Ms O Daley v Riverston School (UK) Ltd: 2306192/2023
Employment Tribunal decision.
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Case No: 2306192/2023 1 THE EMPLOYMENT TRIBUNAL SITTING AT: LONDON SOUTH BEFORE: EMPLOYMENT JUDGE K ANDREWS sitting alone BETWEEN: Ms O Daley Claimant and Riverston School (UK) Ltd Respondent ON: 2 & 3 December 2024 Appearances: For the Claimant: Mr S Aseulime, Solicitor For the Respondent: Mr D MacKinnon, Solicitor REASONS FOR THE JUDGMENT SENT TO THE PARTIES ON 5 December 2024 Provided at the request of the claimant 1. Judgment with oral reasons was given to the parties on 3 December 2024. The claimant requested written reasons on 4 December. That request was unfortunately not forwarded to me until 20 March 2025 when I was absent from the Tribunal. The claimant was informed that I would be returning in early April. I apologise for the resulting delay in providing these reasons. 2. In this matter the claimant complains that she was unfairly constructively dismissed. Evidence 3. The claimant gave evidence and then for the respondent I heard from: a. Mr J Thompson, Director of Schools Management; Case No: 2306192/2023 2 b. Mr G Baker, now Head Teacher but formerly Deputy Head Teacher; and c. Mr A Greenway, Director of Information. I did not have the benefit of hearing any evidence from Ms Fairs, the Head Teacher at the time of the events in question. Mr MacKinnon explained that Ms Fairs, who had only commenced employment as Head Teacher on 1 September 2023, had left the employment of the respondent in the spring term of 2024 under agreed terms. Mr Aseulime described it as extraordinary that the respondent did not call her as a witness. I do not directly draw any conclusion from Ms Fairs’s absence from these proceedings however it does mean that on certain matters there is no direct challenge to the claimant’s evidence and I take that into account in my findings below. 4. I had an agreed bundle of documents before me. I referred to only those documents in that bundle to which I was specifically referred during the evidence or the parties’ submissions. Both parties provided written submissions on the conclusion of the evidence with limited oral additions. Relevant Law 5. In order to bring a complaint of unfair dismissal it is first necessary to establish that the claimant has in fact been dismissed. 6. If there is no express dismissal then the claimant needs to establish a constructive dismissal. Section 95(1) of the Employment Rights Act 1996 (the 1996 Act) states than an employee is dismissed by his or her employer for the purposes of claiming unfair dismissal 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.” 7. In Western Excavating (ECC) Limited v Sharpe ([1978] ICR 221), the Court of Appeal confirmed that the correct approach when considering whether there has been a constructive dismissal is that: “if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so then he terminates the contract by reason of the employer’s conduct, he is constructively dismissed.” 8. Those ‘essential terms’ may be expressly stated in the contract of employment or implied into it. For example, and very commonly the basis of claims of constructive dismissal, the implied term of mutual trust and confidence. 9. In Kaur v Leeds Teaching Hospitals NHS Trust ([2018] EWCA Civ 978) the Court of Appeal confirmed that in a normal case where an employee claims to have been constructively dismissed it is sufficient for a Tribunal to ask Case No: 2306192/2023 3 itself the following questions: (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 to so called ‘last straw’ cases explained in London Borough of Walton Forest v Omilaju ([2005] IRLR 35)) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation) (5) Did the employee resign in response (or partly in response) to that breach? 10. The ‘Malik term’ referred to above is a reference to the House of Lords decision in Malik v BCCI SA (in liquidation) ([1997] IRLR 462) (as corrected by Baldwin v Brighton & Hove CC [2007] ICR 680) which confirmed that to succeed in a constructive dismissal claim the employee needs to show that the employer has, without reasonable and proper cause, conducted himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between them. This conduct is to be objectively assessed by the Tribunal rather than by reference to whether the employer’s conduct fell within the band of reasonable responses. That conduct must be assessed as a whole (Woods v W M Car ([1981] ICR 666)). In Leeds Dental Team Ltd v Rose ([2014] IRLR 8) the Employment Appeal Tribunal held that the employer’s subjective intention is irrelevant. It is for the Tribunal to consider objectively whether the conduct complained of was likely to have that effect. 