Ms L Lees v Five Star Events Group Ltd: 8002578/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8002578/2025
Between
Ms L LeesClaimantFive Star Events Group LtdRespondent
Before
Employment Judge L WisemanDate 20 April 2026
JUDGMENT
The tribunal decided to dismiss the claim because:-(a) the claim was presented late and a tribunal does not have jurisdiction to determine the claim and(b) if the tribunal did have jurisdiction to determine the claim, there was no fundamental breach of contract entitling the claimant to resign and claim constructive dismissal.
REASONS
[1]The claimant presented a claim to the Employment Tribunal alleging she had been unfairly constructively dismissed.[2]The respondent entered a response in which it denied there had been a breach of the claimant’s contract of employment entitling her to resign.[3]The tribunal heard evidence from Mr Keith Montgomery, previously a major share-holder in the respondent business and who is also the claimant’s brother; the claimant; Mr Edward Driver, Chief Executive Officer of the respondent and Ms Charlotte Kellington, Head of People.[4]The tribunal was referred to a jointly produced folder of documents. The tribunal, on the basis of the evidence before it, made the following material findings of fact. Material findings of fact are those facts which are relevant to the legal issues to be determined by the tribunal. Preliminary Issues[5]The representatives, at the commencement of the hearing, noted the respondent relied on a protected conversation having taken place. The claimant disputed this and relied on improper behaviour at that meeting. It was agreed the tribunal would hear all of the evidence and then make a decision whether the conversation was a protected conversation within the meaning of section 111A Employment Rights Act.[6]A preliminary issue relating to jurisdiction was raised by the respondent’s representative during the course of the hearing. The issue related to timebar. It was accordingly agreed written submissions would be prepared in this case and directions were issued for the preparation and exchange of submissions, and a response to those submissions.
Findings of fact
[7]The respondent is an event manpower business involved in setting up concerts and conferences and providing security.[8]Mr Edward Driver is the Chief Executive Officer of the respondent company. He is based in England.[9]Mr Keith Montgomery had a similar business in Scotland and, in 2018, Mr Driver and Mr Montgomery decided to merge their businesses. This worked very successfully until the end of 2023 when Mr Driver and Mr Montgomery went their separate ways. The negotiations to separate the business were difficult and acrimonious.[10]The claimant commenced employment with the respondent in November 2019. She was employed as part of the Booking team until May 2022 when the title of the role changed to Client Account Executive.[11]The claimant was one of four employees in the office in Scotland. There are several other offices in England and approximately 24 employees in total.[12]The claimant’s line manager for the first year was Mr Montgomery. Thereafter line management responsibility was taken on by Mr Michael Matthews, Director and then Mr George Oram.[13]The respondent introduced a Home and Hybrid Working Policy (page 64) in early 2024: prior to this, it had been included within the Employee Handbook. The claimant signed the Home and Hybrid Working Policy on the 5 March 2024.[14]The Policy makes clear that if an employee wished to work from home or in a hybrid working arrangement, it must be agreed with the line manager. The Policy set out the considerations to be taken into account by the line manager.[15]The claimant had a period of maternity leave in 2021/2022. The claimant was asked by Mr Montgomery to return early from maternity leave and, in order to accommodate this, the claimant requested an amended working pattern of working three days per week (Tuesday, Wednesday and Thursday) with flexibility to leave early to collect her other daughter from school and to either return to work to finish her hours, or to finish them from home. This arrangement was agreed and remained in place for approximately 3 months, following which the claimant returned to working full time.[16]The claimant, when she returned to working full time hours, started to work from home on two days of the week (that is, Wednesday and Friday). All employees in the office in Scotland had an informal arrangement to work from home on two set days per week.[17]This arrangement remained in place until September 2024 when Mr Driver visited the office. Mr Driver travelled to the office and discovered the claimant was the only employee in the office and she had to give him a lift to meet a client because everyone else was either on site or working from home. Mr Driver learned that people in the Scotland office had set days for working from home. Mr Driver told the claimant that fixed working from home days would stop because that was not the policy and was not in the interests of the business.[18]The claimant explained to Mr Driver that she needed to work from home for childcare. Mr Driver advised the claimant he would try to do something to support her and that she should email him with her ideal working pattern.[19]The claimant emailed Mr Driver that day (page 438) and detailed her ideal working pattern as being Monday and Tuesday 9am – 2pm and Wednesday, Thursday and Friday 9am – 5.30pm. (This was a reduction in the claimant’s hours of work of 5 hours per week).[20]Mr Driver replied the following day (page 437) to ask if that request was the same after the discussion they had had regarding working in the office. Mr Driver confirmed there was and had always been flexibility with working from home but that it could not be on set days due to the needs of the business.[21]The claimant replied the same day (page 436) and said she had understood the working from home arrangement that had been in place had been agreed with Mr Matthews and Mr Oram and she also believed Ms Kellington, Head of People, was aware of it. The claimant sent a Flexible Working request (page 441). The request was to work Monday and Tuesday 9am until 2pm in the office; to work Wednesday and Friday 9am until 5.30pm at home and to work Thursday 9am until 5.30pm in the office.[22]Ms Kellington, Head of People, spoke with the claimant on the 26 September to clarify exactly what she was requesting because the suggestions made by the claimant had differed. The claimant confirmed her request was for a reduction in hours to finish work at 2pm on Monday and Tuesday; work from home Wednesday and Friday and to finish at 12 on a Friday. This was to save on childcare costs: the claimant confirmed she collected her eldest child from school on a Wednesday and Friday and had her at home whilst working.[23]The claimant also suggested working Monday, Tuesday and Wednesday until 2pm, with Friday working at home until 12 noon and all day Thursday in the office. The claimant, whilst putting forward these suggestions also made it clear that she did not want to reduce her hours of work.