Mrs T Banfield v City of Bradford Metropolitan District Council: 6021232/2025
EMPLOYMENT TRIBUNALS
Case No 6021232/2025
Between
Mrs T BanfieldClaimantCity of Bradford Metropolitan District CouncilRespondent
Before
Employment Judge BrainIn person for claimantMiss C Millns (instructed by Counsel) for respondentDate 12 January 2026
JUDGMENT
[1]The respondent constructively dismissed the claimant.[2]The claimant’s complaint of constructive unfair dismissal brought pursuant to the Employment Rights Act 1996 is well-founded and succeeds.
REASONS
[1]Following a period spent in early conciliation between 8 April 2025 and 20 May 2025, the claimant presented her claim of constructive unfair dismissal to the Employment Tribunal on 7 June 2025.[2]At the conclusion of the hearing on 12 December 2025, the Tribunal reserved judgment. There now follows the reasons for the judgment reached.[3]By way of introduction, the claimant worked for the respondent from 9 November 1998, latterly in the capacity of head of service for corporate investigations, information governance and complaints. This was on fractional basis from April 2021. Her employment ended on 8 April 2025 when she resigned without notice. A copy of her notice is at pages 602 to 604 of the hearing bundle. The Tribunal will, in due course, consider this document in further detail. 10.5 Reserved judgment with reasons – rule 61 1 March 2017[4]The Tribunal heard evidence from the claimant. She also called evidence from: 4.1. Karen Fogg. She holds the post of personal assistant to the assistant director - estates and property at the respondent. 4.2. Harmit Singh. Mr Singh now holds the post of head of service for corporate investigations, information governance and complaints on a full-time basis. (The claimant worked full-time in this capacity until April 2021. She was then granted approval to take flexible retirement. Her contracted hours were reduced by 50% to 18.5 hours per week. She carried out her substantive role of head of service for corporate investigations, information governance and complaints as a job share with Mr Singh. During the currency of the job share, Mr Singh also held the post of corporate investigation manager for the other 50% of his time).[5]The Tribunal heard evidence from the following witnesses called on behalf of the respondent: 5.1. Nij Basi. She holds the post of information governance manager at the respondent. 5.2. Joanne Hyde. She no longer works for the respondent. At the material time with which we are concerned, she held the post of strategic director for corporate resources. 5.3. David Shepherd. He now holds the position of strategic director for growth as part of the respondent’s corporate leadership team. At the material time with which the Tribunal is concerned, Mr Shepherd held the post of strategic director for the department of place.
Findings of fact
[6]A statement of employment particulars issued to the claimant on 26 September 2023 is at pages 77 to 82 of the bundle. This confirms that the date of her commencement of employment with the respondent as 9 November 1998. The statement of employment particulars refers (amongst other things) to the personnel manual in which are the policies and procedures relevant to her employment. A number of these were contained in the bundle (in section B between pages 76 and 165). The Tribunal shall refer to some of these as they become relevant in due course.[7]The series of events culminating in the claimant’s summary resignation started in or around February 2023 with the appointment of Christopher Kinsella to the post of interim director of finance. Mr Kinsella thus became the claimant’s line manager. He held the interim director of finance post for just under a year. In or around January 2024, Mr Kinsella left the respondent. Upon his departure, the claimant’s line management passed to Mrs Hyde.[8]The claimant’s account (as given in paragraph 14 of her witness statement) is that during her annual appraisal on 13 June 2023, Mr Kinsella raised (not for the first time) his dislike of the job share arrangement between the claimant and Mr Singh which had pertained from April 2021 in the circumstances described in paragraph 4.2 above. The claimant says that Mr Kinsella asked her whether she was intending to leave the respondent’s employment.[9]That Mr Kinsella disliked the job share arrangement is corroborated by Mr Singh in paragraph 9 of his witness statement. The Tribunal has no note of any challenge to the claimant or Mr Singh upon their account that he (Mr Kinsella) 10.5 Reserved judgment with reasons – rule 61 2 March 2017 had a dislike of the job share arrangement. The respondent did not call Mr Kinsella to give evidence or lead any contrary evidence. The Tribunal therefore finds as a fact that it was the case that he disliked the job share arrangement.[10]The claimant’s account is that Mr Kinsella asked her to work up a proposal to bring about her redundancy. There is no dispute that the claimant a produced proposal which became known as the ‘workforce change proposal.’ When doing so, the claimant saw as the only feasible route the removal of the post of corporate investigations manager. That was the post occupied by Mr Singh on a 50% basis (the other 50% of his time being his job share arrangement in the post of head of service for corporate investigations, information, governance and complaints shared by him with the claimant). In paragraph 22 of her witness statement the claimant said that “To avoid unnecessarily disadvantaging other employees, the proposals outlined the possibility of a “bumped redundancy” which could result in me being made redundant instead of Mr Singh.”[11]The claimant’s account is that the workforce change proposal was prepared by her very much against her wishes as she did not wish to leave her role. This was because she had taken flexible retirement just two years earlier but was six years away from her state retirement age. The claimant also gave evidence that she felt uncomfortable because of a possible perception of a conflict of interest in drafting proposals for her own redundancy exit. Nonetheless, she went ahead and complied with Mr Kinsella’s instructions.[12]The claimant’s account is that she discussed the workforce change proposal already with Anne Lloyd, who was at the time the respondent’s director of HR. The claimant says that she discussed matters with her on 18 July 2023. Unbeknown to the claimant at the time, Mr Kinsella and Ms Lloyd had exchanged emails about the workforce change proposal which the claimant had produced. Ms Lloyd expressed the view that the proposal didn’t “stack up”. The Tribunal refers to page 288 to 291 of the bundle. The claimant says that she fed Anne Lloyd’s feedback to her (the claimant) to Mr Kinsella. Mr Kinsella told the claimant of the target redundancy date of 30 September 2023, giving the claimant the impression that matters were proceeding.[13]The claimant’s account of her dealings with Mr Kinsella about the workforce change proposal over the summer of 2023 was unchallenged and is corroborated by Mr Singh who also mentions Mr Kinsella’s aspiration that the redundancy should occur by the end of September 2023.[14]Far from challenging the claimant’s version of events, the premise of Miss Millns’ cross examination was very much upon the basis that Mr Kinsella was promoting the idea of the claimant voluntarily leaving because of redundancy at around the end of September 2023, that she and Mr Singh had been encouraged by Mr Kinsella to draw up proposals and that they had acted in accordance with his management instructions in doing so.[15]The claimant accepted in cross examination that she had started to make retirement plans. To this end, she obtained the pension estimate at pages 295 to 297 of the bundle (dated 15 August 2023).[16]The Tribunal therefore accepts the claimant’s account that Mr Kinsella gave the claimant to understand that the redundancy would be progressing at the end of September 2023. 10.5 Reserved judgment with reasons – rule 61 3 March 2017[17]The claimant accepted that as the redundancy costs were likely to exceed more than £16,800 should the plans go ahead, then the approval of the chief executive would be required for the workforce change proposal to go ahead. The chief executive at the material time was (and in fact remains) Dr Lorraine O’Donnell.[18]The claimant worked with Mr Kinsella to refine the workforce change proposal. A briefing note dated 29 August 2023 (pages 298 to 302) was prepared. The end of September 2023 target date came and went. The claimant started to become concerned that time was moving on. The claimant and Mr Singh gave evidence corroborative of one another that the workforce change proposal was raised by them in their one-to-one meetings with Mr Kinsella. The claimant says that the uncertainty was beginning to affect her mental health.[19]There was no suggestion that the claimant’s mental health was unaffected by matters. It is entirely credible that it would be, given the uncertainty engendered by Mr Kinsella promoting the idea of the claimant’s voluntary redundancy and giving her to understand that it would take place in September 2023. It is natural that she would want to know her position so that she could plan her future.[20]In paragraph 40 of her witness statement the claimant says that she received a telephone call from Mr Kinsella on 18 October 2023. She says that during this call, Mr Kinsella informed her that the proposals had been rejected due to “budgets, precedents and people” and described them as “self-serving.”[21]Within the bundle at pages 305 and 306 is a critique of the proposals prepared by Ms Lloyd and addressed to Mrs Hyde. This is dated 3 October 2023. Although the Tribunal cannot see that the words “self-serving” were expressly used by Ms Lloyd, this is pretty much the gist of what she was saying to Mrs Hyde – that the proposal was for the benefit of the claimant and Mr Singh with little wider benefit to the respondent.[22]The claimant’s account in paragraph 40 of her witness statement of the conversation with Mr Kinsella of 18 October 2023 is credible. From the timing of Ms Lloyd’s email to Mrs Hyde of 3 October 2023 and the discussion between Mr Kinsella and the claimant around two weeks later it is plain that behind the scenes discussions had been taking place amongst senior management about the workforce change proposal prepared by the claimant and Mr Singh and that these proposal had not met with approval, hence Mr Kinsella relaying the unwelcome news to the claimant at around this time.[23]The claimant says in paragraph 42 of her witness statement that around a month later, in November 2023, Mr Kinsella informed her that the workforce change proposal was to be reconsidered by the respondent’s management team, led by Mrs Hyde. There is corroboration of what the claimant says in the document at page 398. This is a document dated 5 December 2023 entitled “business change proposals.” It appears to concern the workforce change proposal worked upon by the claimant and Mr Singh earlier in the year. It describes the proposal as a merger of two management roles and the deletion of the corporate investigations manager role hitherto held by Mr Singh. There appears to be no reason why this document would have been prepared on 5 December 2023 if the position remained as the claimant was led to believe on 18 October 2023. The Tribunal therefore accepts the claimant’s account that she was given the impression that new life was being breathed into what was otherwise a moribund proposal. 10.5 Reserved judgment with reasons – rule 61 4 March 2017[24]Unfortunately, the state of uncertainty remained. The claimant heard nothing further for a couple of months. Then, upon her return from annual leave in early 2024, she was informed that her line management had passed to Mrs Hyde following Mr Kinsella’s departure.[25]The claimant then emailed Mrs Hyde on 20 February 2024 seeking an update. The email is at page 330 and reads, “I can confirm that Chris Kinsella advised in November/December that he was supporting the proposals for workforce change (in our area) and had submitted them for consideration on the basis that there were clear business benefits and despite there being a cost to the council the cost would be recovered within the two years defined in council policy and represented an ongoing annual saving for the counsel of circa £35,000. He said that following his departure that Joanne [Hyde] would let us know how this was progressing … if there any update Joanne please?”[26]Mrs Hyde responded (within five minutes on the same day) to say, “We will consider options available as part of the overall next piece of work, nothing has been progressed at this time?”