11. If an employee has been dismissed, constructively or expressly, then it is for the respondent to establish that the reason for the dismissal was a potentially fair one as required by section 98(1) and (2) of the 1996 Act. If the respondent establishes that then it is for the Tribunal to determine whether the dismissal was fair in all the circumstances (including the size and administrative resources of the respondent business) having regard to equity and the substantial merits of the case (section 98(4)). In applying this test the burden of proof is neutral. Findings of Fact 12. Having assessed all the evidence, both oral and written, and the submissions made by the parties I find on the balance of probabilities the following to be the relevant facts. Note that not all points raised in evidence are dealt with, only those necessary for my conclusions. Case No: 2306192/2023 4 13. The respondent is an independent school providing education predominantly at key stages 3 and 4 to students the majority of whom have mild-to-moderate learning difficulties. They offer a wide range of subjects at a variety of levels reflecting their students’ needs. 14. The claimant commenced employment with the respondent full-time as a food and technology teacher in 2014. In 2020 it was agreed that she reduce her hours and from January 2021 she commenced working two days a week. Her contract of employment was not formally amended at that time. For the academic years 2021/2022 and 2022/2023, the claimant worked on Tuesdays and Wednesdays when all the food technology lessons were scheduled. The claimant did not have an express contractual right to work on Tuesdays and Wednesdays - her working days were expressed to be Monday to Friday. The practice was however that an employee’s preferences regarding their working days would be accommodated where possible. 15. The claimant was well regarded as a teacher. She had achieved good results and there were no questions regarding her abilities or any previous conduct matters. 16. For various reasons completion of the timetable for the academic year 2023/2024 proved to be much more difficult than usual. A draft was sent to staff in July 2023 and at that stage the claimant was content with it as it showed her working on her usual days of Tuesdays and Wednesdays. On 27 July 2023 however Mr Baker contacted the claimant informing her that there was a significant issue with the timetable and it could not be finalised until that was rectified. 17. On 30 July 2023 Mr Ward, the then Head Teacher, emailed all staff informing them that there continued to be a significant problem with finalising the timetable. 18. On 29 August 2023 the claimant emailed the respondent advising them that unfortunately her mother was unwell and she had had to fly to Jamaica and was unable to secure a return flight until 5 September and therefore her first day of work would be Wednesday, 6 September, also the first day of term. As a result she would therefore miss the inset days on 4 and 5 September. 19. Mr Baker replied confirming that missing the inset days was not a problem, wishing her well and informing her that the timetable had had to be rewritten with the result that the majority of food technology lessons were to be delivered on Friday. He also said: ‘This means I am going to have to ask if you would consider changing your days to Wednesday and Friday. I can only apologise that this is so last-minute but there does not seem to be any other options at this stage so I would be hugely grateful for your help…’ 20. The claimant replied apologising and saying she was unable to work on Fridays as she had commitments elsewhere but she was happy to continue working on Wednesdays and asked: Case No: 2306192/2023 5 ‘Perhaps another staff can teach those Friday lessons?’ 21. Mr Baker replied on 30 August 2023: ‘Thanks for this. I completely understand you have other commitments and of course acknowledge this is a late request for change. Is there anything I can do to help with the situation around your working schedule? Is there any flexibility on your days, as currently most food tech lessons do not fall on either Tuesday or Wednesday.’ 22. At the inset days on 4 & 5 September timetables were disseminated and discussed with other members of staff. 23. The claimant duly attended for her first day of work on 6 September, also the first day of term and the first day for the new year 7s. The parties agree that the first day of term is always very busy and this was compounded by Ms Fairs having only very recently commenced as Head. 24. The claimant went to speak to Ms Fairs to try to resolve the issue regarding her timetable. They had a cordial conversation during which Ms Fairs told her to speak to Mr Baker about it. The claimant initially went to speak to Mr Baker but saw that he was busy welcoming the new year 7s. She then went to download her timetable but found that it was blank. She later saw Mr Baker in the foyer area. The claimant and Mr Baker have different accounts of this exchange. 