[24]The claimant met with Mr Oram on the 1 October 2024 to discuss the flexible working request. Ms Kellington was also present to take notes, which were produced at page 445. The claimant confirmed that she wanted to work full days in the office on Monday and Thursday; on Tuesday and Wednesday she wanted to leave the office at 2.15, travel during her lunch break to pick up her child from school and log back on at 3.15pm at home. The claimant confirmed that Friday was the most difficult day for her because her child finished school at 12.20.[25]The claimant confirmed that during the periods where she had proposed working at home, she would have sole childcare responsibilities for her eldest child (who was 6). Ms Kellington questioned the viability of this in a situation where the claimant was dealing with a client but had to step away to meet the needs of her child.[26]There was discussion regarding the fact of the need to ensure customer demand was met and work having to be re-organised amongst the existing team when the claimant was not available. Customer requests had to be dealt with within a set time period and additional work would place pressure on staff. Mr Oram confirmed the need to review and consider before a decision was made.[27]A further meeting took place on the 7 October and the notes of that meeting were produced at page 449. The purpose of the meeting was to give the claimant the outcome to her request. Mr Oram confirmed the claimant’s flexible working request had been refused because of an inability to reorganise the claimant’s workload amongst the others in the team, particularly as everyone was already very busy. The hours the claimant would be out of the business would impact on the ability to meet client demands within the set timeframes.[28]Mr Oram stressed the company’s desire to try to find a solution which would work for the claimant and reiterated that working from home was possible, just not on a set days basis. The claimant confirmed her intention to appeal against the decision.[29]The decision to refuse the claimant’s flexible working request was confirmed in writing by letter of the 8 October 2024 (page 470).[30]The claimant intimated her appeal in an email dated 9 October (page 459). The appeal was heard by Mr Michael Matthews, Director, but was not successful.[31]The claimant following Mr Oram’s decision to refuse the flexible working request, spoke to Mr Driver to express how disappointed she was that it had been refused and no other solutions had been put forward. Mr Driver told the claimant he would speak to Mr Oram and he also asked her if she would consider a job share.[32]Mr Driver contacted the claimant approximately a week later and proposed a part time contract. Ms Kellington emailed the claimant on the 10 October 2024 (page 457) to confirm that if she wished to job share, she would work 21 hours per week with full days on a Tuesday and Thursday and a half day on a Wednesday. Ms Kellington confirmed details of pay and holidays.[33]The claimant responded by email later the same day (page 456) thanking Ms Kellington for taking the time to prepare the information and send it to her. The claimant confirmed she was happy to accept the offer based on the information provided.[34]A Statement of Main Terms of Employment was sent to the claimant dated 24 October 2024 (page 475). The claimant commenced on the part time hours on the 4 November 2024.[35]Mr Driver was aware from Mr Matthews, that the claimant’s brother Mr Montgomery had contacted Mr Matthews on the 8 October. Mr Matthews noted the conversation down when reporting this to Mr Driver in an email dated 8 October (page 471). Mr Matthews noted Mr Montgomery mentioned how distressed the claimant was and how upset she was at being bullied. He referred to the claimant having rights to sort out her kids during lunch break; that she had rights for flexibility within her contract and rights to be offered flexibility within her working role. He referred to the meeting with Mr Oram as being unprofessional. Mr Montgomery warned that if any harm came to the claimant then “I know a person within the Scottish Head of Education and I will damage your companies reputation”.[36]Mr Driver was not surprised Mr Montgomery had “waded in”.[37]The year following the separation of the companies and Mr Montgomery leaving the business had been a difficult one. Accordingly, a big party in Bristol was organised for everyone that Christmas. The claimant declined to attend, citing childcare reasons. Mr Driver felt this was not the only reason the claimant declined to attend. Mr Driver believed the claimant was unhappy at work: she was not in the same mindset as previously and others had commented to him about her being “down” and “negative”.[38]Mr Driver, having taken legal advice, decided to arrange a protected conversation with the claimant. Mr Driver and Ms Kellington travelled to Scotland on the 9 January 2025 and Mr Driver made contact with the claimant to arrange to meet that day. The claimant was not told the purpose of the meeting.[39]Mr Driver and Ms Kellington met with the claimant and a note of the meeting was produced at page 494. There was some general discussion before Mr Driver explained the purpose of the meeting was a protected conversation.[40]The claimant was given a period of 10 days to consider the respondent’s proposal and understood the respondent would pay for her to seek legal advice. The claimant’s access to the respondent’s systems was removed during the period of considering the respondent’s proposal and she was not required to work during this period.[41]Ms Kellington emailed the claimant after the discussion (page 495) to confirm that whether the claimant chose to accept the proposal or not, it would have no bearing on any later process or decisions taken by the company. The email also confirmed there was no obligation on the claimant to enter into discussions regarding the proposal.[42]The claimant responded by email of the 28 January (page 497) in which she expressed deep concern regarding the improper handling of the matter, the lack of adherence to legal obligations and the failure to communicate with her directly. The claimant continued to set out communication failings and procedural breaches; an improper meeting and without prejudice letter; breach of contract regarding the removal of set days home working and discrimination and victimisation. The letter concluded by asking the company to engage in direct communications with her and providing a revised settlement offer and threatening legal action by bringing a tribunal claim.[43]Ms Kellington responded the following day (page 501). The letter provided a response to all of the points raised by the claimant, including that the respondent would be open to considering a revised offer if the claimant confirmed what would be agreeable. The letter also confirmed that if the claimant did not want to accept an offer then she should return to work on the 4 February.[44]The claimant, by letter of the 30 January (page 503) responded to Ms Kellington’s points and also confirmed the sum which would be agreeable.[45]Ms Kellington responded on the 31 January (page 506) rejecting the claimant’s proposal but increasing the respondent’s offer. The letter repeated that if no agreement was reached by the 3 February, then the claimant would return to work.