Miss N Whyatt v Cygnus Enterprises Ltd T/a Banana Moon: 8002471/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8002471/2025Venue AberdeenHearing 23 June 2026
Between
Miss N WhyattClaimantCygnus Enterprises Ltd T/a Banana MoonRespondent
Before
Employment Judge A KempDate 3 July 2026
JUDGMENT
The Judgment of the Tribunal is that the claimant was not dismissed by the respondent under section 95(1)(c) of the Employment Rights Act 1996 and the claim is dismissed accordingly.
REASONS
[1]This Final Hearing was arranged to address a claim of what is normally referred to as constructive unfair dismissal under the Employment Rights Act 1996, although that is not a term of law. It was heard largely in person, with Mr Williams appearing remotely after weather conditions led to the cancellation of his flight to attend the hearing. E.T. Z4 (WR)[2]There had been a Preliminary Heairng held on 26 February 2026, after which case management orders were made. There was also placed before me an agreed summary of the case and a form of list of issues.[3]Before evidence was heard I explained to the claimant the process of the giving of evidence, including examination in chief covering both liability and remedy, cross examination to dispute any fact not accepted as accurate and to raise a matter that the witness had not covered which may assist the other party, that the Tribunal could ask questions at any time but normally did so after cross examination, and re-examination on matters arising from cross examination or from the Tribunal. I also referred to giving oral evidence about documents so that they were before the Tribunal as evidence as otherwise they would not be considered, and finally about the making of submissions, being an opportunity not a requirement.[4]I also explained that I could assist the claimant during the hearing to an extent in light of the terms of the overriding objective in Rule 3, including by asking questions to elicit facts in Rule 41, noting that the claimant was a party litigant and that the respondent was professionally represented. I stated that I could not do so in a manner that led to their becoming an adviser of the claimant or acting as if her solicitor.
The evidence
[5]The parties had prepared documentation in the form of a single Bundle, most but not all of which was spoken to in evidence. The claimant gave evidence first. For the respondent evidence was given by Ms Amanda Penny, Operations Director, and Mr Wim Hanekom, Managing Director.
The Issues
[6]A proposed list of issues had been set out in the Note of the earlier Preliminary Hearing held on 19 March 2025. The proposed list was not disputed by either party thereafter, was therefore confirmed. For ease of reference the issues proposed in that Note are repeated: i. Unfair dismissal Did the claimant resign in circumstances in which she was entitled to treat herself as having been dismissed in terms of section 95(1)(c) Employment Rights Act 1996? ii Remedy If the claimant succeeds what compensation should be awarded to her?
The facts
[7]I found the following facts, material to the issues before me, to have been established on the evidence. Parties[8]The claimant is Miss Nicole Sheila Whyatt. Her date of birth is 1 February 2000.[9]The respondent is Cygnus Enterprises Ltd. It trades as Banana Moon, and operates a nursery at Glenseaton Lodge, Kettocks Mill Road, Bridge of Don, Aberdeen.[10]The respondent operates seven nurseries in the north east of Scotland, and has staff numbers varying between about 100 and 130. It does not have an internal human resources function and obtained assistance from an external provider. Employment[11]The claimant was employed by the respondent at its day nursery at Peregrine Road, Westhill, Aberdeenshire. Her employment commenced on 27 April 2022.[12]In or around May 2023 the claimant was promoted to the position of Deputy Manager. A vacancy had arisen for that in or around February 2023 and was given to another member of staff Claire Cameron, who had longer service with the respondent. The claimant was offered the role during a time she was on maternity leave.[13]The claimant had a contract of employment signed and dated by both parties on 6 March 2025 which provided amongst other matters for her to give three months’ notice of termination of employment. It provided that “If you leave without giving and working your full notice, any additional cost in covering your duties during the notice period will be deducted from any termination pay due to you.”[14]The respondent’s grievance procedure provides for a grievance to be submitted informally, or formally in writing. It provides for an appeal within five days of the grievance decision, and states that every effort will be made to hear the appeal within five working days. It provides that the respondent may have a third party conduct it.