Ms T Bodman v AA-Wargames Ltd — 2021

Ms T Bodman worked for AA-Wargames Ltd from 22 May 2017 until her resignation on 11 February 2020, when she left after a disciplinary process that resulted in an oral warning. The tribunal accepted that she had health and family difficulties, but found that the respondent had provided support, including a changed workspace, IT and phones, time off when needed, altered working days and hours, and a time off in lieu arrangement. It also found that she had been trained on the eBay email work that formed part of the productivity concerns, including use of template replies and red-flagging queries she could not answer.

The tribunal found that performance concerns were raised informally before the formal process, including from September 2019 onwards, and that the claimant was spoken to about email output, process compliance, chatting to colleagues and personal mobile phone use. It accepted the respondent's evidence that the disciplinary process was triggered by low output on 24 January 2020 and that the claimant was told on 27 January that disciplinary action may lead to a verbal warning. A formal meeting then took place on 30 January 2020, but the intended advance letter was not sent before the meeting. Instead, a confusing letter was discussed during the meeting, and the claimant could have understood that an oral warning had already been given at the start of the meeting.

The tribunal identified two potential failings: the absence of a written invitation before the disciplinary meeting and the confusing impression that an oral warning had already been issued. It accepted, however, that the respondent had not made a final decision before the meeting, that the claimant had already been told about the performance issues at the 27 January meeting, and that she was offered a right of appeal. Although the process was described as a muddle and not good practice, the tribunal held that these mistakes were not sufficiently serious to amount to a fundamental breach of contract or conduct calculated or likely to destroy or seriously damage trust and confidence.

Because there was no fundamental breach, the tribunal did not need to decide whether the claimant resigned in response to that breach. It therefore held that she was not entitled to resign without notice by reason of the respondent's conduct, and the claim for unfair constructive dismissal was dismissed.