[46]The claimant replied on the 31 January (page 507) rejecting the offer made by the respondent. The claimant also noted that she had received a tax underpayment notice from HMRC for the 2023 – 2024 tax year and she asked for an explanation to be provided, together with a breakdown of her PAYE records and payroll history. The claimant also made a Subject Access Request (page 510) and noted that if a settlement was reached she would be willing to withdraw the request.[47]Ms Kellington responded on the 3 February (page 512) confirming the respondent was unable to meet the claimant’s expectations and would “therefore cease any further negotiations regarding this proposal”. The letter went on to say the claimant was due back at work at 9am on Tuesday 4 February. Ms Kellington also confirmed that she would write separately to provide information regarding the PAYE issue. The claimant replied on the 3 February (page 513) to say that her multiple unresolved concerns had to be resolved before she would return to work.[48]Ms Kellington responded on the 3 February (page 516) answering each of the points raised by the claimant. Ms Kellington also confirmed that the issues raised by the claimant would be treated as a grievance and that the respondent had appointed an external investigator to conduct the grievance hearing.[49]The claimant visited her doctor on the 3 February and obtained a Fit Note confirming she was not fit for work in the period 3 February 2025 to 16 February 2025 due to work related stress and anxiety. A further Fit Note was obtained for the 16 February until the 3 March (page 553).[50]Ms Kellington emailed the claimant on the 3 February (page 520) confirming the Subject Access Request dated 31 January 2025 had been received. Ms Kellington confirmed she was seeking further clarification on the information sought under the Request.[51]The claimant responded on the same date (page 521) providing the clarification and confirming she understood the legal deadline for provision of the information was the 28 February.[52]Ms Kellington confirmed in an email dated 4 February (page 522) that the company intended to exercise its right to extend by two months the date for provision of the information.[53]Ms Kellington asked the respondent’s payroll company to provide information to the claimant regarding the HMRC query. An email from that company was sent to the claimant on the 4 February (page 525). A P60 was also sent. Ms Kellington also confirmed to the claimant (page 524) that a P11D had not ever been submitted.[54]The claimant and Ms Kellington continued to exchange emails regarding the HMRC issue and a full breakdown of the claimant’s pay was provided.[55]Ms Kellington offered support and welfare support to the claimant during her absence. The Employee Support Programme was noted and Ms Kellington phoned the claimant several times.[56]The claimant resigned by letter of the 11 April 2025 (page 591). The claimant, in the letter, stated she was formally resigning her position and giving one month’s notice: her final working day would be Friday 9 May 2025. The reason for the resignation was a fundamental breakdown in the employment relationship, particularly relating to a series of incidents that had undermined her trust and confidence in the organisation. In particular the claimant referred to the failure to respond to the SAR which she believed was due by the 3 April 2025. This failure compounded previous concerns that she had raised and demonstrated a continued disregard for her rights as an employee. The claimant considered this to be a final and serious breach of contract.[57]Ms Kellington acknowledged receipt of the claimant’s resignation (page 593). Ms Kellington went on to say that the timescale for the SAR was the 3 May 2025. Ms Kellington also confirmed that the claimant’s last working day was the 16 May in line with the 5 week notice period in the contract of employment.[58]The respondent complied with the SAR on the 2 May (page 595).[59]The claimant commenced alternative employment on the 12 May 2025. This was a part time position and this employment ended in November 2025. The claimant started alternative employment on the 1 December 2025 and remains in that position. The claimant is working 22 hours per week at the rate of £15 per hour. She earns £330 gross per week, giving a net take home pay of £297.84. Credibility and notes on the evidence[60]The claimant’s case was that following her return to work after her maternity leave, she had enjoyed flexibility in terms of leaving work to pick up her daughter from school and then working two days per week from home on a Wednesday and Friday. The claimant believed this arrangement was known by Mr Oram and Mr Matthews and Ms Kellington.[61]The claimant’s happiness at work was influenced by two factors: firstly, when Mr Montgomery left the business, the claimant felt people went silent when she walked into a room; and secondly, when Mr Driver stated that set working from home days were not permitted. The claimant felt the onus had been on her to come up with a solution to not having set days for working at home.[62]The claimant was critical of the way in which the protected conversation was dealt with and insisted she had not known or understood what was happening, and asserted the focus of the conversation had been on Mr Driver’s relationship with Mr Montgomery. The claimant thought that after this meeting, she was only to contact the respondent through a solicitor. She also felt that she was not supported when she went off sick.[63]The tribunal found the claimant’s evidence lacked credibility on occasion and this was primarily due to the fact that her oral evidence conflicted with the contemporaneous documents, and in particular her own emails and the notes of the various meetings which she had had an opportunity to approve. An example of this was in relation to the contract the claimant signed for working part time hours. The claimant, in her evidence to the tribunal, stated she had felt pressured to accept part time hours, however in her emailed response to Ms Kellington she stated she was “happy” with this, and indeed worked under the terms of that contract from the 1st November until the end of her employment.[64]The tribunal also considered the claimant’s evidence was confused at points. For example, the claimant put forward various proposals regarding her working hours and included in those proposals a reduction to her working hours. However, the claimant also insisted that she did not want to reduce her working hours. The confusion caused by these contradictory statements was highlighted by the fact Ms Kellington had to contact the claimant following receipt of the flexible working request to try to clarify what it was the claimant was asking for.[65]The tribunal did not find the claimant’s evidence regarding making the SAR to be credible for two reasons: first, the claimant’s explanation for making the SAR was that she wanted to know how they’d got to the 9 January. The tribunal found that explanation lacked credibility in circumstances where the SAR was extensive and sought information far outwith that stated objective.[66]Second, the claimant was, at the time of making the request, engaged in further negotiations with the respondent regarding their proposal. The claimant denied she used the SAR as leverage in those negotiations. The tribunal did not find this aspect of the claimant’s evidence to be credible because it was clear from the terms of the correspondence that the claimant was using the SAR as leverage in the negotiating process: it was, for example, made clear that the claimant would be willing to withdraw the SAR should a full and fair settlement be reached.