[15]The claimant’s line manager was Ms Yasmin Gauld. Informal Grievance[16]On 23 June 2025 the claimant emailed Ms Amanda Penny the respondent’s Operations Director. It alleged unprofessional behaviour and unfair treatment of her by Ms Gauld, and asked that the matter be handled with the utmost confidentiality. It referred to three incidents said to have occurred in June 2025.[17]That same day the claimant commenced a period of sick leave in relation to stress at the workplace. She was signed off by her GP for that with effect from that date in a series of fit notes until the resignation referred to below.[18]Ms Penny replied on the same day to acknowledge the message, and assure her that the concerns would be taken seriously. She arranged to meet the claimant and did so on 26 June 2025 at the respondent’s office in Denmore, Aberdeen. No notes of that meeting were kept at the time. The claimant and Ms Penny had a discussion about the issues. Ms Penny explained that the grievance could not be kept confidential if it was made formal, and that proceeding with a formal grievance may have an emotional impact on her, or words to that effect. She said that the claimant would be supported whatever decision she made. It was left on the basis that the claimant would decide what she wished to do.[19]Ms Penny sent a follow up email to the claimant on 4 July 2025 to check in with her. The claimant replied the same day, and asked for clarification of a comment made by Ms Penny that if she went ahead with the grievance it may not end in a positive outcome for her. Ms Penny replied the same day and responded to clarify that that was not in relation to the validity of her concerns but “the potential emotional toll and impact on your wellbeing throughout the process, for example during an investigation you would be asked to provide formal statements, and Yasmin would have the right to read through your grievance.” Grievance[20]On 11 July 2025 the claimant emailed Ms Penny with a letter of grievance. It raised the following matters:(i) Not being promoted in February 2023 when pregnant.(ii) A verbal request for flexible working made around the same time.(iii) Inappropriate remarks made to her by the nursery cook on or around 6 May 2025 in front of Ms Gauld.(iv) Inappropriate remarks by Ms Gauld on 9 June 2025 in relation to the possibility of the claimant having another child.(v) Inappropriate remarks by Ms Gauld on 12 June 2025.(vi) An undermining response by Ms Gauld on 19 June 2025.(vii) An incident with Ms Gauld on 20 June 2025 after which there was a message sent to the claimant stating that Ms Gauld had lost trust in her.[21]The claimant alleged that she was making a protected disclosure and that the issues had had a profound and detrimental effect on her wellbeing and mental health. She stated that she was “raising the grievance formally in the hope that it will prompt a thorough, impartial and prompt investigation.”[22]Ms Penny passed the message to the respondent’s managing director Mr Will Hanokem. She did not consider that she could address it as she had been referred to within it.[23]Mr Hanekom acknowledged the grievance on 14 July 2025. On the following day he wrote to outline the process he would follow. He said that he would be “speaking to everyone names in your grievance and give them an opportunity to read and respond to the part they are named in your grievance, along with any witnesses so I can verify their version of events.” He asked about arranging a meeting with her.[24]That meeting took place on 22 July 2025. The claimant and Mr Hanekom were present, and Ms Lyndsey Fleming a manager of the respondent from another nursery took notes. The claimant stated that she wished the investigation to be taken seriously and be fair. The claimant was asked if three staff members were spoken to they would confirm what Ms Gauld had said, and she replied that she hoped they would. Mr Hanekom said that the candidate who had been promoted in February 2023 had more experience, a higher qualification and had been working with the company for longer. The claimant said that they had the same qualifications. Mr Hanekom asked why matters were being raised three years later (although the period of time was of two years). Mr Hanekom asked the claimant why she had worked with the cook on 10 June 2025 if the comments alleged had been said. She said that the cook had had an accident and she required to cut up fruit and vegetables for the children’s lunch. Mr Hanekom asked the claimant why she had not passed matters to Ms Penny or to him. She replied that Ms Gauld stated that Mr Hanekom protected his managers. Mr Hanekom referred to an entry in the claimant’s file which she said she had not seen and had not signed. Mr Hanekom suggested that a message from Ms Gauld had been supportive. The claimant referred to deleted messages by Ms Gauld, and Mr Hanekom stated that this could be because they were sent to the claimant by mistake and maybe they were meant for Ms Gauld’s partner. Mr Hanokem said that he would need a few weeks to fully investigate the grievance. He said that because it was her word against other people’s it would be hard to prove that her grievance points were true.