25. The claimant’s account is that she asked to speak to him about the timetable and he said that she needed to speak to Ms Fairs. She told him that Ms Fairs had said she should speak to him at which point he walked away. She followed him and asked about Wednesdays at which point he said there was only one lesson on Wednesdays, pointing with his finger, that she agreed to hand over to a colleague in respect of Friday’s lessons and she left. Her evidence was that Mr Baker did not say that they should meet with Ms Fairs at the end of the day. 26. Mr Baker’s account of the exchange is that he explained they would need to meet with Ms Fairs but in the meantime, as some of her lessons had had to be timetabled for Fridays when she could not work, she would need to do a handover to another teacher and suggested that she use the morning for that purpose. He says that he explained again the timetabling problem and advised her to wait until the end of the day when Ms Fairs would have availability to speak to them about resolving the matter. He recalled that the claimant had said words to the effect of whether she still had a job and he said that he replied to the effect that of course she did. He said that she was curt and walked away. His expectation was that they would meet at the end of the day for further discussions and he had spoken to Ms Fairs to that effect. 27. The claimant handed over materials to her colleague as requested during the rest of the day and left the school without seeking to meet with Mr Baker and Ms Fairs. Case No: 2306192/2023 6 28. Although Ms Fairs has not been called as a witness by the respondent, she did compile two documents at the time which were later forwarded to Mr Thompson. One of those documents was her comments on the claimant’s later resignation letter. In those comments she recounted what Mr Baker had told her on 6 September as: ‘… [Mr Baker] did not leave her in the Foyer or walk off as described - she grabbed [Mr Baker] in the middle of the foyer, [Mr Baker] said they both needed to speak to me and then he said because the Year 11 Food Tech lessons were on a Friday it meant at the moment she needed to do a handover with Alice for those lessons, and could she spend the morning doing that? [Mr Baker] introduced Alice to [the claimant] in the foyer and then [Mr Baker] tried to walk away to go to a meeting and [the claimant] grabbed him forcefully and rudely saying “No I need to see you now” [Mr Baker] reiterated the problem that most of the Food Tech lessons did not fall on a Tues or Wed and the problems he had had with the timetable over the summer. [Mr Baker] told her that a timetable consultant and the COO from Chatsworth had confirmed that it was impossible to change the timetable, so the Food Tech lessons were on a Tues or Wed. She said the old Director of Studies could have done it, but [Mr Baker] explained it was more complicated this year with more subjects and more Food Tech lessons which couldn’t be fitted in as before. She said she wasn’t happy and asked, “Am I sacked then?” [Mr Baker] said” no don’t be ridiculous we just need to meet with [Ms Fairs] this afternoon to discuss what else you can offer and move forward” She then said, “I was only brought back to teach Food Tech and that’s all I am willing to teach” She then stormed out.’ 29. As Ms Fairs had not been present herself this is, therefore, simply her account of Mr Baker’s account, but Mr Baker read it during the Hearing and confirmed that it contained nothing with which he disagreed. 30. The second document is headed ‘timeline’ and the relevant entry reads: ‘4pm [Mr Baker] came to my office to ask if [the claimant] had come to see me, as she was unhappy about the timetable and being asked to work on a Friday. [Mr Baker] had asked [the claimant] to come and talk to me but she left the building after having an angry conversation and didn’t come and see me.’ 31. Taking all the evidence into account my finding is that I prefer Mr Baker’s account of his exchange with the claimant on 6 September. In particular, given the tone of his emails to the claimant on 29 & 30 August which were moderate, apologetic and conciliatory, I find it unlikely that he would then on 6 September behave in the manner as described by the claimant. Equally, it was clearly a very busy day and Mr Baker was under some pressure and he may well have replied to her queries in what she perceived as a short way particularly taking into account his own concession that he probably did not sufficiently acknowledge how stressful the claimant found the situation. Critically, I find that Mr Baker did invite the claimant to discuss the matter with him and Ms Fairs at the end of the day - albeit not having specified a time or place for the meeting - as not only was that the logical thing to do but also in keeping with his earlier emails where he had said he wanted to discuss whether there were any other solutions to the situation. In coming to this conclusion I have taken into account the claimant’s suggestion that she would have attended the meeting if asked as she also wanted to resolve Case No: 2306192/2023 7 the matter , but on balance I prefer Mr Baker’s account as it is consistent with the documentary evidence available. 32. On the following day the claimant emailed Ms Fairs to ask for a meeting which was arranged for 8:30am on Monday 11 September. There is a dispute between the parties as to whether the claimant cancelled that meeting. She says that she did not although it appears that Ms Fairs may have thought that she did. In any event Miss Fairs did meet the claimant, albeit briefly, as she had to go to take assembly. 