[67]The tribunal concluded the claimant’s motivation for making the SAR was not only to try to influence the negotiations, but was also linked to the bringing of this claim rather than wanting to obtain the information requested.[68]The tribunal did not find Mr Montgomery to be an entirely credible or reliable witness. It was evident that when he and Mr Driver parted company, there was ill-feeling on Mr Montgomery’s part and this tainted Mr Montgomery’s evidence. The fact Mr Montgomery contacted Mr Matthews regarding the claimant’s situation and made the threat noted, demonstrated not only his illfeeling, but also the fact that his behaviour created an uncomfortable environment for the claimant.[69]The tribunal found Mr Driver to be a credible and reliable witness and his evidence was not tainted by any ill-feeling towards Mr Montgomery. He gave his evidence in a straightforward manner and answered all questions put to him in cross examination reasonably. Mr Driver did, on occasion, question the relevance of some of the questions put to him in cross examination, but this was not done in a hostile manner and, when directed to answer the question, he did so.[70]One of the key questions put to Mr Driver was that following the departure of Mr Montgomery, Mr Driver had looked for an excuse to manage the claimant out of the business. Mr Driver responded to this question by stating “absolutely not”. He confirmed the claimant had performed well in her job and he only arranged to have a protected conversation when it became clear the claimant was not happy at work following the refusal of the flexible working request. The tribunal accepted Mr Driver’s evidence regarding this matter. I formed no impression that there had been any desire on Mr Driver’s part to manage the claimant out of the business. I considered I was supported in that view by the fact that the claimant was happy at work following the departure of Mr Montgomery, and Mr Driver was happy with her performance: there were no issues between them and no issues impacting on the employment relationship until the refusal of the flexible working request.[71]The tribunal found Ms Kellington to be a credible and reliable witness and I accepted the notes of the various meetings which had been produced by Ms Kellington had been an accurate summary of the meeting. I considered that if the claimant had not accepted the notes, she would have made this clear.[72]One of the key disputes between the parties was whether Mr Driver, Ms Kellington, Mr Oram and Mr Matthews knew of the employees in Scotland working two set days per week from home. I preferred the evidence of Mr Driver and Ms Kellington that they, and Mr Oram and Mr Matthews, had not known of this. I did not doubt they knew of home working on occasion, because this flexibility existed for all employees across the business. The issue was the set days every week and I was satisfied they did not know of this: it was not in line with the policy (Home and Hybrid Working policy or, prior to that, the Handbook) or the working practices in the business generally. I considered I was supported in that conclusion by the fact the claimant referred to the arrangement as an “informal arrangement”. Claimant’s submissions[73]Mr MacDougall submitted there were two competing narratives in this case: on the one hand, the respondent’s position was that the claimant chose to resign following her unsuccessful flexible working request; on the other hand, the claimant’s position was that she resigned as a result of a campaign to manage her out of the business instigated by Mr Driver because of an acrimonious parting of the ways with her brother. Mr MacDougall accepted only one of those positions could be correct and that it would largely be determinative of this claim.[74]Mr MacDougall invited the tribunal to find the claimant a credible witness and to find Mr Driver had been defensive, confrontational and that he had sought to downplay the animosity between himself and Mr Montgomery, which had been the real reason for managing the claimant out of the business. Mr MacDougall invited the tribunal to find Mr Driver had been angry following upon his arrival in the office on the 23 September and finding the claimant to be the only person in the office. He had decided to punish all employees by removing the set working from home days and this had been the start of the campaign to manage the claimant out of the business.[75]Mr MacDougall’s submissions regarding the alleged acts leading to the claimant’s resignation are dealt with below. Mr MacDougall conceded that having heard the evidence, the claimant no longer asserted there had been a failure to provide PAYE records and no longer asserted there had been a failure to provide care calls when she was off sick.[76]Mr MacDougall submitted there had not been a protected conversation on the 9 January because of improper conduct in the calling and conduct of that meeting. The claimant had not been given notice of the meeting and had not been allowed to be accompanied to the meeting: this had been a deliberate move by Mr Driver to put pressure on the claimant.[77]Mr MacDougall submitted the claimant had resigned giving one month’s notice. She identified the effective date of termination of employment as being the 9 May 2025. The respondent wrote to the claimant to say that date was incorrect and that it was the 16 May. It was submitted that the respondent, having identified the date as the 16 May, could not now go back on that position and seek to rely on the claimant’s error.[78]The tribunal was invited to find for the claimant and make an award of compensation according to the schedule of loss.[79]The remaining submissions made by Mr MacDougall are dealt with below. Respondent’s submissions[80]Mr Hayward submitted the tribunal had no jurisdiction to determine the claim in circumstances where it had been presented late. The claimant resigned on the 11 April 2025, giving one month’s notice and stating the final working day would be the 9 May 2025. The claim was presented on the 24 October 2025: early conciliation started on the 13 August and this was more than three months after the end of employment on the 9 May 2025. Mr Hayward acknowledged the respondent had written to the claimant to suggest that in fact employment would end on the 16 May, but the claimant did not respond to that letter. In the circumstances it was submitted the claimant had clearly intimated the end of her employment would be the 9 May and this fitted with the fact she commenced new employment on the 12 May. The claim was timebarred.