L Grigor v Bathing Mobility Advisory Service Ltd: 8000675/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000675/2024
Between
Leigh GrigorClaimantBathing Mobility Advisory Service LtdRespondent
Before
Employment Judge M A MacleodDate 10 March 2025
JUDGMENT
The unanimous Judgment of the Employment Tribunal is that the claimant’s claims all fail, and are dismissed.
REASONS
[1]The claimant presented a claim to the Employment Tribunal on 17 May 2024, in which she complained that she had been unfairly dismissed, discriminated against on the grounds of sex and subjected to detriments on the basis that she had made protected disclosures. She also claimed that she was due underpaid expenses and unpaid commission. ETZ4(WR)[2]The respondent submitted an ET3 response in which they denied the claimant’s claims.[3]A Hearing was listed to take place on 8, 9 and 10 January 2025. The Hearing was conducted in person, but the respondent’s witnesses attended by remote means on screen.[4]The claimant appeared on her own behalf, and was accompanied, but not represented, by the respondent’s former owner, Bobby Clyde. The respondent was represented by Ms K Sutherland, solicitor.[5]A Joint Bundle of Productions was presented to the Tribunal, upon which both parties placed reliance in the course of the Hearing.[6]The claimant’s complaint of whistleblowing was dismissed following its withdrawal by the claimant, by Judgment dated 1 November 2024 (67).[7]The claimant gave evidence on her own behalf, and called as witnesses Daniel James Cameron, formerly an Installation Manager employed by the respondent, and Coll Steven Grigor, the claimant’s husband, and formerly an Area Manager employed by the respondent.[8]The respondent called two witnesses: Hannah Laight, Human Resources Director of the Mobility Bathing Group, and Ian Harbin Turton, Regional Sales Manager and Operations Manager for the respondent.[9]Based on the evidence led and the information provided, the Tribunal was able to find the following facts admitted or proved. Findings in Fact[10]The claimant, whose date of birth is 3 April 1975, commenced employment with the respondent on 1 November 2008, working in the office of the respondent, and on 1 November 2018 was employed as a Sales Manager. Her terms and conditions of employment (69ff) provided that she was employed in that position from that date, working 21 hours per week, on the basis of £24,000 plus commission per annum.[11]The terms and conditions provided, at clause 5, that the claimant’s salary would amount to a basic salary of £24,000 per annum.[12]In addition, it was provided that: “You will be entitled to a discretionary commission incentive payment, based on sales performance. This will be in place from your start date and will be 3% of sales value (net of any finance subsidy) for sales made by yourself subject to a clawback for any subsequent cancellation. You will also be entitled to share in a £2,500 quarterly pot proportionate to your personal sales contribution in the quarter. Pot triggers only if total sales in the quarter exceed the targets below: Q1 £530k Q2 £470k Q3 £500k Q4 £500k We reserve the right to change the terms of the scheme at any time, following a responsible notice period of any such change. Payment for overtime will not be paid unless agreed by your Manager. Upon such agreement, overtime is to be paid at your basic rate unless otherwise advised by your Department Head.”[13]The claimant was not entitled to be paid contractual sick pay for any days when she was absent from work due to illness. The terms and conditions stated that contractual sick pay would only be paid by the respondent “exercising its absolute discretion”, inclusive of statutory sick pay.[14]Attached to her terms and conditions was a Job Description (78). She was required to attend all sales appointments generated by the business with the aim of securing an order from each appointment. She was to feed back to the respondent’s office the details of each appointment, and for each sale, to liaise with installation engineers as appropriate to ensure that the customer’s needs were communicated effectively and that the finished installation was as sold; in addition, she was to deal with all customer queries before, during and after the sales appointment to ensure a high level of service and minimise the risk of cancellation.[15]The Job Description was said not to be exhaustive.[16]The respondent is a business which designs and installs bathrooms for elderly and/or disabled people to enable them to continue to live at home with dignity. It has 3 showrooms, in Edinburgh, Glasgow and Hitchen.[17]On 11 January 2024, the respondent wrote to the claimant (79) to provide her with an amended written statement of terms and conditions of employment, and in particular to alter the terms of clause 5 of her contract.[18]The letter provided: “Effective 1st December 2023, the bonus scheme has been amended to reflect the following: The target for the bonus remains based on annual budget for EDI branch, plus 7.8% uplift Quarterly targets are based on the following: o Q1 26.5% o Q2 23.5% o Q3 25.0% o Q4 25.0% The bonus is payable subject to the full year target being achieved, irrespective of whether quarters have been achieved separately. Any sales delivering less than the instructed multiplier (currently 1.85x, but is subject to change) will be disallowed from the bonus calculations The bonus will be paid annually in the September payroll We reserve the right to change the terms of the scheme at any time, following a responsible notice period of any such change.”[19]In the Edinburgh branch, there were two Sales Managers, the claimant and Colin Hogg.[20]On 12 July 2023, Ian Turton wrote to the sales staff, including Mr Hogg and the claimant (98): “Hi All Below is the new sales procedure we must all follow when visiting a customers (sic). I would like to emphasize the importance of adhering to the new procedure with every customer so can ensure greater efficiency, accuracy and improve customer satisfaction. 1. Initial Customer Interaction:a. Engage with the customer to understand their bathroom requirements and preferences.b. Discuss available options, product features and pricing.c. Inform the customer about the VAT exemption process, if applicable. 2. Using Loyverse for Order Value Calculation a. Access the Loyverse system to calculate the total order value based on the selected products, quantities and any applicable discounts. b. Use FastField forms if you need any products adding to the system c. Ensure accuracy in calculating the order value to provide an accurate quote to the customer. 3. Creating a Quote or Order with FastField Forms: a. Use FastField Forms, quoting and order to generate a quote or order for the customer b. Input the customer’s information, selected products, quantities and any additional details necessary for the quote or order c. Double-check all information to avoid errors in the final document. 4. Technical Survey and VAT Exemption Forms (for Orders): a. If the customer proceeds with an order on the day, carry out a technical survey to assess the site and ensure accurate measurements for installation. b. Provide the customer with the necessary VAT exemption form, if applicable. 5. Forwarding Copies to the Branch a. Once the quote or order, technical survey report and VAT exemption forms (if applicable) are complete, forward copies to your branch for processing. b. Ensure all relevant documentation is sent promptly to facilitate order processing and seamless coordination with the branch team. Thank you for your cooperation please don’t hesitate to contact me if you need any support.”[21]When Mr Turton joined the respondent’s business, he was required to streamline the process used by sales staff in order to make it more profitable. The purpose of doing this would be to give the sales staff, wherever they worked, the same tool to calculate the price to the customer. The tool was known as Loyverse. It was tested in June 2023 and introduced in July. Essentially it was an app, used by the sales managers on a tablet device, similar to many online shopping websites, with products pictured and specified, and with prices attached to them.[22]Mr Turton explained that when he arrived at the respondent’s business, the company was obtaining a profit margin on orders of approximately 30 to 38%; this system, however, would guarantee a 48% margin on orders no matter who the sales person was. It was also important to allow the sales person to give the customer a price when they were with the customer. All of the sales team were to use the app.