Ms M Howieson v Implantsdentist Ltd T/a Great Junction Dental Practice: 8000339/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000339/2025

Venue Edinburgh

Hearing 4, 5 and 6 June 2025

Between

Ms M HowiesonClaimant

Implantsdentist Ltd t/aRespondent

Before

Employment Judge R Mackay

Date 24 July 2025

JUDGMENT

The Judgment of the Employment Tribunal is that the claimant was constructively unfairly dismissed and the respondent shall pay to the claimant the following:

[1]A basic award of £15,120.

[2]A compensatory award of £10,134. Both sums shall be paid without deduction of income tax or national insurance contributions.

REASONS

[1]The claimant originally brought her claim against the owner of the respondent (which is a dental practice). During the course of earlier case management, it was agreed that the respondent, which was the claimant’s employer at the time of her resignation, would be substituted for him.

[2]The claimant’s sole claim is that she was constructively unfairly dismissed.

[3]The claimant gave evidence on her own behalf and led evidence from Mrs Daniela Siersch, a dentist with the respondent. For the respondent, evidence was led from Dr Fary Johnson Vithayathil, a dentist and owner of the practice, Mrs Sheena Vithayathil, Dr Vithayathil’s wife who worked part-time for the practice, and Mrs Jisna Amina Kihakkeveettil Mohamed Iqbal, an employee of the respondent.

[4]Parties agreed a joint bundle of documents, not all of which were referred to during the hearing. Certain documents were added during the course of the proceedings. Observations on the Evidence

[5]The claimant and her witness gave evidence in a very clear, open and persuasive manner. No issues of credibility or reliability arose. The evidence of Mrs Siersch was particularly compelling in that she had previously been owner of the practice and had worked with the claimant for many years.

[6]Aspects of the evidence of the respondent’s witnesses was less compelling in some respects. The claimant identified a number of errors in the ET3 which Dr Vithayathil had difficulty in explaining.

[7]Material areas where conflicts in the evidence arose are set out and addressed in the Findings in Fact section which follows. Findings in Fact

[8]The claimant commenced employment with the respondent on 17 February 2008. At that time, the practice was owned and run by Mrs Siersch. The claimant held the position of receptionist/senior dental nurse. She has worked in dental nursing for over 40 years and has been responsible for the training of many dental nurses for a large part of that time.

[9]On 24 July 2024, the practice was sold to Dr Vithayathil. Mrs Siersch stayed on with the practice in an employed capacity. At the time of the acquisition, Dr Vithayathil had two other practices, one in Duns and one in Wick.

[10]Prior to the change of ownership, the practice employed one other dental nurse (who was junior to the claimant). She chose to leave in advance of the transfer of ownership.

[11]Before the acquisition, the claimant’s principal role was covering reception. She carried out dental nursing on an infrequent basis when required, for example, to cover sickness absence. She has psoriatic arthritis which makes it difficult for her to perform the tasks of a dental nurse on a regular basis.

[12]Around two weeks after the acquisition, three additional members of staff were recruited to the practice. One dental nurse and two dental therapists (one of the latter being Mrs Iqbal). The dental therapists were qualified as dentists in India but were not eligible to practice as dentists in the UK as they had not yet undertaken certain examinations. Pending qualification in the UK, they performed other duties including dental hygiene, dental nursing, reception duties and certain procedures under the instruction of qualified dentists.

[13]One of the new employees worked principally as a nurse for Dr Siersch, the other principally worked as a nurse for Dr Vithayathil. Mrs Iqbal took over receptionist duties. The arrival of new members of staff coincided with a period of absence of the claimant. She contracted hepatitis and was absent from work for approximately two weeks. She returned on 2 September 2024.

[14]On her return Mrs Iqbal was covering reception on a full-time basis. The claimant offered to help show the reception area to Mrs Iqbal. She responded that she did not need help as she had operated the reception at the Duns practice. A new telephone system had been introduced. The claimant was not trained in how to operate it.

[15]There was no communication to the claimant that there would be a change in her role or duties. She became aware of the changes by observing what had taken place.

[16]The claimant’s relationship with Mrs Iqbal was strained. A dispute in evidence arose between the claimant and Mrs Iqbal. The claimant's evidence was that Mrs Iqbal was rude and disrespectful in that she would repeatedly ignore her, roll her eyes if spoken to, stop speaking to others when she entered the room and refuse to carry out tasks when asked. Mrs Iqbal rejected this account, but the Tribunal accepted the claimant’s version of events. It was supported by the evidence of Mrs Siersch. She described seeing the claimant's being more and more sidelined, leaving her frustrated and upset. On one occasion, she passed the claimant X-rays to develop. Mrs Iqbal grabbed them out of the claimant's hands and told her she would do it. This made the claimant visibly upset.