[81]The respondent relied on their being a protected conversation on the 9 January 2025 in terms of section 111A Employment Rights Act. The claimant sought to challenge this on the basis there had been improper behaviour because there had been no notice of the meeting, she had not been permitted a representative and the notes of the meeting did not accurately reflect what had happened. Mr Hayward submitted there was no requirement for notice of the meeting to be given and in fact, the claimant had been contacted by Mr Driver on the morning of the meeting and informed a meeting would be taking place. He also made reference to the ACAS Code of Practice which made clear there was no requirement for an employee to be accompanied at such a meeting. Mr Hayward submitted the claimant had participated in the meeting and there was no suggestion she had called for the meeting to be stopped. Mr Hayward invited the tribunal to find there was a protected conversation on the 9 January and that the claimant would not rely on points 2(c) and (d) as set out in the List of Issues.[82]Mr Hayward invited the tribunal to prefer the evidence of Mr Driver and Ms Kellington and to find there had not been a breach of contract entitling the claimant to resign. It was submitted, with regards to the SAR, that this could not be a last straw because it was extraneous to the employment relationship and did not form part of a course of conduct. Further, the claimant’s position that she resigned in response to the respondent’s failure to provide the information requested was undermined by the fact the claimant was looking for alternative work in late March, prior to the SAR being made.[83]The further submissions are addressed below. Discussion and Decision Preliminary Issue-timebar[84]The tribunal had regard to the terms of section 111 Employment Rights Act (ERA) which provides that a complaint may be presented to an employment tribunal by any person that he was unfairly dismissed by the employer. An employment tribunal shall not consider a complaint unless it is presented before the end of the period of three months beginning with the effective date of termination. In section 97 ERA the effective date of termination is defined, in relation to an employee whose contract of employment is terminated by notice, whether given by the employer or employee, as meaning the date on which the notice expires.[85]The tribunal next had regard to the contract of employment (page 475), which provided at clause 10, that “… your employment will continue until you give the company one month’s written notice to terminate or the company gives you one month for under 2 years continuous service and thereafter 1 week for each full year of service up to a maximum of 12 weeks”.[86]The tribunal considered the contract of employment made clear that the claimant was required to give one month’s written notice of termination.[87]There was no dispute regarding the fact the claimant wrote to the respondent on the 11 April 2025 (page 591) to confirm she was formally resigning from her position and “giving one month’s notice in accordance with my contract. My final working day will therefore be Friday 9th May 2025”.[88]The tribunal, having regard to the terms of section 97 ERA, concluded the date of termination of employment was the date on which the notice expired – that is, the 9 May 2025.[89]The tribunal next had regard to the fact the respondent acknowledged the claimant’s letter on the 14th April (page 593) and in the last paragraph stated “To confirm, your last working day is Friday 16th May 2025 in line with your 5 week notice period in your contract of employment.” The claimant did not reply to the respondent’s letter.[90]The tribunal could not accept the claimant’s submission that either the claimant had erred in giving the 9th May as the date of termination, or that the letter from the respondent was sufficient to vary the effective date of termination. The tribunal acknowledged a date of termination may be varied, but this is where it is done with the agreement of both parties: it cannot be unilaterally asserted (Horwood v Lincolnshire County Council UKEAT/0463/11). The claimant did not agree to vary the date of termination. There was nothing to suggest the respondent could, simply by writing to the claimant, vary the effective date of termination (particularly in circumstances where the claimant was not required to give 5 weeks’ notice of termination).[91]The tribunal decided, for these reasons, that the claimant had, in terms of her contract, to give one month’s notice of termination of contract: she did that on the 11th April, confirming the period of notice would expire on the 9th May. The claimant did not agree to the respondent’s suggestion that her last day of employment would be the 16th May. There was no variation of the effective date of termination. The effective date of termination of employment was the 9 May 2025.[92]The claimant had a period of three months less one day in which to present a claim or initiate early conciliation at ACAS. The claimant did not commence early conciliation until the 13 August. The time limit for doing so had already expired. The tribunal decided the claim had been presented late. No arguments were advanced regarding reasonable practicability: accordingly, the tribunal decided the claim had been presented late and the tribunal has no jurisdiction to hear it. (I should state that for the sake of completeness and should the tribunal have erred in its conclusion on timebar, that it did proceed to consider and determine the claim). Preliminary Issue – protected conversation[93]The respondent asserted the discussion which had taken place between Mr Driver and the claimant on the 9 January 2025 had been a protected conversation in terms of section 111A Employment Rights Act. The claimant challenged this on the basis that any protection had been lost because of improper behaviour arising from the calling and conduct of the meeting and in particular suggesting the claimant must leave the company and pressurising her to accept settlement.[94]The parties agreed the issues for the tribunal to determine were(i) was there improper conduct in terms of section 111A(4) ERA and(ii) if so, to what extent should that evidence lose its’ inadmissible status.[95]The tribunal firstly had regard to the terms of section 111A Employment Rights Act which provides that evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint of unfair dismissal. “Pre termination negotiations” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and employee. It is also provided at section 111A(4) that in relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.[96]The claimant sought to have the protection afforded by section 111A ERA set aside because she alleged there had been improper behaviour arising from the calling and conduct of the meeting and the suggestion the claimant must leave the company and pressuring her to accept settlement. The tribunal noted there was no dispute regarding the fact the claimant had been given notice of the meeting insofar as Mr Driver contacted her on his way to Scotland to advise her there was going to be a meeting (he did not inform the claimant of the purpose of the meeting). The tribunal acknowledged the length of notice may have been short, but it was not correct to say the claimant had not been given notice of the meeting.[97]The claimant also argued she had not been permitted to have a representative at the meeting. The tribunal, having had regard to the ACAS Code, noted there is no requirement that employees be accompanied to such meetings. The tribunal concluded the fact the respondent had not permitted the claimant to have a representative present did not amount to improper conduct.