[23]During July 2023, a Microsoft Teams meeting was held by Mr Turton with the sales team, including the claimant, in order to demonstrate the new system to them. The meeting last approximately 45 minutes to one hour.[24]On 21 July 2023, Mr Turton sent another email to the sales team, again including the claimant (99): “Dear Team, I wanted to inform you about a recent change regarding the multiplayer pricing and our updated point of sale (POS) system. Effective immediately, the price of the multiplayer has been revised from 1.66 to 1.85. Some of you are currently working to a 1.85 so this won’t be a big change and most of you are now getting used to the new POS system. When you’re using the POS system you don’t need to worry about using a multiplier because the prices are already set up in line with the suppliers recommended retail prices. Additionally, I would like to remind everyone that in order to offer discounts, we need to utilise the buttons on the new POS system. This will streamline the process and ensure accurate tracking of discounts.. Please take the time to familiarise yourselves with the updated POS system. If you have any questions or need any assistance, please feel free to contact me. Thank you. Best regards[25]Mr Turton clarified that the word “multiplayer” in his email should have read “multiplier”. The multiplier identifies the figure by which the profit margin was to be calculated.[26]On 1 September 2023, Mr Turton sent an email to the claimant (100) under the heading “Celebrating a Year of Achievements and Looking Forward”.[27]This email was only directed at the claimant.[28]In it, Mr Turton said: “Dear Leigh, I trust this message finds you well it was great seeing you this week and I hope your (sic) excited about the new financial year. With the conclusion of this financial year, I wanted to take a moment to express my sincere gratitude for your exceptional dedication and hard work. The past year has been a testament to your commitment, and it’s no exaggeration to say that your efforts have significantly contributed to our company’s growth and success.. 92 personal sales personally wanted to say thank you for all your efforts this is an amazing result let’s see if you can beat it this year. In light of your accomplishments and the potential that awaits us, I’d like to outline some expectations for the upcoming year: 1. Ambitious Targets: Let’s set our sights on stretching our capabilities while keeping our objectives within reach. With this in mind I’d like you to achieve a minimum of 8 saes per month. 2. Customer Engagement: I’d like you to receive 2 Trustpilot reviews from your client’s (sic) each month. Customer satisfaction has been at the core of our success and there is nothing better than a happy customer willing to tell the world about how good you and the business is. 3. Seamless Sales: A seamless collaboration between our sales team and the branch will be instrumental. Make sure all paperwork is filled in correctly and sent to the store for every customer visit. Form 1 (Quote/Ordre) Form 2 Technical Survey Form 3 Eligibility Declaration. Costing Form…”[29]By this point, the claimant had tried the Loyverse system but it was not clear to Mr Turton that she had actively logged on to it. He felt that the claimant had tried it but had not liked it, and as a result continued to do the forms the way she was used to. However, Mr Turton chose not to mention this in this email as he wished to convey a message of congratulation and encouragement.[30]On 14 September, the claimant having expressed some concerns to Mr Turton about her ability to operate the new system, Mr Turton prepared and produced a short video to give her a visual aid as to how to use the system. It means that she had some reference material instead of having to ask Mr Turton to help her. The Tribunal did not have the benefit of viewing this video.[31]The remainder of the team were all using Loyverse for their sales and quotations.[32]Mr Turton visited the Edinburgh branch in late September or early October. He met with the claimant and showed her how to log in to the Loyverse system, what buttons to press and how to press the charge button. The claimant assured him that she would give it a try. Mr Turton maintained that familiarisation with the system is necessary, and that the sales staff had to use it in order to learn it. On another occasion, he met the claimant in a coffee shop to discuss her difficulties with the system. He set up a personal page for the claimant with her favourite products. This meeting took about an hour[33]In September 2023, Mr Turton also attended an appointment with a customer with the claimant.[34]On 19 October 2023, Mr Turton emailed the whole team, including the claimant, (103) about labour and material costings. He was concerned that costing sheets were not being sent to the store after visits, so this email was a reminder to do this. The email stated: “Hi Team We need to get these updated ASAP I know most of you have done it already but if you have any missing, please makes sure you chase your salesperson. SALES TEAM please make sure your branch receives them by close of play this week. These figures need to be entered accurately into Smartsheets so the fitters get paid, and we must be using Loyverse to generate these costings. If you are struggling, please give me a call and I can help you. The introduction of Loyverse offers us the tools we need to maintain transparency and accuracy in our cost calculations. This not only benefits our team but also enhances our relationships with customers allowing us to quote on the day. Accurate costing data provides us with important insights needed to help us identify areas for improvement, cost-saving opportunities making us more profitable. Your cooperation and dedication in this endeavour are greatly appreciated. Best regards,[35]The claimant did not contact Mr Turton to seek further assistance. However, in October, he drove to Scotland to meet with her again, as she had suggested that she was on the point of handing in her notice. He met with her and noted that she seemed upset. He was concerned as the claimant was an important member of the sales team, whom he did not want to lose. The claimant complained to him that she was being bombarded with calls from fitters and from the stores staff. He reminded her that there were operational teams who were there to deal with these queries, and that she should focus on selling. He also spoke to the Operations Manager to ask them to make sure that the claimant was not being asked to do other duties than selling.[36]Robin Parker, the respondent’s Sales Director, also spoke to the claimant, on 6 November 2023, and called Mr Turton after doing so. He reminded the claimant that she required to use the Loyverse system for ordering, as did all the sales team.[37]The respondent’s business was closed for the Christmas and New Year period. The claimant was due to return to work following the holiday on 3 January 2024.[38]On 2 January 2024, Mr Turton sent an email to the respondent’s sales team and others, including the claimant (105): “Dear Sales Team I am writing to address a critical matter concerning Loyverse and Fastfield’s Forms. We are moving into 2024 and we can no longer accept orders not being priced correctly or customers not receiving the correct paperwork. Every order must have the below forms all returned to the branch in a timely manner. Quote/Order (Form 1) Floor Plan (that’s easy for the fitters to understand) Costing sheet (any substitutions need to be authorised by myself or Milad) Vat form (Now attached to the order form) New Technical Survey We have had instances of orders being processed below the company’s expected 1.85 multiplier and forms being inaccurately filled out or sometimes neglected altogether are unacceptable and must cease immediately. Consistency in using our applications to create orders and apply discounts is pivotal in upholding the company’s mandatory expectations within our pricing structure set out by the board of directors. Bypassing this system introduces the risk of errors that could potentially result in financial discrepancies and jeopardize our profitability. We have recently had Multipliers as low 1.66 which means the business is losing out on thousands of pounds in turnover and profit. It is imperative to understand the repercussions of disregarding these guidelines. Failure to comply with the company’s pricing structure and the proper utilization of the POS system will necessitate the removal of commission from your sales and possible disciplinary action. This measure is not taken lightly but is indispensable in maintaining the integrity of our sales process and safeguarding our profitability. I urgently request your immediate cooperation in adhering to these directives to avoid any further complications. Should you have any concerns or queries regarding Loyverse and the Pricing Structure or Fastfield’s Forms, please do not hesitate to contact me. Thank you for your continued hard work and dedication. Best regards,[39]On 3 January 2024, the claimant returned to work.