[25]After the hearing Mr Hanekom spoke by telephone to Sarah Davies, Brigitta Borbely and Claire Cameron, staff the claimant said had been present when Ms Gauld made comments, each of whom did not agree that Ms Gauld had said that there was no point in the claimant becoming deputy manager as she was pregnant, or words to that effect. They each signed notes of the telephone conversation that day.[26]Mr Hanekom spoke to Ms Penny but did not record their discussions in writing. She denied the allegations made by the claimant.[27]Mr Hanokem spoke to the cook, and asked him if he had made any inappropriate comments, and he denied that he had done so. Their conversation was not recorded in writing.[28]Mr Hanekom spoke to Ms Gauld, who denied the allegations and did not agree that she had been present when the cook was said to have made inappropriate comments. Mr Hanokem also asked her how matters had come to be where they were, and she was not able to explain that. No written record of the conversation was made.[29]On 25 July 2025 Mr Hanokem emailed the claimant his outcome report and confirmed that her grievance had been not upheld. No substantiating evidence had been found for it. The report referred to the passage of time for some matters, the lack of clarity, the lack of support from other witnesses and related matters.[30]Mr Hanokem did not send the claimant any of records of conversations he had taken or other supporting material he had referred to including rotas, records and correspondence. He said that an appeal required to be made within seven days. Appeal[31]On 13 August 2025 the claimant wrote to Mr Hanokem to appeal the decision. She acknowledged that it was late but said that there were extenuating circumstances.[32]Mr Hanokem replied on 15 August 2025 accepting the appeal late, and said that the claimant would need to agree to a different timeline to accommodate “a third party investigator to re-open this grievance and reexamine the evidence and original grievance submitted.” He referred to not having control over that time-line.[33]The claimant responded to that email on 16 August 2025 and said that she was happy to proceed on that basis. She referred to the subject access request she had made. Mr Hanokem replied that day asking if she wished the meeting after the subject access request had been satisfied. Early Conciliation[34]The claimant commenced Early Conciliation on 15 August 2025.[35]On 3 September 2025 the claimant received the respondent’s response to her subject access request. It did not contain any documentation in relation to the investigation such as statements in writing from the witnesses spoken to.[36]On 15 September 2025 the claimant referred to having received the subject access request documents in an email to Mr Hanokem and stated that she was concerned that significant personal information had been withheld. She made reference to not having received notes or records from the grievance investigation, or of the meeting with Ms Penny on 26 June 2025. That day Mr Hanokem replied and stated “everything you have is everything we still have on file.” She responded questioning that referring to notes of interviews, and witness statements. Mr Hanokem again replied that day to state that” everything was typed up, and all those records were shared with you.”[37]Mr Hanokem did not progress the third party investigator after he was aware that Early Conciliation had been commenced. No appeal process took place, and there was no further communication by the respondent to the claimant about her appeal. Resignation[38]On 30 September 2023 the claimant intimated her resignation on three months’ notice. She said that it was the direct result of the way in which her grievance had been handled. She alleged that the process was not impartial, inaccurate records were left uncorrected and that some records she had requested had not been provided. She alleged that documents had been falsified or destroyed. She stated that in the notice period she would” remain signed off sick”.[39]The claimant tendered fit notes from her GP for the period of notice stating that she was unfit for work due to stress. The respondent paid her statutory sick pay during the notice period.[40]The Certificate for Early Conciliation was issued on 26 September 2025.[41]In around early October 2025 the claimant obtained new employment. She worked for RVH Support Services on a zero hours contract, working about 20 hours per week from around mid October 2025. She did not tell her GP about that role when discussing the issue of further fit notes. She was paid around £1,400 per month net from that employment.