[98]The tribunal next had regard to the claimant’s position that there had been a suggestion she should leave the company. The tribunal did not consider any suggestion of leaving the company was improper behaviour in circumstances where the whole purpose of a protected discussion is to facilitate open discussion between the employer and employee where the relationship is not working out for one or both parties, all with a view to the employee leaving the company.[99]The tribunal next noted there was no reference during the claimant’s evidence to the tribunal that she had been pressured to accept settlement. The tribunal accepted the claimant had willingly confirmed Mr Driver should provide her with the details of the offer/proposal and had thereafter actively engaged in a negotiation process with a view to reaching settlement.[100]The tribunal also noted, having had regard to the evidence of Mr Driver and Ms Kellington, together with contemporaneous documentation, that there was no suggestion of pressure on the claimant to accept settlement. Indeed, the correspondence from Ms Kellington (page 495) made clear to the claimant that “there is no obligation for you to enter into discussions with me in relation to the proposal. Whether you choose to do so or not, please also note that any response to this letter, and any correspondence or discussions which may follow will have no bearing on any later formal processes or on decisions taken by the organisation in the event that we are unable to reach an agreement”.[101]Ms Kellington also made clear to the claimant when the respondent was no longer willing to engage in negotiations and that she was to return to work. The tribunal considered none of this supported the claimant’s position.[102]The tribunal also had regard to the fact the respondent made reference to seeking legal advice and gave the claimant a reasonable amount of time in which to seek that advice. The claimant was provided with the names of some solicitors to contact (if she wished to do so) and work/access to systems was removed (initially) for the period during which the offer was being considered and legal advice being sought.[103]The tribunal acknowledged the claimant may not have liked the fact the meeting took place, but concluded for the above reasons that there was no improper behaviour on the part of the respondent. The discussions on the 9 January were a protected conversation and cannot be referred to in these proceedings.[104]The tribunal also accepted Mr Hayward’s submission that the issue of the claimant’s access to computer systems and communications of the respondent being withdrawn was also part of the protected conversation and therefore could not be referred to in these proceedings. Dismissal[105]The tribunal firstly had regard to the terms of section 95(1)(c) Employment Rights Act which provides that an employee is dismissed by his employer if 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.[106]In a constructive dismissal claim, the employee must establish that:-• there was a fundamental breach of contract on the part of the employer;• the employer’s breach caused the employee to resign and• the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.[107]The claimant relied on the “last straw” doctrine and asserted there had been a fundamental breach of the implied term of trust and confidence when the respondent:-(a) revoked the claimant’s flexible working arrangement without justification (on or about 23 September 2024);(b) pressurised the claimant to accept part time hours and dismissed her concerns (on or about 9 October 2024);(c) suggested, in a protected conversation on the 9 January 2025, that the claimant must leave the company and pressured her to accept settlement;(d) excluded the claimant from the computer system and communications of the respondent (from 9 January 2025) and ignored her requests for access to be reinstated;(e) failed to provide PAYE records of the claimant when she requested them on or about 31 January 2025;(f) extended the time for compliance with the SAR made by the claimant on the 31 January 2025, and failed to update the claimant on the status of her request and(g) failed to make any care calls or offers of support after the claimant was signed off sick on the 3 February 2025.[108]The tribunal noted that Mr MacDougall had, in his submissions, conceded that having heard the evidence, points (e) and (g) were no longer relied on. In addition to this, the tribunal (above) decided the conversation on the 9 January was a protected conversation and cannot be referred to in these proceedings. Accordingly, points (c) and (d) above can no longer be relied on. This means that the claimant, in asserting there had been a breach of the implied term of trust and confidence, relied on points (a), (b) and (f) only.[109]The tribunal had regard to the case of Courtaulds Northern Textiles Ltd v Andrew 1979 IRLR 84 where it was said that it would be a fundamental breach of contract for the employer, without reasonable and proper cause, to conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties.[110]In Woods v WM Car Services (Peterborough) Ltd 1981 ICR 666 it was said that the tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.[111]The House of Lords, in the case of Malik v Bank of Credit and Commerce SA (in compulsory liquidation) 1997 ICR 606, held that the questions to be determined by a tribunal are(i) was there reasonable and proper cause for the conduct and(ii) if not, was the conduct calculated or likely to destroy or seriously damage the trust and confidence between the parties.[112]The tribunal also had regard to the cases of Lewis v Motorworld Garages Ltd 1986 ICR 157 and Omilaju v Waltham Forest London Borough Council 2005 ICR 481 where the Court of Appeal firstly held that a breach of the implied term of trust and confidence may consist of a series of actions on the part of the employer that cumulatively amount to a repudiation of the contract. The last straw does not of itself have to amount to a breach of contract. In the later case, it was said that the last straw does not have to be of the same character as the earlier acts, and nor does it necessarily have to constitute unreasonable or blameworthy conduct. It must, however, contribute, however slightly to the breach of the implied term. An entirely innocuous act on the part of the respondent cannot be a final straw.[113]The tribunal had regard to the cases of Wright v North Ayrshire Council 2014 ICR 77 regarding the issue of whether the repudiatory breach played a part in the dismissal; the case of Chindove v William Morrison Supermarkets plc UKEAT/0201/13 regarding the issue of affirmation and the case of Kaur v Leeds Teaching Hospital NHS Trust 2018 IRLR 883 regarding the approach to be taken by tribunals in last straw cases.[114]The tribunal decided firstly to consider whether the claimant had established there was a fundamental breach of contract by the respondent and I considered each of the alleged acts relied upon by the claimant as set out above. The first of those alleged acts was that on or about 23 September 2024 the respondent revoked the claimant’s flexible working arrangement without justification. The tribunal noted there was no dispute regarding the fact the claimant (and all other employees based in Scotland) had been working from home on two set days each week, and there was no dispute regarding the fact Mr Driver, on or about the 23 September, told the claimant – and all other employees based in Scotland – that working set days from home had to stop.