Miss Julie Duane, counsel v Respondent — 2021

The claimant, Miss Esther Harwood, was employed by Archways Care Ltd from 1 November 2010 and became Registered Manager of Badgers Rest in April 2018. In June 2019 the home underwent an unannounced Ofsted inspection, received highly critical feedback, and then a compliance notice and formal report identifying serious failings in leadership and management. The claimant was signed off sick from 13 June 2019 with recurrent depressive disorder and stress, and the tribunal accepted that she was in a vulnerable position and that the respondent knew she was off sick for health reasons.

The tribunal accepted that at a meeting on 28 June 2019 Mr Aristidou made clear that the claimant faced a choice between resigning and a capability process on her return. On 1 July 2019 he repeated that Ofsted would be watching what the respondent did with her, said her sickness absence would be a concern for Ofsted, and said that further complaints had been made and that she would face disciplinary action if she returned. On 2 July 2019 he emailed that if capability was unsuitable her position as Registered Manager would have to be considered and there would be no notice period if it was felt she was unable to undertake the role satisfactorily. The claimant resigned later that day, and the tribunal found she did so in response to the respondent's conduct.

The tribunal held that the direct dismissal case was not made out because the claimant had been pressured to resign but was not told that dismissal was inevitable or that she had no future with the company. It then found that the cumulative conduct between 28 June and 2 July 2019, and Mr Aristidou's email in particular, objectively amounted to a breach of the implied term of mutual trust and confidence. The tribunal found there was no reasonable and proper cause for the pressure applied, and that the suggestion of possible dismissal without notice was unjustified because there was no contractual power to do so on the facts found.

Having found constructive dismissal, the tribunal held that the dismissal was unfair. It rejected the respondent's case that there had been a breakdown in relationship or a failure by the claimant to take constructive criticism or responsibility, and directed that the matter proceed to a remedy hearing. The employment ended on the expiry of notice on 30 September 2019, but no monetary award was determined in this judgment.