Mrs J Cameron-Jackson v Stagecoach Cumbria and North Lancashire Ltd: 6007279/2024
EMPLOYMENT TRIBUNALS
Case No 6007279/2024
Between
Mrs J Cameron-JacksonClaimantStagecoach Cumbria and North Lancashire LtdRespondent
Before
Judge CallanIn person for claimantMr B. Brown (instructed by solicitor) for respondentDate 26 June 2025
REASONS
[1]The claimant lodged her claim form on 31 July 2024. Her complaint was that she had been constructively dismissed from her bus driver job with the respondent when she resigned on 8 July 2024, which resignation was accepted on 12 July 2024.[2]Her claim was that she was entitled to resign and treat herself as dismissed following her being bullied and harassed by some of her colleagues in connection with unfounded allegations of theft. Although some bullying was accepted by the respondent the claimant alleged they failed to continue with an investigation following the main perpetrator leaving the respondent’s employment. The alleged bullying dated from around 11 December 2023 and involved other colleagues at the bus depot
The Issues
[3]At the outset of the hearing, the issues were clarified:(1) Can the claimant prove that there was a dismissal?(2) Did the respondent do the following things: (a) Was the claimant bullied and/or harassed? (b) Did the respondent take adequate steps to prevent that treatment from continuing? (c) Was the claimant’s grievance handled reasonably and promptly?(3) Did that breach the implied term of trust and confidence? Taking account of the actions or omissions alleged in the previous paragraph, individually or cumulatively, the tribunal needs to decide: (a) Whether the respondent had reasonable and proper cause for those actions or omissions, and if not (b) Whether the respondent behaved in such a way that when viewed objectively was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.(4) Did the respondent’s handling of the grievance breach the implied term to take such grievances seriously?(5) 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.(6) Was the fundamental breach of contract a reason for the claimant’s resignation?(7) Did the claimant affirm the contract before resigning, by delay or otherwise? 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.(8) As the respondent has not pleaded that there is a potentially fair reason under section 98(4) ERA 1996, if the claimant succeeds in showing that there was a fundamental breach of contract which was so serious that she was entitled to treat the contract as being at an end and that she did not affirm the breach, she will succeed in her claim.
The evidence
[4]The parties provided an agreed bundle of 95 pages, to which were added a further 13 pages comprising notes of interviews conducted by Mr D. Barrie in the period 10to 12 July 2024, pages from the respondent’s grievance policy, and the respondent’s bullying and harassment policy.[5]The claimant and her wife gave witness evidence, as did Mr. R. Norbury, Operations Manager and Mr. D. Barrie, Operations Director, for the respondent, both based at the Carlisle depot. Findings of fact We have heard from the witnesses, Mrs Jaydon Cameron-Jackson (the Claimant) and Mrs Susan Cameron-Jackson on behalf of the Claimant’s case, and on the part of the Respondent; Mr Ryan Norbury and Mr David Barrie. In the Respondent’s view, all witnesses gave credible accounts, and the Respondent notes from the outset the effect on the Claimant displayed during the hearing, and that this continues to be an emotive and sensitive subject. However, the Respondent would invite the tribunal to find the account of the actions and motives for any such actions as relayed by the Respondent’s witnesses to be persuasive. Whilst this is not intended as any criticism of the Claimant, her account was in places based on assumptions of what managers knew at certain times rather than an objectively considered position of facts and events, As the Respondent understands the Claimant’s case, the alleged breach is mostly focussed on the actions of Mr Norbury. To deal with Mr Barrie’s involvement briefly, he, in effect, conducted an appeal hearing with the Claimant and nothing more. As the Claimant herself identified, there wasn’t a great deal that Mr Barrie was culpable for, as the damage (in the Claimant’s view) occurred prior to that point. If anything, the Claimant thanked Mr Barrie for his investigation and involvement. By way of summary of the relevant facts, the issues relevant to this claim commenced in December 2023, following a funeral collection the Claimant had undertaken. Subsequently issues arose following allegations of inappropriate money handling, primarily from Mr Mark Lowe towards the Claimant. This was not an internal conduct issue and was a matter initially subject to police investigation (for which the Claimant was not found at fault). In December 2023, Mr Norbury was made aware by Mr Lowe that he had made a report to the police, rather than the Claimant informing him at this time. At this juncture, Mr Norbury made clear to Mr Lowe that the Respondent did not believe there was an issue and he was, in effect, told to leave this alone. Whilst the Claimant may not have been privy at the time, the Claimant accepts this discussion took place. Issues, without Mr Norbury’s knowledge, persisted, and the Claimant had a discussion with Mr Norbury in late January 2024 about her concerns. The Respondent submits that in effect, this would be the first time that Mr. Norbury was aware hat the issue remained a live one, as was accepted by the clamant that she had not spoken to Mr. Norbury about this prior to this point. Following this, it is agreed between the parties that further discussions occurred one being on 14 February 2024. By the Respondent’s case, and as was clear in Mr Norbury’s evidence, this was an ongoing conversation and discussion between them, and by the Claimant’s own wishes this was being dealt with informally, and with potential mediation being the outcome. The Respondent refutes the assertion that it was inappropriate to handle the situation in this manner and was largely guided by the Claimant’s wishes. Under cross examination the Claimant was clear that the first indication of raising this formally was on 27 February and it is through this lens which Mr Norbury was approaching the situation. Following a separate workplace incident on 21 February 2024, which the Claimant refers to with her statement the last straw, the Claimant commenced a period of absence from 22 February onwards. At this point, Mr Norbury was made aware of some of the wider facts and circumstances and effect this was having