[27]On 12 March 2024, Anne Lloyd emailed the claimant and Mr Singh (page 332). She said, “From discussions with Chris [Kinsella] before his departure my understanding is that Chris decided following advice that the proposals would not progress as they were set out. The work on structure/establishment and vacancies would progress and finalise and the outcomes of this would be considered along with any further need for workforce change/re-design etc to ensure budget alignment and affordable sustainable structure. I understand that this work has shown a structural overspend … but this needs further review and consideration as part of the council wide review. If, as a consequence of this there is structural re-alignment and managing workforce change then this will be progressed, but those impacted or conflicted cannot develop the business case in relation to their roles. As part of any consultation they can submit alternative proposals etc for consideration during the consultation. The timeline for this work to finalise and next steps to be considered and progressed is likely to be April 2024 onwards. I have copied in Joanne as any restructure … would need to be led by and approved by her.”[28]This new came as a profound disappointment to the claimant. On 3 April 2024, she emailed Joanne Hyde to say that she would no longer be able to work due to the deterioration in her mental health. She notified Mrs Hyde that the first day of self-certification and sickness absence was to be Tuesday 9 April 2024 as that was her next working day. She then attached a letter giving the reasons for her absence. The letter is at pages 334 to 338.[29]In the letter, the claimant complained that Mrs Hyde had cancelled scheduled meetings with her arranged to take place on 28 February 2024 and 27 March 2024. In evidence given in cross-examination, Mrs Hyde explained that such scheduled meetings are often vulnerable to cancellation. She described in paragraph 12 of her witness statement that the respondent was in exceptionally challenging circumstances at this time and which led to the issuing of a “best value notice” by the Ministry of Housing, Communities and Local Government on 29 February 2024. The Tribunal accepts as credible Mrs Hyde’s position that routine one-to-one meetings as had been scheduled with the claimant in February and March 2024 are vulnerable to short notice cancellation where the exigencies of business demand. The claimant must surely have been aware, as 10.5 Reserved judgment with reasons – rule 61 5 March 2017 a senior member of the respondent’s management herself, that such workforce pressures may arise.[30]The claimant then went on in the letter of 3 April 2024 to recount her experience of working as a direct report to Mr Kinsella. She said that “This was, without doubt, one of the most difficult and stressful periods of my 44-year public sector career.” In particular, she said that he had disdain for the job share arrangement and encouraged her to work up the workforce change proposal. She took issue with the suggestion that the proposals were self-serving.[31]She then went on in her letter to raise an issue about the recent grading of the head of service posts in Revenues, Benefits and Customer Services. Three individuals working within this service had been re-graded to special grade E with effect from 1 April 2024. This was in fact a second upgrade as shortly beforehand they had achieved an upgrade to special grade D using the claimant’s role as comparator.[32]The claimant’s complaint essentially, was that upon the second re-grade, she too should have been upgraded to salary grade special E. This was because the respondent had accepted their roles as comparable to hers so by the same logic she too should be upgraded. The claimant mentioned in her letter having brought a complaint of a breach by the respondent of the sex equality clause in section 66 of the Equality Act 2010 at a time (in August 2019) when her role was graded at special grade C using as comparators those holding posts at special grade E. She was uplifted to special grade D by way of compromise.[33]In the Tribunal’s judgment, there is much merit in Miss Millns’ point that the claimant was grievously disappointed with the respondent’s decision not to proceed with the workforce change proposal. That decision occupied a significant part of her letter of complaint to Joanne Hyde in pages 334 to 338.[34]Further, later in the year (on 27 August 2024) the claimant raised a grievance (pages 393 to 397). The workforce change proposal was the first item raised by the claimant in her grievance and about which she accuses Joanne Hyde of treating her “unfairly and inequitably.” The claimant alleged that “Joanne’s own personal biases influenced the initial rejection of the proposals and subsequent lack of progress rather than what was/is in the best financial interests of the council.”[35]The claimant also raised (in the grievance) the issue of the uplifting of the grades of the three individuals working in the head of service posts in Revenues, Benefits and Customer Services. The claimant complained about the cancellation of the one-to-one meetings scheduled for February and March 2024. The grievance also touched on an alleged failure on the part of Joanne Hyde to fulfil her duty of care to the claimant to which the Tribunal will come in due course.[36]Mrs Hyde acknowledged receipt of the claimant’s letter of 3 April 2024 on the same day (page 340). She said that she was sorry to hear that the claimant was unwell. She informed the claimant that she would take time to consider the content of the claimant’s letter. She concluded “if we can support your recovery through any of the services offered as part of the employee well-being offer please let me know and I will ensure we progress these.”[37]The claimant sent sick notes covering her absence to Joanne Hyde on 15 April 2024 (page 341), 13 May 2024 (page 342), 13 June 2024 (page 349), 15 July 2024 (page 370), 13 August 2024 (page 392) and 15 September 2024 (page 10.5 Reserved judgment with reasons – rule 61 6 March 2017 406). She then started to send sick notes to Caroline Lee, assistant director of Revenues, Benefits and Customer Services following her replacing Joanne Hyde as the claimant’s welfare manager with effect from early October 2024.[38]Mrs Hyde’s substantive reply to the claimant’s letter of 3 April 2024 was not sent by Mrs Hyde until 25 June 2024. This is at pages 351 and 352. Mrs Hyde opened her email of 25 June 2024 by proffering an apology to the claimant for not having been in touch with her sooner. She offered her the opportunity of meeting on 2 July 2024 to go through the issues raised in the claimant’s letter of 3 April 2024.[39]On 26 June 2024, the claimant acknowledged receipt of Mrs Hyde’s email (page 351). She said, “Having considered the content, I feel a meeting with you at this late stage would be of no benefit to my already fragile mental health and I therefore respectfully decline your invitation.” She went on to say that “I understand that you may wish to make a late referral to the council’s employee health and well-being service and I confirm that I have no objections.[40]Also on 26 June 2024, the claimant complained to Lorraine O’Donnell about Mrs Hyde’s handling of her sickness absence. This letter is at pages 355 and 356. There is merit in the claimant’s complaint. In section B of the bundle is included a document at pages 155 to 156 entitled “How to manage an employee’s long-term sickness.” This requires the manager to maintain regular contact with the employee and consider making an employee health well-being referral after a period of four weeks of absence. After such a period of absence, the policy recommends arranging a meeting with the absent employee to find out how they are and the support which may be offered. On any view, Mrs Hyde failed to comply with that policy and guidance.[41]On 16 July 2024 Mrs Hyde replied to the claimant’s email of 26 June 2024 (page 377). Mrs Hyde said that in her letter of 3 April 2024 the claimant had raised “a number of matters with me, that as I stated in my email of 3 April, required me to take time to consider and respond to. However, this did take longer than I anticipated, other work pressures compounded this, and contributed to the resultant delay, for which I am sorry.” She also noted there to be delays within the employee health and well-being service and said that she was seeking to expedite a referral as soon as she could. She suggested meeting with the claimant on 22 July 2024. The same day (at page 377) the claimant declined that invitation pending the receipt of a response to her complaint to the chief executive sent on 26 June 2024.[42]Lorraine O’Donnell wrote to the claimant on 2 August 2024 (pages 358 and 359). Dr O’Donnell pointed out that Joanne Hyde had in fact responded on 3 April 2024 to the claimant’s letter of the same day. However, she did “fully accept that you should have received a more detailed response to your 3 April letter earlier than 25 June.” The chief executive went on to say that “I am sorry this did not happen. I have spoken to Joanne as to how this came about and Joanne has explained (as indeed she explained to you in her email of 16 July) that this was because of work pressures, and she has apologised to you for that delay.” The claimant was urged to meet with Mrs Hyde “so that relationships can be improved and a constructive way through this can be found.” Dr O’Donnell then referred to the cancellation of the one-to-ones in February and March 2024 by Mrs Hyde. Dr O’Donnell acknowledged that the cancellations were at very short notice (less than 15 minutes in fact) which was attributed to urgent work matters. 10.5 Reserved judgment with reasons – rule 61 7 March 2017 Dr O’Donnell assured the claimant that the respondent was not seeking to manage her out of the business.[43]On 3 September 2024 the claimant had a consultation with the respondent’s employee health and well-being services. The report is dated 3 September 2024 at pages 402 to 405 following a referral of 2 August 2024. The author of the report, Jenny St Romaine, resolution co-ordinator, offered the opinion that the claimant was fit for work with support. She recommended that the claimant’s grievance be investigated and concluded as soon as practicable. She also recommended that whilst she remains absent from work an alternative manager should be appointed to manage her absence. (As we know, the claimant had in fact raised her grievance around a week prior to the employee health and wellbeing services consultation, the grievance having been submitted on 27 August 2024).[44]The claimant was informed that Mr Shepherd had been appointed to investigate and adjudicate upon her grievance. She was notified of this by Dr O’Donnell on 23 September 2024 (page 383). As already mentioned, the respondent replaced Joanne Hyde with Caroline Lee as welfare manager to manage the claimant’s welfare absence in early October 2024. (It was for this reason that Caroline Leigh was sent the claimant’s sick notes with effect from October 2024).[45]The claimant was absent from work on full pay from 9 April 2024 until 7 October 2024. Then, her sick pay entitlement was reduced to half pay with effect from 8 October 2024 (pages 407 to 410). On 29 September 2024 the claimant had made an application that the respondent exercise their discretion to extend her entitlement to full sick pay. This request is at page 411. Her justification for making the application was upon the basis that her “protracted absence had been caused entirely by the council’s inaction.”[46]The claimant’s application was refused. The matter had been referred to Anne Lloyd by Dr O’Donnell. Anne Lloyd did not consider that the claimant’s circumstances were exceptional and met the criteria for an extension of full sick pay entitlement. Anne Lloyd informed the claimant there was no right of appeal against that decision. Ms Lloyd’s letter to the claimant is dated 4 October 2024 (pages 420 and 421). Ms Lloyd explained to the claimant that it is rare for the council to agree to extend sick pay and this has only been done in a very limited number of isolated, unique, and exceptional occasions.[47]The Tribunal accepts the respondent’s case that Anne Lloyd conscientiously considered the claimant’s application for an extension of full sick pay entitlement. There is nothing to suggest that she did consider the factors in her letter at pages 420 and 421. Further, the claimant said that she had in fact made an application for information from the respondent about the exercise of discretion to extend sick pay. This application was made by her pursuant to the Freedom of Information Act 2000. The claimant candidly accepted in evidence that the information obtained by her pursuant to this request corroborated what she had been told by Anne Lloyd on 4 October 2024 and that it is rare for discretion to be exercised in favour of extending full sick pay entitlement.