Ms D Gilbert, counsel For the v Respondent — 2023

The claimant’s direct race discrimination and harassment claims were withdrawn during the hearing and dismissed on withdrawal. The tribunal proceeded to determine victimisation, constructive unfair dismissal and wrongful dismissal. It found that the claimant and Ms Durisova’s working relationship had deteriorated by late April 2021, in the context of concerns about performance, the Oro Bianco export work and the claimant’s increasing hostility towards Ms Durisova.

On 27 April 2021 the claimant orally resigned, but the respondent later allowed her to withdraw that resignation. The tribunal held that the 30 April 2021 capability letter went too far in including unparticularised criticism about the claimant’s behaviour towards other members of staff and her appearance at work. Those matters were not properly explained or particularised, and the tribunal found that their inclusion seriously undermined the relationship of trust and confidence. It also found that the grievance response of 1 July 2021 failed adequately to deal with those same points. The claimant’s return to work on 7 June and four days’ work afterwards did not amount to affirmation of the contract.

The tribunal therefore held that the respondent was in fundamental breach of contract and that the claimant’s resignation on 2 July 2021 was accepted in response to that breach, so constructive unfair dismissal succeeded. It also found the dismissal unfair because the inclusion of the irrelevant and poorly identified matters in the capability process took the respondent’s approach outside the band of reasonable responses. On wrongful dismissal, the tribunal held that the claimant was entitled to notice pay, but the amount was not determined at liability stage.

The victimisation claim failed. The tribunal accepted, for the purpose of the claim, that there were protected acts, but found that the alleged detriments were not materially caused by those acts. It held that the respondent’s actions were explained by the claimant’s conduct, performance issues and the breakdown of the working relationship, and that the burden of proof did not shift. A remedy hearing was listed for 25 and 26 May 2023, and the tribunal left contributory fault and any Polkey issue to that stage.