on the Claimant via her partner, Susan Cameron Jackson. It is noted that the Claimant agrees from this point onwards that Mr Norbury proactively suggested that this should be an issue that should be dealt with formally and was supportive of her position, as per the internal blink messages referred to. In terms of these actions representing a fundamental breach of trust and confidence, the Respondent submits it does not. When viewed objectively, as we must, and considering the comments of Mr Norbury of what he was aware of at the time, the Respondent submits that Mr Norbury’s actions show a manager trying to resolve the issue for both parties to continue working together, initially informally as the Respondent’s policy suggest it should be, rather than being done in a manner calculated or likely to destroy trust. An example being the Claimant’s own admissions that she felt that Mr Norbury was a good man, and that she did believe and back her, which it seems is also evident from the messages exchanged between them, as exemplified in the bundle. Mr Norbury was subject to some robust questioning as to whether Mr Lowe should have been suspended during the period of between 22 February and 7 March, at which point Mr Lowe commenced a period of absence and then ultimately resigned. The Respondent’s position is that Mr Lowe remaining in the workplace at that time was not inappropriate, neither does it tend to show a breach of trust or confidence towards the Claimant. At the point the wider context and effect had been made aware to Mr Norbury, which the Respondent submits is the point of her absence on 22 February, the Claimant was evidently already absent from work. There was no immediate risk of conflict, and the issues being isolated between the two of them. There was no suggestion that an investigation was not going to commence against Mr Lowe, and indeed the Respondent suggests it was likely for action to be taken based on the grievance outcomes provided. That is different to suspension, which in effect didn’t become a live issue given how the situation developed. Up until the point of the Claimant going absent, Mr Norbury’s objective was to try to bring the parties together to mediate, rather than to separate them. Perhaps with hindsight, this could have been approached differently at this juncture. That is different from saying that at the time this was action calculated to or likely to destroy the relationship of trust. R suggests that even if it is a point that gains criticism from the tribunal, it is not sufficiently serious to enable the clamant to resign in response. The clt made the comment during the grievance hearing that she was surprised M. Lowe had not been suspended. But even after Mr. Lowe left, this didn’t enable the claimant to return. The grievance process ensued, and the Claimant gave early indication, immediately following the grievance hearing on 21 March 2024 via a letter she endorsed, that her contemplation was to resign and claim constructive dismissal; however, she did not do so at this point, nor was there any explanation offered as to anything that occurred in the intervening period that would or could amount to a last straw. As above, the issues related to the period pre absence. The Claimant ultimately resigned at the end of the appeal hearing on 8 July 2024. Under questioning in relation to handing in her notice at the appeal hearing, the Claimant accepted that this, in reality, was her intention from the outset rather than anything stemming from the meeting itself. This is also reflected by the Claimant’s resignation letter, which it is explained to relate to the actions prior to her absence, and as is also reflected to a large extent in her witness statement which deals with incidents up to the last straw on 21 February 2024, rather than it being related to events more contemporaneous to her resignation. The Respondent also sought to allow the Claimant a chance to reconsider her resignation given the ongoing appeals process, further demonstrating that there was no desire to see the Claimant leave employment. In sum, the Respondent submits that the actions taken by Mr Norbury were done with the Claimant’s best interests at heart, and in discussion with the Claimant. Mr Norbury was not in possession of all of the relevant facts and factors at the outset, but when he was actively encouraged this to be dealt with formally, and to be considered under the grievance process, which would have likely led to consequence for Mr Lowe, had he not already resigned. Mr Norbury’s actions were not undertaken with the view to trying to erode the relationship of trust, nor were they likely to do so at that time. Did the Claimant resign because of the breach? The Respondent understands from the Claimant’s evidence that she ultimately resigned as she felt, her name had been blackened, rather than the actions of the Respondent making this untenable, albeit there may be some form of link between the two. The Claimant noted in evidence one thing that may have enabled a return was posting of a letter on a notice board, or similar. Importantly, the Respondent highlights that this was not something that was asked of Mr Norbury or Mr Barrie, rather the suggestion was made to the Claimant’s union representative. This was not a suggested resolution raised during the grievance or appeal, rather the Claimant noted she did not wish to return and/or wished to be paid off to leave. The Respondent submits that is indeed different to resigning due to any alleged breach caused by the Respondent. Did the Claimant delay before resigning and affirm the contract? Finally, the Respondent submits that the Claimant did affirm prior to resigning, when viewed as a whole. It is noted the Claimant was absent from work, but did continue under employment for a considerable period prior to resignation, of over four months, from the last apparent breach. The Claimant didn’t have a response for why there was such delay, especially when she had already demonstrated her intention in March that her contemplation was to resign and claim constructive dismissal. During this period, she continued to receive sick pay. She also engaged with the grievance and appeals process, albeit did not allow the appeals process to conclude prior to resigning, which isalso relevant to note, given that she was not waiting to ascertain an outcome or see if this could be resolved, rather this was always her intention. Whilst each aspect individually may not conclusively show affirmation, when viewed as a whole, the Respondent suggests the Claimant did indeed accede to any alleged breach.
