Miss L Gronow v 1st Grade Care Ltd — 2023

Miss L Gronow worked for 1st Grade Care Ltd as a care worker from 18 April 2017 on terms described by the tribunal as a zero-hours arrangement. On 16 January 2023 she was suspended after a dispute about a rota allocation and her conduct in calls with the respondent’s out-of-hours team and Rebecca Long. The tribunal accepted that the suspension was for concerns about her attitude and refusal to carry out a requested visit, and it also accepted that, under her contract, suspension on those terms meant no pay during suspension.

The tribunal found that the suspension itself was not a fundamental breach: the respondent had reasonable and proper cause to suspend her in a healthcare setting, and it had reasonable and proper cause for not paying her while suspended under the express terms of the arrangement. It also rejected the claimant’s case that routine emails about new terms and Social Care Wales registration were malicious, and it did not accept that the respondent had failed to give her access to the rota because it found the claimant chose not to use the Birdie app once she believed the suspension continued.

The decisive issue was the respondent’s handling of the claimant’s grievance and its lack of clear communication about return to work and pay after Nicola Morton emailed on 25 January 2023 saying she was happy to write the meeting up as supervision and have the claimant return to work. The tribunal found that the respondent did not respond to, or even formally acknowledge, the claimant’s grievance, which raised not only pay but also the fairness and continuation of suspension. It also found that the claimant repeatedly sought clarity about whether suspension had ended and when she could return, but the respondent did not give that clarity until 3 February 2023 and again on 6 February 2023.

Applying section 95 ERA 1996, Western Excavating v Sharp and Malik v BCCI / Mahmud v BCCI, the tribunal held that the cumulative failures amounted to a fundamental breach of the implied term of trust and confidence, with no reasonable and proper cause. It found that the claimant resigned in response to that breach on 9 February 2023, had not affirmed the contract, and had therefore been constructively dismissed. Because the respondent did not show a fair reason under section 98 ERA 1996, the complaint of unfair dismissal was upheld. Remedy was not decided in this judgment and was to be considered separately.