Miss S Hornblower of Counsel For the v Mr N Henry, Consultant — 2020

Ms Gillian Smith was employed by Age Concern Exmouth & District, became CEO in April 2017, and resigned with immediate effect on 12 August 2019. She said the Trustees had undermined her authority and breached trust and confidence through three incidents: the handling of a staff confrontation in April 2018, the handling of a dispute with Ms Michaela Sharman in early 2019, and the reversal of the suspension of Mrs Debbie Bales in August 2019. The Tribunal preferred the claimant’s evidence on the first two incidents because the respondent adduced no witness evidence to answer them, and it also accepted the claimant’s account of the August 2019 events.

The Tribunal found that in each incident the Trustees stepped into matters that were within the claimant’s management remit and acted contrary to decisions she had taken or was entitled to take. It held that the claimant was entitled to feel unsupported and undermined, particularly when the Trustees did not bring Ms Alexander’s complaint to her attention, overruled her approach to Ms Sharman’s sickness pay, and then reversed the suspension of Mrs Bales after meeting with the HR consultant without involving the claimant. The Tribunal rejected the respondent’s explanations for the August 2019 reversal, accepted that the claimant had already explained holiday cover, and noted that the respondent did not disclose the minutes of the relevant Trustees’ meeting.

Applying the law on constructive dismissal and the implied term of trust and confidence, the Tribunal held that there was a cumulative repudiatory breach and also a fundamental breach at the time of resignation. It found that the claimant resigned in response to that breach, so her resignation was to be treated as a dismissal under section 95(1)(c) ERA 1996, and that the dismissal was unfair because the respondent had not proved any potentially fair reason. The Tribunal also noted that the claimant’s post-resignation grievance did not engage section 207A of TULR(C)A 1992 for an uplift.

On remedy, the claimant did not seek reinstatement or re-engagement. The Tribunal awarded a basic award of £3,150 and a compensatory award of £23,428.88, comprising £400 for loss of statutory rights, £17,137.66 net past loss of earnings to the hearing, and £5,891.22 future loss. The total award was £26,578.88, and the Recoupment Regulations did not apply.