedings. Complaints and Issues

[4]The parties had attended a private preliminary hearing on 17 June 2025 with Employment Judge Ainscough where the claims and issues were discussed with the parties and a List of Issues produced. This List of Issues was discussed and agreed at the outset of the hearing. On the final day of the hearing, as set out in its written closing submissions, the respondent confirmed that “if the Tribunal finds that the claimant was dismissed, it did not offer a fair reason for dismissal. [Respondent’s] position is that [claimant] was working well in the BSSO role and [respondent] had no intention of terminating [claimant’s] employment.” The complaint of unfair constructive dismissal therefore stands or falls with the question of whether or not the claimant was constructively dismissed. If she was, the dismissal was unfair.

[5]It is the claimant’s case that the respondent breached one term of the contract, which is commonly referred to as “the implied term of trust and confidence”. In her claim form (which includes detailed particulars of claim) the claimant alleges a series of acts on the part of the respondent which she claims amounted to a repudiatory breach of her contract of employment. In her claim form the claimant states that the last act in the series, which triggered her resignation and which she characterised as the “final act” was a “final dismissive email and yet another failure in communication from HR.” In her claim form and statement, she refers to the contents of two emails sent to her by Mr Mark Dale (Assistant Director People and Organisational Culture) on 31 July 2024 and 1 August 2024 (40-41) at 4.17 pm as being the final act that “caused [her] to resign”. In evidence the claimant said, “it was just about all the confusion I had, the grievance mishandling, it all added up, it was just cumulative, it was the last straw.” In closing submissions, the claimant said that “cumulative actions over time broke my trust and confidence, I felt had no choice but to resign. It was not one single incident.”

[6]The claimant also brings a claim for unauthorised deduction from wages in relation to the period she was placed on half pay during her sickness leave. She says that she should have been paid full pay during this period and is claiming for the shortfall between full and half pay during this period.

[7]Adopting the numbering in the List of Issues in the preliminary hearing record, the updated List of Issues with regard to liability only is below: Unfair dismissal 1.1 Was the claimant dismissed?1.1.1 Did the respondent do the following things:1.1.1.1 Failed to follow policies when managing the claimant’s posts? (The claimant further particularised this in her claim form as:

1.1.1.2 Did not adhere to corporate timelines set out in the grievance policy and procedure?

1.1.1.3 Failed to consider the claimant’s welfare and mental health? (In her claim form the claimant further particularised this as the period post March 2023 and refers to not being able to get answers to her questions, being “railroaded into a post that had previously stressed her out”, the management of her sickness absence in 2023/24 and delays with the grievance process.)

1.1.1.4 Failed to work within the corporate values of the Council?

a. failed to consult with me on the deletion on my “alleged” substantive post

b. failed to consult with me on making a secondment my alleged new substantive post

c. failed to consult me on making the employee backfilling my post i have been in for almost 3 years permanent

d. failure to explicitly set out the terms of secondment)

1.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:1.1.2.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and

1.1.2.2 whether it had reasonable and proper cause for doing so?

1.1.3 Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.

1.1.4 Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.

1.1.5 Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach. Unauthorised deductions: 3.1 Did the respondent make unauthorised deductions from the claimant’s wages and if so, how much was deducted? Procedure/Documents and evidence heard

[8]This was a hearing where all parties participated via CVP.

[9]I considered documents in an electronic bundle ending at page 640 which was a consolidated bundle and included two extra documents from the respondent (the claimant did not object to the inclusion of these two additional documents). As a preliminary issue, the respondent raised that the claimant had included in the bundle without prejudice correspondence from the ACAS Early Conciliation process in the bundle which the respondent objected to and argued should be disregarded. Having discussed the without prejudice doctrine with the claimant and heard why she had included such correspondence; it was clear that these documents did not fall within the unambiguous impropriety exception and as such could not be admitted into evidence. Her reasons related to the respondent’s successful application for an extension of time to present their response which had been determined in the earlier stages of the claim. Having determined that they could not admitted into evidence, I gave the respondent an opportunity to provide me with a revised bundle not containing these documents. However, it was proposed that as the respondent had included all the without prejudice documents in a clearly marked section and in the interests of time, I would disregard the documents within the relevant section and not read them. I agreed with this proposal and the claimant was also informed that she could not refer to these without prejudice documents during the hearing.

[10]I heard oral evidence from the claimant on her own behalf and from Ms Kerry Fowler. For the respondent, I heard oral evidence from Ms Victoria Brown (Sales Retention Membership Administration Manager), Ms Nicola Long (Human Resources Business Partner) and Mr Rob Phythian (Operations and Compliance Manager). Written witness statements were provided by the claimant (together with an addendum to which the respondent had no objection), Ms Fowler, Ms Brown, Ms Long and Mr Phythian.

[11]At the conclusion of the evidence each party made oral submissions. The respondent also provided written closing submissions shortly before the start of the last day of the hearing, which were copied to the claimant.

[12]The claimant is a litigant in person and did become upset at times during the proceedings. To further the overriding objective and having regard to the Equal Treatment Bench Book, I made various adaptions and adjustments to the tribunal procedure including additional breaks, adjourning the hearing early on the second day, explaining the Tribunal process and cross examination procedure, and assisting her with putting some of her cross examination points in a question form. Factfinding

[13]This section of the Reasons sets out the broad chronology of events. Most of the primary facts were not in dispute. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. References to page numbers are to the agreed bundle of documents.

[14]The claimant, Mrs Amanda King, was continuously employed by the Respondent, Wirral Borough Council, a local authority, from 21 August 1995. Her employment came to an end on 1 September 2024 after she resigned on 1 August 2024, giving one months' notice. A copy of the claimant’s statement of particulars is at page 621-640 in the bundle. The respondent is a large employer and has a dedicated Human Resources and an in-house legal department. The respondent has a set of values (620) which are expressed as “what’s guiding us” and “capture our spirit, ambition and drive what we do and how we approach things”. There are four values are “accountable”, “ambitious”, “resident focus” and “professional.” The claimant did not provide me with evidence that these values had been incorporated into her contract or put to any of the witnesses in cross examination how their actions had breached such values. In the absence of evidence to the contrary, I find that these values are guiding principles only. The claimant accepted in cross examination that she had not addressed in her witness statement which values she alleged had been breached and then said, “I haven’t said they were breached, would have stated it if [were].”

[15]Early conciliation started on 19 November 2024 and ended on 31 December 2024. The claim form was presented on 13 January 2025. At the date of her resignation, the claimant was a Business Systems Support Officer (BSSO) and she was discussing the job description for this role with Mr Phythian. Secondments

[16]In 2017, the claimant was employed as a Leisure Advisor (Band D) on a part time basis at what was then the Respondent’s Bidston Sports and Activity Centre (the “Bidston Centre”). In December 2017 the claimant commenced the first of a number of temporary secondments she had successfully applied for/expressed an interest in. This series of secondments ended on 30 April 2023.

[17]The respondent has a Secondment Policy and Procedure (605-615). The purpose of the Secondment Policy is stated as “to provide a framework for the management and implementation of secondments” and it defines secondment as “the temporary transfer of an employee to another organisation, or to a different part/post of Wirral Council, for a specific purpose for a specific time to the mutual benefit of employees and the Council.” There is no maximum secondment period set out in the Secondment Policy and Procedure, but the procedure states that they vary in length, but they are usually between three months and two years depending upon the circumstances. The Secondment Policy states that “all employees and managers engaging in Secondment arrangements are expected to comply with the terms of this Policy”.

[18]The Secondment Procedure specifies the responsibilities of the parties involved in the management of the secondment. It details the terms to be agreed as part of the secondment agreement which must be signed by the three parties involved: the seconding manager, the host manager and the secondee. The Secondment Policy says that “failure to comply with this requirement may lead to a lack of clarity in relation to the responsibilities of each party and the terms and conditions of the employee.” The Secondment Policy states that “all employees and managers engaging in Secondment arrangements are expected to comply with the terms of this Policy”.

[19]The Secondment Procedure contains the following relevant provisions: 19.1. Upon termination of the secondment, the secondee will return to their substantive post and when the secondee returns to their substantive post, their salary and hours of work will revert to that of their substantive post; 19.2. If the substantive post is redundant or has been affected by a structural change, Wirral Council’s Redundancy and Redeployment Policy and Procedure will be applied. The employee should have been consulted about any proposed changes to their substantive post; 19.3. The section titled “Process” states that one of the “issues [that] should be taken into consideration when planning secondments” was “putting in place monitoring and keep in touch systems, including arrangements for consulting with the employee if there are any changes to their substantive post during the term of secondment” and that all parties (the seconding manager/organisation, the secondee and the host manager/organisation) must understand and agree the purpose and terms of the secondment and sign the Secondment Agreement and that the Secondment Agreement should detail the terms of the secondment including keeping in touch arrangements with the substantive manager during the secondment period; 19.4. The section titled “Keeping in touch” states that “keeping in touch with the employee throughout the period of secondment is essential. Arrangements for this should be clearly documented within the secondment agreement. The responsibility for this will be mutual, where both the secondee and their manager will be responsible for keeping in touch. The manager will act as the contact point and keep the secondee in touch with developments. This could be achieved through keeping secondees on the list for team communications and/ or inviting them to some team meetings”; and 19.5. The section titled “Premature cessation of secondment agreement” states that secondment opportunities “should be allowed to run their course. However, they may be terminated at the request of either the host organisation/service, the seconding organisation/service or the secondee”. This section also states that “Upon termination of the secondment, the secondee will return to their substantive post. If the substantive post is redundant or has been affected by a structural change, Wirral Council’s Redundancy and Redeployment Policy and Procedure will be applied.” It provided that the employee should be consulted about any proposed changes to their substantive post. Call Centre Supervisor role (December 2017 to September 2020)

[20]In December 2017, the claimant commenced her first internal temporary secondment as a Call Centre Supervisor (the “CCS role”) in the Leisure Services’ Call Centre, which was part of the Support Services Sales and Retention Team and remained in this role until September 2020. Ms Brown was the claimant’s host line manager whilst she was working in the Call Centre. In accordance with the respondent’s Secondment Policy and Procedure, the claimant signed a secondment agreement (90-93) before commencing the CCS role which explicitly set out the terms of her secondment.

[21]The secondment agreement identified her substantive role as Leisure Advisor and that the host section was Support Services Sales and Retention. The claimant accepted in evidence that she signed a secondment agreement which stated that “[claimant] will return to substantive post” on completion of secondment”. The secondment agreement stated that “if the [claimant’s] substantive post is redundant or affected by structural change, [the respondent’s] normal re-deployment procedures will apply”. The claimant’s secondment was initially for a period of 1 year - from 1 December 2017 – 30 November 2018 but was further extended by mutual consent. The secondment agreement says that the secondment can be extended for a specified further period by agreement of the parties.

[22]When the claimant was seconded into the Call Centre, it only had temporary funding for a defined period, but funding did continue and at a particular point in time it was confirmed that the Call Centre would become permanent. Ms Brown’s recollection was that this had happened at some point after the claimant had left the Call Centre, and that funding was still temporary whilst the claimant was in the CCS role.

[23]It is not in dispute that the CCS secondment continued for longer than the initial term in the secondment agreement and the claimant remained in the CCS role until she successfully applied (via expression of interest) for another temporary secondment as a Business Systems Support Officer (the “BSSO” role). The Call Centre role she had undertaken was backfilled when she started the BSSO secondment.

[24]In evidence, the claimant accepted that she had "initially” been seconded into the CCS role but stated that she understood that the CCS role had become permanent and her substantive role after she had been in the role for more than 12 months and the Call Centre was absorbed into Leisure Services. I agree with the respondent’s closing submission that it is not clear how she came to this conclusion, but I accept that the claimant’s evidence that she was genuinely confused about what her substantive role was and I find that the admitted lack of “keeping in touch” contact from her substantive role line manager and the lack of clear paperwork in the form of secondment agreements, would have contributed to this. I find that the claimant’s substantive role remained Leisure Advisor throughout this secondment and did not change to the CCS role. In evidence the claimant said that when she had asked for a new contract and “told simply to carry on, nothing was formalised.” During her second grievance meeting, the claimant spoke about having “assumed” the CCS role had become her substantive role after being in it for “many years”. I asked Ms Brown (who was the Call Centre Manager at the time) if she, or anyone else to her knowledge, had ever told the claimant that her secondment at the Call Centre was now permanent. Ms Brown told me that her answer was “no” to both. The claimant also acknowledged that the documents she received in response to her subject access request showed that the CCS post was “recorded as “temporary”. The secondment agreement signed by the claimant is very clear as to her substantive post (90-93) and that her role is CCS is a temporary secondment. The bundle contains various variations of contract letters that were sent to the claimant by the respondent each time she commenced a new secondment and when she was offered the BSSO role as suitable alternative employment in May 2023. There is no variation letter in the bundle changing the claimant’s substantive role whilst she was in the CCS role, and the claimant was unable to provide any document evidencing any change in her substantive role. Had her substantive role changed to the CCS role, I find it highly likely that a variation of contract letter would have been provided to the claimant.

