The claimant was employed by the respondent as a Home Support Assistant in 2014 and was subsequently promoted on a number of occasions becoming the Chief Executive Officer in April 2017.   She resigned from her employment with immediate effect in August 2019.

The respondent is governed by a Board of Trustees.  There is a policy document from 2009 which outlines the detail of the relationship between the Trustees and the CEO.  This policy document outlined the general role of the CEO in terms of day-to-day activities and included the term that the CEO should carry out regular staff reviews, deal with performance issues and consult with the trustees to ensure that employment law obligations are met.  There were a number of incidents relied upon by the claimant in support of her resignation and how there had been a breach of the fundamental terms.

The first incident was in April 2018.  The claimant said she had witnessed what could constitute bullying and sought to take action, outlining that disciplinary proceedings were likely.   When she sought to intervene in this way she was told by one individual to ‘shove your job up your arse’.  The claimant took advice and wrote to the individual confirming that it was accepted to be her resignation and the matter was reported to the Trustees.   The Trustees took no action and they had received a letter from the individual complaining.  The claimant was never made aware of this.

The second incident involved an employee who had lied about owning a car to take on a Home Support role and the pay she would receive when she was off.  The claimant stated that it would be SSP.  The employee put in a complaint about the claimant to the Trustees.    The Trustees said the complaint was baseless but provided full pay as a ‘one off’.  The claimant felt her concerns were disregarded.

The third and final incident occurred in July 2019.   This involved an employee who was hostile towards the claimant so much so that four other members of staff all raised complaints about it.   The claimant sought advice from HR and the advice was to dismiss, especially as she did not have sufficient service to bring an unfair dismissal claim.  She sought advice from the Trustees who stated it was a ‘managerial decision’.  When the claimant started the contractual disciplinary process, this included the employee being suspended.  However, the Trustees met with HR separately and then decided to allow the employee to return to work.    The claimant felt humiliated and was shocked by the decision.  As a result, the claimant resigned, stating that it was a notice of resignation as well as a grievance.  The respondent never discussed the matter and never asked her to reconsider the resignation.

The Tribunal held that the claimant had clearly resigned as a response to a breach of the implied term of trust and confidence.  The question was whether the repudiatory breach played a part in the dismissal but they stated that it need not be the predominant or major cause but must be the effective cause.  It was found that it was the effective cause and went beyond that with the Tribunal finding that it was the major cause.  The respondent argued that the reason for dismissal was misconduct but it was never advanced in any pleadings or asserted in the evidence heard by the Tribunal.  As a result, the claimant was successful in the constructive dismissal claim and her compensatory award included 6 months' loss of future earnings.  Interestingly, the claimant sought a 25% uplift as a result of the failure to process the grievance, but this was unsuccessful, considering that the grievance was issued after the claimant had resigned.

Practical Lessons

This case demonstrates the need for an open manner of communication when it comes to the management of a business/charity.   The primary difficulty was the lack of clarity from the Trustees and the failure to include the claimant when they were coming to decisions that she had recommended.   This led to a feeling of being consistently undermined and a breach of the implied term of trust and confidence.  From a legal perspective, it is interesting that for the 25% uplift to apply the grievance must have been made whilst the claimant was employed, rather than it coming after any resignation.
https://assets.publishing.service.gov.uk/media/5f75c0d0e90e0709c8687d8f/Ms_G_Smith_v_Age_Concern_Exmouth_and_District_-_1404736.2019_-_Judgment_and_Reasons.pdf