[48]On 7 October 2024 the claimant emailed Caroline Lee (page 425). This in fact appears to have been the first correspondence between them following Caroline Lee’s appointment as welfare manager in place of Joanne Hyde. The claimant wrote, “I understand that you have recently been appointed as my “welfare manager” and as such I attach my latest Med3 covering the period 5 October 10.5 Reserved judgment with reasons – rule 61 8 March 2017 2024 to 4 November 2024. I would like to apply for annual and bank holiday leave as follows: [The claimant then set out her request for annual leave covering the period between 5 November and 27 November 2024. The claimant applied to use 60.5 hours of her accrued annual leave entitlement and a further 14.5 hours of her accrued bank holiday entitlement, making 75 hours in total]. The claimant received her contractual holiday pay. She used the annual leave taken in November 2025 to travel to Thailand.[49]At a meeting the claimant and Mrs Lee held on 15 October 2024, the claimant made a verbal data subject access request pursuant to the Data Protection Act 2018 and the General Data Protection Regulation.[50]Before going to Thailand, she met with Caroline Lee to prepare an ‘individual stress management action plan.’ This is dated 22 October 2024 and is at pages 456 to 461. As the Tribunal understands matters, this document was completed by the claimant (referring to herself in the third person). The document contains some comments emanating from Caroline Lee in purple text.[51]The Tribunal noted that this document contained redactions in section 5 (at pages 460 and 461). These redactions were made without the permission of the Tribunal. During the third day of the hearing on 12 December 2025, an unredacted version of the individual stress management action plan was produced.[52]The claimant complained (within the plan at page 456) that her grievance of 27 August 2024 was not being taken seriously. She observed that she understood that Mr Shepherd was in the course of preparing terms of reference for the grievance. Mrs Lee said that she would get in touch with Mr Shepherd seeking an update.[53]The stress management action plan contained the comment (at page 457) that “Tracey sees that time is running out before she goes on annual leave [to Thailand] and therefore she finds it difficult to envisage that her grievance will be concluded in this calendar year, and she doesn’t find this acceptable.” It was noted that the claimant’s perception was that the delay was deliberate with a view to leaving the claimant with the options of resigning or alternatively returning to work without resolution of her concerns.[54]The claimant then complained (at page 457) that the respondent had refused to extend payment of full occupational sick pay. The claimant was of the view that there was a right of appeal against Anne Lloyd’s decision. (The claimant’s point appears to be that there is nothing within the sick pay guide at pages 110 to 114 (particularly in clause 2.2 on page 110) to the effect that an appeal may not be brought against a refusal to extend sick pay entitlement. That is however not the same thing as there being any right of appeal).[55]The individual stress management action plan then went on (at page 458) to consider the issue of the claimant’s contact with her appointed welfare manager Joanne Hyde. The claimant complained that she “perceives that the council made a conscious decision to leave her without contact, support or necessary business updates, verbal or otherwise, for extended periods of time and this was in an attempt to isolate her so that she had no option but to return to work. As a result, Tracey felt and continues to feel, excluded, disadvantaged and totally forgotten by the council.” 10.5 Reserved judgment with reasons – rule 61 9 March 2017[56]The plan then touched on the issue of information requests and requests for documentation (pages 459 and 460) as had been raised by the claimant at the meeting with Mrs Lee held on 15 October 2024. The individual stress action management plan records that before taking this step the claimant had sought to obtain information informally via the HR director.[57]The final section of the form (at pages 460 and 461) touches upon the issue of the ongoing employment relationship. The claimant recorded that because of the issues arising which were the subject of the grievance, the occupational sick pay issue, the welfare management issue, and the information requests, the employment relationship was “damaged beyond repair and any future relationship is untenable.” The redacted part of the individual stress management plan in section 5 concerns the issue of the chief executive’s refusal of the claimant’s request to have a protected conversation with a view to mutually ending the employment relationship. Caroline Lee noted the claimant to “feel demoralised by this situation and is considering resigning from her job.”[58]The Tribunal will look at the relevant law in due course. However, it is convenient to deal with a discrete point of law regarding protected conversations now.[59]The mere fact of there having been settlement offers or discussions as part of pre-termination negotiations is inadmissible pursuant to section 111A of the Employment Rights Act 1996. Faithorn Farrell Timms LLP v Bailey [2016] ICR 1054 EAT is authority for the proposition that inadmissibility under section 111A applies not just to the content of any offers made or discussions held but also to the mere fact that there had been such offers or discussions. Thus, a claimant cannot rely on the existence of such negotiations in support of an unfair dismissal claim.[60]As the Tribunal reads that authority, however, evidence of discussions which do not entail or consist of any form of offer or negotiation will not be excluded by section 111A of the 1996 Act. In the Tribunal’s judgment therefore, there is nothing precluding mention in these reasons of those parts of the individual stress management action plan which touch upon the question of protected conversations. At its height, the claimant was seeking reconsideration by the chief executive of her (the chief executive’s) refusal to contemplate entering pretermination negotiations with the claimant. What transpired did not entail any form of offer or negotiation such as to be excluded from the admissible evidence by section 111A.[61]The individual stress management action plan, being a contemporaneous document authored by the claimant, is strong evidence that in the claimant’s mind, by 22 October 2024 the employment relationship had become untenable and that she had grounds to resign and claim that she had been constructively unfairly dismissed. In fact, the claimant had expressed just that sentiment some four months earlier in her letter to the chief executive of 26 June 2024 at pages 355 and 356. On the latter page, she said that she had been “advised that I have reasonable grounds to instigate an unfair constructive dismissal claim at an Employment Tribunal. However, this email should not be considered as my resignation or my intention to.”[62]The claimant’s verbal data subject access request was acknowledged by the respondent on 29 October 2024 (pages 467). This was in an email from Anne Lloyd to the claimant that day. 10.5 Reserved judgment with reasons – rule 61 10 March 2017[63]On 30 October 2024, the claimant asked Mr Shepherd to add to the list of grievance issues that of the respondent’s refusal to extend full sick pay. The claimant’s email of that date is at pages 480 and 481. (This was in fact in response to Mr Shepherd’s letter to the claimant of 30 October 2024 (pages 476 to 479) in which Mr Shepherd set out his proposed terms of reference).[64]The Tribunal now pauses to have a look at the terms and reference. The first of these referred to by Mr Shepherd in his letter of 30 October 2024 concerned the claimant’s treatment by Joanne Hyde in rejecting the workforce change proposal. The resolutions sought by the claimant was for those to be approved. Mr Shepherd said that approval of the proposals was not a matter falling within his remit (to either recommend or decide). He went on to say that “The staffing structures in any service are determined by the managers within that service and the final decision rests with the most senior manager, the strategic director. This aspect of your grievance will, therefore, not form part of my investigation.” However, Mr Shepherd said that he was prepared to investigate whether the decision not to proceed with the proposal was explained and communicated to the claimant appropriately.[65]The second issue was that of the re-grade of the postholders of the heads of service Revenues, Benefits and Customer Services. The claimant sought the upgrading of her role to special grade E. Mr Shepherd declined to include this as part of his terms of reference upon the basis that it was not a decision which it was open to him to make. It was open to the claimant to follow the re-grading application process. Mr Shepherd was however prepared to consider whether the claimant’s post should have been considered for re-grading when the heads of service posts were themselves re-graded. Also included was the issue raised by the claimant of victimisation (by not being considered for re-grading for having brought her earlier equal pay case).[66]There was no issue around the third matter to be dealt with by Mr Shepherd. This concerned issues arising from her management by Joanne Hyde and specifically: 66.1. Not providing the claimant with adequate one-to-one opportunities to discuss her personal concerns, well-being and stress. 66.2. Not following the respondent’s policy and properly considering the claimant’s personal concerns in a timely way. 66.3. Breaching the respondent’s ‘keeping in touch’ policy and not checking on the claimant’s welfare when she was absent due to workplace stress. 66.4. Failing to make a timely referral to occupational health in breach of the respondent’s policy.[67]Mr Shepherd declined the claimant’s request to add to the terms of reference the issue of extending the payment of full contractual sick pay. He also declined the claimant’s request to amend the terms of reference around the re-grading issue. He therefore stayed with the terms of reference upon this matter as set out in his letter of 30 October 2024.[68]Mr Shepherd invited the claimant to attend a grievance meeting on 12 November 2024. The claimant was away on annual leave in Thailand and therefore the matter was rescheduled for 4 December 2024.[69]Karen Fogg’s notes of the grievance meeting are at pages 510 to 522. The respondent’s notes are at pages 523 to 534. 10.5 Reserved judgment with reasons – rule 61 11 March 2017[70]There is no dispute that Karen Fogg prepared an excellent note of the meeting. It is also uncontroversial that the claimant asked Mr Shepherd for a copy of his notes which he declined (page 522). The claimant maintained that it was part of the respondent’s procedure to send the notes of the grievance meeting to the employee. However, the Tribunal was not taken to any part of the policy documents within section B of the bundle to this effect.[71]The claimant asked Mr Shepherd if he would interview Mr Singh. She also ventured the possibility of him discussing matters with Anne Lloyd as well as Joanne Hyde. In terms of timescale, Mr Shepherd said that he was hoping to see Joanne Hyde during the following week (the Tribunal refers to Karen Fogg’s note to this effect at page 522). He said that he would depart form the respondent’s usual practice of giving the grievance outcome verbally and would do it in writing due to the complexity of the case. He informed the claimant of this towards the end of the meeting (page 522). The claimant raised no objection.[72]Mr Shepherd explains in paragraph 17 of his witness statement that he did not see it as necessary to see Mr Singh. He justifies this upon the basis that Mr Singh “had not come forward with any concerns, he would have had a conflict of interest in that he was Mrs Banfield’s job share partner, and he would have been impacted by Mrs Banfield’s proposal had it been accepted.”[73]In the event, Mr Shepherd did not see Mrs Hyde until 13 and 15 January 2025. His notes of the interview with her are at pages 544 to 551.