[17]The claimant's relationship with the other two new staff members was better, but her attempts to allocate tasks to them, or to train them in practice procedures was met with resistance. She had a recurring issue with them using mobile phones when there was work to be done. They did not, however, view her as being in a position of authority over them. On occasion she found them to be rude towards her and exclude her from conversations by speaking in a language she did not understand.

[18]As a result of the changes, the claimant was concerned about what her role should be. She took it upon herself to carry out tasks that required to be performed. She volunteered to carry out cleaning duties which had previously been performed by the nurse who left. She dealt with instrument decontamination which was also a task previously undertaken by the more junior nurse.

[19]The claimant’s principal role having been dealing with reception, and that having been taken over by Mrs Iqbal, she was left with no clear picture as to what her role would be. She was described by Mrs Siersch as having “no clear position in the practice”.

[20]The respondent’s witnesses’ position was that the claimant’s role continued much as it had before and that she continued to cover reception regularly as well as operating as a nurse. That is wholly at odds with the evidence of the claimant and Mrs Siersch and inconsistent with complaints raised by the claimant during her employment which were not disputed by the respondent at the time. As such, the claimant’s evidence is preferred.

[21]On 3 September 2024, the claimant felt unwell for reasons relating to her hepatitis. She asked Mrs Iqbal to swap lunch breaks. Mrs Iqbal failed to respond.

[22]On 4 September 2024, Mrs Iqbal did not communicate with the claimant at all. A number of patients complained about Mrs Iqbal having been rude to them.

[23]On that day, Mrs Siersch found the claimant in tears. On being asked what was wrong, the claimant stated that she felt left out and unappreciated, and that she had been reduced to being a cleaner. Mrs Siersch advised the claimant to speak to Dr Vithayathil.

[24]A meeting took place with him later that day. Mrs Siersch accompanied the claimant. The claimant described her concerns. She said that she felt she did not have a role and that she was becoming a junior. She described the relationship difficulties with Mrs Iqbal. Dr Vithayathil responded to the effect that there had been issues with Mrs Iqbal before and that she was not ideal for reception, but he did not want to change that. He said that he would speak to her. He also spoke about the possibility of a practice manager role for the claimant.

[25]In the ET3, it is stated that the respondent had a discussion with Mrs Iqbal and that she raised concerns about the claimant including alleging that a racially insensitive comment had been made by her. It goes on to state that the respondent had a discussion with the claimant about what was said and that she denied making a racial comment. The claimant's position was that no such conversation took place with her and that the first she learned of any alleged comment (which she strongly denied) was when she saw the ET3. The Tribunal had no hesitation in preferring the claimant’s account. She described being upset at the allegation to the extent that it was her main reason for pursuing the claim as far as she did. Moreover, the Tribunal did not understand Dr Vithayathil to meaningfully seek to maintain the respondent’s pleaded case before the Tribunal itself.

[26]On 5 September 2025, the day after the meeting, a discussion took place between the claimant and Dr Vithayathil about where she would work that day. It was suggested that she carry out dental nursing duties in the morning and reception the afternoon. She agreed to that. Mrs Iqbal was covering reception in the morning. The claimant discussed swapping with her at lunchtime. Mrs Iqbal refused. The claimant raised her concerns with Dr Vithayathil. He said that he would ask his wife to speak to the claimant.

[27]A dispute arose as to the role of Mrs Vithayathil in the practice. Her position was that she was a business manager, which is a role distinct from practice manager. The claimant and Mrs Siersch saw her as being practice manager, the role previously operated by the husband of Mrs Siersch, which involves dealing with such issues as finance, payroll and HR. It was clear from the evidence that she did deal with precisely such issues. In advance of the acquisition, she was introduced to the staff as practice manager. The Tribunal was not, therefore, satisfied that the role she presented was a different one. The distinction is relevant for the reasons set out below relating to discussions over a potential new role for the claimant.

[28]Mrs Vithayathil did not, in any event, speak to the claimant about the matter. The claimant commenced a two-week holiday two days later.