[25]As the CCS role was a temporary secondment, the claimant had no right to return to the CCS role under the Secondment Policy and Procedure or the secondment agreement. That right to return only related to her substantive role as Leisure Advisor. The claimant also had no right to be consulted as to the backfilling of the CCS role when her secondment ended and/or filling the CCS role permanently. I was not provided with any evidence that the claimant had been given a contractual right to return to the CCS role or that her rights of return had been discussed with her by the manager in charge of the Call Centre, Ms Brown at the time her secondment in the Call Centre ended and she commenced her BSSO secondment. I found Ms Brown to be a balanced and credible witness who, when appropriate, accepted the shortfalls in communication, and much of her oral evidence was supported by documentation in the bundle. Ms Brown was the claimant’s line manager when she was in the CCS role and gave evidence that there was no conversation between her and the claimant about what happened when the BSSO secondment finished and whether she could return to the Call Centre. Ms Brown said that the claimant did not discuss with her the extension of the BSSO secondment or her application for the administrative role and the impact of this on her ability to return to the Call Centre. There was no need for the claimant to do so as Ms Brown was no longer her line manager. I accept the evidence of the claimant and Ms Fowler that the claimant did discuss it with Ms Fowler before moving to the administrative role secondment and Ms Fowler attempted to obtain some clarification on behalf of the claimant but I find Ms Fowler didn’t receive the necessary confirmation for the reasons I set out below.

[26]Whilst there was a secondment agreement for the initial period of this secondment. There was no evidence before the Tribunal that the claimant’s line manager in her Leisure Advisor substantive role was keeping in touch with the claimant throughout this secondment as envisaged by the Respondent's Secondment Policy and Procedure. Business Systems support Officer role (September 2020 to September 2021)- secondment

[27]The claimant expressed an interest in a six- month secondment as a Business Systems support Officer role (“BSSO” role to work on a specific project (building a new Leisure Management System). The claimant commenced this secondment on 7 September 2020, and the claimant verbally agreed to a six-month extension to the secondment. The respondent does not dispute that when the claimant was undertaking the BSSO role in September 2020-September 2021 she was on a secondment and that the BSSO role was not her substantive role. Her substantive role remained Leisure Advisor while she was undertaking the BSSO secondment (as with the claimant’s previous secondment).

[28]Ms Fowler said that the claimant had discussed returning to the call centre role as “she was finding the BSSO untenable, she was not sleeping, was crying daily (in and out of work) and was terribly unhappy. Ms Fowler believed there was every chance the claimant would reject a 6 month extension to the BSSO secondment, but she agreed to have a conversation with the claimant to see if she could persuade the claimant to try and give the position another go, it may have been the stress of going live with brand new software system that could have been causing her stress.” However, the claimant did choose to accept the offer of a six-month extension and her email to Ms Fowler 13 August 2021 (104) indicates an openness to consider a further extension. In her email of 13 August 2021, the claimant asked “As of today we are just over 3 weeks to the end of 12 month period. Can you please set out what the process is now of returning to my substantive post or extending the secondment.” The claimant copied in Ms Brown into this email but, crucially, did not identify what she considered her substantive role in this email and so Ms Brown was not aware that the claimant considered her substantive role to be the CCS role.

[29]In September 2023 (257-258) Ms Fowler had provided some information to Ms Long about the claimant’s time on secondment in the BSSO role to assist with Ms Long’s consideration of the concerns the claimant had raised about being redeployed into the BSSO role in May 2023. Ms Fowler said that the claimant had “genuinely disliked the job and Simon, Vikki and I had several discussions about [the claimant’s] mental health and her desire to return to the call centre post”. Ms Fowler said that the claimant “spoke with [her] about her unhappiness and asked to apply for an admin post- of which I then absolutely encouraged.”

[30]I find the respondent was aware that the claimant was unhappy in the BSSO secondment, genuinely disliked it and found it stressful at times and that her line manager had tried to be supportive during this time and monitored her wellbeing. However, I was not persuaded that “management knew that this role had previously made [the claimant] ill” as the claimant contended. The claimant did not provide the Tribunal with any medical evidence from the relevant time to support that she was “ill” during the secondment, in fact she argues that until March 2023 she had an unblemished sickness record (which included the period she was undertaking the BSSO secondment). She voluntarily accepted a 6-month extension to the secondment and in fact seemed to be open to considering a further extension when you consider the wording of her email dated 13 August 2021 (104). In addition, Ms Fowler confirmed in evidence that whilst she had been monitoring the claimant’s wellbeing, she had not considered referring the claimant to occupational health and it was more conversational support.

[31]Ms Fowler’s assumption, as expressed in her email to Ms Long of 2023 and her evidence was that the claimant would return to her Call Centre role and she was very much looking forward to returning. She said in her email in 2023 that she did query with her manager what would happen to the claimant’s Call Centre role if she accepted the administration secondment but received no response and was never advised that it would have any consequences and presumed that, as far as she was concerned, the claimant would return to the CCS role. This is at odds with her written witness statement dated 15 September 2025, which says that she received a phone call from her manager “confirming” that taking the admin secondment would not affect the claimant’s Call Centre position. In the absence of any other documentary evidence to the contrary, I preferred the more contemporaneous record of events that Ms Fowler gave in 2023 while it was fresher in her mind, to this part of her witness statement. Whilst I found Ms Fowler generally credible, I was mindful that Ms Fowler was being asked to provide evidence on behalf of the claimant regarding matters from some years ago, including about matters which had not, on her own evidence, been documented and the adverse impact this could have on her evidence. In Ms Fowler’s own words from 2023 “ I know it was a wee while ago so memories can be hazy, I am lucky if I can remember yesterday sometimes, so it may be difficult to provide you with concrete facts and information.” (258)

[32]It was clear from her evidence and documents in the bundle such as 257-258 that Ms Fowler and the claimant had enjoyed a close working relationship and that Ms Fowler was keen to support the claimant, if she could, both in 2023 and at this final hearing. On her own evidence, she was a very junior manager at this stage in her career. Quite understandably, she was more reliant on her line manager for support and guidance and passed queries about the claimant’s role onto him, and he provided her with instructions as to what to include in the secondment forms. Ms Fowler did not persuade me that she had any direct knowledge of the claimant’s substantive role but I accept that she assumed and believed it was the Call Centre and attempted (unsuccessfully) to clarify how the administration officer role would impact on the claimant’s ability to return to the Call Centre.

[33]The claimant did not speak directly with Ms Brown, the manager of the Call Centre, when she moved from the BSSO team to the Administration Officer Role. She did not inform Ms Brown that she had applied for a post on the admin team.

[34]Whilst there is a C01 form for the original secondment period in this role, I was not provided with a copy of any secondment agreement for this secondment. There was no evidence before the Tribunal that the claimant’s line manager in her Leisure Advisor substantive role was keeping in touch with her during this secondment as envisaged by the Respondent's Secondment Policy and Procedure. Administration Officer Role (October 2021 to April 2023)

[35]The claimant left the BSSO role secondment having successfully applied for a further temporary secondment as an Administration Officer role (110). The claimant undertook this secondment from 4 October 2021 to April 2023. It was originally a 12- month secondment but was extended to 18 months by mutual agreement. The claimant understood that this was a temporary secondment and that she was providing cover for a permanent employee who was on a temporary secondment from their substantive role. In about September 2022, Ms Brown’s duties were increased on a temporary basis, and she became responsible for the management of the admin team in which the claimant was working in a the time.

[36]The claimant had no issues in this role. As she said in an email to her then team leader dated 30 March 2023, “Finishing with admin isn’t an issue, I have really enjoyed my experience and happy to see Fiona back” (133).

[37]In early 2023, Ms Brown began speaking with the claimant about the fact that the members of the admin team who had been on secondment were going to come back and what that meant for her. Ms Brown did not recall the Claimant saying at the time that she wanted to go back to the Call Centre supervisor role. Ms Brown wanted the transition to be positive for the claimant and extended the claimant’s secondment until the end of April 2023 to allow for a good handover. Ms Brown made the claimant aware of a vacancy as a BSSO and as a part time admin clerk (112-129). Ms Brown was also aware that the claimant had also applied for Early Voluntary Retirement (EVR). The claimant informed Ms Brown on 21 February 2023 that she needed to know what HR have said about her EVR application before she applied for another post (120). The claimant’s application was refused. Ms Brown remembers speaking to the claimant about EVR at the time and had said that a lot of people apply and very few are successful given the costs involved.

[38]Whilst there is a C01 form for the original secondment period in this role, I was not provided with a copy of any secondment agreement for this secondment. There was no evidence before the Tribunal that the claimant’s line manager in her Leisure Advisor substantive role was keeping in touch with her during this secondment as envisaged by the Respondent's Secondment Policy and Procedure. Deletion of Leisure Advisor role (April 2022) and redeployment to BSSO role (May 2023)

[39]Whilst the claimant was undertaking her secondment as an Administration Officer, the claimant’s substantive role as Leisure Advisor was “deleted” in April 2022 as it was decided that the role was “obsolete” following the closure and redevelopment of the Bidston Centre. The Respondent accepts that the claimant was not informed of the deletion of her role and did not consult with her about the proposed closure of her role and the impact of the closure of the Bidston Centre on her substantive role as envisaged by the Secondment Policy and Procedure.

[40]The respondent accepts that the claimant should have been consulted about the “deletion” of her role but as the claimant was actively employed in another role and had not undertaken her substantive role since December 2017 (over 4 years), it was missed. The claimant carried on working in the Administration Officer role for a further year after the deletion of her substantive role. The claimant was aware of the redevelopment and accepted in evidence that she had never requested to return to her role since leaving on secondment in 2017. I also accept the respondent’s submission that the Tribunal has not been provided with any evidence to suggest that the claimant intended to return to her substantive role. Given the terms of the claimant’s subject access request and grievance, the claimant considered the CCS role to be her substantive role and in March 2023 it was her clear wish to be moved back into the Call Centre rather than the BSSO role.

[41]The fact that the claimant’s substantive role had been deleted only came to light when the claimant’s secondment as an Administration Officer was coming to an end. When Ms Brown was dealing with the end of the claimant’s secondment as Administration Officer with Human Resources, it was discovered that the claimant had no substantive role to return to from secondment as her substantive role had been deleted the previous year. In accordance with its redeployment policy and wanting to retain the claimant, the respondent then set about finding suitable alternative employment for the claimant to continue in. The respondent identified a permanent vacant role as a BSSO, which it considered suitable alternative employment given the claimant had previously undertaken the role on her previous secondment, it was full time, 36 hours a week and grade E and based at West Kirby Concourse Leisure Centre. The claimant was told that the role of BSSO would now be her substantive role, and she would move into it when her secondment came to an end. There was no consultation with her before this decision was taken.

[42]I accept the claimant’s evidence that this was extremely upsetting for her and a shock. She could not understand how a role she had undertaken as a temporary secondment and which she disliked and found stressful had now become her substantive role. Ms Brown confirmed in evidence that when she explained the deletion of claimant’s substantive role and her redeployment to the BSSO role and asked the claimant what she wanted to do, the claimant said that she did not want to go back to the BSSO role as she did not enjoy it. She also confirmed that she was aware that the claimant was upset about the prospect of returning to the BSSO role and remembers asking her not to be upset, and they would find a solution. The claimant’s feelings about the prospect of returning to the BBSO role and her desire to return to the Call Centre instead are evident in her email to her then team leader of 30 March 2023 (133): “ My anxiety is related to being put back into systems [the BSSO role] and not the call centre. I am extremely upset about this and had no idea this secondment would become my substantive post. The thought of working in systems make me feel quite truthfully sick to my stomach and deeply anxious. ... I am taking some time to talk to myself. I know it is a job and I know i should be grateful I have a job but the thought of coming to work everyday into a role that makes me feel this way isn’t healthy. I am sure my migraine was related to stress. I need to manage the palpitations and tears.”

[43]The claimant commenced a period of long-term sick leave on 28 March 2023 – giving the reason for her absence as Mental Illness/Health - stress.