[74]On 11 February 2025, Mr Shepherd informed the claimant that he had seen Mrs Hyde and had received evidence from her that he was due to review shortly. Mr Shepherd had been sent some documentation by Joanne Hyde on 31 January 2025 (page 552). The documentation being reviewed by Mr Shepherd in fact included 30 documents which the claimant had submitted to him on 3 December 2024, around 24 hours before her meeting with him the following day. The claimant’s email of 3 December 2024 to this effect is at page 489.[75]It can be seen from the notes of interview at pages 544 to 541 that Joanne Hyde was able to give a full and comprehensive explanation around the workforce change proposal and the regrade issue. She was also, of course, able to give her own account of her absence management of the claimant.[76]The data subject access request made verbally with Caroline Lee on 15 October 2024 was processed by the respondent. It was sent to the claimant’s work email address on 12 November 2024. This was unfortunate as the claimant had been away from work since early April 2024. This issue was raised by Caroline Lee on 12 February 2025. The claimant complained (on 14 February 2025- page 166) that the delay in progressing the data subject access request was, unless quickly resolved, “likely to be something else to add to my ever-growing list of complaints about my treatment as a Council employee.” The error was discovered, and the documentation was submitted to the claimant on 16 February 2025 (pages 167 and 168).[77]A further issue then arose as her personal data regarding the claimant’s grievance and sickness absence were not disclosed purportedly pursuant to one of the exemptions provided for in the GDPR. In evidence given under crossexamination, Miss Basi fairly accepted that the purported use of this exemption was inapt and that the information should have been disclosed to the claimant. The information was supplied to her on 1 April 2025 (page 221). (As a matter of 10.5 Reserved judgment with reasons – rule 61 12 March 2017 fact, the claimant raised another data subject access request on 30 April 2025. However, issues arising from that request cannot be causative of the claimant’s resignation and are irrelevant to the merits of her constructive dismissal claim).[78]On 21 February 2025 the claimant made a request pursuant to the Freedom of Information Act 2000. This was concerned with the job evaluation and regrade issues. The request is at page 175 of the bundle.[79]Miss Basi acknowledged receipt of the claimant’s Freedom of Information request of 21 February 2025 on 7 March 2025 (page 177). This was to the effect that the claimant’s correspondence had been forwarded to the Job Evaluation Grading Scheme team for processing. Miss Basi explains in paragraph 19 of her witness statement that “At that point in time the council’s approach was that employees could access information that they require without having to make formal requests for information, such as an FOI request.”[80]This information was not produced within the statutory timescale of 20 working days about which the claimant complained to the respondent on 26 March 2025 (page 190 and 191). The claimant complained to the Information Commissioner’s Office on 27 March 2025 (page 214). On 7 April 2025 the ICO said that they had directed the respondent to respond to her request (page 224).[81]In summary, therefore, the claimant did not receive all the information which she should have had pursuant to the data subject access request of 15 October 2024 until 1 April 2025. She also did not receive the requested information pursuant to the Freedom of Information Act 2000 following her request of 21 February 2025 within the statutory 20 working days timescale. She had not received the information sought pursuant to that request at the date of her resignation and had to resort to raising a complaint about matters with the Information Commissioner’s Office.[82]On 28 March 2025 Mr Shepherd issued his grievance outcome. This is at pages 597 to 600. Sadly, he had experienced a period of ill health from the end of February 2025 which entailed him taking the first two weeks of March as ill health absence. The position was explained to the claimant by Mr Shepherd’s personal assistant on 6 March 2025 (page 563) and by Mr Shepherd himself on 17 March 2025 (at page 565).[83]The grievance outcome itself is at pages 590 to 600. Mr Shepherd’s conclusions were, in summary: - 83.1. Mr Shepherd considered that the timescales for reviewing feeding back the first and second workforce change proposals was reasonable in the circumstances. He considered that there was sufficient clear communication to the claimant that the proposals were not going to go ahead around the spring of 2024. 83.2. Upon the regrade issue, Mr Shepherd said that the evidence furnished to him by Joanne Hyde was to the effect that the three relevant postholders’ jobs had changed. The claimant’s role had not and therefore there was no call for Mrs Hyde to re-evaluate her role at the same time as the other three roles were evaluated. 83.3. Upon the question of Joanne Hyde’s management of the claimant, Mr Shepherd found that it is not uncommon for one-to-one meetings to be postponed at short notice. He observed there to be an acute crisis within 10.5 Reserved judgment with reasons – rule 61 13 March 2017 the respondent at around this time with “the council on the verge of a section 114” and other issues as completing priorities. However, Mr Shepherd upheld the claimant’s grievance concerning the management of her sickness absence between 3 April 2024 and 25 June 83.4. Even though this was out of remit, Mr Shepherd did nonetheless consider the question of extending sick pay. He held that Ms Lloyd’s decision not to extend sick pay was a reasonable one as only rarely will such an extension be granted (for example where an employee is terminally ill). 83.5. The claimant was offered the right of appeal against Mr Shepherd’s decision. He informed her that such a right must be exercised within 15 working days of the date of the decision letter. The decision letter was dated 28 March 2025 and accordingly the claimant was given a deadline to appeal of 17 April 2025.[84]The claimant was right to point out that 17 April 2025 is 15 working days from 28 March 2025 if one includes the latter date. There is also merit in her argument that if 28 March 2025 is discounted from the calculation the deadline would then be extended to 22 April 2025 (18 April being Good Friday and 21 April being Easter Monday in 2025). The grievance process in Part B of the bundle stipulates the time for appealing (in section 8 at page 90) as within 15 working days of the date of the decision letter.[85]In the event, the claimant did not appeal the outcome of Mr Shepherd’s grievance investigation. Instead, she resigned by way of the letter of 8 April 2025 which is at pages 602 to 604 of the bundle.[86]It is necessary to set this out in full: “I am writing to inform you that as a dedicated and loyal senior employee of the City of Bradford Metropolitan District Council for over 26 years, I have been left with no alternative but to resign from my position as head of service – corporate investigations, information governance and complaints at the City of Bradford Metropolitan District Council with immediate effect. Please accept this as my formal resignation and termination of our contract. The council’s continuing pattern of behaviour over the last 12 months taken as a whole constitutes a fundamental breach of an implied term of my employment contract, namely trust and confidence with the council’s final act being the last straw leaving me with no tenable or reasonable option but to resign and consider myself constructively dismissed by the council. The ongoing fundamental breach of my employment contract has had a significant impact on my mental health notwithstanding that the details surrounding the council’s continuing pattern of behaviour were outlined to the council in my informal written letter and written formal grievance to the chief executive, Lorraine O’Donnell, dated 26 June 2024 and 27 August 2024 respectively; verbally at my grievance investigation meeting on 4 December 2024 and the summarised below for your convenience – The council has not complied with their own policies on managing attendance, managing stress in the workplace, and the mental health at work framework (health and well-being strategy) as follows:- 10.5 Reserved judgment with reasons – rule 61 14 March 2017 o The council (namely Joanne Hyde, my line manager, nor anyone else representing the council) did not make any attempt to contact me for nearly three months following my earlier notification of sickness absence dated 3 April 2024. o The council did not provide any opportunity for me to have regular and ongoing communication and dialogue; to check on my welfare or keep me up to date and what was happening for over six months following my email notification of sickness absence dated 3 April o The council did not register my absence on the council management system for three months resulting in a lack of appropriate interventions by HR representatives who could recommend suitable and timely support for employees absent from work with work-related stress. o The council did not make a referral to occupational health for four months and delayed implementing the recommendations of my eventual occupational health assessment over one month. o The council did not develop a stress management action plan with me for over six months. The council has not complied with both council policy and the ACAS Code of Practice on disciplinary and grievance procedures, as follows: o The council did not acknowledge my grievance; appoint an investigating officer; hold the first grievance meeting or provide the grievance outcome “promptly” and “without unreasonable delay”. o The council did not carry out a full, thorough and impartial investigation of my formal grievance. o Did not appoint an investigating officer who was able to be impartial. o Did not provide me with copies of the grievance meeting record and the notes taken. o Did not interview all appropriate witnesses. o Did not amend the terms of reference of the investigation to include my concerns about how the council dealt with my investigation to have full occupational sick pay extended. o Did not proactively provide an estimate of how long the investigation would take and was not specific about when a decision would be made and did not keep me updated on all delays in the investigation meeting in the chasing progress. o Did not provide me with the opportunity to attend a reconvened grievance meeting to have the results of the investigation communicated and discussed with me before the grievance outcome decision was sent to me in writing. o Has not provided a suitable apology or sufficient compelling rationale/mitigation for the “upheld” elements in the “management decision” grievance outcome letter and has not provided an appropriate recommendation or remedy for the same, given that 10.5 Reserved judgment with reasons – rule 61 15 March 2017 this breach had been the major contributing factor to my deteriorating mental health and subsequent long-term absence. o Did not advise correctly on the grievance appeal period end date. o The council has denied me my right to receive recorded information held by public authorities and also denied my right to as an individual to obtain copies of the personal data it holds about me, in accordance with Freedom of Information and data protection legislation as follows. o Did not provide me with a full response to a verbal request for my personal data, dated 15 October 2024, within the legislative time frame of one calendar month. o Has not provided a response to my “Freedom of Information” request for job evaluation data, dated 21 February 2025, within the legislative 20 working days. It is both incredibly sad and regrettable that the council forced my distinguished public sector career to an inauspicious end and much earlier than I had always intended. Being deprived of the opportunity to experience the full retirement I have seen other colleagues enjoy, and had always planned for, after 44 years of public sector service is something that I would have imagined would never happen.”[87]She complained (in paragraphs 186 to 188 of her grounds of claim) that taken as a whole, the respondent’s pattern of behaviour constituted a fundamental breach of the implied term of trust and confidence. She said that the final act or last straw was the respondent failing to handle her grievance in a fair and timely manner and in accordance with its own policies and procedure leaving her with no option but to resign and consider herself as constructively dismissed.[88]The claimant’s resignation was acknowledged by the respondent on 11 April 2025.