[29]In its ET3, the respondent suggest that the claimant sent a WhatsApp message on 12 September 2024 and that Dr Vithayathil responded to her. A message bearing to be 12 September 2024 was produced by the respondent. During the course of the hearing, it was accepted that there had not in fact been any exchange on that date.

[30]A WhatsApp exchange did take place on 18 September 2024. In a message from the claimant, she mentioned her return from holiday the following Monday and that she was concerned that the situation spoken about may happen again or get worse. She went on to say that she was looking for one responsible person to be in charge rather than “…conflict over what procedure should be followed and constant bickering”. She went on to state: “I feel this is necessary, not only for a functioning practice but also for a healthy working environment. I trust … that you will inform the staff that I will be making the decisions and not to consistently challenge me like it's some kind of power struggle. That's if management role you discussed is still on the cards.”. Dr Vithayathil responded to say that he totally understood and that he would make that clear to all staff. He went on to state: “I would like you to manage the practice”. At that time, Dr Vithayathil hoped to create a three-dentist practice although that never transpired. Dentistry was carried out at the practice by him and Mrs Siersch – both on a part time basis.

[31]The claimant returned to work on 23 September 2024. Dr Vithayathil was working overseas that week. The relationship with Mrs Iqbal did not improve during the course of that week. The claimant was asked to show the other employees the decontamination room. Mrs Iqbal expressed an unwillingness to be there. She stated that she was a dentist, and not a nurse. Attempts to communicate with her were met with shrugged shoulders. The claimant asked her to perform certain tasks. She refused. On one occasion, Mrs Iqbal told Dr Vithayathil that she had performed a task when the claimant had in fact done so. One morning, the claimant was asked by Mrs Siersch to cover reception. Mrs Iqbal was already there and refused to move, denying the claimant the opportunity to do so. Changes had been made to the computer system at the practice. No one explained these to the claimant.

[32]No progress was made in formalising a new management role for the claimant. She was in any event sceptical about this as the typical practice manager role was already being performed by Mrs Vitayathil.

[33]The claimant requested a further meeting with Dr Vithayathil. This took place on 3 October 2024. The claimant was again accompanied by Mrs Siersch.

[34]The claimant stated that she felt surplus to requirements. She described the atmosphere as toxic and said that patients were picking up on it. She stated that there was a continuing refusal by Mrs Iqbal and others to cooperate or do what was asked of them as well as a refusal to help her with the new systems. Dr Vithayathil said that he would speak to the others and suggested a meeting with Mrs Iqbal and her. No such meeting took place.

[35]The situation between the claimant Mrs Iqbal did not improve. In advance of an inspection of the practice on 11 October 2024, the claimant asked Mrs Iqbal to wipe down the toilet area. She refused stating that she was a dentist. The claimant stayed late to do it herself.

[36]The situation at work caused the claimant to be increasingly stressed leading in one instance to her having a panic attack. This was witnessed by Mrs Siersch.

[37]On Friday 25 October 2024, the claimant received her pay. It was around £300 less than she has been expecting. She was a salaried employee such that her pay should be the same every month. Mrs Vitayathil had taken from the claimant’s contract that she was paid hourly rather than on a salaried basis. She checked a salary figure broken down into weeks with Mr Siersch who had previously dealt with payroll. He responded to the effect that the figure looked about right, but that they “…never had it broken down to a weekly payment but always figured out the monthly pay.”

[38]The claimant sent a message to Mrs Vitayathil that day referring to the shortfall and asking for an explanation. Mrs Vitayathil sent a weekly breakdown to which the claimant responded asking why if she was “contracted hours” it was changing week to week. Mrs Vitayathil replied: “On every second week Fridays, normally you don’t work so the hours are less.” Mrs Vitayathil accepted in evidence that it was incumbent on the respondent to pay employees correctly.

[39]The claimant described the issues with her pay as the final straw which led to her resignation. It was a huge decision for her, but she was supported by her partner and children who saw how stressed she was.

[40]She sent a letter of resignation the following day (a Saturday). She did not return to work thereafter.

[41]In her letter of resignation, the claimant set out the issues she had experienced since the transfer of the practice. These included what she saw as the removal of her duties and management responsibilities, and her being treated as a junior member of staff. She said she felt she had been demoted to a “nurse runner”. She also referred to the unacceptable ways in which she was treated by Mrs Iqbal and the failure to deal with that, as well as rudeness from other staff. She went on refer to the salary underpayment and that when she queried it she was told she did “less work”. She characterised the conduct towards her as an attempt to remover her from the practice and as a “coordinated effort to isolate, belittle and bully [her] out of the business”.

