Representing herself For the v Respondent — 2021

The tribunal refused a late application to amend the claim to add disability discrimination. It held the claimant had earlier said she was not bringing a discrimination claim, and that allowing the amendment would have required further directions, more disclosure and a new hearing date, causing prejudice to the respondent.

On the facts, the claimant was a long-serving joint nursery manager working three days a week. The tribunal found that from early 2019 she was carrying the role with insufficient support after maternity leave cover had not been put in place promptly, that she had too few supervision meetings, that there had been no return-to-work interviews, and that she was expected to work on her non-working days. It accepted that she repeatedly asked for help and that the nursery later failed QPA inspections, leading to suspension and a disciplinary process. It rejected some of the claimant's pleaded particulars, including the allegation that she was threatened with replacement if she did not increase her hours, the allegation that colleagues were told of her suspension, and the allegation that she was prevented from having a colleague accompany her at the disciplinary hearing.

The tribunal held that the respondent should not have dealt with the matters under the Disciplinary Policy because they were in substance performance issues and should have been addressed under the Performance Management Policy. It found that the combined effect of the lack of support, the inappropriate disciplinary process and the subsequent demotion amounted to a breach of the implied term of trust and confidence. The claimant's resignation on 26 April 2020 was found to be in response to that breach, so the unfair dismissal claim succeeded. The tribunal said the eventual compensatory award would be reduced by 15% under section 123 Employment Rights Act 1996 because it assessed a 15% chance that the claimant would have left by April 2020 even if fairly treated.

The wrongful dismissal claim succeeded because the claimant was entitled to 12 weeks' notice pay. The holiday pay claim had already been satisfied and was withdrawn. The remaining wages claims failed: the tribunal found no contractual entitlement to an annual pay rise of 3 to 4% in April 2019, and it found no shortfall in sick pay because the claimant had been paid in full during the July 2019 sickness absence and later absences only attracted statutory sick pay.