The relevant law
[89]By section 94 of the Employment Rights Act 1996, an employee has the right not to be unfairly dismissed by their employer. There is normally a statutory length of service qualifying period. There is of course no issue in this case that the claimant has sufficient continuity of service to bring her complaint of unfair dismissal.[90]By section 95 of the 1996 Act, an employee is dismissed if (amongst other things) they terminate the contract under which they are employed (with or without notice) in circumstances in which they are entitled to terminate it without notice by reason of the employer’s conduct.[91]It is accepted by the respondent that if the claimant satisfies the Tribunal that she was constructively dismissed for the purposes of section 95(1)(c), then she was unfairly dismissed. The respondent does not seek to establish a potentially fair reason for her constructive dismissal (if the Tribunal finds that such took place).[92]As Miss Millns says in her helpful written submissions presented to the Tribunal on 12 December 2025, the statutory language in section 95(1)(c) of the 1996 Act incorporates the law of contract. Therefore, the employee is entitled to treat themselves as constructively dismissed only if the employer is guilty of conduct 10.5 Reserved judgment with reasons – rule 61 16 March 2017 which is a significant breach going to the root of the contract, or which shows that employer no longer intends to be bound by one or more of the essential terms of the contract. If there has been a breach of contract, then the breach must be fundamental in order to form the basis of a constructive dismissal claim.[93]In Malik and Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606 the House of Lords approved the formulation which imposes an obligation on the parties not “without reasonable and proper cause, to conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”. This is a term implied into all contracts of employment. Whether a party so conducts themselves is an objective test. It is this implied term of the contract upon which the claimant relies. A breach of the implied term of trust and confidence is by its nature repudiatory (Morrow v Safeway Stores Plc [2002] IRLR, EAT).[94]The first element of the implied term of trust and confidence is that the conduct must be without reasonable and proper cause. There may be conduct on the part of the employer which is seriously damaging if not destructive of trust and confidence, but which is done for a reasonable and proper cause. Such is not in breach of the implied term of trust and confidence.[95]The second element of the implied term is whether (where there is no reasonable and proper cause) the conduct was calculated or likely to destroy or seriously damage trust and confidence. This requires the Tribunal to consider the circumstances objectively, from the perspective of a reasonable person in the claimant’s position (Tullett Prebon Plc v PGC Brokers LLP [2011] IRLR 420, CA).[96]The test of whether there has been a breach of the implied term is met where the employer’s objectively assessed intention is to destroy or seriously damage trust and confidence or where the employer’s conduct was likely to have that effect. In Tullett Prebon the Court of Appeal held that an objective assessment of the true intention of the employer’s management in that case was warranted. The motive of the contract breaker may be relevant to an assessment of how the alleged repudiatory conduct would have been viewed by a reasonable person in the position of the claimant.[97]The test is whether looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract. All the circumstances must be considered so far as they bear on an objective assessment of the intentions of the contract breaker as to whether they were abandoning and refusing to perform the contract and acting in repudiatory breach of it.[98]The matter was considered very recently by the Employment Appeal Tribunal in Nelson v Renfrewshire Council [2025] EAT 189. This is a helpful decision on the correct approach to take when deciding whether a party has acted in breach of the implied term of trust and confidence with a reminder of the key principles. Coincidentally and serendipitously, it is a decision which was handed down on 16 December 2025. It is a timely reminder of the key principles. (It does not establish any new point requiring further submissions from the parties).[99]Nelson was a claim for constructive unfair dismissal which arose in a school setting. The EAT held that the tribunal had correctly applied the necessary 10.5 Reserved judgment with reasons – rule 61 17 March 2017 objective test when deciding whether the implied term of mutual trust and confidence had been breached. This test was summarised by the EAT at [8]: “In deciding whether there has been a breach of the implied term of mutual trust and confidence, it is well established that an objective test must be used. All of the circumstances found proved are examined, to see whether the employer’s conduct is likely to destroy or seriously damage trust and confidence. The issue is not decided on the basis of the subjective intentions of an employer, or the actual effect on a particular employee. It is a question of whether a reasonable person in the position of the employee would regard the behaviour of the employer as likely to destroy or seriously damage the relationship of mutual trust and confidence (Malik [v BCCI] [1997] ICR 606 p610-611, Tullett Prebon Plc v BGC Brokers LP [2011] EWCA Civ 131 at para 20…”[100]At [17] the EAT observed that: “While it is true, as a matter of law, that whether there has been a breach of the implied term is not decided on the basis of the employer’s subjective intention, it does not follow that all evidence or factors which may have a bearing on intention are irrelevant considerations. What is required is an objective assessment of the evidence, and an analysis of the impact of conduct of the employer found proved on a reasonable employee. It is quite possible that an objective assessment of the evidence may give rise to reasonable inferences about the employer’s intention (Tullett para 27, [The] Leeds Dental Team [Ltd v Rose] paras 26 and 28, G-H, Woods [v WM Car Services (Peterborough) Ltd [1982] ICR 693] 698 G-H).[101]At [18] the EAT in Nelson reminded us that in Tullett (paras 27-28), Maurice Kay LJ had said that: “A party can still have an intention which may be relevant, but the intention is to be judged objectively. There is no necessary conflict between that passage and the quotation in Malik, as found in Leeds Dental Practice (para 25). It is implicit in both quotations that contracts are broken not by the innermost mind, but by what people say and do…However, when evidence about a potential breach of contract is objectively assessed, it may naturally give rise to inferences. It is not irrelevant to take into account inferences which arise from an objective assessment.”[102]By way of illustration of the practical application of these principles, the EAT turned to the tribunal’s findings in Nelson that the grievance investigator had made comments and acted in a way such as to show a predisposition to believe the head teacher and education manager above the claimant and had failed to take statements from two witnesses put forward by the claimant. The tribunal inferred bias on the investigator’s part from those proved facts. However, the tribunal did not find that her actions were motivated by bad faith, deliberate manipulation and overt hostility to the claimant. The findings of bias and the findings of an absence of bad faith and hostility were reasonable inferences to draw from established facts and were findings which were reached on an 10.5 Reserved judgment with reasons – rule 61 18 March 2017 objective assessment of the evidence. Those findings then fed into the question of whether objectively the employer’s conduct would be regarded by a reasonable employee in the claimant’s position as seriously damaging or destructive of trus and confidence.[103]The claimant’s contention in Nelson was that the tribunal had impermissibly taken into account the subjective intentions of the employer by looking at the issues of bad faith, manipulation, and hostility, which were irrelevant considerations. This contention was rejected. The tribunal, when assessing the seriousness of the employer’s conduct of the grievance procedure was bound to look at the errors made. However, the tribunal had been entitled to find that the errors were not sufficiently serious as to be destructive or seriously damaging of mutual trust and confidence. There was inept handling of the process but there was no evidence of outright hostility or deliberate manipulation of the process to the claimant’s detriment. When read in context the findings of an absence of bad faith, deliberate manipulation, and overt hostility were relevant considerations in the context of the objective assessment of seriousness in which the tribunal was engaged.[104]At paragraph 20 the EAT summarised the position: “It is clear that the focus is on the impact of the employer’s behaviour on the reasonable employee, when deciding if the implied term of mutual trust and confidence is breached, not the employer’s intention. But it is artificial to suggest that inferences of intention, which naturally and reasonably arise from evidence objectively assessed, must be left entirely out of account. They are part of the full circumstances the ET may take into account in deciding whether the impact of an employer’s behaviour on a reasonable employee justified them in terminating the contract without notice.”[105]A breach of the implied term of trust and confidence may consist of a series of actions on the part of the employer that cumulatively amount to a repudiation of the contract. Sometimes, the employee resigns in response to a final incident (short of a fundamental breach) that they regard as “the straw that breaks the camel’s back.” The last straw does not of itself have to be a breach of contract, still less be a fundamental breach in its own right: Lewis v Motorworld Garages Limited [1986] ICR 157, CA. In that case, the Court of Appeal stressed that it is immaterial that one of the events in the course of conduct was serious enough in itself to amount to a repudiatory breach but that the employee did not treat that breach as such by resigning. Of course, if the employee resigns because of an act in fundamental breach of the contract (which is not accompanied by an affirmation of the contract by the employee) then the last straw issue does not arise at all).[106]The Court of Appeal in Omilaju v Waltham Forest London Borough Council [2005] ICR 481, CA, confirmed that to constitute a breach of trust and confidence based on a series of acts or omissions, the act constituting the last straw does not have to be of the same character as the earlier acts, and nor does it necessarily have to constitute unreasonable or blameworthy conduct, although in most cases it will do so. The last straw however must contribute, however slightly, to the breach of the implied term of trust and confidence. An entirely 10.5 Reserved judgment with reasons – rule 61 19 March 2017 innocuous act on the part of the employer cannot be a final straw even if the employee genuinely but mistakenly interprets the act as hurtful and destructive of their trust and confidence in the employer. As always, the test of whether the employee’s trust and confidence have been undermined in this context is an objective one.[107]Where the act that tips the employee into resigning is entirely innocuous, a constructive dismissal claim will still succeed provided that there was earlier conduct amounting to a fundamental breach, that breach has not been affirmed, and the employee resigned at least partly in response to it. In such a case, the final act is not a last straw in the legal sense at all.[108]Where the employee waits too long after the employer’s breach of contract before resigning, they may be taken to have affirmed the contract and thereby lost the right to claim constructive dismissal. In the words of Lord Denning MR in Western Excavating (ECC) Limited v Sharp [1978] ICR 221, CA, the employee “must make up his mind soon after the conduct of which he complains: if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.”[109]In Bournemouth University Higher Education Corporation v Buckland [2010] ICR 908, CA, Jacobs LJ observed that resigning from a job is a serious matter with potentially significant consequences for the employee. The more serious the consequences, the longer the employee may take to reach a decision. Given the pressure on the employee, the law must look carefully at the facts before deciding whether there has really been an affirmation.[110]It is important to remember that the issue of affirmation is essentially one of conduct, not simply of passage of time. What matters is whether in all the circumstances the employee’s conduct has shown an intention to continue in employment rather than to resign. Affirmation can be implied by prolonged delay and/or if the innocent party calls on the guilty party for the further performance of the contract. Where delay is prolonged, affirmation may be inferred: WE Cox Toner (International) Ltd v Crook [1981] ICR 823 EAT). The following passage from the judgment of Browne-Wilkinson P in that case is worth citing: ‘13. It is accepted by both sides (as we think rightly) that the general principles of the law of contract apply to this case, subject to such modifications as are appropriate to take account of the factors which distinguish contracts of employment from other contracts. Although we were not referred to cases outside the field of employment law, our own researches have led us to the view that the general principles applicable to a repudiation of contract are as follows. If one party (“the guilty party”) commits a repudiatory breach of the contract, the other party (“the innocent party”) can choose one of two courses: he can affirm the contract and insist on its further performance or he can accept the repudiation, in which case the contract is at an end. The innocent party must at some stage elect between these two possible courses: if he once affirms the contract, his right to accept the repudiation is at an end. But he is not bound to elect within a reasonable or any other time. Mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation: Allen v Robles[1969] 1 WLR 1193. Affirmation of the contract can be implied. Thus, if the innocent party calls on the guilty party for further performance of the contract, he will normally be taken to have affirmed the contract since his conduct 10.5 Reserved judgment with reasons – rule 61 20 March 2017 is only consistent with the continued existence of the contractual obligation. Moreover, if the innocent party himself does acts which are only consistent with the continued existence of the contract, such acts will normally show affirmation of the contract. However, if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation: Farnworth Finance Facilities Ltd v Attryde[1970] 1 WLR 1053.”