[40]On 4 January 2024, the respondent wrote to the claimant by email (94) to attach a letter (95) to invite her to a Disciplinary Hearing. By that time, the claimant had not read the email of 2 January 2024. Indeed, the claimant’s evidence was that she did not read any email which was not “directly” addressed to her. What she meant by this, we clarified, was that she did not read emails which were sent to her directly but also to others. She did not clearly explain why she did not read emails addressed to the team rather than to herself as an individual.[41]In the letter, it was stated that she was to attend a disciplinary hearing on 10 January 2024 with Mr Turton, and Hannah Laight, Head of HR, to take place at Dobbies, Edinburgh (a garden centre).[42]The letter went on: “The reason for the hearing is due to failure to follow Company procedures…”[43]She was advised of her right to be accompanied to the hearing by a work colleague, and that as a result of the meeting, disciplinary action may be taken against her.[44]The reason why Mr Turton considered it necessary to invite the claimant to a disciplinary hearing was that they were now at the point where 5 months had passed since the inception of the new system, and that the company had been reasonable and firm in their expectations. They had reached the point where a new year was starting and the claimant was still not using the new system. She went to appointments but did not log in to Loyverse, on 2 and 3 January 2024 (though, as the claimant insisted, she was not working on 2 January, and had no appointments on that date).[45]The Disciplinary Meeting took place on 10 January 2024. The claimant attended with her colleague Lee Callaghan, as her companion. Mr Turton attended and chaired the meeting, and Ms Laight attended via remote means, and took notes (119ff).[46]At the start of the Hearing, Mr Turton asked the claimant if she could explain the challenges or obstacles encountered in adopting and using Loyverse. It was noted that the claimant responded: “LG advised that she finds it difficult and has used the old way for so many years. LG stated that her job has got harder as she is trying to do the new way but also the BMAS way, some elements of the system don’t work. LG advised that she is very conscientious and doesn’t want the customers or the ladies in the office to suffer. There are materials that don’t arrive which affects the fitters and then Milad Maleki (MM) shouts at the ladies in the office. If being brutally honest, the training hasn’t amounted to a day. LG cares so much about the job and was shocked to receive the invitation letter for this meeting on her day off, it would have been nice to be made aware that it was coming. LG stated that she felt things were underhanded as IT was so nice to her on Wednesday after getting 2 deals and then she received the invitation letter. The new system doesn’t work. IT asked LG to provide examples. LG advised the tech file and the .csv are generally different to each other. There are issues with both of them which means the office are not ordering the correct items. It is useful for the order to be sent in the old and the new way for 100% accuracy. IT advised that Colin Hogg (CH) had made an error using the system but after going through this together, it was clear it was a user error and proves that the system does work. LG asked if CH will get a disciplinary too? IT advised no as he is using the system and has sought help to overcome the error. LG stated that she felt like she was being bullied here. IT advised that over the last 6 months, everyone else has managed to use the app. LG said that she has been so honest in making IT aware that she is struggling with the system but that over time, she should be able to get it. IT advised that he is able to see how often people log in the system and that LG has not logged in that often. LG advised that she has been told not to work over her hours by IT. She said that she is the top sales person and that she doesn’t work as many days as the other sales people. LG advised that she is the only one that goes to all of her customers on day one of the install and then the following Monday when the job is completed. It is a good idea to get an Installation Manager out to the customer, but when she doesn’t go, is when customers don’t pay. The office is then affected as MM is screaming at them to collect the cash…”[47]Mr Turton advised the claimant that while he understood that the customer had a relationship with the sales person, the company wants sales people to focus on sales and operations people to focus on operations. The claimant said that she wants to be professional and focus on the customer, not spend time on something that she does not know about. Mr Turton observed that the claimant had used the app perfectly for 2 appointments but that she had only logged in twice following that. The claimant reminded Mr Turton that she was not a technically-minded person and had had connectivity issues.[48]Mr Turton pointed out that he was trying to understand why the app was not being used because the company was losing money over it. The claimant said that her pricing under the old system was always accurate and she did not understand how she could be losing the company money.[49]The exchange continued after Mr Turton raised a number of individual cases with the claimant for her comment: “IT advised that this isn’t about blaming and accusing, it is about getting things right. He has tried to defend LG for the last 6 months but it is no longer sustainable. LG asked that shouldn’t IT have said before now ‘Leigh we need to do some training’ and that her training hasn’t amounted to a whole day. IT advised that he has asked LG to contact him for support but she doesn’t. LG said that she has, but IT isn’t always available. IT has told her not to work in the evenings.”[50]The claimant went on to dispute that the company was losing money, saying that in fact the company was simply not making as much money as they wanted to. She observed that she is bringing in over £1,000,000 but was being disciplined over £6,000, making her feel that she was being bullied and victimised. She asserted that she had not had enough training.[51]Mr Turton told the claimant he considered that she was doing the jobs of other people, to which she replied that she had not had enough training, only half an hour in Caffe Nero.[52]The following exchange was then noted: “LG advised that she always does quotes the old way as she thinks that it looks more professional. IT advised that this isn’t what LG has been asked to do. Even when not using the apps, the margins aren’t being hit.”[53]When Mr Turton told her that the instructions had been sent to her, she maintained that she had not been addressed “directly”. The claimant explained that what she meant there was that while she had received certain group emails, she did not read them if they were not addressed to her alone and individually.[54]Mr Turton then advised that a written warning would be issued to the claimant, and that she needed to free up her time to attend the daily sales meetings for the whole team. She was advised that she did not require to attend at the start and finish of installations, as that would be for the Installation Managers.[55]He also confirmed that the issue of the claimant’s expenses would be addressed.[56]Following the meeting, Ms Laight wrote to the claimant on 11 January 2024 (126) to provide formal confirmation of the written warning, which would remain on her file for 12 months.