[115]The claimant argued there was no justification for this and that Mr Driver had been angry to find she was the only one in the office on the 23 September, and because of that he had decided to punish the staff by removing set days for home working. It was submitted that Mr Driver saw an opportunity regarding the claimant and that this was the genesis of the campaign to manage the claimant out of the business. It was further submitted that Mr Driver’s evidence regarding the events of the 23 September was not credible and had been undermined by the evidence of Ms Kellington.[116]The tribunal addressed each of these points. The tribunal could not accept the submission that Mr Driver’s evidence had not been credible. Mr MacDougall, in his submission, referred to Mr Driver’s explanation that he decided to stop set days for home working because it was “evidently not good for business”. He contrasted this evidence with Ms Kellington’s reference in her evidence to “the incident that took place”. It was suggested that Ms Kellington’s response had undermined Mr Driver’s evidence. The tribunal could not accept that submission. Mr Driver explained what had happened on the 23 September regarding his travel arrangements and acknowledged it had all “put [him] on the back foot for a meeting with a client”. The tribunal acknowledged there would have been a degree of frustration caused by the catalogue of events which had occurred during Mr Driver’s journey and which would have been compounded by arriving in the office to find only the claimant present. However, the tribunal understood Mr Driver’s position that all of this “proved ..set days did not work for the business” related to the fact a meeting with an important client had been put at risk. The tribunal further understood that the essential issue was that whilst the respondent endeavoured to provide flexibility, it had to be in keeping with the needs of the business and this was a clear example where it was not in the interests of the business.[117]The tribunal could not accept the suggestion that the removal of set working from home days was a punishment: rather, it was bringing the employees in Scotland back in line with the employees in other offices and in line with the respondent’s policy.[118]The tribunal could also not accept the suggestion that Mr Driver saw this as an opportunity to start to manage the claimant out of the business. I say that for two reasons: first, Mr Montgomery left the business in late December 2023 and the suggestion that Mr Driver wanted the claimant out of the business, but waited nine months to action that, made no sense whatsoever. Second, Mr Driver was happy with the claimant’s work and performance: he had no issue with the claimant and there was no suggestion of any risk to the business by having the claimant continue to work there after Mr Montgomery had departed. The issues between Mr Driver and the claimant were not caused by the breakdown in the relationship between Mr Driver and Mr Montgomery, but rather by the refusal of the claimant’s flexible working request and her subsequent unhappiness at work.[119]The tribunal next considered whether there was justification for Mr Driver’s decision and I had regard to the evidence of Mr Driver. The tribunal accepted that Mr Driver had been unaware of the practice in the Scottish office. The tribunal also accepted that the claimant’s line manager, Mr Oram; his line manager, Mr Matthews and the Head of People, Ms Kellington, were also unaware that employees in Scotland were working from home on set days each week.[120]The practice of working from home on set days each week was not in line with the respondent’s flexible working arrangements. The respondent’s Home and Hybrid Working policy was not introduced until March 2024, but prior to this it had been included in the Employee Handbook. The tribunal accepted the respondent endeavoured to accommodate flexibility/home working where possible, but an application had to be made and approved by the line manager for such occasions. The respondent’s policy set out the points to be considered by the line-manager when responding to such a request.[121]The tribunal concluded, having had regard to the above points, that it could not accept the claimant’s assertion that the arrangement had been revoked without justification. The tribunal was satisfied there was justification for the revocation of the informal arrangement, and that justification was because management had no knowledge of the informal arrangement; the arrangement was not in line with the respondent’s policy; it was not in line with what happened in other offices and the lack of flexibility resulting from set working from home days impacted on the interests of the business.[122]The claimant, in the submissions, argued the respondent knew of the claimant’s childcare responsibilities and, to revoke the arrangement, in those circumstances, was not justified. The tribunal could not accept that submission for the reasons which are set out above and, in particular, because it was an informal arrangement which was not known by management and not agreed to by them. The tribunal considered the subsequent procedure of the claimant making a flexible working request for a permanent change to her contract, was the correct procedure and allowed both sides to put forward their points and have them considered.[123]The second point relied on by the claimant was that on or about the 9th October 2024, the respondent pressurised her to accept part time hours and dismissed her concerns. The tribunal accepted the claimant was unhappy her flexible working request was refused. The tribunal also accepted that a number of options were discussed with the claimant but none were suitable to her. There was no dispute the claimant contacted Mr Driver to see if anything could be done. He spoke to Mr Oram and thereafter a job share (or part time work) was proposed. Ms Kellington sent an email to the claimant with details regarding the hours and days of work, pay and holidays. The claimant responded to that to thank Ms Kellington for taking the time to prepare the information and stated she was “happy to accept” it. The claimant signed a contract for the part time position and commenced it on the 1st November 2024.[124]The tribunal accepted that ideally the claimant had wanted to continue to work two days per week at home. There was however an inconsistency in the claimant’s position throughout these discussions because the claimant on the one hand proposed a reduction to her hours of work, but on the other hand, maintained that she did not want to reduce her hours.[125]The tribunal did not find the claimant was pressured to accept part time hours. I say this because the claimant could have rejected the proposal or sought to negotiate working more hours on days that suited her. The claimant had, throughout the discussions, demonstrated she was more than able to set out what she wanted and to reject proposals that did not suit her needs. The respondent did not place the claimant in the position of having to accept the part time contract, or leaving: there was scope for negotiation.