[111]A difficult issue arises over the question of acceptance of sick pay. The significance to be afforded to the acceptance of sick pay will depend on the circumstances. At one extreme, an employee may be seriously ill such that it would be unjust and unrealistic to hold that acceptance of sick pay contributed to affirmation. At the other extreme however an employee may continue to claim and accept sick pay when better and/or when seeking to exercise other contractual rights.[112]In Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1, CA the Court of Appeal clarified that an employee who claims unfair constructive dismissal based on a continuing cumulative breach is entitled to rely on the totality of the employer’s acts notwithstanding prior affirmation of the contract provided that the later act – the last straw – forms part of the series. The effect of the final act is to revive the employee’s right to terminate their employment based on the totality of the employer’s conduct. (This, at any rate, is the case if the final straw incident is not itself so damaging as to comprise a repudiatory breach in and of itself. In such a case, there will be no need for the employee to rely on the last straw doctrine as the basis of a claiming that they have been constructively dismissed).[113]As it was put by Langstaff P in Lochuak v London Borough of Sutton [EAT] 0197/14, “A failure to elect to treat a contract as repudiated does not waive the breaches…If a later incident occurs which adds something to the totality of what has gone before, and in effect resuscitates the past, then the tribunal may assess, having regard to all that has happened in the meantime - both favourable to the employer and unfavourable to him - whether there has been a repudiatory breach which the employee is now entitled to accept. If so, and if the employee resigns as least partly for that reason, it will find in that case that there has been a constructive dismissal.”[114]In Kaur, the Court of Appeal offered guidance to Employment Tribunals when faced with deciding whether an employee was constructively dismissed. The following series of questions may be helpful: 114.1. What was the most recent act (or omission) on the part of the employer which the employee says caused or triggered their resignation? 114.2. Have they affirmed the contract since that act? 114.3. If not, was that act by itself a repudiatory breach of contract? 114.4. If it was not a repudiatory breach of contract, was it nevertheless a part of a course of conduct comprising several acts and omissions which viewed cumulatively amount to a repudiatory breach of trust and confidence. 10.5 Reserved judgment with reasons – rule 61 21 March 2017 114.5. Did the employee resign in response (or partly in response) to that breach. It is enough that the employee resigns in response – at least in part – to the employer’s fundamental breach of contract.[115]Picking up on the point in paragraph 114.5, as Miss Millns submitted in paragraph 12 of her closing submissions: “The breach must have caused the resignation, but it need not be the only cause. The test is whether the employee resigned in response to the conduct which constituted the breach. This is a question of fact for the Tribunal (Wright v N Ayrshire Council [2014] ICR 77 EAT). Constructive dismissal is made out if the employee resigned at least partly in response to the employer’s fundamental breach of contract (Logan v Celyn House Ltd EAT 0069/12). The crucial question is whether the repudiatory breach played a part in the dismissal, i.e. whether it was one of the factors relied on by the employee when resigning (Abby Cars (West Hornden) Ltd v Ford EAT 0427/07).”[116]A further issue is whether an employee’s decision to invoke an employer’s grievance or disciplinary appeal procedure amounts to affirmation of any repudiatory breach of contract by the employer. In Kaur, Lord Justice Underhill said that “Exercising a right of appeal against what is said to be a seriously unfair disciplinary decision is not likely to be treated as unequivocal affirmation of the contract.”[117]This dicta was applied in Gordon v J & D Pearce (Contracts Limited) [2021] IRLR 266, EAT. In that case, the Employment Appeal Tribunal agreed with Underhill LJ in Kaur that reliance on one contractual right does not necessarily signify an acceptance that all other contractual rights are intact. Exercising a right of grievance or appeal should not be regarded as affirmation of an employment contract as a whole. There is no anomaly in holding that a contract has been terminated for some purposes and not for others. Grievance or appeal provisions may be regarded as severable from the remainder of the contract and capable of surviving independently, even though the remainder of the contract is properly regarded as terminated through breach. The EAT in Gordon took a pragmatic approach, considering that it would be unsatisfactory if an employee were unable to accept a repudiation because they wished to seek a resolution by means of a grievance procedure. Discussion and conclusions[118]It is perhaps unfortunate that this case did not benefit from a case management hearing. That said, Miss Millns helpfully clarified with the claimant at the start of the cross examination that her case centred upon seven matters which she maintains individually and cumulatively served to breach the implied term of trust and confidence. These matters are: The workforce change proposal. The re-grading and equal pay issue. 10.5 Reserved judgment with reasons – rule 61 22 March 2017 The absence management. The sick pay issue. The data subject access request under the Data Protection Act 2018/GDPR. The Freedom of Information Act request. The grievance.[119]Applying Kaur, the first question which arises is what was the most recent act or omission on the part of the employer which the claimant says caused or triggered her resignation. Her letter of resignation cites, in summary, the sickness absence management, the respondent’s handling of the grievance and the Freedom of Information Act and Data Protection Act/GDPR issues.[120]It is right to observe that the reason given by the employee to the employer is merely one piece of evidence for the Tribunal to consider when reaching a conclusion as to the true reason for the employee’s resignation. However, in the Tribunal’s judgment, there is much merit in Miss Millns’ point that the claimant put a great deal of care and thought into her letter of resignation. That much is plain as it is very well written. The claimant impressed the Tribunal as an individual not afraid to stand up for herself and who raises measured and well-reasoned issues in good time when matters of concern to her arise. In the Tribunal’s judgment, therefore, it is persuasive that what she said at the time in her resignation letter is the best evidence available to the Tribunal as to what was in her mind when she decided to resign from her position. It is not credible that the claimant resigned for matters other than those in her resignation letter. The Tribunal is confident that such a professional individual as the claimant would be careful to include in the letter of resignation the matters in her mind when she resigned.[121]It is unsurprising that one of the reasons for the resignation given by her was the shortcomings in the respondent’s sickness absence management process. This is because Mr Shepherd had upheld the grievance raised by her upon this issue.[122]However, this was not the most recent event. The most recent acts which she says formed part of her reason for resignation and which caused or triggered her resignation was the grievance process and outcome and the respondent’s handling of the Freedom of Information Act request and the GDPR/data subject access request.[123]Mr Shepherd’s grievance outcome was emailed to the claimant on 28 March 2025. The claimant submitted her complaint about the handling of the Freedom of Information Act request of 21 February 2025 just the day before on 27 March 2025. The claimant finally received all of her personal data pursuant to her data subject access request on 1 April 2025. In the Tribunal’s judgment, it is unrealistic to separate out these three issues. They happened at around the same time. They were raised in the claimant’s letter of resignation. Plainly, they were the most recent matters causative of her decision to resign.[124]In contrast, there were no issues with sickness absence management process of which the claimant complained in her resignation letter after the time that the respondent implemented the occupational health recommendation to replace Mrs Hyde, which step was taken in late September 2024. 10.5 Reserved judgment with reasons – rule 61 23 March 2017[125]The claimant’s letter of resignation was submitted on 8 April 2025. That is just around 10 days or so from 27 and 28 March 2025 and seven days from 1 April 2025. Given the claimant’s length of service, it cannot be suggested (and the Tribunal did not understand Miss Millns as suggesting) that the delay of 10 days or so constitutes affirmation of the contract. In Western Excavating, Lord Denning said that the employee must make up their mind soon after the conduct of which complaint is made. It is not the case that the employee must make up their mind immediately that the impugned conduct takes place. This must be even more so in the case of such a long serving employee as the claimant, it being a profound step to resign any employment, but particularly one of such longevity. Jacob LJ’s observations in Buckland are pertinent.[126]Accordingly, there being no affirmation upon the three latest acts which caused the resignation, the question which then arises is whether the respondent’s handling of the grievance and/or of the Freedom of Information Act and data subject access requests were repudiatory breaches of contract. The Tribunal shall start with a consideration of the grievance issue.[127]The claimant raised several criticisms of the grievance process. In the Tribunal’s judgment, none of those criticisms bear the scrutiny which the claimant placed upon them to demonstrate that the respondent was, without reasonable and proper cause, conducting itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties. The respondent was not showing an intention no longer to be bound by one or more of the essential terms of the contract.[128]The claimant’s grievance was raised on 27 August 2024. The grievance outcome was delivered on 28 March 2025. That is a period of around seven months.[129]The Tribunal does not consider the length of time taken by the respondent to have been unreasonable such as to show an intention no longer to be bound by the implied term of trust and confidence. The claimant was a senior officer within the respondent. Sometime would therefore have to be taken to identify a suitable grievance manager. Mr Shepherd was identified and appointed on 23 September[130]There was nothing to suggest that he was partial. The claimant’s suggestion of partiality was upon the basis that he chose only to interview Mrs Hyde and was in the same management team as her.[131]Upon his appointment, Mr Shepherd then needed to take time to prepare the terms of reference and decide what was within and without his remit. In the Tribunal’s judgment, Mr Shepherd took a sensible and careful view about what he could and couldn’t do. He acted reasonably in declining to add to the terms of reference the issue about extending full sick pay (albeit that he dealt with that in any case when he delivered the grievance outcome). There was then a delay of around a month caused by the claimant exercising her right to go on holiday.[132]Mr Shepherd made arrangements to see the claimant shortly following her return from holiday. The grievance hearing was arranged for 4 December 2024. There may be a legitimate criticism of Mr Shepherd in not sending to the claimant the respondent’s record of the meeting. That however is mitigated significantly by the respondent allowing Karen Fogg to accompany the claimant. There was no prejudice to the claimant, Ms Fogg having taken an excellent note of the grievance meeting of 4 December 2024. 10.5 Reserved judgment with reasons – rule 61 24 March 2017[133]Mr Shepherd’s decision not to interview Mr Singh may have been subjectively damaging of the claimant’s trust and confidence in the process. However, Mr Shepherd was able to give a rational explanation as to why he had not interviewed Mr Singh. His omission to do so therefore was an act taken with reasonable and proper cause. In the final analysis, there wasn’t a huge amount of difference factually between the claimant and the respondent about what had happened regarding the workforce change proposals. Mr Shepherd’s terms of reference were limited to the question of communication of the decision not to go ahead with it. Mr Singh could add nothing to the communication issue. The decision not to interview him was not evidence of partiality.