[42]By email dated 28 October 2024, Mrs Vitayathil replied stating that she was sorry about the claimant’s decision to resign, that she had been a valuable member of the team, and wished her well for the future. Some further communications took place between the two thereafter. The underpaid salary was paid around two weeks later, Mrs Vitayathil having ascertained the correct position. Mrs Vitayathil was not able to provide a meaningful explanation as to why she was carrying out these payroll and HR tasks if she was not practice manager, reinforcing the claimant’s scepticism.

[43]Findings in fact as they relate to remedy are made in the Remedy section which follows.

Relevant Law

[44]Employees with more than two years’ continuous employment have the right not to be unfairly dismissed, by virtue of ERA. 'Dismissal' is defined in s95(1) ERA to include what is generally referred to as constructive dismissal. Constructive dismissal occurs where the employee terminates the contract under which he/she is employed (with or without notice) in circumstances in which he/she is entitled to terminate it by reason of the employer's conduct (s95(1)(c) ERA).

[45]The test for whether an employee is entitled to terminate his contract of employment is a contractual one. The Tribunal requires to determine whether the employer has acted in a way amounting to a repudiatory breach of the contract or shown an intention not to be bound by an essential term of the contract (Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

). For this purpose, the essential terms of any contract of employment include the implied term that the employer will not, without reasonable and proper cause, act in such a way as is calculated or likely to destroy or seriously damage the mutual trust and confidence between the parties (Malik v Bank of Credit and Commerce international Ltd

[1998] AC 20

[46]Conduct calculated or likely to destroy mutual trust and confidence may be a single act. Alternatively, there may be a series of acts or omissions culminating in a ‘last straw’ (Lewis v Motorworld Garages Ltd

[1986] ICR 157

[47]As to what can constitute the last straw, the Court of Appeal in Omilaju v Waltham Forest London Borough Council

[2005] IRLR 35

confirmed that the act or omission relied on need not be unreasonable or blameworthy, but it must in some way contribute to the breach of the implied obligation of trust and confidence. Necessarily, for there to be a last straw, there must have been earlier acts or omissions of sufficient significance that the addition of a last straw takes the employer’s overall conduct across the threshold. An entirely innocuous act on the part of the employer cannot however 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.

[48]In order for there to be a constructive dismissal, not only must there be a breach by the employer of an essential term such as the trust and confidence obligation; it is also necessary that the employee resigns in response to the employer's conduct (although that need not be the sole reason – see Nottinghamshire County Council v Meikle

[2004] IRLR 703

). The right to treat the contract as repudiated must also not have been lost by the employee affirming the contract prior to resigning.

[49]The Court of Appeal in Kaur v Leeds Teaching Hospital NHS Trust

[2018] EWCA Civ 978

set out guidance on the questions it will normally be sufficient for Tribunals to ask in order to decide whether an employee has been constructively dismissed, namely:a. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

b. Has he or she affirmed the contract since that act?

c. If not, was that act (or omission) by itself a repudiatory breach of contract?

d. If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term?

e. Did the employee resign in response (or partly in response) to that breach?

[50]If an employee establishes that they have been constructively dismissed, the Tribunal must determine whether the dismissal was fair or unfair, applying the provisions of s98 ERA. Submissions

[51]Both parties helpfully prepared written submissions and spoke to these on the third day of the hearing. The Tribunal took account of both the written and verbal submissions in reaching its decision.

[52]The Tribunal first identified the most recent act relied upon by the claimant as the last straw. This was the salary underpayment and the way in which it was communicated to her.

[53]It cannot be said that the claimant affirmed the contract after that act as she resigned almost immediately - on the Saturday, having discovered the underpayment the day before.

[54]Moving on to the third question, the salary underpayment was in itself a breach of the claimant’s contract. It was accepted that the claimant was as a matter of fact underpaid.

[55]In considering whether that act was in itself a repudiatory breach of contract, the Tribunal considered the motivation of the respondent. It was not a deliberate or calculated breach by them. Instead, it arose from what can be described as a lack of diligence. It was not, however, entirely innocuous. As was accepted in evidence, it is incumbent on an employer to pay correctly and in circumstances where there was a lack of certainty, the respondent could have done more to ensure they had accurate information, particularly having regard to the comments from Mr Siersch which pointed to payments based on monthly rather than weekly calculations. The claimant herself was not asked to comment.