[57]The claimant was very unhappy at having been issued with a written warning, and immediately emailed Ms Laight on 11 January 2024 to advise of her wish to appeal against the warning (127). She pointed out that she had not received a verbal warning for not having followed the company procedures, nor had she received the correct training, which amounted to less than 1 day in total. She maintained that if Mr Turton had done his job properly she would be using Loyverse and following the respondent’s procedures correctly..[58]She also suggested that there were double standards being applied, as the respondent had failed to follow company procedures since she was still waiting for her bonus from September 2018, and her expenses from September 2022, so to be pulled up for something she had failed to do was, she said, totally unacceptable.[59]She asked for the warning to be removed with immediate effect.[60]The respondent sent the claimant a copy of the notes from the Disciplinary Hearing by email dated 16 January, and asked her for her comments. She advised (131) that she had been signed off work due to ill health, due to the allegations made against her, which caused her great distress. She asked for time to consider amendments which she would wish to make to the notes of the Hearing, and requested that the appeal be delayed until such amendments had been submitted.[61]Ms Laight responded on 17 January 2024 (133) to advise that they would be unable to arrange the appeal until she returned to work. She pointed out that the claimant had been sent the notes shortly after the meeting, and had been asked several times to confirm whether or not she accepted them to be accurate. She asked the claimant to revert as soon as possible so that any proposed amendments could be reviewed.[62]In that letter, she also acknowledged receipt of the claimant’s sick note, and confirmed that she was to be paid Statutory Sick Pay (SSP) for her period of absence.[63]In her statement of terms and conditions of employment, the respondent stated the following in clause 9 (72): “You do not have a right to be paid contractual sick pay for any days you are absent from work due to illness. Contractual sick pay will only be paid by the Company exercising its absolute discretion. Any company sick pay shall be inclusive of any statutory sick pay due.”[64]On 26 January 2024, a representative for the claimant, Karen McGill, wrote to the respondent (145) raising ongoing issues on behalf of the claimant, in relation to her employment with the respondent.[65]She made reference to the bonus provision in the contract, under the heading of “Bonus/Commission”. She confirmed that her understanding was that the 3% commission payments had been made to the claimant, but that the quarterly pot payments had not been made, and that the amount due to the claimant was now in excess of £11,000.[66]Ms McGill went on to address the written warning issued to the claimant, and observed: “My client has appealed against the issuance of a written warning and when she is well enough to return to work I understand that an appeal hearing will be arranged.”[67]Ms McGill also suggested that the reason for the disciplinary action was not as stated by the respondent, but was related to actions taken against her and her husband (who also worked for the respondent) following an aborted redundancy exercise. She suggested that this action had been designed to destroy the mutual trust and confidence required for the employment relationship.[68]Ms Laight responded at some length by email dated 1 February 2024 (142ff).[69]With regard to the bonus, she said that “As Leigh Grigor is fully aware, it only recently came to light that a bonus scheme for a limited number of colleagues to participate in was put in place. The Company recognises that a payment will be due to your client but as she is also aware, the data requires to be assessed and reconciled to the sales made and by whom so a figure can be determined. We have requested Lee Callaghan prioritise the data collation for this review and we will update Leigh when the data is available. Given the Company’s position which has been clearly explained to Leigh Grigor, legal correspondence on this would appear to be extremely peremptory and unnecessary.”[70]With regard to the disciplinary action, Ms Laight sought to respond to the different points being made on behalf of the claimant: “It is correct that your client received an invite letter on a nonworking day. The Company was cognisant of this and ensure sufficient notice was given so that she had time to prepare and attend the meeting over her 3 working days. While it is not appropriate to discuss other employees we can confirm that the action taken against both your client and another employee was consistent and related to the use of the app. It was not however considered appropriate to apply a sanction to an employee who was attempting to follow Company instructions but had made an error in using the app. Further training was deemed appropriate in this case. Conversely, it was clear that in your client’s case it was not a training issue but an act of insubordination in refusing to use the app, possibly because this benefitted her in achieving her targets. It is disingenuous of your client to say that she has not received appropriate training. All colleagues are required to use the app to build a sales quote which leads to standardisation of margin. The Company does not dispute that Leigh Grigor is dedicated and hardworking. The issue of the warning is not about her performance but her failure to follow a reasonable management instruction which is critical to Company performance as a whole. As stated above, your client was advised on numerous occasions that the use of the app was not optional and further action would require to be taken if she did not follow this instruction. We note your client’s intention to appeal the decision and this will be duly considered.”[71]As to the suggestion that the claimant was disciplined because of whistleblowing, Ms Laight said that “The reasons for a warning have been made clear to your client – her failure to use an app that all colleagues are required to use. It is fanciful to suggest that the warning was issued for ‘whistleblowing’, or because of consultation which took place in 2022. As your client is fully aware, the consultation was open and transparent involving all staff in the Edeinburgh showroom, and was designed to see where costs could be saved given the business was trading at a loss and salary overheads were substantial. As the flagship store it was decided that it was not appropriate to take any measures. No employees were ever placed at risk of redundancy.”[72]With regard to the claimant’s bonus, Ms Laight wrote to her on 22 February 2024 (169) to explain the respondent’s position: “By way of background, the business’ awareness of this bonus is relatively new, as it was agreed between the CEO at the time, Lawrence Warriner, and your brother, Bobby Clyde. This bonus scheme was then included in your new contract of employment, dated 1 November 2018. Unfortunately, at the time, the existence of this new bonus structure was not notified to Human Resources in the usual way, nor to Finance, and as such has essentially ‘flown under the radar’ since its inception.”[73]Bobby Clyde had been the previous owner of the business, which was bought over under the respondent’s responsibility in 2018.[74]It was unclear to us precisely why the respondent was unaware of the terms of the claimant’s terms and conditions of employment in relation to the quarterly pot bonus. When asked about it by the Tribunal, Ms Laight confirmed that the contract was found in the claimant’s file. However, we accepted that, for whatever reason, the respondent overlooked this bonus until the claimant drew it to their attention.[75]Ms Laight went on to set out a timeline of the events, and to explain the decision made by the respondent: “The initial figures were provided to us on 21 December 2023 – as you are aware, the business had a Christmas shutdown period between 22 December 2023 – 2 January 2024 On 2 January 2024 it was highlighted by the Finance team that the information provided did not align to the Company financial quarters Lee Callaghan, Edinburgh Office Manager advised on 12 January 2024 that she had run the quarters in line with the contract dated November 2018 and that she would struggle to go back through this ‘any time soon’. Ian Turton was subsequently instructed to ask Lee Callaghan to align the figures to the correct quarters On 8 February 2024, Lee Callaghan provided the correct information for review. Furthermore, and as you are fully aware, the BMAS business has been underperforming, with significant losses being incurred and is currently being supported by the main group from a cashflow perspective. Without this support, the BMAS business would not be viable as a ‘standalone’ entity. As such, the timing of large bonus payments is counter-intuitive and would need to be funded entirely by the main group. Given the above, I hope you can now appreciate why this process has taken some time. However, despite the above, as a valued team member, I can confirm that following the review and audit of the information presented, a bonus payment of £14,303.79 will be paid to you as part of your February, in line with the usual payroll schedule. This covers the period to from (sic) 1 November 2018 to 30 November 2023.”