[44]It was clear from the evidence of Ms Brown and Mr Phythian that they very much valued the claimant’s skills and experience and were open to being flexible in terms of what the claimant’s duties would be in the BSSO role to ensure the claimant was happy and more comfortable in the role. Before the claimant went on sick leave, Ms Brown had explained to the claimant that there were ways the respondent could ensure that she could work on things that she would be happy to work on, as there were a number of work streams in the systems team. Ms Brown explained that there were a lot of tasks to be done on the system which were not working properly and so there were opportunities to do different projects. A meeting had already been arranged with the claimant for a day after she went onto sick leave to talk through the projects which the respondent needed doing to see if there was a project she was comfortable doing. Ms Brown also detailed in her witness statement that at one point when speaking to the claimant on the phone, “she had implored [the claimant] to come back” and said that “we would ensure that she could do whatever tasks would be in her interests, the things she was good at. [The claimant’s] knowledge of building system was second to none.” This evidence was not challenged by the claimant.

[45]Whilst on sick leave the claimant’s secondment in the admin team came to an end and she returned to her substantive role (which, given her substantive role had been deleted, was deemed to be the BSSO role so that she still had a role with the respondent). This was confirmed in a variation letter to the claimant (130).

[46]On 6 April 2023, the claimant contacted her union representative, Mr Joel Mansell for advice (134). Mr Mansell continued to act as the claimant’s union representative throughout the remaining period of her employment of her employment. On the advice of her union representative, the claimant submitted a subject access request. The claimant requested her contracts and statement of particulars as “[the claimant] believe there to be discrepancies between what is considered my substantive post in the authority.” This was responded to on 24 May 2023 (rather than the original deadline of 12 May 2023) (140)

[47]On the advice of her union representative, the claimant submitted a subject access request. The claimant requested her contracts and statement of particulars as “[the claimant] believe there to be discrepancies between what is considered my substantive post in the authority.” This request was responded to on 24 May 2023 (rather than the original deadline of 12 May 2023) (140)

[48]Ms Brown was responsible for supporting the claimant’s welfare and her contact whilst she was off sick. The claimant had asked that her team leader in the Administrative Officer role continue to be her support and contact until she returned to work. She said the reason for this was “ For continuity, I would find it less stressful to liaise with you”. (139) Ms Brown explained in evidence that this team leader did not want to continue as the claimant had now left her team following the end of her secondment and so Ms Brown took over. The claimant had alleged that this was “cruel” but I find no evidence that such a decision was either cruel or the claimant’s treatment by Ms Brown was cruel. Having considered the correspondence between Ms Brown and the claimant, I find that Ms Brown tried to provide appropriate support to the claimant whilst she was on sick leave even when her efforts were rebuffed.

[49]Ms Brown referred the claimant to occupational health and a report was produced on 27 April 2023 (593-597). The report stated that the claimant was temporarily unfit for work and was expected to return on 20 July 2023. It said that no adjustments were likely to be required to the claimant’s role but recommended that a stress assessment should be performed to identify and particular areas of the role which she may find stressful and once issues regarding the claimant’s role had been resolved it would not have any impact on her performance. The report says that “Amanda reports symptoms of poor sleep, comfort eating, tearful and having no motivation.” It also states “Based on my assessment today, in my opinion, Amanda has symptoms of stress and depression due to the role she has been told she has to do which is in dispute, I therefore do not think she is fit to continue in the role of Business Support Officer due to the affect this is having on her mental health for which she is having counselling and input from her GP”.

[50]The occupational health report summarises clearly the core issue for the claimant in this case: “[the claimant] wants her role clarifying as she has been put into a role as business support Officer that she does not think is her job and has no paperwork, emails or any communication to say this is now her role. “[the claimant] tells me she has been given the role of Business Support Officer, however, she is disputing that this is her role and itis not the role she wants to do”

[51]The claimant was invited to a welfare meeting and attended this on 23 May 2023. Ms Brown agreed to rearrange the meeting when the claimant said she would like to bring someone to the meeting and that person was not available on 23 May 2023. The welfare meeting went ahead on 25 May 2023.

[52]Following the welfare meeting, Ms Brown emailed the claimant to provide an update “Hi Amanda, It was nice to see you yesterday, thanks for attending. As agreed, I have noted all your queries and questions with HR and have requested an update meeting with them next week. Due to annual leave commitments and diary clashes I am not sure how quickly I will be able to meet with them. As soon as I have any more information or I am able to confirm your queries I will be in touch.” (151-152). Ms Brown also arranged for the SAR information to be re-sent to the claimant, when the claimant said she hadn’t received all of the attachments.

[53]Following the welfare meeting, the claimant emailed her union representative (150) saying “I had the welfare meeting yesterday, however, I can’t see this situation being resolved any time soon, can we discuss what to do next.”

[54]On 6 June 2026 (154) Ms Brown provided the claimant with a response to the queries and questions she had raised at the welfare meeting. “Hi Amanda, I have tried to call you today but I missed you. I hope you are well. After your welfare meeting I requested that the SAR was re-supplied at your request, I hope you have received a second copy. I met with our HR Business Partner Nicky Long this morning to confirm your role and the secondment process. She has again confirmed that the position that I have explained to you is correct. You have been returned to your role is Business Systems Officer as of 1st May 2023 following the end of your secondment as an Administration Assistant in line with HR policy. I advised her that I would contact you to confirm the situation as agreed in the meeting. If you would like to speak to Nicky directly she is available to further outline the position regarding your employment history either by email or at a face to face meeting. If you would like me to arrange either of these options please let me know. Thank you for your doctor’s note earlier today. As part of the absence procedure I will request a second Occupational Health referral for you as suggested in the first report. You will hear from them shortly, please let me know if there are any problems. (I did report that you were not made aware of the first meeting prior to the telephone call). Please let me know f there is anything else I can help with. Take care, Vicki Brown”

[55]The claimant again asked her union representative for his advice and he recommended that she submit a grievance. Mr Mansell provided the claimant with the relevant grievance form, grievance policy and procedure on 6 June 2023. (157)

[56]On 12 June 2023, the claimant responded to Ms Brown’s email of 6 June 2023 (158- 159) stating: “You said, Nicola Long has “confirmed” the position is correct, I would like to ask: a) Where is the agreement (with me) that this would be the case. b) Where is the policy/ documentation that shows this is the case? c) Where is the copy of the explanation to me that this would be the case (before) I accepted the Admin Officer position? I am currently in the process of taking more advice on this matter. I am sure I have made it clear to you how unhappy I am with this whole situation, I am more than happy for a second OH appointment in line with policy. I am unavailable this week but will look forward to your reply.”

[57]The claimant attended a second occupational health meeting on 20 June 2023 and. Ms Brown forwarded the claimant’s response of 12 June 2023 to Ms Long in Human Resources. Ms Long contacted the claimant on 7 July 2023 in response to the claimant’s questions and having considered the occupational health recommendations. Ms Long attached a screenshot of the claimant’s employment record to this email and provided the following information to the claimant: (167) “ Your recent OH report (20th June 2023) states “She tells me she has been given the role of Business Support Officer; however, she is disputing that this is her role and is not a role she wants to do”. I am aware that you have made a Subject Access Request and are working through the documents, but I thought it may help if I add further context. Below is a screenshot of your employment record with HR and I have outlined each post from 01/12/2017. You can see from the above that the post you needed to return to following the end of the secondment is the permanent role of Business Support Officer. The role of Call Centre Advisor was never a permanent role and one which you had departed over two years previously to take up the role of Business Support Officer. I have asked Vicki to discuss with you why it is a role you do not want to do? Vicki advises me that whilst in the role previously you assisted in the build and design of the current system and you did not indicate that you were unhappy. Please be assured that we want to work with you and support you back into the workplace. We will offer any required training and support, but this will be in the role of Business Support Officer. As you will also be aware we do need to adhere to the Council’s attendance management process, and you will see that I have copied Martin Batten into this email. Martin is our Employee Relations & Policy Manager, and I have therefore asked Martin to allocate an Employee Relations Officer to support this absence. I will ask Toni Davies to send you a copy of the Attendance Management Policy as the link will not send to your personal email account. You can should you so wish to access this policy on your laptop. I have asked Vicki to continue with your welfare calls and visits and to complete a Stress Risk Assessment with you. I note the OH report did not recommend a follow up, but should you feel, this would be beneficial please let Vicki know. If you feel that a meeting with myself would be of assistance, then I am happy to arrange that. (167)

[58]The claimant responded to Ms Long’s email on 10 July 2023 (168) saying “Further to your email, received at 22:11 on Friday night, and your text today Vikki, we appear to be going round in circles. The information provided by you Nicki is inaccurate, I have never been made permanent in the systems role. I have raised a grievance, and hope once and for all this situation gets resolved... My absence is related to being blatantly ignored, I am being told by you that are right without explaining to me how and when and ignored resulting in stress and anxiety relating to my absence. Please involve everyone necessary, after 28 years I am extremely disappointed to be treated this way.” Look forward to hearing from anyone who cares to resolve this issue.”

[59]The claimant continued to send increasingly intemperate emails to Ms Brown and Human Resources contending that she was not being supported and that the respondent was ignoring her questions despite the information previously provided. Ms Brown and Human Resources responded to all such emails in a calm and professional way. Ms Brown’s emails in response included offers to meet, reassurance that she “wanted to help” and “please be assured that your situation is a priority for all of us and as usual I am available to meet and discuss the situation at any time.” There is also documentary evidence of Ms Long reaching out to the claimant’s union representative to try and resolve the matter and discuss alternative roles for the claimant and them corresponding with in a productive way. On 19 July 2023, the claimant told Ms Brown in an email that “I don’t think there is much point in meeting, I have expressed my questions to you so many times and I am not getting any answers”. She said that it was in the “hands of the grievance process now”.

[60]On 12 September 2023, Ms Long sent a very clear email in another attempt to answer to the claimant’s questions and setting out the support that had been made available to the claimant up to that point. (237) “Hi Amanda, Vicky Brown recently contacted me following an exchange of emails you have had. I am responding to a statement included in an email you sent Vicki on 11th September at 13:08pm which stated, “I am still waiting for the evidence/ documents requested showing proof of when Business systems became my post, as yet I haven’t received anything, first requested in March, and many times since”. I did email you on the 7th July detailing all your post history (see attached). For further clarity, 1. 1. You were employed as a Business System Support Officer for the period 07/09/2020 – 03/10/2021. (Post: SR/01/009). 2. 2. On the instruction from Kerry Fowler via a C01 you left the above post to take up a secondment. This was the post of Admin Officer, Band F which you occupied from 04/10/2021 – 30/04/2023. 3. 3. Prior to the Business System Support Officer role, you occupied the post LS/09/180, Call Centre Supervisor, Band E. This covered the period 01/12/2017 – 06/09/2020. Amanda you were seconded into this post from Wirral Tennis Centre, I have attached the secondment agreement which clearly outlines that this is NOT a permanent role. (See attached secondment agreement). Therefore, Amanda you cannot return to a temporary role you occupied over 3 years ago as the post was not left open for you to return to. Amanda, if you can provide any evidence to HR that the Call Centre role was your permanent position, I would be happy to review. [My emphasis] You could not return to your “substantive” post at the Tennis Centre as this post had been made obsolete as part of the temporary closure of the WBTC. Please note it has also been nearly 6 years since you occupied that position. I have spoken with Vicki and asked if she had any 1:1 / Supervision notes which recorded you wanted to return to the Call Centre role following your move to the Business System Support Officer (Vicki Brown was your manager during both positions) Vicki has confirmed she has no confirmation from you. Vicki says that when you were offered the Band F, Admin role you still did not enquire as to what role you would return to, it is standard practice that unless otherwise agreed you return to the role you left so in this case the role offered for you to return to is the Business System Support Officer. I believe Vicki has offered you a number of support options to return to this post which have included a phased return, refresher training, a buddy / mentor. All these support options are still available to you. I will also ensure that any Occupational Health recommendations are adhered to, such as a risk assessment.”

[61]The claimant did not provide Ms Long with any evidence that the CCS role was her permanent position. Given the claimant’s unhappiness with the BSSO role and the contents of the occupational health reports, there is clear evidence that the respondent also attempted to support the claimant in finding an alternative role. Within the bundle are a number of emails showing the respondent making the claimant aware of vacancies she may be interested in and liaising with her union representative in relation to these opportunities.

[62]In Ms Long’s email to the claimant of 12 September 2023 (237-238) Ms Long notes “Amanda, your manager, and HR want to support your return to the workplace, we are working hard to support you in obtaining another role, even though you have a role to return to. We have supplied you with details of the following opportunities which you have not applied for 1. 1. Sales & Retention Advisor, Band D. Part time 20 hours per week. (Permanent, although subject to the Enabling Services Review). 2. 2. Admin Officer, Band F . Full-time 36 hours per week. (Temporary role connected to the Woodchurch Football Programme, 6-month contract subject to review). A further post has become available this is a temporary Admin role, Band D, 36 hours per week. I have attached the details for your consideration. Again, I open up the opportunity to offer you a meeting with myself, and your line manager, Vicki. This can be via teams or face-toface, and Joel [the claimant’s union representative] can attend to support you should you so wish.”