[42]The Claim Form was presented on 14 October 2025. Section 7 asking if the claimant had another job was left blank. Financial matters[43]Prior to her period of sick leave the claimant’s gross weekly pay was the equivalent of £595.62. There were deductions for pension of £82.44 per month.[44]Prior to the period of sick leave the claimant’s net pay was £2068.76 per month.[45]The claimant received statutory sick pay of £522.50 gross, £590.06 net after accounting for an overpayment, on 31 October 2025. Payment was made by the respondent.[46]The claimant received a further payment of statutory sick pay of £544.02 net on 30 November 2025. Payment was made by the respondent. The claimant’s submission[47]The claimant in very brief summary argued that there had been a mishandling of her grievance, such that there had been a breach of trust and confidence that amounted to a constructive dismissal. She asked for a finding in her favour. Respondent’s submission[48]Mr Williams, again in very brief summary, argued that the claimant had not discharged the burden of proof that there had been a fundamental breach of contract, that if she had she had affirmed that by claiming for sick pay during the notice period when she was also working for another employer, and that the claim should be dismissed.
The law
[49]There is a right not to be unfairly dismissed provided for in section 94 of the 1996 Act.[50]Section 95 of the 1996 Act defines what a dismissal is and provides, so far as material for this case, as follows: “95 Circumstances in which an employee is dismissed (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.”[51]Section 98 of the 1996 Act addresses the issue of fairness and provides, so far as material for this case, as follows: “98 General(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. …………… (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”………………..[52]The onus of proving such a dismissal where that is denied by the respondent falls on the claimant. From the case of Western Excavating Ltd v Sharp [1978] IRLR 27 followed in subsequent authorities, in order for an employee to be able to claim constructive dismissal, four conditions must be met:(1) There must be a breach of contract by the employer, actual or anticipatory.(2) That breach must be significant, going to the root of the contract, such that it is repudiatory.(3) The employee must leave in response to the breach and not for some other, unconnected reason.(4) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may have acquiesced in the breach.[53]The Inner House considered the issue of a constructive dismissal in Aberdeen City Council v McNeil [2014] IRLR 113, doing so from the perspective of Scots Law. It requires a material breach of contract by the employer, which the employee accepts and terminates the contract as a result by a process known as recission.[54]In every contract of employment there is an implied term derived from Malik v BCCI SA (in liquidation) [1998] AC 20, heard in the House of Lords, which was slightly amended subsequently in Baldwin v Brighton and Hove City Council [2007] IRLR 232. In Leeds Dental Team Ltd v Rose [2014] IRLR 8 it was held that the test was objective: “The test does not require a Tribunal to make a factual finding as to what the actual intention of the employer was; the employer's subjective intention is irrelevant. If the employer acts in such a way, considered objectively, that his conduct is likely to destroy or seriously damage the relationship of trust and confidence, then he is taken to have the objective intention spoken of…”[55]The law relating to constructive dismissals was reviewed in Wright v North Lanarkshire Council [2014] ICR 77. The reasonableness or otherwise of the employer's actions may be evidence as to whether there has been a constructive dismissal, but the test is contractual: Courtaulds Northern Spinning Ltd v Sibson and Transport and General Workers' Union [1988] IRLR 305, Prestwick Circuits Ltd v McAndrew [1990] IRLR 191.[56]In W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516 the EAT held that there was an implied term in the contract of employment that the employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have. Breaches of the employer's internal disciplinary and grievance procedures, at both original and appeal stages, were held to found a constructive dismissal claim in Blackburn v Aldi Stores Ltd [2013] IRLR 846.[57]Where there was a final straw, being a last act in a series of acts that cumulatively lead to repudiation, that last straw must not be entirely trivial – Kaur v Leeds Teaching Hospitals NHS Trust [2018] IRLR 833. The questions that a Tribunal should ask were summarised as follows: “(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? (2) Has he or she affirmed the contract since that act? (3) If not, was that act (or omission) by itself a repudiatory breach of contract? (4) 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?........ (5) Did the employee resign in response (or partly in response) to that breach?”[58]Omilaju is a reference to the Court of Appeal decision in Omilaju v Waltham Forest LBC [2005] IRLR 35. Breach of the implied term as to trust and confidence set out above, where that is held to have occurred, is inevitably a fundamental breach amounting to repudiation - Morrow v Safeway Stores Ltd [2002] IRLR 9.[59]Affirmation arises where the employee continues to be employed notwithstanding a breach of contract. Delay of itself will not amount to affirmation in law, albeit it will often be an important factor: Chindove v William Morrison Supermarkets Ltd UKEAT/0201/13. A reasonable period is allowed which depends upon all the circumstances including the employee's length of service. In G W Stephens & Son v Fish [1989] ICR 324 three months was held not to amount to affirmation. In Chindove a period of sickness absence of six weeks before resigning was held not to amount to affirmation.[60]The position was different in Mari (Colmar) v Reuters Ltd UKEAT/0539/13 in which the claimant, occupying a senior position, was off sick with stress and when she returned claimed that she was given no work commensurate with her position and was badly treated by the employer and fellow employees. She went off sick again, this time for 19 months, at the end of which she resigned and claimed constructive dismissal. She had claimed sick pay for 39 weeks during this period. The employer argued that she had affirmed her contract and the tribunal agreed. Two points should be noted:(1) it was also part of her case that she had been so unwell during this extended period that she was not in a position to make any rational decision, but the tribunal rejected this, which weakened her overall case considerably; and(2) the employer relied on her receipt of sick pay as only one of four factors showing affirmation (the others being her insistence on having access to work email reinstated, her request to be considered for PHI and continuing discussions with the employer about other matters consistent with wishing to return to work).[61]The EAT considered case law, which was on the one hand Bashir v Brillo Manufacturing Co [1979] IRLR 295 where a two-month delay while off sick and claiming sick pay was held not to amount to affirmation; and el-Hoshi v Pizza Express Restaurants Ltd UKEAT/0857/03 in which the employee was off sick with depression for three months after the alleged repudiation, submitting sick notes and receiving sick pay; his claim for constructive dismissal was allowed to proceed as there was no affirmation, the EAT saying that receipt of sick pay is at best a neutral factor which should not prejudice the employee's rights.[62]On the other hand in Fereday v South Staffordshire NHS Primary Care Trust UKEAT/0513/10 it was held that the employee had affirmed after a delay of six weeks while receiving sick pay, it being said that such receipt is not necessarily a neutral factor, depending on the facts and in Hadji v St Luke's Plymouth UKEAT/0095/12 a period of four months between repudiation and resignation, spent on sick leave (but with the employee not receiving sick pay was held to constitute affirmation, in the light of consideration being given by him to possible alternative roles within the organisation, up to the eventual decision to leave.[63]This case law was analysed by the EAT in Mari which upheld the tribunal's decision that the claimant had affirmed and so could not claim constructive dismissal concluding that W E Cox Toner (International) Ltd v Crook [1981] IRLR 443 remains the leading case generally, which has to be applied here as elsewhere; this is the case regardless of the nature of the alleged employer repudiation; Bashir and el-Hoshi are explicable on their particular facts, especially as both concerned relatively short periods of delay while ill; there is no simple rule of law as to whether receipt of sick pay is or is not a neutral factor; and ultimately each case will depend on its own particular facts. The reason[64]If there is held to be a dismissal, there must then be consideration of what the reason, or principal reason, for that dismissal was, and if it was a potentially fair reason under section 98(2), it is for the respondent to prove the reason for a dismissal under section 98(1) and (2) of the Employment Rights Act 1996.[65]In Abernethy v Mott Hay and Anderson [1974] ICR 323, the following guidance was given by Lord Justice Cairns: “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.”