[76]The claimant did not believe that the bonus had “flown under the radar”, particularly as she said she had raised it with Neil Garrett, her previous manager, and others over time.[77]She did accept that the amount of the bonus was correctly calculated, but was extremely unhappy at the length of time which it took the respondent to decide upon payment.[78]The claimant did not return to work prior to her resignation, and no appeal hearing took place. On 11 March 2024, Ms Laight wrote to the claimant (174) to say: “I understand that you feel it would be beneficial to your recovery to proceed with an appeal hearing before you return to work. Please confirm if you would like this to be conducted in person, albeit virtually or through written correspondence. We can then proceed to make appropriate arrangements.”[79]The claimant did not respond to this email.[80]The claimant was entitled to be paid for expenses incurred in the course of her employment. Her statement of terms and conditions of employment provided, at paragraph 7, that “All reasonable expenses wholly, exclusively and necessarily incurred by you in carrying out your duties will, on production of appropriate receipts and/or vouchers, be reimbursed in line with the Company Expenses Policy.”[81]The claimant complained that she had not been paid her expenses due, for travel, over an extended period of time. She said that she had used an app given to her by a previous manager, and expected that that had generated the necessary information to allow her to be reimbursed for expenses reasonably incurred.[82]On 17 January 2024, the claimant submitted to the respondent a claim form setting out a total claim of £4,954.80 (139), which appeared to have been reviewed and signed by a manager, understood to be Mr Maleki. No details were provided.[83]On 30 January, Mike Sayer wrote to Mr Turton and Ms Laight (137) to say that this was a “huge expense claim”, which he assumed went back many months, though there was no narrative to explain. He observed that the Group Expenses Policy says that expenses must be submitted within a month. He pointed out that this claim could not be accepted, as there needed to be a log of journeys. The rate was incorrect, since she received £450 per month by way of car allowance, and the rate would change again if the individual reached 10,000 miles in a year.[84]Ms Laight wrote again to Ms McGill on 16 February 2024 (141) to advise that the respondent was awaiting the correct information to be provided in relation her expenses claim, as an incorrect mileage rate was used and no information regarding the journeys made had been detailed. She also advised that the bonus was still under review, but that they had received the information from Lee Callaghan and were in the process of verifying the information provided.[85]In March 2024, the claimant contacted ACAS about a number of matters, including outstanding expenses. Ms Laight wrote to her on 11 March 2024 (175) to say that they were unable to accept her expenses claim without the relevant information backing it. She said that the company was unaware of the app to which she referred. She asked her to complete the expenses claim with the necessary detail, including information to confirm that it was a legitimate business journey, that legitimate mileage was being claimed and that the legitimate mileage rate was relied upon.[86]She sent the claimant a copy of the expenses policy, and said that if she submitted them, the respondent would review them. On 19 March 2024, the claimant emailed Ms Laight with a number of expenses forms completed by her (195ff). The handwritten forms were attached to the email, but were unreadable to the Tribunal. She asked Ms Laight to fill in the correct mileage rate so that there would be no confusion. She said that she felt that this had been “another attempt to cause upset and difficulty during what has been a horrendous period health wise for me. Detailed journeys have never been asked for previously.”[87]On 21 March 2024, Ms Laight wrote to the claimant to say that her expenses had been processed and would be paid to her on the following day (374). The claimant replied to thank her for this (375).[88]On the following day (376), Ms Laight wrote to the claimant to explain the position with regard to expenses: “I wanted to follow up with you regarding your expense claim which has been approved, processed and paid to you today. I’m sure you will appreciate that the exercise around your expenses was worth doing, as you original claim submitted totalled £4,964.80, versus the corrected claim of £1,308.77. Had we not completed this exercise, you would have erroneously claimed an additional £3,656.03. Whilst our Company policy states ‘expense claims must be submitted within 30 days of the expense being incurred’, we made a special consideration to pay the full claim submitted regardless of the fact they dated back to September 2022. Going forward, any expenses are to be submitted in line with the timeframes as set out in the policy. I hope that the payment received today for these expenses has helped to relieve some of the stress that you have referred to.”[89]The claimant was upset to receive this message, as she felt that the respondent was suggesting that by making her original claim, she was attempting to cheat the company in her expenses.[90]The claimant accepted before us that the sum paid, £1,308.77, was correct for the journeys for which she had submitted claims. She maintained that there were other journeys for which she had not claimed.[91]On 25 March 2024, the claimant emailed Ms Laight (377). She attached a fit for work form and an accompanying letter.[92]The letter (378) intimated her resignation from the respondent’s employment. In it, she said: “Your email sent to me at 10.52 on Friday 22nd March has proved to be the final straw … to suggest that ‘the exercise around my expenses was worth doing’ and that I was somehow attempting to claim money I was not entitled to is ridiculous. Because I did not have access to all the information needed while off sick you have succeeded in reimbursing me for less than I am rightly due. This against the background of my expenses having already been signed off (details sent to you on Monday 18 March – not for the first time and this email clearly states that I only provided the mileage). This was simply an exercise in causing me more unnecessary distress. I am writing to inform you of my decision to resign from BMAS. I believe that I have been constructively dismissed. The way in which my husband and myself have been treated is nothing short of horrifying and the consequent chain of events that have unfolded over the past three months have been absolutely abhorrent. A summary of events: I received an invitation to a disciplinary meeting on the 4th January on a non-working day. A disciplinary meeting was scheduled for the 10th January then a written warning followed. I was disciplined for something that did not warrant disciplinary action and two male colleagues were treated more favourably than me. I appealed my written warning immediately. My husband Coll received an invitation to a disciplinary meeting on the 9th January (the day before my meeting). Coll’s disciplinary was scheduled for the 12th January then concluded the following week (I was sent a diary invitation to attend this in error) – he received no penalty or apology for what was done to him. Then followed Coll’s redundancy where he was brutally told he was redundant with no warning in front of the staff and given a letter afterwards that referred to this as ‘consultation’. On 26th January commission was deducted from Coll without warning or an explanation (this was prior to an email