[63]In an email to the claimant regarding her sickness review meetings on 29 September 2023, Ms Brown wrote to the claimant “ As always I am free to meet up if you would like to discuss anything further, I want to find a resolution for the situation as much as you do. Please don’t hesitate to contact me, I am available next week between Wednesday 4th and Friday 6th October.” (265).

[64]On 21 September 2023 the claimant attended a first formal review of sickness absence meeting (259-261 and 269) and was accompanied by her union representative. At the outset of the meeting Ms Brown stated that the “main aim is to work towards Amanda’s return, preferably in a role which you are comfortable. Over the course of the absence, I have maintained contact-welfare, arranged 2 occupational health referrals. I understand the disagreement on the post is the main concerns, but we need to discuss today as a policy.” The claimant’s union representative stated, “we don’t disagree that a trigger has been hit, but we can discuss in detail mitigation.” The claimant confirmed that she had contacted EAP and attended counselling, but said that the “crux of the issue is the grievance, had this been properly addressed in time, I wouldn’t be off”. Ms Brown responded that “We feel that we have tried to put in support. We have raised other roles to you as we know that has been the crux.” Ms Brown also confirmed that “ Regarding the [BSSO] role, we can look at reasonable adjustments if you were able to come back to the role”. The claimant responded, “That is not my role and I am not interested in it”. By way of mitigation, the claimant’s union representative raised that the grievance had been raised on 20 July and there had been no progress and it could have been dealt with. He also said that he did “appreciate that roles had been offered.”

[65]The claimant was informed that the outcome of the first formal review on 5 October 2023 (269). She was informed that the respondent had taken the decision to issue a first letter of concern and place her into a formal review and monitoring period. She was not given a formal sanction. Ms Brown explained “Whilst we accept that the grievance was submitted on 20 July, stating that you do not accept the policy that places you into you previous job role after a secondment, you had been absent from the workplace for 16 weeks prior to this date and therefore had already hit an absence trigger. We have endeavored to offer you help, support, coaching, an assessment of duties and a range of additional roles to apply for during your absence and will continue to do so.”, Grievance

[66]The Respondent has a well-defined Grievance Policy and Procedure (572-590). It expressly states that the Grievance Procedures are “not intended to be incorporated into an employee’s contract of employment since its contents will be kept under continuous review.” The Grievance Procedure states that it is critical for the effective operation of the Grievance policy that the indicative timescales set out to deal with grievances are adhered to so far as reasonably practicable. The indicative timescales are that the Manager should reach a decision within one month of receipt of the grievance with acknowledgement of grievance within 5 working days of receipt, meeting to discuss grievance within 10 working days of receipt, all investigations complete and hearing arranged within 1 month of receipt of grievance, outcome within 5 days of hearing. However, the Grievance Procedure also states that: “4.3.5 It is recognised that in exceptional circumstances and in particularly complex cases, grievances may sometimes take longer than anticipated to deal with. Timescales may be varied by mutual agreement, and all parties should be kept updated on progress regularly. 4.3.6 In such cases, the manager must ensure that the employee (and their trade union representative) are made aware of the reasons for any delay in progressing the grievance, and that there is justification for the delays. It is important that effective and regular communication is maintained throughout the process.”

[67]The respondent accepts that the claimant’s union representative submitted the claimant’s grievance on 20 July 2023 (414-421) with accompanying documents to the relevant Employee Relations email. The claimant said she was “raising a grievance for two specific reasons, 1) I have not been returned to my substantive post as Call Centre Supervisor. 2) How the end of secondment has been managed.”

[68]At paragraphs 14 to 18 of his witness statement, Mr Phythian gives a clear and accurate summary of the claimant’s grievance a:14. “In summary, [the claimant’s] grievance centered around the fact that in March 2023, when her temporary role as an admin officer was coming to an end, she was advised that she would be returning to a role as a Business Systems Support Officer. This was a role which she had done before she took on the temporary admin post.

15. Amanda had not been happy in the BSSO role, and it seems that she had expected to return to a post in Leisure Services’ call centre, where she had worked as a supervisor from about 2017 to 2020.

16. Amanda had started a period of sickness absence in March 2023, as she said that the prospect of returning to the BSSO role was making her ill.

17. Amanda had understood that her substantive post was the post she had at the call centre.

18. Amanda had wanted to know what the policy was which meant that a 6 month secondment (i.e. the BSSO role) can become a permanent post.”

[69]I find that unfortunately the grievance was not received by the respondent and that the initial delay of two months was unintentional. There are a number of exchanges within the bundle relating to Human Resources which corroborate this and speak about the efforts to find it once Ms Brown had alerted Human Resources that the claimant had contacted her to seek an update on her grievance on 12 September 2023. Enquires and checks were made by the respondent’s Human Resources team who updated Ms Brown on 21 September 2024 “ [the claimant] wanted an update on her grievance, but Joe and I can’t find one, so I'll need to go back and ask her where she sent it too.” The claimant’s union representative sent another copy of the claimant’s grievance on 25 September 2023 to Ms Brown, which she sent onto Mr Joe Fookes of Human Resources. On 2 October 2023, Mr Fookes sent an email to Ms Brown to thank her for forwarding it on and said “Thanks for sending over Vikki- how odd, I’ve checked the ER inbox on to see the original message from Joel but can’t seem to find it anywhere.” (266). On 6 October 2023, Mr Fookes sent an email to the claimant and her union representative saying “ Thanks for sending this through, I can confirm I have received the grievance form for Amanda- apologies for the delay, I have checked the Employee Relations inbox for emails on the 20th July and the subfolders but can’t seem to find your original email. I will follow up next week with an update on how we will proceed with grievance.” (271)

[70]Mr Rob Phythian (Operations and Compliance Manager) was then asked to consider the claimant’s grievance. He wrote to the claimant on 20 October 2023 asking if the claimant and her union representative could meet to discuss her grievance (284-285). The claimant confirmed that she and her union representative were available on 30 October 2023.

[71]A grievance meeting was held with the claimant to discuss her grievance on 30 October 2023 at which she was accompanied by her union representative. On 31 October 2023 the claimant sent an email to Mr Phythian saying “Thank you for all your time yesterday, I just wanted to say, its the first time since March I have felt heard. I feel, you gave me a chance to express my concerns, you listened and hopefully taken on board what I have said, and I feel hopeful of a speedy resolution.” (289).

[72]On 31 October 2023, Mr Phythian sent the claimant an email. He thanked the claimant for her email and meeting with him and that the meeting had been helpful to understand the issues she had raised. He explained that he would now “consider the numerous pieces of information that had been provided and speak to key colleagues within the process”. Mr Phythian said that he would undertake this “as timely as possible and keep your updated.” In the email he also provided an overview of the key tasks that the claimant could consider as an interim arrangement for returning to work in the Business Systems Support Post which came under his responsibility and referred to how the LMS system had undergone an upgrade and this had significantly improved reliability and confidence in the system for staff and customers.

[73]Mr Phythian continued his investigation of the claimant’s grievance and on 9 November 2023 updated the claimant and her union representative on his investigation into her grievance. In this letter he confirmed that, after discussions, he was proposing to change the current keeping in touch arrangements to further support the claimant. He confirmed that rather than Ms Brown, Ms Stacey Addison would undertake this role. He also confirmed that he had asked Ms Addison to complete a stress risk assessment with the claimant. He also confirmed that any absence management processes would be paused whilst her grievance was being investigated and heard and the list of current vacancies was available for the claimant to access through the respondent’s internal jobs page. Mr Phythian gave evidence that the reason he had made this decision was because the claimant had said at the grievance meeting that she was unhappy with Ms Brown and it was clear to him that the claimant perceived that Ms Brown had treated her poorly. Whilst Mr Phythian did not decide that Ms Brown had treated the claimant poorly, he thought, because of this perception, it would support the claimant to be allocate to another officer and alleviate this concern.

[74]Mr Phythian sent a further update regarding his investigation to the claimant on 17 November 2023 (295) explaining that the remaining witness he wished to speak to was currently away from work but that he had been moving his investigation forward in other ways. (295).

[75]On 29 November 2023 Mr Phythian sent a further update regarding his investigation to the claimant (296) and thanked her for her continued patience. The claimant responded to this email saying she was getting anxious awaiting this email and that she was not available from 12 to 19 December and asked if it was possible to meet Mr Phythian again before this. (297)

[76]Mr Phythian acceded the claimant’s request and invited the claimant and her union representative to a further meeting to “reconvene our discussions relating to the outstanding grievance raised, so that I can provide you an update and briefing on possible next steps. (298). This meeting took place on 11 December 2023. The notes of this meeting are at pages 299-300 in the bundle. During this meeting, the claimant said that she had “assumed” that her substantive role was no longer Leisure Advisor as she “had been at the call centre for many years – others were in the same position so all assumed” and the “admin not done”. When Mr Phythian went over the chronology of the claimant’s posts, the claimant said “it makes sense but none of it has been communicated”. She had asked how she had been assigned to the BSSO role “but only had it explained now.”

[77]Mr Phythian also asked the claimant if she had any thoughts about what outcome she wanted. The claimant indicated that she wanted to move to another department because she felt that ““trust ha[d] broken down” with regards to her manager, Ms Brown, who continued to manage the call centre. She said “ I feel like we’ve gone so far down the line, so stressed – I want to go, another department, mad about that.”

[78]In the time between this meeting and delivering his outcome Mr Phythian spoke to the claimant on the telephone to explore other options for returning to work as referred to in his grievance outcome letter (306).

[79]During her grievance the claimant also raised that she ought to be reimbursed for the pay she had lost during her sickness absence as the delay in dealing with her grievance had led to her being off sick for longer and moving onto half pay after 26 weeks. Mr Phythian, with genuine humility, gave evidence that he originally thought he was able to deal with the claimant’s request and was sympathetic to the claimant’s position. However, when his grievance outcome letter was reviewed by Human Resources and he had discussed the matter with them, he was advised that decisions around the payment of discretionary sick pay was not his decision to make and it needed to be dealt with at a more senior, organisational level. Mr Phythian said that it was explained to him why his view was wrong and that a decision about discretionary pay may have a wider organisational impact. Mr Phythian said he now understood that his view of the claimant’s request was a narrow, departmental view and for consistency reasons any decision on discretionary sick pay needed to be dealt with at an organisational level. When Mr Phythian finalised his grievance outcome letter, he revised this paragraph and made it clear that the concern regarding sick pay would be decided and communicated separately, and he was in discussion with Human Resources regarding it. The claimant was not aware that there was a draft grievance letter with different wording regarding discretionary sick pay or Mr Phythian’s initial view on her request for reimbursement until the disclosure process in these proceedings.

[80]On Mr Phythian wrote to the claimant on 19 January 2024 Mr Phythian wrote to the claimant to say that he had concluded his investigation and that, after review by HR colleagues, he would be sending her the formal outcome early next week (304). Within this draft outcome letter (301-303) Mr Phythian agreed to the claimant’s request to adjust her pay from half pay to full pay for the period 21 September 2023 to 21 January 2024. This paragraph was removed in the final version of the grievance outcome and the claimant was not aware of the contents of the draft grievance letter until it was disclosed during these proceedings.

[81]On 24 January 2024 Mr Phythian sent the claimant the formal outcome of her grievance (305-307). He did not uphold the first part of her grievance- “not being returned to your substantive post as Call Centre Supervisor.” Mr Phythian set out his conclusions as to the claimant’s employment history and explained that he had concluded that her substantive role was Leisure Advisor at the Bidston Centre and she had been seconded internally within Leisure Services for a number of positions over several years. He explained that whilst the claimant was undertaking her secondment as an Admin Officer the Bidston Centre had closed and her substantive role deleted in the first half of 2022. The Admin Officer secondment would end in April 2023 and so there was a need to find an available suitable role for the claimant.

[82]Mr Phythian concluded that “with the evidence that I have available and the circumstances that present, it seems to me that there is a suitable alternative role for you that is being offered as the post of Business Systems Support Officer. This post is seen as suitable alternative role on the basis the post is full time, 36 hours per week, at grade E and based at West Kirby Concourse Leisure Centre.” Mr Phythian gave evidence that he had discussed with the claimant during the grievance process how the BSSO role had changed since when she had undertaken her secondment in the role. He said that he felt that the respondent could find a way for the claimant to take on the BSSO role in a way that suited her. In his grievance outcome letter, Mr Phythian recorded how he had discussed with the claimant the need to review the BSSO job description as the key duties had developed since she had previously worked in it. He said that he would “welcome further discussion with you, as the line manager of this post, with the view to elevating any additional concerns that you have and supporting a return to work.”

[83]Mr Phythian explained in evidence that he had tried to explain in his outcome letter that the requirements of the business support team had now moved on since the claimant had last worked in the role given that the new system (XN) had been installed. He said when the claimant had previously worked as a BSSO the work was focused around launching the system. The system had since been launched and so the role of the team had progressed into providing maintenance of the system, support and training; it was more about managing staff to use the system.