[134]The claimant is right to suggest that Mr Shepherd departed from usual process in not reconvening the grievance hearing with her at which to deliver the grievance outcome. However, Mr Shepherd had foreshadowed this the grievance meeting of 4 December 2024 where he suggested to the claimant that matters were sufficiently complex to warrant the delivery of a written decision. This met with no objection from the claimant at the time. Again, while this may have been unwelcomed as far as the claimant is concerned, it was plainly a decision taken by Mr Shepherd with reasonable and proper cause. One only has to look at the length of this judgment to discern the complexity to which this case gives rise.[135]The claimant may be right in her submission that Mr Shepherd miscalculated the time within which for the claimant to appeal. This all turns on the question of whether on a proper construction of the respondent’s grievance procedure, one includes or discounts 28 March 2025. The claimant resigned on 8 April 2025 anyway. Mr Shepherd misconstruing the relevant process and miscalculating by several days cannot be indicative of an employer showing an intention no longer to be bound by the contract of employment. The right of appeal was offered to the claimant. It was open to her to question the deadline date if she felt that Mr Shepherd had misconstrued the time limits. It is arguable that he was correct to say that 17 April 2025 was the correct deadline date that being 15 days from the date of the decision letter. The proper construction of the deadline is one open to interpretation. Interpretating it as the shorter period cannot objectively be seen conduct damaging or destructive of trust and confidence by a reasonable employee in the claimant’s position.[136]The claimant also alleges that Mr Shepherd’s conduct of the grievance procedure fell outside the ambit of the ACAS guide. In the Tribunal’s judgment, Miss Millns is correct to suggest that the ACAS guide gives a broad framework of a good grievance process all of which were adhered to by the respondent. This encompasses the employee letting the employer know the nature of the grievance, holding a meeting with the employee to discuss the grievance, allowing the employee to be accompanied at that meeting and then the employer deciding on appropriate action without unreasonable delay and allowing a right of appeal if the matter is not resolved to the employee’s satisfaction. All these steps were encompassed within the process adopted by Mr Shepherd. The claimant was accompanied at the grievance meeting by Karen Fogg.[137]In the Tribunal’s judgment, Mr Shepherd did not delay unreasonably. Matters were not of course helped by his unfortunate illness, but such certainly is not unreasonable conduct on his part. Further, he updated the claimant of progress and the delays engendered by his illness. In the Tribunal’s judgment therefore 10.5 Reserved judgment with reasons – rule 61 25 March 2017 the respondent’s conduct of the grievance process was not by itself a repudiatory breach of contract.[138]In the Tribunal’s judgment, nothing in the respondent’s conduct of the grievance process would cause a reasonable person in the claimant’s position to view the respondent’s conduct as likely to destroy or seriously damage mutual trust and confidence. Mr Shepherd acted in good faith and pursued the grievance diligently and conscientiously given the other demands on his time. This finding bears on the Tribunal’s assessment of the seriousness of the employer’s conduct which is that the handling of the grievance was not destructive of or seriously damaging of trust and confidence.[139]Nothing in Mr Shepherd’s dealings was objectively indicative of an intention not to be bound by the contract of employment. His finding in the claimant’s favour on the issue of Mrs Hyde’s handling of the sickness absence issue tells against him being partial. Had he been partial, one may have expected a different outcome perhaps with exoneration of Mrs Hyde due to the huge workplace pressures facing senior management at the time.[140]In the Tribunal’s judgment, the claimant’s issue is that Mr Shepherd arrived at a conclusion which on the whole the claimant didn’t like. Subjectively his conclusion may have damaged her trust and confidence in the respondent but that is not the test. A reasonable employee in the claimant’s position would discern that looking at matters objectively, he had reached a sound decision and conducted the process fairly and reasonably. Furthe, the conduct and conclusions were innocuous acts treated by the claimant as hurtful and destructive of trust and confidence. Mr Shepherd’s conduct is not of the necessary quality to constitute a final straw.[141]The claimant’s Freedom of Information Act request was made on 21 February 2025 (page 175). It is focused and is not extensive. By this point, there had also been the unfortunate failure to send to the claimant the information pursuant to her data subject access request to her home email address. The respondent must have been all too aware of the importance attached to these matters by the claimant in the exercise of her statutory rights and that the likely consequence of failure would be for action on her part. Matters were compounded by the respondent seeking to rely upon an inapplicable GDPR exemption.[142]It is unfortunate that the respondent did not deal with the claimant’s Freedom of Information request (formally or informally) within the statutory timescales and that she was compelled in the end to seek the assistance of the Information Commissioner’s Office. However, what saves the respondent from a finding that their actions were in repudiatory breach is Ms Basi’s’s helpful email of 25 February 2025 at page 177 intimating an intention to deal with matters informally to save the claimant having to go through a formal Freedom of Information process. That is not the action of an employer showing an intention no longer to be bound by the contract of employment. A reasonable person in the claimant’s position would not regard Miss Basi’s conduct as destructive or seriously damaging of mutual trust and confidence, even though the statutory timescale had elapsed in the context of a clear intention to process the request.[143]Likewise, the GDPR issue was not well handled by the respondent, with the data being directed to the claimant’s work email address to which she did not have access while on long term sick leave and reliance on an inapplicable exemption. Again, a reasonable person in the claimant’s position would not regard the 10.5 Reserved judgment with reasons – rule 61 26 March 2017 conduct of the data subject access request as destructive or seriously damaging of mutual trust and confidence. Once the respondent was aware that the data had not reached the claimant, the mistake was rectified. Miss Basi interceded to ensure that the misplaced reliance on the inappropriate exemption to the GDPR was overridden. A reasonable inference to draw from these facts is that the respondent had handled the information matters ineptly but this was because of human error in sending the data to the claimant’s workplace email address and misapplying the GDPR. There was no evidence of hostility to the claimant. Miss Basi’s efforts point away from that and weigh in favour of the respondent in the Tribunal’s assessment of the seriousness of the respondent’s conduct.[144]Indeed, even subjectively the claimant herself did not view the respondent’s conduct around the data protection issue as repudiatory at the time. By way of reminder, the data subject access request made verbally with Caroline Lee on 15 October 2024 was processed by the respondent. It was sent to the claimant’s work email address on 12 November 2024. This was unfortunate as the claimant had been away from work since early April 2024. This issue was raised by Caroline Lee on 12 February 2025. The claimant complained (on 14 February 2025- page 166) that the delay in progressing the data subject access request was, unless quickly resolved, “likely to be something else to add to my evergrowing list of complaints about my treatment as a Council employee.” The error was discovered, and the documentation was submitted to the claimant on 16 February 2025 (pages 167 and 168). In other words, the claimant was tolerant of the delay conditional on matters being rectified quickly after 14 February 2025 (which they were).[145]Miss Basi then interceded once aware of the issue to override the misplaced reliance on a GDPR exemption. In context, Miss Basi was endeavouring to resolve the claimants Freedom of Information Act and data protection issues. The passing of the statutory timescale in respect of the former was not objectively conduct which a reasonable person in the position of the claimant would regard as likely to destroy or seriously damage the relationship of mutual trust and confidence in the context of Miss Basi promoting informal information requests by employees and actively assisting the claimant with her data subject access request at the same time.[146]Therefore, while the Tribunal finds that the claimant did not affirm the contract after the three issues arose in late March/early April 2025, the grievance issue, the Freedom of Information issue and data subject access request issue did not give rise to fundamental and repudiatory breaches of contract by the respondent.[147]The next question which arises therefore per Kaur is whether the earliest matter raised in the resignation letter (about the sickness absence management) was a fundamental breach of contract on the part of the respondent.[148]The Tribunal finds that the respondent’s failure to contact the claimant between 3 April 2024 and 26 June 2024 was a fundamental breach of contract. From the claimant’s perspective, the lack of contact was hugely damaging to her trust and confidence in the respondent. Of course, the impact on the employee in question is not determinative per Tullett Prebon at [20] and Nelson at [8]. However, on any view, a reasonable person in the position of the claimant would be fully justified in taking the view that the employer’s behaviour was destructive or seriously damaging of trust and confidence. 10.5 Reserved judgment with reasons – rule 61 27 March 2017[149]There can be no reasonable and proper cause for making no contact with the claimant for a period of getting on for four months. Pressure of work cannot excuse Joanne Hyde’s conduct. If she was too busy to deal with matters, then it was incumbent upon her to find somebody who could deal with it (as indeed the respondent did in the event when they appointed Caroline Lee to manage the claimant’s absence). From the perspective of a reasonable person in the claimant’s position, the respondent’s actions over that four-month period or so was damaging or destructive of trust and confidence without any reasonable or proper cause.[150]The Tribunal is not persuaded that the cancellation at very short notice of the meetings of 28 February 2024 and 27 March 2024 could reasonably have had anything like the same kind of impact upon the claimant. There was reasonable and proper cause for Joanne Hyde cancelling those meetings at very short notice. This was a council with acute financial difficulties. As a senior manager herself, the claimant must have been aware that such routine meetings are vulnerable to cancellation at very short notice where business demand requires. Objectively, these could not be viewed by the claimant as repudiatory acts.[151]In the Tribunal’s judgment, there is much more merit in the claimant’s complaint about the delay in referring her to the employee health and well-being services. A referral as late as 3 September 2024 was outside the timescale within the respondent’s policy at page 155. The claimant was right to be concerned that the delay may have been injurious to her health. There was no reasonable and proper cause for the delay. Again, by application of the objective test, there was a breach of the implied term of trust and confidence.[152]There was then a delay from 3 September 2024 of around a month before the respondent acted upon the recommendation to remove Mrs Hyde from management of the claimant’s absence. The Tribunal does not consider this delay to be destructive or damaging of trust and confidence. There was reasonable and proper cause for it, as a manager would have to be located to replace Mrs Hyde.[153]There is no issue with causation. The handling of the claimant’s absence was plainly a matter in her mind when she resigned. It features as the first issue in the resignation letter at pages 602 to 604.[154]The difficulty for the claimant upon this matter is one of affirmation. The ill health absence management proceeded reasonably well after the end of September 2024. The claimant raised no complaint about the conduct of Caroline Lee.[155]Caroline Lee prepared a stress management action plan within a reasonable time after being appointed. The claimant is right to say that a stress management action plan should have been prepared much sooner but that in reality comes back to the same point that none of the essential absence management steps were taken by Joanne Hyde after 3 April 2024 and the claimant was left languishing with no effective action taken to manage her absence until the end of June.[156]The Tribunal does not find that Mrs Hyde was hostile to the claimant or dealt with her in bad faith. There was no evidence of such and her expression of sympathy for the claimant on 3 April 2025 tells against such a finding. A finding of bad faith or hostility per Nelson would have formed part of the context in deciding whether the conduct was repudiatory. However, the absence of such a factual finding 10.5 Reserved judgment with reasons – rule 61 28 March 2017 does not preclude a conclusion that the respondent’s conduct in neglecting the management of the claimant’s ill-health was objectively repudiatory regardless of intention. Her repudiatory conduct arose from pressure of work which led to a dereliction of her duty to manage the claimant’s absence.