Relevant law
[1]Section 95 Employment Rights Act (ERA) defines the circumstances in which an employee is dismissed for the purposes of the right not to be unfairly dismissed under section 94. Section 95(1)(c) provides that an employee is dismissed by his employer if the employee terminates his contract of employment (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. This is known as ‘constructive dismissal’.[2]The word 'entitled' in the definition of constructive dismissal means 'entitled according to the law of contract.' The ‘conduct’ must be conduct amounting to a repudiatory breach of contract, that is conduct which shows that the employer no longer intends to be bound by one or more of the essential terms (express or implied) of the contract of employment (Western Excavating (ECC Ltd) v Sharp [1978] I.C.R. 221, CA).[3]In this case, the breach of contract relied upon by the claimant is of the implied term of trust and confidence. In Malik v BCCI [1997] ICR 606, the House of Lords held that if, without reasonable and proper cause, the employer conducts themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee, the employee is entitled to terminate their employment for the purpose of section 95. However, they must do so without undue delay as to do so risks affirming the contract.[4]To constitute a breach of the implied term it is not necessary to show that the employer intended any repudiation of the contract: the tribunal's function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it: see British Aircraft Corporation Ltd. v. Austin [1978] I.R.L.R. 332 and Post Office v. Roberts [1980] I.R.L.R. 347. The conduct of the parties has to be looked at as a whole and its cumulative impact assessed: Post Office v. Roberts”[5]The final incident which causes the employee to resign does not in itself need to be a repudiatory breach of contract. In other words, the final incident may not be enough in itself to justify termination of the contract by the employee. However, the resignation may still amount to a constructive dismissal if the act which triggered the resignation was an act in a series of earlier acts which cumulatively amount to a breach of the implied term. The final incident or act is frequently referred to as the ‘last straw’. The act does not have to be of the same character as the earlier acts. When taken in conjunction with the earlier acts on which the employee relies, it must amount to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant so long as it is not utterly trivial: Omilaju v Waltham Forest London Borough Council [2005] IRLR 35.[6]It is sufficient that the employee resigned in response, at least in part, to fundamental breaches of contract by the employer. The fact that the employee also objected to other actions or inactions of the employer, not amounting to a breach of contract, would not undermine the circumstances of the repudiation (Meikle v Nottinghamshire County Council [2005] ICR, CA). Once a repudiatory breach is established, if the employee leaves and even if he may have done so for a number of reasons, he can claim that he has been constructively dismissed if the repudiatory breach played a part in the decision to resign (Wright v North Ayrshire Council [2014] ICR 77, EAT).[7]It is a question of fact in each case whether there has been conduct amounting to a repudiatory breach of contract. In determining this factual question, the tribunal is not to apply the range of reasonable responses test (which applies only to the final stage of deciding whether the dismissal was unfair), but must consider objectively whether there was a breach of a fundamental term of the contract of employment by the employer (Buckland v Bournemouth University [2010] IRLR 445, CA).[8]Failure to deal properly with a grievance may constitute a contractual repudiation, based on a specific implied term to take such grievances seriously. In W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516, the EAT held: “…there was an implied term in the contract of employment that the employer would reasonably and promptly afford a reasonable opportunity to its employees to obtain redress of any grievance they may have”. Submissions Conclusions and decision Judge Callan Date: 26 June 2025