[84]Mr Phythian also concluded that the claimant had remained seconded in the Call Centre Supervisor role from 1 December 2017 until September 2020 before being seconded to the BSSO role. Her substantive role had remained Leisure Advisor and the Call Centre Supervisor roll was backfilled when her secondment ended. Mr Phythian concluded that “as the Call Centre Supervisor role was not [the claimant’s] permanent role, there will have been no grounds for [the claimant] to return to that role at the end of [her] secondment in the Admin Officer role. As the Call Centre supervisor role is occupied there would have been no grounds to move the current post holder out of the role.”

[85]Mr Phythian upheld the second part of the claimant’s grievance – “how the end of [the claimant’s] secondment had been managed”. Mr Phythian explained in evidence (and his grievance outcome letter) that he had found that the claimant’s internal secondments had not always been managed well and accepted that this had not always been conducive to the claimant’s well-being. Mr Phythian took the view that the claimant should have been consulted when the Bidston Centre had closed for redevelopment in April 2022 and her role was deleted. “I find that there were elements of how the end of your secondment was managed that were not supportive to your wellbeing or unhelpful in seeking a resolution to your concerns. I take that view that you should have been consulted with when the Bidston Sports and Activity Centre closed for redevelopment and your substantive post was deleted. I also believe that regular review meetings should have taken place doing [sic] your various secondments to inform you changing arrangements and to provide effective communications relating to your employment. As a service we have a duty of care to all employees, and I will be discussing with HR colleagues the contents of the grievance and recommendations going forward on the improvements that need to be made.”

[86]Mr Phythian acknowledged that this had been a difficult process for the claimant and that the issues raised had not helped her wellbeing. He sincerely apologised that the claimant had had to bring these issues to management and said that he was “keen to resolve and improve relationships to the benefit of all parties.”

[87]The claimant was advised of her right to appeal the outcome of her grievance but decided not to appeal. During cross examination, she said that the reason she did not appeal was she had lost trust. When asked in cross examination, was there anything that could have been done by the respondent at this point, the claimant responded that “no, I felt let down at every point in the last year so probably not.”

[88]Having received the outcome of her grievance the claimant requested to meet with the Mr Phythian to discuss his outcome and next steps. The claimant subsequently returned to work officially on 3 February 2026, initially taking annual leave and then undertaking adhoc duties and project work which she was comfortable doing whilst she went through the formal redeployment process.

[89]This was a complex grievance which covered a number of years and secondments, Mr Phythian met with the claimant twice, considered a significant amount of documentation and interviewed relevant witnesses before coming to his conclusion. He kept the claimant updated on his progress throughout the grievance process and when there were delays, such as when he was unable to speak to one witness due to her being on leave. Meetings were organised taking account of the claimant and her union representative’s availability and the outcome letter was balanced and gave the claimant clear answers to the questions she had said had been “ignored” or not answered since March 2023. The respondent admits that in terms of how long it took, the grievance investigation did not comply with the grievance policy.

[90]In paragraph 9 of her witness statement the claimant explained that when the grievance outcome identified the Leisure Advisor role (the claimant refers to it as her Reception post) as her substantive post it was a shock to her as she had not worked in the role since 2017 and had always understood that her substantive post was the CCS role. The claimant accepted that she was aware that staff were being consulted about the closure of the Bidston site in April 2022 but it had never occurred to her that it would affect her as she had been out of the role for over 5 years at this point. The claimant also said that she was aware that her colleagues at the Bidston site were consulted about the closure and offered options such as redundancy or Early Voluntary Retirement (EVR).

[91]The claimant said that she was not consulted or informed that her post was being deleted (which is not in dispute) and so was denied the same opportunities as her colleagues who were consulted and was not offered options such as redundancy or EVR. She said this was a serious breach of procedure and the implied term of trust and confidence and denied her the opportunity to be considered for redundancy or EVR, which could have been financially significant. Post grievance period up to termination

[92]Mr Phythian had a follow up meeting with the claimant on 31 January 2024 and sent an email to the claimant on 3 February 2024 (312) confirming that her was going to meet with Ms Long and they would discuss the issue relating to her sick pay, explore any interim posts outside of leisure and agree a date for a meeting to discuss the possibility of a permanent post outside of leisure services. As the claimant’s fit note was expiring, Mr Phythian asked whether the claimant if she wanted to start using some of her accrued holiday from the Monday whilst he was getting an update for her from Ms Long. The claimant responded that she was happy to use holidays from Monday “assuming the next phase does not take another 3 months!”

[93]On 7 February 2024, Mr Phythian wrote to the claimant again (314) confirming he had met with Ms Long and they had discussed next steps in looking to offer a temporary role outside of leisure services and supporting the claimant in enabling her to take up any opportunities outside of Leisure Services on permanent basis. He confirmed that “HR colleagues were committed to exploring these possibilities but that it had been advised that he refer the claimant to occupational health initially.” Mr Phythian also confirmed that he could not decide the issue relating to the claimant’s sick pay and that this would need to be raised at a higher level and he was happy to complete a return to work interview with her as soon as possible and get her laptop back set up so she could work from home or council building for the next week or so to come up to date with council information, review emails, carry out e-learning etc.

[94]On 8 February 2024, following a telephone call, to confirm next steps, Mr Phythian wrote to the claimant (315). This confirmed that he had referred the claimant to occupational health and that he would have meetings with Human Resources to agree next steps upon receipt of the occupational health report. He confirmed that the claimant had returned to work on 3 February 2024 and payroll had been informed, that the claimant had taken annual leave that week but would be back at work the following week. Mr Phythian also confirmed that he would complete a return to work interview tomorrow and he would contact the claimant throughout next week to agree duties for the following week once they were clearer on how the first week had gone.

[95]The claimant attended a further Occupational Health appointment on 15 February 2024. A copy of the report is at pages 317 to 320 of the bundle. Within the report, the occupational health doctor said “It is my medical opinion that [the claimant] is unfit for her substantive role as a Business Systems Support Officer and that this is likely to be the case for the foreseeable future”. The Doctor said that “from a medical perspective, I would be supportive of consideration of medical redeployment to an alternative role with a reduced requirement for computer systems duties.“

[96]In response to the occupational health report, it was agreed that the claimant be placed on medical redeployment to try and find her an alternative role for her, should that be possible. The claimant was assigned a redeployment officer who met with the claimant during the redeployment period and provided her with information about possible redeployment opportunities.

[97]Mr Phythian remained the claimant’s line manager until her resignation as he was, at that time, the line manager for the business support team. Whilst undergoing redeployment the claimant undertook adhoc and project work which she was comfortable doing and was suited to her strengths. Mr Phythian gave evidence that he tried to be as accommodating as possible. There were a number of projects running at the time and so he asked the claimant what she wanted to do. Mr Phythian believed the claimant was doing well and appeared happy with her new duties.

[98]On 19 March 2024 (322) the Claimant sent email to her union representative: “Hi Joel, I hope you are well we haven't spoken in a while. I have just come back after 2 weeks AL, I have been doing Swimming Invoices for a couple of weeks and I am doing a few bits for Rob. I have a meeting with Toni Davis on Thursday at the Concourse, I guess it is an initial meeting regarding the redeployment process. Rob has managed to get my remaining AL carried over, which is great, however I am still waiting on my pay query. I know time is passing by very quickly, the council have wronged me, and as you said breach of contract and failure to consult are serious wrongdoings. I don't want to miss the opportunity to go to court should they not resolve the pay shortly. I will ask Rob to chase this, do you have any advice for me on any of the issues please.”

[99]In cross examination, when asked whether the claimant’s union representative was advising her to go to Tribunal in March 2024 she responded “possibly”. A few moments later, the claimant said that her union representative was “talking about court being the next step between the [grievance] outcome and this email in March 2024.” The claimant said that she didn’t want to miss going to court and that she was thinking of time limits for putting in her ET1 before sending her email of 19 March 2024. When asked why she did not resign at that point she said she “wanted to try and sort things out – i wanted my job” . She said she was aware that the Employment Tribunal was the next step “if things were not sorted out”

[100]On 25 April 2024, the claimant’s union representative sent an email to Mr Phythian and Mr Long “ Apologies for not being in touch around this for some time. I’m aware [the claimant] is back in work now and is feeling a lot more settled. There is however the outstanding issue that we raised during the grievance process around the delays etc and the impact that this had on [the claimant] and her losing pay as a result.” Redeployment

[101]The Respondent’s Redeployment Policy (354-360) states that it is used when an employee is at risk of losing their job due to redundancy or capability and that the respondent tries to minimise the risk of redundancy or dismissal for capability by endeavoring to support you into a suitable role.

[102]Following the recommendations of the occupational health doctor in February 2024, the claimant was placed on formal redeployment and was allocated a redeployment officer (Ms Toni Davies, Human Resources Officer). Ms Davies met and corresponded with the claimant on a number of occasions throughout the redeployment period and supported her in finding an alternative role as demonstrated by the timeline she produced at 411-413. In advance of the first redeployment meeting, Ms Davies searched for and sourced a number of opportunities for the claimant to consider (323). Ms Davies explained that these were either ready to go to advert, but redeployees got “first look” or ones that would be coming up in the coming weeks. The bundle contains evidence of the claimant being sent a number of opportunities (325-343) and being provided with support, such as feedback on redeployment CV, access to training, learning resources and EAP. (349-351, 352- 360, 361-366, 367, 368-374, 376-377, 386 and 388).

[103]At page 411- 413 is a timeline for the redeployment process that was produced by Ms Davies on 26 June 2025. This details the holding of weekly meetings, the support the claimant received, and the 14 roles offered to the claimant during the redeployment period which were outside of Leisure. Some of these opportunities were fixed term, some permanent and some which offered an opportunity to re-skill. The claimant accepted in evidence that she was sent these roles and was treated as a redeployee when she returned to work from sick leave.

[104]The redeployment timescale was 12 weeks (21 March 2026 – 13 June 2026). The redeployment process would normally last for the period of the employee’s notice, which in the claimant’s case would have been 12 weeks. However, the claimant was not placed on notice of termination. The claimant did not find an alternative role that she felt was suitable during the redeployment period. Given the role had changed significantly since she had last worked in it, the claimant was offered the opportunity to continue in the BSSO role but with an adjusted and revised job description that she was comfortable with and duties that played to her strengths and she was happy doing. The claimant said in evidence that she decided to give the BSSO role a chance rather than leave the respondent. She continued to undertake projects whilst discussing the contents of the new job description with Mr Phythian for the BSSO role that played to her strengths, and she would be happy with. The claimant was given duties that were significantly different to what she had done in the BSSO role before and Mr Phythian believed that “we were going through a process to alleviate her concerns and take measures to mitigate any anxiety she had about working in the role”. Mr Phythian had regular check ins with the claimant, he thought she was doing a good job and the project work was going well and the claimant seemed a good fit for this work.

[105]The claimant was still discussing the job description when she resigned on 1 August 2024. Resignation and Alleged Last Act

[106]On 2 July 2024 (389-390) the claimant sent an email to Mark Dale about the sick pay she had received and being given an absence management letter of concern saying that the delay in acknowledging her grievance, appointing a nominated officer and reaching an outcome had put her at a financial detriment due to unaccepted delays. “In bringing this matter to your attention I would welcome any intervention that you could make to offer a solution. Failing that I will have no option but to formalise my current grievance”.

[107]On 31 July 2024, Mr Dale responded to the claimant: “ I refer to your email of 2 July relating to a number of employment issues. I apologise for the delay in responding, however, it was necessary for information to be gained from individuals who have dealt with matters. I apologise of course for any undue delay in the initial grievance, however, I am told that in term of the letter of concern this does not provide a sanction and will expire at the end of the proscribed time limit. I understand from the HR Advisor that matters have been dealt with consistently. I am sorry if that does not give you the position you would possibly want but hope again no sanction has been applied. I of course wish you well and you may of course seek relevant advice” (402-403)

[108]The claimant sent an email to Mr Phythian at 10.50am on 1 August 2024 resigning from her employment: “Good morning Rob, I regret to inform you that I will be resigning from my position of Business Systems Support Officer. Please accept my notice from today 1 August 2024. Please proceed to terminate my employment with Wirral Borough Council. Thank you for trying, I wish you all the very best and success for the future, you truly deserve it. [My emphasis] Kind regards Amanda King” (395)

[109]Mr Phythian gave evidence that he regarded the claimant’s resignation as completely out of the blue. He was surprised by the claimant’s resignation as he “thought things were going well” and that “we had found work she was comfortable with and which she was doing well”. He also said in evidence that he “felt that she had accepted the outcome of the grievance, although not perhaps the issue relating to her pay.” Mr Phythian sent a email to the claimant at 11.08am “reluctantly” accepting her resignation and saying he was “sad to learn that [the claimant] had taken this decision.”