sent out on 31st January stating commission would be deducted if profit margins weren’t reached). This was a unilateral variation to section 5 of my contract of employment that states ‘commission incentive payment, based on sales performance. This will be in place from your start date and will be 3% of sales value’. The trauma of trying to claim my bonus and expenses that were due to me. I have been an employee of BMAS for over 16 years (which you grudgingly acknowledged when challenged by email dated 16 February) and the wording you have used to describe me and the things you have stated about me in emails and then the contradictions that follow stating ‘I am held in high regard’ and you ‘look forward to my return’, ‘you want to ensure me that I remain a valued employee and you will work with me to move matters forward positively’ if this was to be believed why would you put me on SSP for stress caused by you and take until 22nd March to pay me what I was due. A male colleague who has worked at BMAS for under 2 years has been paid full pay for their absence recently…”[93]The claimant went on to complain about a number of other points in the correspondence, and in particular to criticise the respondent for not having convened an appeal hearing as soon as the appeal letter was submitted by the claimant.[94]The respondent replied to the claimant on 3 April 2024 (383) noting that her last working day with the company would be 24 June 2024, and refuting any allegation of constructive dismissal, any alleged detriment due to whistleblowing or any kind of inconsistency in treatment.[95]The claimant compared herself to a male colleague who had been paid full pay for their sickness absence. The colleague was Daniel Cameron. He was an Installation Manager who commenced employment with the respondent in April 2023. He had a period of absence from work due to an accident which took place on 14 February 2024, whereby he suffered a fall at work, dislocating his shoulder. He was visiting a customer’s home inspecting the bathroom. During his absence, he was paid his full pay. A decision was made by the respondent to exercise their discretion to make these payments above the normal contractual entitlement on the basis that the injury causing the employee’s absence had happened in the course of his duties for them.[96]Mr Cameron’s evidence did not disclose how long his absence lasted, but he was paid full pay throughout.[97]Following the claimant’s resignation, she registered as self-employment from 30 September 2024. She started her own business, Absolutelee Fabulous, with a partner, providing help to elderly people or people living alone with different tasks either in the home or elsewhere. She earned £50 from that business to the date of the Tribunal.[98]She applied for Job Seekers’ Allowance, and received £1,098.93 up to 24 September 2024 (405).[99]She also carried out some work for two other companies, receiving in total the sum of £2,950.[100]The claimant said that the way in which she had been treated by the respondent had a “horrendous” impact upon her, and that she had been ill for the last year. She had not received any medication from the GP, but had consistently seen her GP to seek advice, as well as statements of fitness to work. Her GP told her that her many chest infections may be related to the stress of undergoing these matters with her former employer, she said.[101]The claimant does not seek reinstatement nor re-engagement with the respondent, but compensation only. Submissions[102]Both parties made short submissions, with the respondent providing a written summary of their submissions to the Tribunal. The Tribunal took the submissions into careful account in reaching our decision.
The Relevant Law
[103]Section 95 of the Employment Rights Act 1996 ("ERA") sets out the circumstances in which an employee is treated as dismissed. This provides, inter alia “(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2), only if)— … (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.”[104]Where a claimant argues that there has been constructive dismissal a Tribunal requires to consider whether or not they had discharged the onus on them to show they fall within section 95(1)(c). The principal authority for claims of constructive dismissal is Western Excavating -vSharp [1978] ICR 221.[105]In considering the issues the Tribunal had regard to the guidance given in Western Excavating and in particular to the speech of Lord Denning which gives the “classic” definition: “An employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The employee in those circumstances is entitled to leave without notice or to give notice, but the conduct in either case must be sufficiently serious to entitle him to leave at once. Moreover, 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 be regarded as having elected to affirm the contract and will lose his right to treat himself as discharged.”[106]The Western Excavating test was considered by the NICA in Brown v Merchant Ferries Ltd [1998] IRLR 682 where it was formulated as: “…whether the employer’s conduct so impacted on the employee that, viewed objectively, the employee could properly conclude that the employer was repudiating the contract. Although the correct approach to constructive dismissal is to ask whether the employer was in breach of contract and not did the employer act unreasonably, if the employer’s conduct is seriously unreasonable that may provide sufficient evidence that there has been a breach of contract.”[107]What the Tribunal required to consider was whether or not there was evidence that the actions of the respondents, viewed objectively, were such that they were calculated or likely to destroy or seriously damage the employment relationship.[108]The Tribunal also took account of, the well-known decision in Malik v Bank of Credit & Commerce International SA [1997] IRLR 462, in which Lord Steyn stated that “The employer shall not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.”[109]It is also helpful to consider the judgment of the High Court in BCCI v Ali (No 3) [1999] IRLR 508 HC, in which it is stressed that the test (of whether a breach of contract amounts to a breach of the implied term of trust and confidence) is “whether that conduct is such that the employee cannot reasonably be expected to tolerate it a moment longer after discovering it and can walk out of his job without prior notice.”[110]The Tribunal also took into account the Employment Appeal Tribunal decision in Wright v North Ayrshire Council UKEATS/0017/13/BS from June 2013. In that case, having examined the line of authorities relating to claimants who resign for more than one reason, Langstaff J cautioned against seeking to find the “effective cause” of the claimant’s resignation, but found that Tribunals should ask whether the repudiatory breach played a part in the dismissal.[111]Section 13(1) of the Equality Act 2010 provides: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[112]Any comparator relied upon for the purposes of a direct discrimination claim should not be in materially different circumstances to those of the claimant (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337). Discussion and Decision[113]The List of Issues in this case was set out at paragraph 13 of the Note following Preliminary Hearing issued by Employment Judge Jones and dated 3 October 2024 (45). The List of Issues is as follows, duly amended from that Note following the withdrawal of the claimant’s whistleblowing claim. 1. Did the respondent breach the claimant’s contract of employment in the respects which were alleged by her, and if so, did these breaches entitle the claimant to resign and treat herself as constructively dismissed? 2. Was the claimant subjected to less favourable treatment (in relation to being disciplined and paid sick pay) because of her sex than a man in similar circumstances was treated? 3. If the claimant succeeded in any of her claims, what compensation should be awarded to her?[114]We took each of these issues in turn. 1. Did the respondent breach the claimant’s contract of employment in the respects which were alleged by her, and if so, did these breaches entitle the claimant to resign and treat herself as constructively dismissed?