[157]One of the actions recommended by the respondent’s employee health and wellbeing service was the replacement of Mrs Hyde with another manager (in the event, Mrs Leigh). The respondent acted upon that recommendation within a reasonable time. (The other recommendation, prior to the claimant’s return to work, was for the grievance process to run its course).[158]There is no question of Ms Lee’s efforts curing Mrs Hyde’s breach. In Buckland, the Court of Appeal rejected the notion that a repudiatory breach can be cured unilaterally by the party in default, removing the other party’s right to accept a fundamental breach.[159]On the authority of Gordon, it is not open to the Tribunal to find that the claimant affirmed the contract by pursuit of the grievance procedure. That it took seven months from the date of the employee health and well-being services recommendation to conclude the grievance was, on the Tribunal’s findings, not unreasonable. It certainly was none of the claimant’s doing. She cannot therefore be criticised for not returning to the workplace and for invoking the grievance procedure. On the authority of Gordon, she was entitled to keep the part of the contract concerning grievances alive to pursue the grievance process through to its end.[160]The difficulty for the claimant, however, is that she did call upon the respondent to perform other parts of their contractual obligations than to pay her sick pay by requesting the respondent to pay her holiday pay. The claimant’s illness did not prevent her from emailing (from her personal account) the respondent’s email system to conduct correspondence with the respondent about issues arising in her employment. She was calling upon the respondent to perform the contract, and she was electing to keep the contract alive in order that she could be paid her contractual holiday pay, in time for her trip to Thailand. She was being paid sick pay while off sick but at the same time was calling upon the respondent to perform the contract during her absence by paying her holiday pay.[161]It therefore follows, in the Tribunal’s judgment, that the claimant’s decision to invoke the grievance procedure does not amount to affirmation of the respondent’s repudiatory breach of the contract upon the sickness absence issue. However, the claimant plainly was electing to keep the contract alive and showing an intention to be bound by the contractual terms in electing to take paid annual leave, distinguishing and carving that out from her occupational sick pay entitlement[162]The claimant’s actions signify an acceptance that all contractual rights remained intact. As Miss Millns said in submissions, this aspect of matters reveals a real tension in the claimant’s case. The claimant had formed the view, at the time of the stress management action plan, that the employment relationship was no longer tenable from her perspective. Yet, shortly afterwards, she called upon the respondent to perform the contract by paying her contractual holiday pay. (The Freedom of Information Act and data subject access requests are statutory rights. The Tribunal therefore concludes that the pursuit of those not to be contractual affirmation). 10.5 Reserved judgment with reasons – rule 61 29 March 2017[163]While it is one thing to keep the contract alive for the purpose only of the pursuit of a grievance process it is quite another to call upon the other party to perform other contractual obligations. In the Tribunal’s judgment, the claimant had made up her mind soon after the conduct of which she complains (about the handling of her sickness absence) that she wished to keep the contract alive. She continued with the contract for long after Joanne Hyde had ceased her involvement in the claimant’s absence management and she can therefore be taken as having affirmed the contract accordingly.[164]The other issues with which the Tribunal has been concerned are the workforce change matter, the re-grade issue and the sick pay issue. The Tribunal shall take each in turn.[165]The Tribunal finds there to be no breach of contract, let alone any fundamental breach on the part of the respondent, arising out of the workforce change planning issue. This was a difficult allegation to understand because in the final analysis the claimant’s complaint is that the respondent did not dismiss her for redundancy. There was no contractual obligation on the respondent to go ahead with the proposals. They were just that - proposals. The claimant may have been disappointed that they were not proceeding but that is not enough to constitute a breach of contract.[166]On any objective analysis, the respondent’s objectively assessed intention when dropping the workforce change planning proposals was to keep the contract alive from which an inference is drawn against the respondent’s conduct being destructive or seriously damaging of trust and confidence and showing an intention not to be bound by the contract.[167]On the contrary, the respondent was effectively saying to the claimant that they were happy to continue with her in their employment. In Tullett Prebon, the employees claimed the employer was in repudiatory breach of contract by the way in which the employer sought to enforce contractual obligations against the employees. The Court of Appeal upheld the first instance judge’s decision that the respondent was signalling an intention to keep the contract alive by insisting on the enforcement of the contractual obligations in that case. A reasonable employee in the position of the employees in that case would therefore be aware of the employer’s objectively assessed intentions of ensuring compliance with the contractual terms and keeping it alive.[168]In a similar way, in this case, when the workforce change plans ran aground in October 2023 and then finally in February 2024, the objectively assessed intention of the employer was plainly to keep the contract alive.[169]In the Tribunal’s judgment, Anne Lloyd’s communication of the decision that matters were not to proceed (at page 332) was sufficiently clear. It is difficult to see what more, frankly, the claimant was expecting the respondent to say. Even if the Tribunal is wrong on this, any shortcomings in communication falls well short of the respondent showing an intention no longer to be bound by its contractual terms when they were giving a contrary message- that they did not want the claimant to leave after all.[170]On the question of the re-grade, the claimant is correct to say that the mere fact that her role has not changed does not mean that it is ineligible for a re-grade. If she is doing like work or work of equal value as someone in a higher grade (and 10.5 Reserved judgment with reasons – rule 61 30 March 2017 whose post has been re-graded following changes to their role) such cannot preclude the claimant from seeking a re-grade of her own position.[171]The Tribunal received limited evidence upon this issue. Such as it was suggested that the three heads of service roles had been fundamentally altered by the fact that a fourth head had been made redundant and therefore aspects of that person’s role had been absorbed within those carried out by the other three. The Tribunal did not have anything like sufficient evidence to safely find the claimant was engaged in like work or work of equal value sufficient to warrant a re-grade. The best evidence that the Tribunal had is that circumstances had changed from that when the others had used the claimant as their comparator. It is significant, in the Tribunal’s judgment, that the claimant had not availed herself of the opportunity of seeking a re-grade through the respondent’s processes.[172]There is nothing in the claimant’s case about the sick pay issue. The decision whether to extend full sick pay for a period is one which is entirely discretionary. Of course, an employer must exercise a discretion in good faith taking into account all relevant circumstances. There was no evidence that Anne Lloyd had failed to fulfil this obligation. She conscientiously took account of all relevant factors. There was no express right of appeal against Anne Lloyd’s decision. There was no breach of contract in not permitting the claimant a right of appeal.[173]In any case, upon these three matters (around the workforce change proposals, the re-grading issue and the sick pay issue) the claimant faces real difficulties upon causation. The Tribunal has already observed how well-crafted and carefully prepared was the claimant’s resignation letter. It is significant that these three issues do not feature within it. The Tribunal therefore concludes that they did not form part of the reason for the claimant’s decision to resign her position. Therefore, not only were the respondent’s actions in connection with these three matters not fundamental breaches of the implied term of trust and confidence they did not in any case cause or contribute towards the claimant resigning from her post.[174]The claimant did resign, at least in part, because of the failure on the part of the respondent to comply with the response to the Freedom of Information request of 21 February 2025. It was a material reason for her resignation. She also mentioned in the resignation letter the respondent’s failure to provide her with a full response to a verbal request for her personal data made on 15 October 2024 within the legislative timeframe of one calendar month. We know that this was not concluded until 1 April 2025 and this issue arose at around the same time as the claimant escalated the Freedom of Information request to the Information Commissioner’s Office on 27 March 2025 and received Mr Shepherd’s grievance outcome. The data protection issue therefore was also a material reason for the resignation.[175]The respondent’s handling of the Freedom of Information Act request was unrelated to the sickness absence issue as it was about job evaluation and regrade matters. The data subject access request was connected with the sickness absence as it concerned issues arising from the grievance (which was in part about the sickness absence). In any case, the last straw need not be of the same character as the earlier acts per Omilaju.[176]The respondent’s handling of her sickness absence between April and September 2024 repudiated trust and confidence but were actions in respect of which the claimant had affirmed the contract. 10.5 Reserved judgment with reasons – rule 61 31 March 2017[177]The handling of the data subject access request and Freedom of Information requests were not innocuous acts. They caused the claimant significant concerns sufficient for her to complain to Miss Basi. She (Miss Basi) had to intercede to ensure the proper fulfilment of the data subject access request. The claimant was compelled to complain to the Information Commissioner’s Office about the Freedom of Information Act request.[178]While partly unrelated to the affirmed repudiatory conduct, the effect of them was to revive the claimant’s right to terminate her contract based on the totality of the employer’s conduct. This being the case, the Tribunal’s judgment is that the claimant was constructively dismissed by the respondent, the handling of the statutory information requests being matters going beyond the innocuous. They each concerned matters important to the claimant. The statutory timescales were breached. The handling of the requests was inept. The conduct was unreasonable and blameworthy and cannot be dismissed as merely innocuous.[179]The claimant has therefore established by the respondent’s handling of the Freedom of Information Act and data subject access requests a final straw which has the effect of reviving the waived repudiatory breach about the sickness absence management. Despite Miss Basi’s intercessions which were with the intention of resolving the requests, a reasonable employee in the position of the claimant would consider the handling of those requests to be unreasonable and blameworthy (but not repudiatory in themselves) and sufficient when taken with the handling of the sickness absence that the totality of the employer’s conduct was repudiatory. Per Kaur, she has established there to be a course of conduct comprising of several acts and omissions which cumulatively amount to a repudiatory breach.[180]It follows therefore that the complaint of constructive unfair dismissal claim must succeed in the absence of any potentially fair reason of constructive dismissal being advanced by the respondent.
Disposal
[181]The matter shall now be listed for a hearing upon remedy. The Tribunal encourages the parties to discuss matters in the hope that, acting proportionally, a remedy hearing may be avoided.[182]As Miss Millns submitted, it must be open to question as to how long this employment relationship would have continued had the claimant not been constructively dismissed when she was. The claimant had taken the view for some time that the relationship was at an end. It must be open to question whether she would have returned to work for the respondent should the respondent have called upon her to do so following the grievance outcome. (Mr Shepherd’s conclusion of the grievance fulfilled the second of the conditions recommended by occupational health before the parties could contemplate the claimant returning to work).[183]The claimant will appreciate in addition to a basic award, by way of a compensatory award the Tribunal shall award such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. Central to the question of the compensatory award is, very often, the likely longevity of the employment relationship in any case. The Tribunal will receive evidence and hear further 10.5 Reserved judgment with reasons – rule 61 32 March 2017 submissions upon this issue should matters not be capable of resolution by way of negotiation between the parties.[184]The parties are directed to file dates of availability for a remedy hearing between July 2026 and October 2026 inclusive together with a time estimate. This step shall be taken within 21 days of the promulgation date below. Approved by