[66]These words were approved by the House of Lords in W Devis & Sons Ltd v Atkins [1977] AC 931. In Beatt v Croydon Health Services NHS Trust [2017] IRLR 748, Lord Justice Underhill observed that Lord Justice Cairns’ precise wording was directed to the particular issue before that court, and it may not be perfectly apt in every case. However, he stated that the essential point is that the 'reason' for a dismissal connotes the factor or factors operating on the mind of the decision-maker which caused him or her to take that decision.[67]If the reason proved by the employer is not one that is potentially fair under section 98(2) of the Act, the dismissal is unfair in law. Fairness[68]If the reason for dismissal is one that is potentially fair, the issue of whether it is fair or not is determined under section 98(4) of the 1996 Act which states that it: “(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating [that reason] as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”[69]The issue of whether or not it was fair under section 98(4) also applies to a constructive dismissal: Savoia v Chiltern Herb Farms Ltd [1982] IRLR 166. It is possible, if somewhat unusual, for a dismissal under section 95(1)(c) to be held not to be unfair. Wells v Countrywide Estate Agents t/a Hetheringtons UKEAT/0201/15 is an example of such a case, where it was held that if the employee's demotion for an act of gross misconduct did constitute a constructive dismissal that dismissal was for a potentially fair reason (conduct) and was reasonable in all the circumstances, such that it was not unfair.[70]In regard to questions of fairness the Tribunal should take account of the terms of the ACAS Code of Practice on Disciplinary and Grievance Procedures, so far as relevant.[71]The Tribunal must not substitute its own views for those of the employer. The test is the band of reasonable responses both for the decision being made and what is to be done about it – British Leyland (UK) Ltd v Swift [1981] IRLR 91 and Iceland Frozen Foods Ltd v Jones 1982 IRLR 439 albeit that those authorities are in the context of a dismissal by the employer directly, nor constructively. Nevertheless, the same principle of the band of reasonable responses applies.
Remedy
[72]In the event of a finding of unfair dismissal, the tribunal requires to consider a basic and compensatory award if no order of re-instatement or re-engagement is made (the claimant confirmed when asked that she did not seek either order), which may be made under sections 119, 122 and 123 of the Employment Rights Act 1996, the latter reflecting the losses sustained by the claimant as a result of the dismissal. The basic award is calculated according to age, years of service and the amount of gross pay and may be reduced under section 122. The amount of the compensatory award is determined under section 123 and is “such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”.[73]Guidance on the amount of compensation was given in Norton Tool Co Ltd v Tewson [1972] IRLR 86.[74]There is a duty to take reasonable steps to mitigate loss. The matter was addressed by the EAT sitting in Scotland, referring to the principles under Scots Law, in Hakim v Scottish Trades Unions Congress UKEATS/0047/19. Observations on the evidence[75]The witnesses are addressed in the order in which they gave evidence.[76]The claimant was I considered seeking generally to give honest evidence. She was candid in accepting that she had started a new role when claiming sick pay from the respondent during notice, and had not told her GP that. But in my view that is a serious matter. Her explanation was not wishing to be in breach of contract, and doing what was right for her financially. Firstly, if there was a breach by the employer which was material she could accept that and terminate the contract without giving notice, although she said that she did not know that. Secondly, however she knew about the new role in early October 2025, before presenting the Claim Form, and did not refer to it in the section for that. She was paid both for being off work sick by the respondent, and by her new employer. Those are obviously incompatible. That casts doubt on the reliability of her evidence at least to an extent.[77]Ms Penny was I considered to be a credible and reliable witness. She was I considered most supportive of the claimant when receiving the first email, she set matters out for her at a meeting, and addressed the claimant’s concern over the reference to not a positive outcome. She explained that that was a reference to well being in her reply. It seems to me that the claimant was not told that an option was to resign, as she had claimed, that not being mentioned in the claimant’s email. There was a misunderstanding about what had been said by Ms Penny, which was clarified. Afterwards, the claimant did raise a formal grievance. Where there was a difference between the claimant’s evidence and that of Ms Penny I preferred that of Ms Penny.