[126]The claimant also argued that the respondent had dismissed her concerns. The tribunal could not accept this. The claimant’s concerns were very clearly advanced by her and were considered by Mr Oram at the flexible working consultation meeting and by Mr Driver when he intervened to try to find a resolution.[127]The third allegation relied on by the claimant was that the respondent suggested, in a protected conversation on the 9 January 2025, that the claimant must leave the company and pressured her to accept settlement. The tribunal decided above that the discussions which took place on the 9 January were part of a protected conversation and cannot be referred to in these proceedings. (The tribunal in any event concluded, above, that no pressure had been placed on the claimant in circumstances where Ms Kellington had made clear there was no onus on the claimant to enter into discussions and had also made clear that if negotiations were not successful, the claimant was to return to work.)[128]The fourth allegation was that the respondent excluded the claimant from the computer system and communications of the respondent (from 9 January 2025) and ignored her requests for access to be reinstated. The tribunal decided, above, that this was part of the protected discussion which took place on the 9 January, and the subsequent negotiations, and cannot be referred to in these proceedings.[129]The claimant asserted her requests for access to be reinstated were ignored. The tribunal found the only occasion when the issue of access only arose was when Ms Kellington instructed the claimant to return to work on the 4 February. The claimant responded to advise she would not return to work until her access was restored. Ms Kellington replied to confirm access would be restored on the 4 February when the claimant returned to work. The tribunal concluded on the basis of the documentary evidence that if the claimant’s statement that she could not return to work until access was restored, was a request for access to be restored, then it was not ignored in circumstances where Ms Kellington confirmed access would be restored when the claimant returned to work.[130]The sixth allegation was that the respondent extended the time for compliance with the SAR made by the claimant on the 31 January 2025, and failed to update the claimant on the status of her request. There was no dispute regarding the fact the claimant, by email of Friday 31 January (page 510) made a Subject Access Request (SAR) seeking disclosure of a significant volume of information. The claimant stated she expected a full response within one month, that is, by 28 February 2025.[131]Ms Kellington responded to the claimant on Monday 3 February (page 520) to confirm the SAR had been received but further clarity was required in order to properly respond to the request.[132]The claimant responded the same day to say the request had been sufficiently clear and she reiterated that she wished written confirmation that her request was being processed in full and that she would receive all requested data within the legally mandated timeframe.[133]Ms Kellington responded the following day (page 522) to confirm the company would comply with its legal obligations within the timeframe specified. Ms Kellington further confirmed that due to the scope of the request and volume of data, they may exercise the right to extend by a further two months due to the complexity of the request. Ms Kellington confirmed the claimant would be notified of this within one calendar month of the SAR.[134]Ms Kellington wrote to the claimant on the 24 February (page 579) to confirm that given the complexities of the request, the company was exercising the right to an extension of time of up to two months from the date of the original request.[135]The tribunal having had regard to the above evidence, found the respondent did update the claimant on the status of her request and did confirm that they were exercising the right to an extension of time of up to two months and they provided the reason for this.[136]The claimant sought to argue there had been a breach of the implied term of trust and confidence consisting of a series of actions on the part of the respondent that cumulatively amounted to a repudiation of the contract. In the Malik case (above) it was said that the questions for the tribunal to ask were:(i) was there reasonable and proper cause for the conduct and(ii) if not, was the conduct calculated or likely to destroy or seriously damage the relationship of trust and confidence between the claimant and the employer.[137]The tribunal, having regard to the points set out above in respect of each of the acts alleged by the claimant, was satisfied that the respondent had reasonable and proper cause to act as it did. I say that because of the conclusion that the respondent was justified in revoking the informal arrangement of working from home on set days; the respondent did not pressure the claimant into accepting a part time contract and the respondent was entitled to extend the time for compliance with the SAR and did update the claimant regarding the status of her request.[138]The tribunal decided that the respondent, having reasonable and proper cause for its conduct, did not breach the contract of employment of the claimant. The claimant has failed to show there was a fundamental breach of contract entitling her to resign and, for that reason, the claim is dismissed.[139]The tribunal did note that the last straw detailed by the claimant in her evidence, differed from the last straw set out on the List of Issues. The claimant, in her evidence, stated the last straw had been the fact the respondent did not reply to the SAR by the 3rd April, which she believed was the date for compliance, and that they had deliberately delayed. The tribunal did not accept that the date for compliance with the SAR was the 3rd April, but accepted that the claimant believed that was the date.[140]The tribunal, having had regard to the case of Lochuack v London Borough of Sutton EAT 0197/14, noted that if some of the alleged incidents are found not to have occurred, a tribunal must have regard to those which it found did occur and ask objectively whether, in the particular context of the case, they amounted to a breach of contract and whether that breach was so serious as to be repudiatory.[141]The tribunal, having found that the respondent was justified in revoking set working from home days and that the respondent did not pressure the claimant to accept a part time contract, concluded the only incident which did occur was the fact the respondent did not comply with the SAR by the 3rd April. The tribunal accordingly asked whether that amounted to a breach of contract. The tribunal concluded it did not and it reached that conclusion because there was no onus on the respondent to reply to the SAR by the 3 April. The respondent’s email to the claimant on the 3 February had the effect of starting the initial time limit of one month. This meant compliance had to be by the 3 March. The respondent exercised its right to two month extension and therefore compliance had to be by the 3 May. The respondent complied with that time limit. There was no breach of contract in this respect.[142]The tribunal, in conclusion, decided to dismiss the claim.