33. The claimant’s account of this meeting is that Ms Fairs left the office, went upstairs, returned and then sat down and read from the claimant’s contract stating that due to her length of service she could offer her £2,000 to leave employment. The claimant says that Ms Fairs did not give her a chance to have any meaningful discussions and that the meeting concluded with Ms Fairs saying that the claimant had made herself jobless, she needed people who were flexible and that her assistant would be in touch and send her a P45. 34. Again the only information I have from Ms Fairs about this meeting is in her timeline document and comments on the claimant’s resignation letter. 35. In the timeline she wrote: ‘8.30am Olivia arrived for the meeting, even though she had cancelled it. I mentioned that I had assembly in 15 minutes and because she had declined it we didn’t have cover, but if she could wait and have a coffee until 9.15 we would be able to chat. She didn’t want to wait and demanded to know what was happening. I told her we could only run her class on Fridays due to the complexity of the timetable and that we couldn’t offer her that teaching on any other except for 1 lesson on a Wednesday, and that we hadn’t had a reply to [Mr Baker’s] email in late August so we had asked Alice to step in. Again, I asked her to stay until after assembly as she had cancelled her meeting, so we hadn’t expected her. She said it was clear she didn’t have a job and that everyone else had been accommodated for and not her. I tried to explain many people had had to be flexible but was shouted down. I said that her contract would provide 8 weeks’ pay if she didn’t feel able to discuss further. She then left saying it was clear she didn’t have a job – I replied that the only thing we couldn’t offer was FoodTech on the Friday due to timetable challenges and inly (sic) 1 lesson on a Wednesday. [Mr Baker] had not been able to get hold of her so had asked Alice to step in to be in the timetable. She said she assumed she had no job so didn’t need to come in again, and I again asked her to stay but she said it was clear she didn’t have a job and didn’t need to come in again and left.’ 36. In her comments on the resignation letter she wrote: ‘I said we really needed her to work on a Friday and I couldn’t see any option for us being able to do this without her working on a Friday but could we talk more about it with [Mr Baker] after assembly – she kept refusing and pushing pushing so I don’t have a job then? I always replied yes if you can talk to us about Fridays. In the end she said “so I don’t need to ever come in again” and I said no I cant do this now I need to go into assembly.’ Case No: 2306192/2023 8 37. I accept the claimant’s evidence that in this meeting Ms Fairs did refer to a payment being due to the claimant if she did not feel able to discuss the matter further and continue in employment. In the absence of contradictory evidence from Ms Fairs I also find that she did say to the claimant words to the effect that she had made herself jobless and that people needed to be flexible. Both those comments ring true for the situation Ms Fairs was facing at a stressful time. I do not find however that Ms Fairs said that the claimant would be sent her P45 as that would be a very surprising thing for a Head Teacher to say in this situation and in fact a P45 was not sent until after the claimant’s later resignation. 38. At 8.45am on 11 September the claimant sent an email to Mr Baker and all staff. It was an inappropriate email to send, was sarcastic in tone and unprofessional. The claimant says that she drafted the email immediately following her meeting with Ms Fairs and that she did so on her mobile phone. I accept the respondent’s submission that that is on the balance of probabilities unlikely to be true. On the claimant’s own account of the meeting with Ms Fairs it is unlikely that she could have started drafting the email on her mobile until 8.40am at the earliest. To have drafted and sent the email that she did within five minutes is inherently unlikely. It is written in full sentences and paragraphs with no typographical or punctuation errors. Further, it refers only to issues with Mr Baker and does not refer at all to the meeting that she had just had with Ms Fairs. I find that it is more likely that the claimant wrote the email prior to the meeting with Ms Fairs and already had it in her drafts. I do conclude however that it was the meeting with Ms Fairs that prompted the claimant to send the email. In any event although the email clearly envisaged that the claimant would be stopping work, it did not in terms amount to a resignation letter. 39. Later that day the claimant contacted ACAS and that prompted discussions via ACAS which are not appropriate to refer to in this decision. 