[78]There is however one other matter. Ms Penny said that she provided a written statement to Mr Hanokem. It was short, of one or two pages, and signed. It was not however before me, and Mr Hanokem did not agree with that evidence.[79]Mr Hanokem was I considered a credible witness, and generally a reliable one. There were however some concerns over some aspects of it. The response to the subject access request he had managed did not provide the three notes of conversations from staff members he had spoken to. He did not do what the 15 July 2025 email to the claimant said that he would, which was allow the witnesses to read the claimant’s grievance related to them. He did not provide any record in writing of the discussion with Ms Penny, the cook, or Ms Gauld. The question to the cook was a very simple one, essentially had he said anything inappropriate. He did not ask Ms Gauld detailed questions about the issues in the grievance. He reviewed documents, but did not send those, or the notes that did exist for three staff members, to the claimant. He, to his credit, accepted the appeal late, then waited for the subject access request to be completed, but when it was did not do anything to progress it. These are all matters that appear to me not to accord with how a grievance procedure would be expected to be conducted, and to be outside the band of reasonable responses to matters.
Discussion
[80]I considered all of the evidence it heard. Did the respondent dismiss the claimant in terms of section 95(1)(c) of the Employment Rights Act 1996 (“the 1996 Act”)?[81]It is, I consider, helpful to re-state that the test is an objective one. Neither the subjective intention of the respondent, nor the subjective perception of the claimant, are determinative. The test has different elements within it, addressed further below.[82]Breach of an implied term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely seriously to damage or to destroy the relationship of trust and confidence between the respondent and claimant, may be a dismissal. For there to be a dismissal requires firstly conduct likely (the relevant term in this context as the Tribunal did not consider that there was any calculation by the respondent) seriously to damage or destroy the relationship of trust and confidence, to paraphrase. If so, there is secondly consideration of whether the employer did or did not have reasonable and proper cause for its acts – if it did, there is no dismissal even if there is a fundamental breach of contract. The other conditions in Sharp then are engaged, which include deciding to leave in response to the breach rather than affirming it, and that being the reason to do so. Breach of the implied term if it occurs is however itself material or repudiatory. (a) Was there a material breach of contract?[83]I have concluded that there was breach of the implied term over how the grievance had been conducted. Mr Hanokem in my view did not come into it with the open mind required. When discussing matters at the grievance hearing he rather argued with her about matters, disputing what she said. He did not seem to understand the full extent of her grievance. For example, he said that she had been promoted to deputy manager, so her claim about that was wrong. But her claim was about not being appointed earlier, in about February 2023 not May of that year. Whilst the claimant had not raised the matter at the time, she did do so in her grievance. He said that the other staff member had higher qualifications but at the meeting and in evidence the claimant said that they had the same qualification.[84]As noted above he did not do what the 15 July 2025 email said he would, which was send the relevant part of the grievance to witnesses. He made a very broad summary indeed of the allegations when speaking to the cook and Ms Gauld. He did not put to either of them the detail of what was alleged. It is not surprising that they would simply deny matters, but without knowing what exactly was alleged the investigation was not likely to lead very far. It was I consider so inadequate as to be outwith the band of reasonable responses.[85]That no records were kept for Ms Penny (as he said, although she said there was and that was not in any event before me), Ms Gauld, and the cook was very surprising, given that there were for three members of staff who were asked about one aspect. There was an obvious inconsistency in that.[86]When the claimant raised these matters with the respondent, particularly after the subject access request did not provide anything of materiality, the respondent did not send her the three staff notes of conversation, and say that other discussions took place but were not noted, but said, wrongly, that the claimant had been given all that there was. That made a bad position worse. At best it was incomplete, and at worst simply untrue.