[110]The claimant sent a further email to Mr Dale on 1 August 2024 at 12.55pm asking him questions in clarification. She asked him to clarify “whether any decision had been made in terms of loss of income due to the prolonged acknowledgement and handling of the grievance”, and what was meant by “matters had been dealt with consistently” and to let her know who he had spoken to in terms of her email. (401)

[111]Mr Dale responded to the claimant’s further email on 1 August 2024 at 4.17pm and said: “I am told my predecessor Tony Williams had already made a decision on the claimed financial loss and that answer was provided to your trade union representative, Joel Mansell. It was communicated by Nicola Long. The answer was not to provide any financial recourse. I have spoken to the relevant HR Business Partners. I have not spoken to Rob Pythian or Joel Mansell. In terms of consistency, this matter has been dealt with in a similar way to others.”

[112]The claimant said in her claim form that the “reason for my eventual resignation was due to a final dismissive email and yet another failure in communication from HR.” She said that she felt her request to recoup sick pay was not being taken seriously so escalated it to Mr Dale and received a reply a month later “that didn’t address her questions.”

[113]She said that “what i found most shocking was that Mark Dale had been advised by the HR Officer Nicola Long that a previous AD whom had retired in February had already made a decision and that it was not to recompense me” and that her concerns were not having been formally written to advising her of the decision and that it was stipulated Ms Long had informed the claimant’s trade union representative of the outcome and requested he pass the information on but her representative strenuously denied ever receiving a email from her.” However, these matters were all contained within Mr Dale’s second email which was sent to the claimant some hours after her resignation not Mr Dale’s first email.

[114]In paragraph 10.1 of the claimant’s witness statement, the claimant states that “by summer 2024, my trust and confidence in the respondent had completely broken down. For over 18 months I had tried to get clear answers about my substantive post, my future role and reimbursement of sick pay, but was met only with contradictory explanations, missing paperwork and shifting positions.” In subparagraph 10.3-10.5 the claimant says “ 10.3 “ I was still chasing reimbursement of sick pay, which had only been deducted because of the respondent’s excessive delays in handling my grievance:• The draft grievance promised reimbursement

• The final version removed this without explanation

• When I escalated the issue, I was suddenly told a decision had already been made month’s earlier to refuse reimbursement – despite nobody (including my union rep and line manager) ever being told and despite no evidence of this decision being disclosed. 10.4 This confirmed to me that I could no longer expect to be dealt with honesty, transparency or fairly. 10.5 On 1st August 2024 I submitted my resignation.” I accept the respondent’s submissions that the documentary evidence does not corroborate these assertions. The respondent had attempted to give the claimant clear answers as to her substantive post and future role at various times after April 2023 and the grievance outcome in January 2024 made the position crystal clear. All of the matters that the claimant refers to in paragraph 10.3 of her witness statement as “final straw” in relation to reimbursement of sick pay were not known to the claimant when she resigned. The draft grievance outcome letter was only disclosed to the claimant as part of these proceedings and so she would have been unaware of its contents and would not have been aware that the finalised grievance outcome no longer contained a decision about reimbursement of sick pay. Mr Dale’s email that referenced a decision having been made some months before by his predecessor was sent on 1 August 2024 some hours after the claimant resigned. On the balance of probabilities, I find that the last straw was Mr Dale’s email of 31 July 2024 and the claimant’s dissatisfaction with Mr Dale’s response not agreeing to reimburse sick pay as she had requested. Sick Pay

[115]The facts relating to sick pay are largely not in dispute.

[116]The claimant started a period of long-term sick leave from 28 March 2023 which ended on 2 February 2024. The claimant stated in her particulars of claim that before March 2023 she had an “unblemished sick record” and her sickness record for 3 years starting in November 2021 (384) shows only 1 other sick day for “ears nose and throat”.

[117]The claimant was covered by a contractual sick pay scheme (the “NJC scheme”) over and above statutory sick pay (SSP). Ms Long gave evidence that the terms and conditions regarding sick pay are contained in national agreements on pay and conditions of service for local government employees. This is known as the “Green Book” or “NJC” terms and conditions, and these are nationally negotiated by a national joint committee of local government employer representatives and trade union representatives. It was not in dispute that the NJC Scheme states that employees who have more than 5 years' service (like the claimant) are contractually entitled to receive sick pay for a period of 6 months at full pay and six months at half pay. It also stated that “Authorities shall have discretion to extend the period of sick pay in exceptional cases”. The calculation of the sick pay period is based on a “rolling” 12-month period. The relevant extract from the “Green Book” entitled Sickness Scheme is at pages 618-619 in the bundle.

[118]The claimant’s Statement of Particulars – Terms and Conditions of Employment (627) also state that the claimant’s contractual entitlement to sickness allowance after 5 years of service was 6 months' full pay and 6 months' half pay.

[119]The claimant accepted in evidence that her contractual entitlement to sickness pay, having been employed for more than 5 years, was 6 months’ full pay and 6 months’ half pay. The claimant accepted in evidence that she had been paid her contractual entitlement to sick pay in full. She had been paid full pay for the first 26 weeks of her sick leave and then her sick pay was reduced to half pay for the remaining period of sick leave with effect from 24 September 2023 (218).

[120]However, the claimant was seeking a discretionary payment of sick pay in addition to what she had received pursuant to her contract of employment. During her grievance process and afterwards she argued that the delay in acknowledging her grievance and dealing with it had put her at financial detriment. She argued that these delays had meant that her return to work was delayed, and so she had moved onto half pay after 26 weeks. She requested that she be paid full pay rather than half pay for the period of her sick leave which fell after 26 weeks.

[121]I accepted Ms Long’s evidence that the claimant’s request for discretionary sick pay was then referred to, as was the practice, to the then Head of Human Resources, Tony Williams (Assistant Director for Human Resources). Ms Long’s evidence was consistent with the documentation from early February 2024 (312), when Mr Phythian emailed the claimant and confirmed that he had “a meeting with [Ms Long] on Tuesday to agree a decision on sick pay owed”. Ms Long explained that Mr Williams decided that it was not appropriate to pay the claimant more than her contractual sick pay entitlement and that he had to look at the bigger picture and the respondent could not justify paying someone more than their contractual pay entitlement unless there were exceptional circumstances. Ms Long explained that at any one time the respondent had a number of staff on long term sickness and Mr Williams took the view “that if he were to increase pay for some employees who were on sick leave it may become difficult to apply the discretion consistently and may become more difficult not to allow requests for an increase in pay which ultimately would undermine the pay scheme.” Ms Long recalled that at the same time another employee, who had been diagnosed with cancer, had also requested to remain on full pay after 26 weeks and her request was also not granted for the same reasons. Ms Long recalled confirming to the claimant’s union representative that the council’s position was that it would not pay full pay when there was only an entitlement to half pay. Ms Long recollects doing this in February 2024 during one of her regular meeting with the union representatives when she was discussing a number of employees (not just the claimant). She does not allege or recall sending the union representative an email and the union representative, who has been involved with many long term sick cases, would have been aware of the respondent’s position regarding discretionary pay.

[122]There is a dispute as to whether Ms Long confirmed to the claimant’s union representative that the respondent’s position was that the claimant should only be paid her contractual entitlement and had rejected her request. The claimant said in her witness statement that the union representative had not been told. The union representative was not here to give evidence and had not provided a witness statement and so this could not be tested. However, the claimant accepted in evidence that it was possible he was mistaken. I prefer the evidence of Ms Long. Regardless of whether the respondent’s position was confirmed to her union representative, I find the claimant was not aware that any decision had been made regarding her request to be paid in excess of her contractual entitlement. The email she received from Mr Dale on 31 July 2024 did not agree to her request to be reimbursed for sick pay. The claimant wrote again to Mr Dale (401) on 1 August 2024 at 12.55pm (after she had submitted her resignation) and asked “ Could you also advise if any decision has been made in terms of loss of income due to prolonged acknowledgment and handling of the grievance? Could you please let me know which individuals you spoke to in terms of my email, did you speak with my line manager Rob Phythian or my Trade Union representative, Joel Mansell.” Mr Dale did not respond to the claimant’s questions until 4.17pm on 1 August 2024 ( again, after the claimant had submitted her resignation) (400-401). Relevant law Unfair dismissal

Relevant law

[123]Section 95 of the Employment Rights Act 1996 (“ERA”) relevantly provides: Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if (and… 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. …

[124]In “Harvey on Industrial Relations and Employment Law” at paragraph DI [403]: “In order for the employee to be able to claim constructive dismissal, four conditions must be met:(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

(3) He must leave in response to the breach and not for some other, unconnected reason.

(4) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.”

[125]If the employee leaves in circumstances where these conditions are not met, he will be held to have resigned and there will be no dismissal within the meaning of the legislation at all.

[126]The Tribunal’s starting point was the test set out by the Court of Appeal in Western Excavating (ECC) Ltd v. Sharp

[1978] IRLR 27

. An employee seeking to establish that he has been constructively dismissed must prove: 126.1. that the employer fundamentally breached the contract of employment; and 126.2. that he terminated the contract by resigning? 126.3. that he resigned in response to the breach.

[127]The term of the contract upon which the claimant relies in this case was the implied term of trust and confidence. It is an implied term of any contract of employment that the employer shall not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: Malik v Bank of Credit and Commerce International SA

[1997] ICR 606

, as clarified in Baldwin v Brighton & Hove City Council

[2007] IRLR 232

[128]The test of whether there has been a breach of the implied term of trust and confidence is an objective one in which the subjective perception of the employee can be relevant but is not determinative. As Lord Nicholls said at page 611A of Malik in relation to the conduct relied on as constituting the breach:- “The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. This requires one to look at all the circumstances.”

[129]The objective test also means that the intention or motive of the employer is not determinative. An employer with good intentions can still commit a repudiatory breach of contract.

[130]Not every action by an employer which can properly give rise to complaint by an employee amounts to a breach of trust and confidence. The serious nature of the conduct required before a repudiatory breach of contract can exist has been addressed by the EAT (Langstaff J) in Frenkel Topping Limited v King

UKEAT/0106/15/LA

(in paragraphs 12-15):12. We would emphasise that this is a demanding test. It has been held (see, for instance, the case of BG plc v O’Brien

[2001] IRLR 496

at paragraph 27) that simply acting in an unreasonable manner is not sufficient. The word qualifying “damage” is “seriously”. This is a word of significant emphasis. The purpose of such a term was identified by Lord Steyn in Malik v BCCI

[1997] UKHL 23

as being: “… apt to cover the great diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.”

13. Those last four words are again strong words. Too often we see in this Tribunal a failure to recognise the stringency of the test. The finding of such a breach is inevitably a finding of a breach which is repudiatory: see the analysis of the Appeal Tribunal, presided over by Cox J in Morrow v Safeway Stores

[2002] IRLR 9

14. The test of what is repudiatory in contract has been expressed in different words at different times. They are, however, to the same effect. In Woods v W M Car Services (Peterborough) Ltd

[1981] IRLR 347

it was “conduct with which an employee could not be expected to put up”. In the more modern formulation, adopted in Tullett Prebon plc v BGC Brokers LP & Ors

[2011] IRLR 420

, is that the employer (in that case, but the same applies to an employee) must demonstrate objectively by its behaviour that it is abandoning and altogether refusing to perform the contract. These again are words which indicate the strength of the term.

15. Despite the stringency of the test, it is nonetheless well accepted that certain behaviours on the part of employers will amount to such a breach. Thus in Bournemouth University Higher Education Corporation v Buckland

[2010] ICR 908

CA Sedley LJ observed that a failure to pay the agreed amount of wage on time would almost always be a repudiatory breach. So too will a reduction in status without reasonable or proper cause (see Hilton v Shiner Builders Merchants

[2001] IRLR 727

). Similarly the humiliation of an employee by or on behalf of the employer, if that is what is factually identified, is not only usually but perhaps almost always a repudiatory breach.”

[131]Any breach of the implied term of trust and confidence will amount to a repudiation of the contract see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd

[1981] IRLR 347

, 350

[132]In some cases, the breach of trust and confidence may be established by a succession of events culminating in the “last straw” which triggers the resignation. In such cases the decision of the Court of Appeal in London Borough of Waltham Forest v Omilaju

[2005] IRLR 35

demonstrates that the last straw itself need not be a repudiatory breach as long as it adds something to what has gone before, so that when viewed cumulatively a repudiatory breach of contract is established. However, the last straw cannot be an entirely innocuous act or be something which is utterly trivial. The Court of Appeal affirmed these principles in Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

[133]The last straw doctrine is relevant only to cases where the repudiation relied on by the employee takes the form of a cumulative breach.