40. On 20 September Ms Fairs wrote to the claimant confirming that her role was not redundant, that she had not been dismissed, nor had it been implied that she would be dismissed nor advised that she no longer had a job. She acknowledged that the proposed changes to the working pattern would have caused the claimant upset or anxiety and invited her to meet and reasonably explore what flexibility they might be able to agree upon. 41. In due course on 2 October the claimant wrote an express letter of resignation addressed to Ms Fairs in which she said that Ms Fairs had told her on 7 September (presumably she meant the 11th) that she did not have a job at the respondent. She said that her trust and confidence in working at the school has been compromised. She described the events that had led up to this as being distressing, stressful and heartbreaking. She concluded the letter by saying that she felt Ms Fairs had made unreasonable changes to her working patterns without discussion and agreement, that she was afraid to return to work and that she felt forced to leave her job. 42. Ms Fairs replied to the letter of resignation on 5 October. As well as stating that she had a different interpretation to the claimant of the events that Case No: 2306192/2023 9 happened, she stated that she remained prepared to work with her to find an agreeable solution that could enable the claimant either to work on Fridays or to reduce her hours on the days that she was able to work. She stated that she had no desire whatsoever to see the claimant leave the school. She offered the claimant the opportunity to retract her resignation but received no reply. Conclusions 43. I find that there was no breach of the implied term of mutual trust and confidence by the respondent in its treatment of the claimant arising from the difficulties associated with finalising the timetable for the academic year 2023/2024. For completeness there was no breach of any express contractual term either – the claimant had no contractual right to work only on Tuesdays & Wednesdays. 44. The important context is that it is clear there was a generic issue regarding the timetable difficulties and although it had a specific impact on the claimant because of the days she was able to work, it was not an issue regarding only the claimant. 45. There was then no breach of implied term by Mr Baker by his behaviour on 6 September 2023. As he himself said he might not have fully appreciated the stress that the situation was causing her, but his actions were objectively lawful. I would also say that even if I am wrong and the claimant’s account of her exchange with Mr Baker is the correct one, I would still not find that it amounted to a breach. On the claimant’s account Mr Baker was abrupt and left her with no resolution of the obviously very important matter of what her working hours and timetable were to be and with no proposed way of resolving that matter. Whilst that might not have been good staff management it was still short of a fundamental breach even taking into account the claimant’s length of service 46. By the time the claimant and Ms Fairs met, therefore, on 11 September 2023 there had been no breach. I have found above that Ms Fairs did refer in some way to the claimant having made herself jobless and the need for flexibility, but in all the circumstances - not least the claimant not having attended for discussions with Mr Baker and Ms Fairs at the end of the day on 6 September as she was invited to do - I do not find that those comments, which may well have been ill advised, amounted to a fundamental breach. I remind myself that the test is ‘calculated or likely to destroy or seriously damage’ the relationship of confidence and trust between employer and employee. This is a high bar. Ill-advised, thoughtless or even unreasonable behaviour does not in itself amount to that level of inappropriate conduct. It has to be something that demonstrates the employer’s unwillingness to be bound by the contract of employment. 47. Further, if the claimant had thought that she had been dismissed in that meeting there would have been no need for her to later resign. It is inconsistent, therefore, for the claimant to say, if she does, that Ms Fairs statement about her making herself jobless amounted to an express Case No: 2306192/2023 10 dismissal. If any doubt remained for the claimant, then Ms Fairs clarified the position in her letter of 20 September 2023. 48. Accordingly although I find that it was Ms Fairs’s behaviour in the meeting on 11 September 2023 that led to the claimant’s ultimate resignation, I do not find that that behaviour was such as to amount to a fundamental breach and there had been no previous breach, fundamental or otherwise, by Mr Baker. Further, even if taken cumulatively, the actions of Mr Baker and Ms Fairs did not amount to a fundamental breach. They were reasonable responses to the situation they faced. 49. Accordingly, the claim fails and is dismissed. Employment Judge K Andrews Date: 29th April 2025 Judgment sent to the parties on: Date: 29th April 2025 For the Tribunal Office
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