[87]That there was no real step taken to advance the appeal makes that position worse. The claimant on 15 September 2025 did indicate her agreement to proceed, and by then the subject access request issue had been addressed, albeit it seems not adequately at least as the three notes of conversations were not provided. The claimant was alleging that the investigation was not adequate in a number of respects. The procedure indicated a time period of five days. Whilst that had passed for understandable reasons it was I consider not the act of any reasonable employer not to set up the hearing of the appeal in the period up to 30 September 2025.[88]Although the claimant did not use the words of a last straw both in her evidence and submission that was the effect of what she was saying. She invited me to view matters in the round, and doing so in all the circumstances I consider that the claimant has established that there was a material breach of contract by the respondent in how it handled her grievance and appeal. She was entitled to resign. The respondent had seriously damaged or destroyed the relationship of trust and confidence between employer and employee. (b) If so, did the claimant affirm that breach?[89]I then turn to the issue of affirmation. There being a material breach of contract is not sufficient. There are other aspects that must be satisfied as the analysis of the law above sets out.[90]It is not easy to determine affirmation, as the case law which is set out above is not as consistent as it might be. It is why I did not seek to issue an oral judgment. The cases referred to above are all at EAT level. In my view the analysis in Mari is to be preferred. This case must be decided according to its facts. Delay before the resignation took effect is not determinative, nor is the receipt of SSP. All material facts are to be considered.[91]Here, it seems to me that there are two material matters. The first is that the claimant stated both that she was giving three months’ notice, and that she would be claiming sick pay as her fit notes would continue, which was not a matter she could at that stage state with certainty. It was for her GP to issue fit notes, not her. This was a matter over and above the simple giving of notice, and was indicating an intention not to carry out any work but to continue to receive SSP from the respondent.[92]The second is the new role. It started in about mid October 2025. She did not tell the respondent about it. Those acts are not ones of candour. Statutory Sick Pay for a continuing period such as that over the notice period is by its nature something that requires the person to have a fit note showing lack of fitness to work. The fit notes stated that, although the claimant did not inform her GP of the fact that she was working for another employer. The terms of the fit notes were not therefore issued in accordance with all material facts, as the claimant did not disclose them. The whole basis on which she received SSP from the respondent was in my view entirely wrong.[93]The claimant said that she did not appreciate that she could have given immediate termination of the contract, which she could have done because of the principle of recission. I accept that that was honest evidence. In my view however it is not sufficient. It does not explain why she tendered fit notes that were contrary to what she was in fact doing at the time, being for the period after 30 September 2025 when working for another employer. She ought to have known that doing so, claiming SSP when working in such circumstances, was wrong.[94]Had she terminated the contract with immediate effect on 30 September 2025 that would not have led to affirmation, but there was both a long period of time to actual termination because of the giving of notice, and receipt by the claimant of significant sums for SSP from the respondent. There was no evidence before me of a payment for SSP for December 2025, but there was for the preceding two months.[95]It seems to me in all the circumstances that by giving that notice, by tendering fit notes to the respondent stating that she was not fit to work but doing so whilst working for another employer from mid October 2025, for a period therefore of over two months, and for October and November 2025 receiving sick pay from the respondent which she was not in my view entitled to, that does amount in law to her affirming the breach. Putting it another way, she could not both receive SSP from the respondent because she represented by sending fit notes stating that she was not fit for work, when at the same time receiving pay for a different employer.[96]That affirmation means that she was not dismissed within the terms of section 95(1)(c) of the Act. It follows that her claim must be dismissed, and the other matters do not require to be addressed.
Conclusion
[97]I dismiss the claim as the claimant has not established that she was dismissed under the terms of section 95(1)(c) of the Employment Rights Act 1996.