[134]The law relating to the reason for a resignation after a repudiatory breach was reviewed by the EAT (Langstaff P presiding) in Wright v North Ayrshire Council

[2014] IRLR 4

. If an employee has mixed reasons for resigning it is enough if the repudiatory breach played a part in that decision. It need not be the sole, predominant or effective cause. That is particularly clear from the decision of the Court of Appeal in Nottingham County Council v Meikle

[2005] ICR 1

. At paragraph 20 of Wright Langstaff P summarised it by saying “Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause.”

[135]If, however, there is an underlying or ulterior reason for the employer’s conduct, then there has not been a constructive dismissal.

[136]An employee may lose the right to treat himself as constructively dismissed if he affirms the contract before resigning.

[137]An employee is entitled to a reasonable period of time in which to resign before being taken to have affirmed the contract: Air Canada v. Lee

[1978] ICR 1202

, EAT. The length of that period is not fixed. Relevant factors include the consequences to the employee of losing their job and their prospects of finding alternative work: Chindove v. William Morrison Supermarkets

EAT/0201/13

[138]An employee who remains in employment whilst attempting to persuade the employer to remedy the breach of contract will not necessarily be taken to have affirmed the contract. All depends on the circumstances of the particular case: W E Cox Toner (International) Ltd v Crook

[1981] IRLR 443

[139]Da’Bell v National Society for the Prevention of Cruelty of Children

[2010] IRLR 19

. This is an EAT decision relevant to whether a delay in resigning following a repudiatory breach may indicate that the claimant has affirmed the contract. It may alternatively indicate that the repudiatory breach is not the effective cause of the resignation. “[A] person who reacts to offensive conduct by an employer by writing a letter the next day will easily be adjudged to have acted by reason of it. But someone who leaves it for a year, who will not let bygones be bygones, who digs it up again, is likely to be acting for a reason which is not directly related to the breach. Those are matters of fact for an employment tribunal, to determine what the reason was.” Unauthorised deduction from wages

[140]Section 13(1) of the Employment Rights Act 1996 (ERA) provides that an employer shall not make a deduction from wages of a worker employed by him unless:(a) The deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision in the worker’s contract; or

(b) The worker has previously signified in writing his agreement or consent to the making of the deduction.”

[141]A deduction is defined in section 13(3) ERA and the issue is simply whether the worker received less than the amount properly payable on the relevant occasion. (Morgan v West Glamorgan County Council

[1995] IRLR 68

EAT).

[142]A deduction is defined by section 13(3) ERA as follows: “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”

[143]Wages are defined by section 27(1) ERA as follows: “any sums payable to the worker in connection with his employment including any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract of employment or otherwise….” Conclusions Constructive unfair dismissal

Conclusions

[144]The definition of a dismissal for these purposes is found in section 95(1)(c) of the Employment Rights Act 1996 which is where an employee terminates the contract in circumstances where he is entitled to terminate it because of a fundamental breach of contract by the employer.

[145]I have had to decide whether the claimant's resignation should be construed as a dismissal. In order for the employee to be able to claim constructive dismissal there must first be a fundamental breach of contract by the respondent. This is a case where the claimant alleged that a series of actions on the part of the respondent cumulatively amounted to a breach of the implied term of trust and confidence.

[146]I had the benefit of a significant amount of factual evidence, both written and oral. Not all of it proved to be relevant. I took account of all relevant points made in submissions, even if not expressly addressed below.

[147]Applying the test derived from Malik I had to determine whether the respondent without reasonable or proper cause conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. There were two strands to that test: 147.1. Was there reasonable and proper cause for the employer’s actions? 147.2. If not, were those actions serious enough to be likely, when viewed objectively, to destroy or seriously damage the relationship?

[148]I reminded myself that the courts have emphasised that this is a test which is not to be applied too lightly. It is a stringent test for a claimant to meet as emphasised in Frenkel Topping Limited v King

UKEAT/0106/15/LA

( paragraphs 12-15) It was said in the Tullett Prebon case that the employer must have demonstrated objectively by its behaviour that it is abandoning and altogether refusing to perform the contract. Those are words which indicate the strength of the implied term.

[149]As for the last straw, it is possible for a last straw to constitute a repudiatory breach even if in itself it does not breach trust and confidence, and even if in isolation none of what has gone before has breached trust and confidence. If the last straw incident is part of a course of conduct that cumulatively amounts to a breach of the implied term of trust and confidence, it does not matter that the employee has affirmed the contract by continuing to work after previous incidents which formed part of the same course of conduct. The effect of the last straw is to revive the employee's right to resign. I found in the claimant's case that after the breach of contract arising from the respondent's failure to follow policies when managing the claimant’s posts the respondent did not commit a series of acts that amounted to a breach of the terms by term of trust and confidence.

[150]The Court of Appeal in Kaur (referred to above) offered guidance to tribunals, listing the questions that it will normally be sufficient to ask in order to decide whether an employee was constructively dismissed: - 150.1. 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? I concluded the answer to this was Mr Dale’s email of 31 July 2024. 150.2. Has he or she affirmed the contract since that act? I concluded the answer to this was no. The claimant resigned on 1 August 2024. 150.3. If not, was that act (or omission) by itself a repudiatory breach of contract? I concluded that it was not. 150.4. If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of trust and confidence. I concluded that it was not. 150.5. Did the employee resign in response (or partly in response) to that breach? I concluded that the claimant did not. The Last Straw

[151]Where there is a genuine last straw that formed part of a cumulative breach of the implied term of trust and confidence, there is no need for any separate consideration of a possible previous affirmation because the effect of the final act is to revive the right to resign. The focus of inquiry should be on whether the act that precipitated the employee's resignation was part of a cumulative breach as opposed to a one off, rather than on whether past breaches have been waived. There's not to say that an employee's response to past breaches is completely irrelevant, it is part of the background information that a tribunal should take into account when determining whether a last straw incident was a sufficient trigger to revive earlier acts in the series.

[152]In her Particulars of Claim, the claimant identified two emails sent to her by Mr Mark Dale on 31 July 2024 and 1 August 2024 as the last Straw. In paragraph 10 of her witness statement she states that “when she escalated the issue, I was suddenly told a decision had already been made months earlier to refuse reimbursement- despite nobody (including my union rep and line manager) ever being told.” She also relies on the draft grievance outcome letter and the change that was made to the paragraph concerning sick pay when it was finalised. On the balance of probabilities, I found that the last straw relied upon by the claimant was the email from Mr Dale on 31 July 2024 which did not agree to her request to be reimbursed for sickness pay. The other matters that the claimant relied on could not have been the last straw as they were not known to the claimant when she resigned as set out in my findings of fact.

[153]I was mindful of the Court of Appeal decision in Omilaju which held that the last straw must contribute, however slightly to the breach of the implied term of trust and confidence, an entirely innocuous act on the part of the employer cannot be a final last straw, even if the employee genuinely but mistakenly interprets the act as hurtful and destructive on his or her own trust and confidence. The respondent’s Counsel, Ms Ferrario, also referred me to the case of Gab Robins (UK) Ltd v Triggs

[2008] EWCA Civ 17

, where the EAT had provided guidance on the required characteristics of a last straw event.

[154]Contrary to the claimant’s submission that it was “dismissive”, I concluded that the sending of this email and its contents was an entirely innocuous act on the part of the employer and cannot be a last straw, even though the claimant mistakenly interpreted the act as hurtful and destructive on her own trust and confidence. The email is polite and apologies for the time a previous grievance procedure took and to respond, clarifies that the claimant has not received a sanction and confirms that she has been treated consistently. It does not contain an agreement to reimburse the claimant for sick pay. The respondent was entitled to reject the claimant’s request to be paid sick pay in excess of her contractual entitlement, and it was not a breach of contract.

[155]I concluded that this act (or omission) by itself a was not a repudiatory breach of contract and not part of a course of conduct comprising several acts and omissions which viewed cumulatively amounted to a repudiatory breach of trust and confidence. I found that in the claimant’s case, after the breach of contract arising from the respondent’s failure to follow policies when managing the claimant’s posts, the respondent, did not commit a series of acts that amounted to a breach of the implied term of trust and confidence. All such breaches predated 24 January 2024. Having received the outcome of her grievance on 24 January 2024 (which answered the questions she had about her substantive role, returning to the CCS role and how the BSSO role had become her new permanent role) the claimant returned to work and was supported in finding redeployment and undertaking duties that she was comfortable and happy doing and played to her strengths. She had also been paid sick pay in accordance with her contract, which she accepted during the hearing. The claimant’s union representative commented on her being more settled in April 2024 and the claimant was still working on crafting her own job description for the BSSO role when she resigned out of the blue some six months after returning to work and her line manager thought she was doing well. Her resignation letter does not refer to any alleged breaches or unhappiness – instead it thanks her line manager “for trying” and wishes him success as he “deserves it.”

[156]With reference to issue 1.1 , was the claimant dismissed? I considered “did the respondent do the things” set out in issues 1.1.1.1 -1.1.1.4 and whether any of those things breached the implied term of trust and confidence. 1.1.1.1 - Failure to follow policies when managing the claimant’s posts?

[157]The claimant further particularised what she meant by this and I concluded that the respondent had failed to consult with the claimant on the deletion of her substantive role in April 2022 (this was not disputed by the respondent) and failed to consult with her about making a previous secondment her new substantive post on 1 May 2023 and failed to explicitly set out the terms of secondment when she commenced the BSSO secondment and Administrative Officer secondment. I found that these omissions breached the implied duty of trust and confidence, it met the Malik test, and the respondent was in fundamental breach of contract. I found that the respondent behaved in a way that was likely to destroy or seriously damage the trust and confidence between the claimant and respondent and there was no reasonable or proper cause for these omissions.

[158]The claimant was clearly regarded as a loyal and hardworking employee and recognised for her skills and experience; she also had very long service. The secondments she undertook where temporary appointments there was no security, the security came from the stated right to return to her substantive role in the Secondment Agreement. As set out in my findings of fact the Secondment Policy and Procedure is clear that a Secondment Agreement will be produced for each secondment, it will set out the keeping in touch arrangements with the substantive manager and states that if the substantive post is redundant or has been affected by structural change, the Respondent’s Redundancy Policy and Procedure will be applied. It states that the employee should be consulted about any proposed changes to their substantive post. The Secondment Procedure explains that “keeping in touch with the employee throughout the period of secondment is essential” and that this should be recorded in the secondment agreement. Importantly, the secondment agreement records and identifies the claimant’s substantive role.

[159]It is clear that the monitoring and keep in touch systems envisaged by the Secondment Procedure did not happen, and the claimant rolled from one secondment to another until it had been 5 years since she had been in her substantive role. There was no evidence before me that she had received a secondment agreement when she commenced the BSSO role secondment or the Administrative Officer role secondment (as should have happened). Had keeping in touch and monitoring occurred and secondment agreements been issued the claimant’s misunderstanding and confusion as to what was her substantive role and whether she had a right of return to the CCS role would have not happened or would have been discovered earlier. Had this happened, the claimant may well have made different decisions with regard to applying for and extending the BSSO secondment and Administrative Officer secondments. I find that the claimant’s misunderstanding and confusion was compounded by the fact that her line manager whilst on BSSO secondment wrongly assumed that the CCS role was her substantive role.

[160]The claimant was not consulted with or made aware that her substantive role as Leisure Advisor was impacted by the closure of the Bidston Centre in 2023. Her role was deleted without her knowledge, she was not consulted with and given the options available to her colleagues – such as redundancy or EVR as referred to in paragraph 10 of her witness statement. Whilst I accept that I have no evidence that the claimant intended to return to her substantive role, the deletion of her substantive role placed her in a vulnerable position. When her administrative officer secondment came to an end, the respondent had to quickly look for whether it had suitable alternative employment available for the claimant to ensure she remained in their employment. It found her suitable alternative employment in the form of the BSSO role but did not consult with her about suitable alternative employment or place her on redeployment as envisaged by the Redeployment Policy. The BSSO role was presented as a fait accompli and it was a role that the respondent knew she had been very unhappy in and found stressful. Such failings significantly impacted the claimant’s wellbeing (as acknowledged by the grievance) and she was off sick for nearly six months, it may also have had a financial impact on the claimant who was interested in taking EVR. I found these failures all predated the outcome of the grievance on 24 January 2024.

[161]I did not find that the respondent failed to consult the claimant “on making the employee backfilling my post I have been in for almost 3 years permanent.” As set out in my findings of fact, I found that the CCS role (to which the claimant is referring here) was not the claimant’s substantive post. She therefore had no right of return to the CCS role under the respondent’s Secondment Policy and Procedure, and there was no obligation to consult with the claimant before backfilling this role or making the backfilling employee permanent in the CCS role. The respondent was entitled not to consult with the claimant about the status of the employee who had backfilled the CCS role after her secondment in this role came to an end and when viewed objectively, it was not a breach of the implied term of trust and confidence not to consult with her. 1.1.1.2 Did not adhere to corporate timelines set out in the grievance policy and procedure?