[56]The second strand of the final straw was the way in which it was communicated to the claimant. The claimant perceived this to be offensive as she saw it as critical of her work commitment. Again, the Tribunal was satisfied that it was not calculated to be offensive, but it can be seen as unfortunately worded and as such likely to cause some offense in circumstances where the claimant’s role had been removed, and she took it upon herself to find even menial tasks to occupy her time. As such, it was not entirely innocuous, particularly when viewed alongside the underpayment itself.

[57]The Tribunal went on to consider whether there was a course of conduct comprising several acts or omissions which, viewed cumulatively, amounted to a repudiatory breach. It had no hesitation in concluding that there was. The most significant breach – which the Tribunal considered could be repudiatory in itself – was the effective removal of the claimant from both her role and her position of authority in the workplace. This happened almost immediately after the change of ownership without any warning or consultation. As set out above, it left the claimant without a clear role leading to anxiety and uncertainly. This was compounded by the removal from her of status, going from the senior member of staff principally covering reception, to performing tasks such and cleaning and decontamination which would typically be carried out by a subordinate.

[58]The reduction in status was further exacerbated by the unwillingness of the new staff to recognise her authority, to comply with instructions, or even cooperate with her.

[59]The failure of the respondent to deal with the clear concerns the claimant raised on more than on occasion was an unacceptable omission on its part. There was a recognition of the validity of the concerns, and assurances that they would be dealt with, but the assurances were not kept leading to an ongoing hostile working environment.

[60]The same is true of the manner in which the claimant was, more generally, treated by colleagues and Mrs Iqbal in particular. The Tribunal accepts the claimant’s characterisation of the behaviour as rude, isolating, bullying and belittling. That is clearly unacceptable conduct of which the respondent was aware and, despite the concerns raised by the claimant, did nothing to stop despite the clear distress being caused. Such conduct might again, in itself, be considered repudiatory.

[61]Looking at the patten of conduct as a whole, the Tribunal was satisfied that the acts and omissions amounted to a repudiatory breach of contract. It had sympathy with the claimant’s position that she was being forced out. It is also the case that all of the issues remained unresolved at the time of the claimant’s resignation such that even absent the last straw, the respondent’s conduct in these other respects remained repudiatory.

[62]The final consideration is whether the claimant resigned in response to the breach. The Tribunal was clear that she did. She resigned for the reasons set out in her letter of resignation. No other reason was suggested.

[63]The claimant was accordingly constructively dismissed. The dismissal was also unfair. Although Mr Fakunle submitted that any dismissal was fair, it is not possible to envisage any potentially fair reason in the circumstances.

Remedy

[64]Having been unfairly dismissed, the claimant is entitled to a basic and a compensatory award.

[65]Parties were agreed that the claimant’s gross weekly pay was £630. Based on her age being 64 and length of service 16 years as at the effective date of termination, this gives a basic award of £15,120.

[66]For the compensatory award, the claimant’s net weekly pay was £501. For the 32 weeks up to the date of the hearing, this amounts to loss of £16,032.

[67]The claimant was unemployed from the date of termination for six weeks before starting a new job.

[68]The new job is part time. Net income from that is £204 per week. In the 26- week period from starting the new employment to the date of the hearing therefore, her earnings were £5,304. The claimant has also worked bank shifts for part of the time receiving further income of £1,194.

[69]Losses to the date of hearing are, therefore, £9,534.

[70]The Tribunal went on to consider whether to award any future loss. Mr Fakunle pointed to what he said was a failure to mitigate but did not put that to the claimant or lead any evidence on this. The claimant gave evidence that she had applied for one full time position in March but had not been successful. She feels that her age is against her and has that she will not apply for any more roles until her current part time contract expires in December 2025. Against that background, the Tribunal considered that the claimant has taken reasonable steps to find other work up to the date of the hearing but concluded that it would not be just and equitable to award future loss as she has taken a decision not to make further efforts to secure more remuneration at this stage.

[71]She is, however, entitled to compensation or loss of statutory rights and the Tribunal awards £600 for this, giving a total compensatory award of £10,134.

[72]Mr Fakunle argued that there should be reductions for contribution (based on the claimant’s alleged treatment of Mrs Iqbal) as well as Polkey as the claimant did not raise a grievance before resigning. The Tribunal rejected those submissions. The Tribunal has found no unreasonable conduct whatsoever on the part of the claimant. Moreover, having reached the position she did in her employment, she was entitled to resign without raising a grievance and should not be penalised for failing to do so.