[115]The claimant, as we understand it, relies upon 3 particular breaches of contract imposed upon her by the respondent, namely:a. The respondent subjected her to a disciplinary process without proper cause between 4 and 10 January;b. The respondent delayed paying her a bonus to which she was entitled from 2018;c. The respondent accused her of having attempted to claim expenses to which she was not entitled. This was the “last straw” which provoked her resignation.[116]Firstly, we considered whether or not the imposition of a disciplinary process without proper cause between 4 and 10 January amounted to a breach of contract.[117]We recognise that the claimant considered that the manner in which the respondent carried out the disciplinary process was unfair to her – sending her an email on a non-working day inviting her to a disciplinary hearing, for example – but our concern is whether or not commencing the process itself amounted to a breach of contract. As we understood it, the claimant complains that it was unnecessary and unfair to criticise her as they did, and that this damaged the relationship of trust and confidence between them.[118]The issue which led Mr Turton to commence disciplinary proceedings against the claimant was her persistent failure, and as they saw it refusal, to use the Loyverse app when creating orders for customers. This system was introduced in July 2023, and sales staff including the claimant had been instructed to use it, in order to standardise the process across the sales team, ensure that profit margins were suitably met and that if discounts were offered, they could be offered in such a way as to protect the profit margin.[119]It is a matter of fact that the claimant did not, ordinarily, use Loyverse for creating her orders with customers, though she did and was able to use it from time to time, but persisted in using the previous manual system. Her position was that she was not given the necessary training to use it.[120]The respondent’s position was very clear, in our view. They wrote to the sales staff, including the claimant, on 12 July 2023 (98) outlining the new procedures “we must all follow”. That email clearly required staff to use Loyverse in creating orders. There was a training session by video conference for all sales staff, including the claimant. On 21 July, they wrote again to the sales staff to make clear the level of multiplier to be used in establishing the necessary profit margin (99). On both emails, Mr Turton advised staff that if they had any difficulties they should contact him.[121]The claimant’s evidence, which was surprising, was that she did not read emails which were not sent directly to her; she did not in fact mean this. What she meant was that she did not read emails which were not sent to her only as an individual. These emails were sent directly to her (and to others). We found that there was no good reason for the claimant not to have read these emails, and further, that it was incomprehensible to us why she did not. We drew the conclusion that she simply did not wish to engage with the Loyverse system.[122]Mr Turton met with the claimant on a number of occasions, and sought to show her how to use the system by operating it with her, creating an opening page for her herself and attending several customer visits with her. He also created a short video for her to show her exactly what steps to take.[123]It was clear to us that Mr Turton was communicating very directly with the claimant, encouraging her that her sales figures were very good (and there is no doubt that the claimant was a conscientious and effective sales manager). He told her to concentrate on sales rather than spending longer than necessary with customers, and that she did not require to attend on the first and final days of an installation, as others were employed to do that. We considered that Mr Turton explained and made clear to the claimant what she needed to do, and demonstrated considerable patience in his dealings with her, but became increasingly concerned that she was not using the system.[124]More emails were issued to the sales team on 19 October, 23 November and 2 January. Unfortunately, it appears that the claimant neglected to read these.[125]It should be noted that the claimant attended the disciplinary hearing, and was able to bring with her a companion, Lee Callaghan. She was aware of the allegation against her, that she had not been following company policy by using Loyverse to create her orders.[126]In the hearing, she said she found the new system difficult, and had been using the old system for years; she maintained that the new system did not work. Tellingly, in our judgment, the claimant said to Mr Turton that she always did quotes the old way because she thought that it looked more professional.[127]In our judgment, the respondent did not act in breach of the claimant’s contract of employment by commencing disciplinary proceedings against her, nor by issuing her with a written warning for failing to comply with what was a reasonable management instruction. The respondent is entitled to conduct business in a manner it considers to be the most profitable for that business, and to instruct staff to use the methods they set down. They made it clear to staff from July that the Loyverse app was to be used for orders, and why that was.[128]The claimant’s position varied during her evidence and in the internal process. She protested that there were problems with connectivity when she used the app, though did not explain what she meant by that; it was not clear to us whether she was saying that there was a problem with her device or with the internet connection wherever she was trying to use it. However, she also made clear that she disapproved of the new system, regarding it as unfair to customers and unprofessional in how it looked.[129]We reached the conclusion that the respondent was entitled to take the view that clear instructions had been given to sales staff to use the Loyverse system; basic training was provided, and staff were then expected to use the system in order to familiarise themselves with it. Far from the claimant being unsupported, Mr Turton gave her considerable assistance and spent a lot of time, relatively, with her, trying to help.[130]The respondent’s view that the claimant was simply not prepared to do as she was instructed, but wanted to carry on doing the job exactly as she always had, was demonstrably true. The claimant did not like the new system, and her protestations that she would be willing to keep learning about it were not borne out by her failure to adapt to the new system over 6 months prior to the disciplinary.[131]The respondent did not dismiss the claimant; they issued her with a warning, which in our view was proportionate and not unfair in all of the circumstances. The claimant’s failure to comply with their instruction amounted to misconduct, and it cannot be said to be a breach of contract for the respondent to take action to enforce their instruction. They noted that the remainder of the sales team were using Loyverse, even though there was some evidence that they struggled to come to terms with it to begin with.[132]Secondly, the claimant argues that the respondent breached her contract by delaying paying a bonus to her from 2018.[133]It is quite true that the respondent did not pay the claimant her contractual bonus, from the quarterly pot, until February 2024, in the sum of £14,303.79, to cover the period from November 2018 to November 2023.[134]The claimant accepted that the bonus payment was correct.[135]The reason given by the respondent was not impressive. They said that the bonus had been negotiated and introduced into the contracts of Colin Hogg and the claimant under the previous management of the company, and that they were unaware of it until Colin Hogg drew it to their attention in late 2023. The claimant did not raise the non-payment of her bonus until Mr Hogg had done so. It appears that the claimant’s contract was in her personnel file, but no explanation was given to us as to why nobody looked there to find it: it seems to be the obvious place to look.[136]However, we do accept Ms Laight’s evidence that the respondent was taken by surprise when they found out about this provision in her contract. When they did find out about it, they acted, in our view, reasonably quickly to establish how much the claimant would be due. Lee Callaghan suggested that she would not be able to provide the information for some time, but was instructed to do the work urgently, as a result of which a decision could be made and a sum determined.