[162]The respondent accepted in submissions that the grievance investigation in terms of how long it took did not comply with the policy but does not accept that this amounted to a breach of the implied term of trust and confidence and that there was an initial delay in Mr Phythian’s appointment and then he undertook a though investigation, keeping the claimant updated throughout. The Grievance Procedure states that it is critical that the indicative timescales set out in the procedure are “adhered to so far as reasonably practicable” (572-590) but at section 4.3.5 the procedure stated that it is recognised that in exceptional circumstances and in particularly complex cases, grievances may sometimes take longer than anticipated to deal with. The indicative timelines state that all investigations will be complete and hearing arranged within 1 month and outcome within 5 days of hearing. The claimant did not receive an outcome until 24 January 2024 when her union representative had originally submitted the grievance on 20 July 2023 and then resubmitted it on 25 September 2023.

[163]I accept that the claimant found the length of the grievance process stressful but the initial delay of over two months was unintentional and this was not a straightforward or simple grievance and Mr Phythian needed time in order to undertake a thorough investigation. The claimant also talked about the impact of the length of the grievance on her sick pay entitlement, saying that she would not have moved onto half pay if the respondent had adhered to the corporate timelines. However, the claimant did not choose to raise a grievance for over 16 weeks into her sick leave. The claimant’s union representative submitted it on 20 July 2023 but it was not received and only when the claimant started chasing for an update in September that the issue was identified and the claimant’s union representative sent another copy of the grievance on 25 September 2023. The grievance was acknowledged on 6 October 2023, Mr Phythian was appointed as the grievance manager shortly afterwards and contacted the claimant on 20 October 2023 to invite her to a grievance meeting. The grievance meeting went ahead on 30 October 2023, a day selected by the claimant which was convenient for herself and her union representative.

[164]The grievance meeting was clearly handled sensitively and appropriately by Mr Phythian as the following day the claimant contacted Mr Phythian to say “Thank you for all your time yesterday, I just wanted to say, it's the first time since March I have felt heard. I feel, you gave me a chance to express my concerns, you listened and hopefully taken on board what I have said, and I feel hopeful of a speedy resolution.” (289). As set out in my findings of facts, this was a complex grievance which covered a number of years and allegations. Mr Phythian took the time to undertake a thorough investigation, meeting with relevant witnesses, meeting with the claimant again in December 2023, and considering numerous documents. He kept the claimant updated on his progress throughout the grievance investigation and informed her of the reasons for delays, such as one witness being on leave and the grievance investigation also straddled the christmas holiday period. Mr Phythian produced a detailed, clear and objective outcome which acknowledged where the respondent had fallen short and provided the claimant with the clarity she desperately sought. Whilst the grievance took longer than the indicative time lines (even after it was re-submitted) the respondent had reasonable and proper cause - taking the time to investigate the claimant’s grievance properly. In isolation or when added to what went afterwards, when viewed objectively the conduct was not calculated or likely to destroy or seriously damage trust and confidence. It was not something which showed any intention to abandon and altogether not to perform the contract of employment (quite the contrary); it was not something with which an employee could not be expected to put up. 1.1.1.3 Failed to consider the claimant’s welfare and mental health?

[165]Viewed objectively the claimant’s perception that the respondent had failed to consider her welfare and mental health was unfounded. Having had the benefit of oral and written evidence of the claimant, Ms Brown, Ms Long and Mr Phythian and Ms Fowler and the significant amount of documentation in the bundle I rejected the characterisation and that the respondent had failed to take reasonable steps to support the claimant. On the basis of my finding of facts, I was satisfied that the claimant had been supported during the welfare process and the actions of respondent did not meet the Malik test. There was reasonable cause for them to act as they did.

[166]It is clear that Ms Brown, Ms Long and Mr Phythian did their best to support and assist the claimant and try to find her an alternative role that she was happy and comfortable with when it was discovered that her substantive role had been deleted. Both Ms Brown and Ms Long offered to meet with the claimant on a number of occasions when the claimant was on sick leave and raising concerns about the BSSO role. The respondent referred the claimant to occupational health on three occasions and as a result of recommendations contained within those reports attempted to answer the questions the claimant had regarding her original substantive role and the BSSO role, made adjustments to the BSSO role, attempt to reassure the claimant that the role had changed since she was last working in it and sent her details of multiple alternative roles and liaised with her union representative with regard to such vacancies. When the third occupational health report recommended medical redeployment, she was placed on a 12 week redeployment period but not placed on notice during this period. She was allocated a redeployment officer who met with the claimant and searched and presented a number of alternative roles which she thought may be suitable for the claimant. When she returned to work after sick leave she worked on projects that she was comfortable with and was in the process of working with Mr Phythian to craft a new job description for the BSSO which included only duties she was comfortable with. Mr Phythian was surprised by the claimant’s resignation as the claimant was doing well and he believed they had found work she was comfortable with. The claimant was also provided with access to EAP counselling, offered coaching/buddy, a phased return and refresher training. It is not the case that the claimant was “ignored” as she alleged. I concluded that Mr Phythian, Ms Brown and Ms Long provided the claimant with reasonable and empathetic welfare support and there was no breach of the implied duty of trust and confidence. When viewed objectively, the conduct was not calculated or likely to destroy or seriously damage trust and confidence. It was not something which showed any intention to abandon and altogether not to perform the contract of employment (quite the contrary); it was not something with which an employee could not be expected to put up. Issue 1.1.1.4 Failed to work within the corporate values of the Council

[167]As set out in my findings of fact, I found that these values were guiding principles only- expressed by the respondent (620) as “what’s guiding us” and “drive what we do and how we approach things”. Whilst this alleged act/omission was referred to in the claimant’s particulars of claim, the claimant accepted in cross examination she did not put to any of the witnesses how their actions had breached the respondent’s corporate values and had also not addressed this in her witness statement. The claimant also said in cross examination, “ I haven’t said they were breached, would have stated it if [were].” In the absence of any evidence to the contrary and the claimant’s own admission that there was no such failure, I find that the respondent did not fail to work within its corporate values and there was no breach of the implied term of trust and confidence.

[168]As I found that there was a fundamental breach of contract by the respondent – failed to follow policies when managing the claimant’s posts- I move to consider the questions of affirmation and waiver. Issue 1.1.4 - Did the claimant resign in response to the breach?

[169]A delay in resigning following a repudiatory breach may indicate that the claimant has affirmed the contract and may alternatively indicate that the repudiatory breach is not the effective cause of the resignation Da’Bell. On the facts, I found that the claimant had not resigned as a result of the breach. The claimant’s resignation letter gives no reason for her resignation or refers to any breaches it says “Thank you for trying, I wish you all the very best and success for the future, you truly deserve it. Kind regards Amanda King” (395). Mr Phythian gave evidence that he regarded the claimant’s resignation as completely out of the blue. He was surprised by the claimant’s resignation as he “thought things were going well” and that “we had found work she was comfortable with and which she was doing well”. He also said in evidence that he “felt that she had accepted the outcome of the grievance, although not perhaps the issue relating to her pay.” I concluded that the claimant’s delay in resigning indicated a detachment of the events that I have found was a fundamental breach of contract from the reasoning of the claimant when she resigned.

[170]The well-established legal principle is that the employee must resign in response to the employer’s breach of contract and show the necessary link between the employer’s actions and his or her constructive dismissal. If the employee left because of other conduct by the employer that did not amount to a serious/fundamental breach of contract, he or she has suffered no loss by reason of the constructive dismissal and the claim must fail. I concluded that the reason she resigned was not directly related to that breach, the reason was that she was dissatisfied with the decision not to grant her request to reimburse her for sick pay despite recognising that she had already been paid sick pay in accordance with her contract. The decision not to pay the claimant more sick pay than she was entitled to under her contract (which on the balance of probabilities, I find was communicated to the claimant’s union representative in February 2024) was not a breach of contract. The wording of the sick pay policy gives the respondent an ability to make discretionary payments in excess of the contract in exceptional circumstances if it elects to do so, it does not give the claimant a right to a discretionary payment. The decision for not electing to make a discretionary payment were not irrational or capricious given the need for exceptional circumstances, the danger of setting a precedent which could undermine the policy and this being public money. Issue 1.1.5– Did the claimant affirm the contract before resigning?

[171]As cited in Weston Excavating, the employee “must make up his mind soon after the conduct of which he complains; for if he continues for any length of time without leaving he will lose his right to treat himself as discharged”. The claimant was, in my judgment, aware of this principle as she sent an email to her union representative on 19 March 2024 (322) in which she said “I know time is passing by very quickly, the council have wronged me, and as you said breach of contract and failure to consult are serious wrongdoings. I don't want to miss the opportunity to go to court should they not resolve the pay shortly. I will ask Rob to chase this, do you have any advice for me on any of the issues please.”

[172]During cross examination, the claimant accepted that she had been discussing bringing an employment tribunal claim with her union representative at this time – saying “her union representative was “talking about court being the next step between the [grievance] outcome and this email in March 2024.” The claimant said that she didn’t want to miss going to court and that she was thinking of time limits for putting in her ET1 before sending her email of 19 March 2024.

[173]By 24 January 2024, the claimant had been provided with her grievance outcome letter. She chose not to appeal and returned to work shortly afterwards and continued to work for the respondent without issue until her resignation on 1 August 2024 (over 6 months later).

[174]I concluded that the claimant waited too long after the respondent’s breach of contract (failing to follow policies when managing the claimant’s posts) before resigning. She remained at work for over 6 months after the outcome of her grievance process which made clear the following: 174.1. That her substantive position was not the CCS role and she had no right to return to it. 174.2. That she was not being returned to the CCS role and it had been backfilled over three years ago; 174.3. That the claimant’s substantive role as Leisure Advisor had been “deleted” in April 2022 due to the closure and redevelopment of the Bidston Centre and she had not been consulted about the redundancy of her substantive role and the implications for her employment; 174.4. That the respondent had had to find the claimant an alternative substantive role at the end of her administrative officer secondment and considered the BSSO role to be suitable alternative employment for the reasons set out in the outcome letter and in meetings with the claimant regarding how the role had changed since she last worked in it and the role could be adapted to include duties she was happy and comfortable to do. 174.5. That the grievance hearing manager had concluded that “ there were elements of how the end of [the claimant’s] secondment was managed that were not supportive to [the claimant’s] wellbeing or unhelpful in seeking a resolution to your concerns.” 174.6. That the grievance hearing manager had concluded that regular review meetings should have taken place [during] her various secondments to inform of changing arrangements and to provide effective communications relating to her employment. 174.7. She was aware that she was being paid in accordance with her contract in relation to sick pay.

[175]Despite the above becoming clear to the claimant on 24 January 2024, she did not resign until 1 August 2024 and was discussing with her union representative in March 2024 about how the respondent had breached her contract and she did not want to miss her chance to go to court. When coming to my conclusion on had the claimant affirmed the breach, I looked at her conduct during this period which showed every intention to continue in employment rather than resign. The claimant said in evidence that she had not resigned following her grievance outcome and having discussed raising an employment tribunal claim with her union representative as she “wanted to try and sort things out – i wanted my job.” She returned to work shortly after the outcome of her grievance, she engaged with the medical redeployment process, she worked well with her line manager Mr Phythian, undertaking project work and tasks which she was comfortable with and started crafting and discussing a new job description for the BSSO role which included duties she was comfortable and happy to do and continued to work until her resignation on 1 August 2024. Mr Phythian’s evidence was that the claimant’s resignation came as a surprise as he believed matters were going well. Consequently, she must be taken to have affirmed her contract and is precluded from claiming unfair dismissal.

[176]I concluded that the claimant was not dismissed. Her claim for constructive unfair dismissal is not well founded and is dismissed. Unauthorised Deduction from wages

[177]As set out in my findings of fact the claimant was entitled under her contract of employment to be paid full pay for the first six months of her sick leave and then half pay for the next six-month period. The claimant accepted in evidence that she had been paid her full contractual entitlement to company sick pay during her sickness absence from March 2023 to February 2024. However, she wanted the respondent to pay her a discretionary sum. Reminding myself of the definition of deduction as set out in Section 13(3) ERA and Morgan, I concluded that as the claimant had received the total amount of wages properly payable to her during her sick leave (by way of sick pay). She had not received less than the amount of company sick pay properly payable to her during her period of long-term sick leave and so there was no deduction.

[178]As there was no deduction the claimant’s claim for unauthorised deductions from wages is not well founded and is dismissed. Approved by: Employment Judge McCarthy Date: 12 May 2026