[137]Accordingly, while the respondent does not emerge with a great deal of credit from this episode, we do not consider that they deliberately withheld or delayed the claimant’s bonus payment. While they were not aware of the bonus, neither did the claimant raise this matter with them, and indeed it was as a result of Mr Hogg raising it that they took action in relation to the claimant.[138]We do not, therefore, consider that the respondent acted in breach of the claimant’s contract of employment by delaying the payment of the bonus, nor that it had such an impact upon the claimant, since she took no action until the matter was raised by Mr Hogg.[139]Thirdly, the claimant relies upon the assertion that the respondent accused her of seeking to receive expenses to which she was not due, as the final straw which led to her resignation.[140]We did not consider that the respondent acted in any way inappropriately in the matter of the claimant’s expenses. The claimant’s contract of employment, along side their expenses policy, indicated that reasonable expenses incurred in carrying out her employment would be reimbursed to her, but that it was expected that any expenses would be notified to the respondent within 30 days of having been incurred.[141]The claimant’s approach to expenses was difficult to understand. She said that a previous manager had shown her an app to use, about which we heard very little evidence. What is clear from the evidence, though, is that using the app did not mean that the expenses she was seeking to recover found their way to the respondent in any effective way. In the end, the claimant simply submitted a single form, without any details or breakdown of the sums claimed, identifying a very significant sum of money she was seeking in expenses.[142]The Tribunal was entirely unsurprised to see that the respondent did not consider this to be a proper claim for expenses, and asked for more information from the claimant, who appeared to be offended to be asked for such detail. It is standard practice, in the experience of the Tribunal, for an employer who is asked to reimburse an employee for expenses incurred to require details of when and how the expenses were incurred, in relation to each relevant occasion.[143]The claimant did succeed in submitting a number of forms to the respondent, and the respondent reacted within an entirely reasonable period of time to agree the sum to be paid to her. It is worth setting out the terms of the letter to the claimant (376): “I wanted to follow up with you regarding your expense claim which has been approved, processed and paid to you today. I’m sure you will appreciate that the exercise around your expenses was worth doing, as you original claim submitted totalled £4,964.80, versus the corrected claim of £1,308.77. Had we not completed this exercise, you would have erroneously claimed an additional £3,656.03. Whilst our Company policy states ‘expense claims must be submitted within 30 days of the expense being incurred’, we made a special consideration to pay the full claim submitted regardless of the fact they dated back to September 2022. Going forward, any expenses are to be submitted in line with the timeframes as set out in the policy. I hope that the payment received today for these expenses has helped to relieve some of the stress that you have referred to.”[144]The sum paid, £1,308.77, was, as the claimant accepted in evidence, the correct figure for the amounts claimed. She suggested that there were other expenses which she had not be reimbursed for, but in our view, the reason for that was that she had not been able to make a detailed claim for those expenses and therefore did not submit such a claim for them once she was asked to provide the details.[145]What the claimant said amounted to a breach of contract here was that they said that she had attempted to claim for expenses which she was not due. She maintained that this was a form of accusation.[146]In our judgment, the respondent was not making an accusation against the claimant, but pointing out that their insistence that she provide vouching and details in support of her claims was justified by the difference between the validated claim and the original sum sought by her. It was no more than a statement of fact that the claimant’s original claim was more than 3 times the sum which she could justify. If any criticism was implied, it was justified. The claimant had made a claim which she could not support. The respondent took no action against her, and therefore did not suggest that she had been dishonest about this, but they were not wrong in saying that the exercise of checking her expenses had led to the payment of a more accurate, and considerably smaller, amount.[147]They exercised discretion in her favour by paying the expenses even though they were submitted outwith the 30 day time limit in their own policy.[148]Accordingly, not only do we not conclude that the respondent breached the claimant’s contract of employment in this regard, but we also conclude that the respondent acted entirely reasonably by paying the claimant what was still a very substantial sum in expenses outwith the deadline for claiming such expenses.[149]Finally under this heading, we gave consideration to whether the three alleged breaches, taken together, might be said to have undermined the implied term of trust and confidence in the employment relationship. While we do not consider that the bonus payment was well handled by the respondent, we are not of the view that the respondent acted, in any of these actions, such as to breach the implied term.[150]Accordingly, the claimant’s claim of constructive unfair dismissal fails, and is dismissed. 2. Was the claimant subjected to less favourable treatment (in relation to being disciplined and paid sick pay) because of her sex than a man in similar circumstances was treated?[151]The claimant complained that she was treated less favourably on the grounds of sex in relation to these two matters.[152]Firstly, she said that she was treated less favourably than Colin Hogg in that she was taken to discipline for her use, or failure to use, the Loyverse system, whereas he was not disciplined when he made mistakes in relation to the Loyverse system.[153]Mr Turton dealt simply and effectively with this complaint. He considered that Mr Hogg was not to be disciplined because he was in fact attempting to use the Loyverse system, but had made errors, and when these were drawn to his attention, he accepted the criticism and continued to use Loyverse. He did not refuse to use it, and persisted in its use as instructed.[154]Accordingly, it is our judgment that the circumstances of Mr Hogg were materially different to those of the claimant, who was accused of misconduct in her refusal to comply with a reasonable management instruction. Mr Hogg was not accused of misconduct, but of making an error, which he readily accepted and addressed.[155]It is therefore our conclusion that the claimant’s complaint that she was treated less favourably than Mr Hogg on the grounds of sex must fail. There is no basis for this claim.[156]Secondly, the claimant compared her treatment with that of Daniel Cameron, an Installation Manager, who was paid his full pay throughout his absence, whereas she alleged that she was treated less favourably than Mr Cameron when she was absent on sick leave as she only received SSP.[157]Again, in our view, the claimant’s comparator was in materially different circumstances to the claimant. Mr Cameron suffered an injury while in a customer’s home, in the course of his duties, and as a result, the respondent chose to exercise its discretion to pay him his salary during his absence; whereas the claimant was not absent for such a reason, but due to anxiety and stress. She was contractually entitled to SSP only, except where discretion is exercised. She provided no reason why the respondent should have exercised its discretion to pay her in full, and we concluded that the respondent’s decision to pay Mr Cameron arose out of circumstances which were materially different to the claimant’s, namely that he had had an accident at work.[158]The claimant entirely failed to demonstrate that the difference in treatment was in any way because of her being female.[159]Accordingly, the claimant’s claim of direct sex discrimination fails on both grounds, and is dismissed. 3. If the claimant succeeded in any of her claims, what compensation should be awarded to her?[160]The claimant has not succeeded in any of her claims, and accordingly, no compensation is awarded to her.