Mr J Duffy, Counsel For the v Mrs M Sharp, In-house advocate — 2021

Mrs J Potter had worked for Hawkridge & Company LLP for almost 25 years, mainly in the litigation department as a litigation PA. The tribunal preferred her evidence on disputed issues because Mr Hawkridge admitted that apparently contemporaneous notes of meetings in early September 2019 had been typed later and had been materially added to, which seriously undermined his credibility. The tribunal also found that Mr Alder’s evidence was affected by divided loyalties. The judge accepted that Ms Potter’s role had developed over time into a wide-ranging and responsible support role, but found that the additional accounts and typing work she took on from May 2019 fell within the flexibility clause in her contract and did not of themselves amount to a repudiatory breach.

The main breach arose in September 2019 when the respondent decided to move Ms Potter from litigation to conveyancing and to give her long-held litigation PA role to a new recruit. The tribunal found that this decision was taken before Ms Potter was properly consulted, that she had no conveyancing experience, and that the differences between litigation and conveyancing support work were significant in a small firm. It held that the move deprived her of her role and amounted to a repudiatory breach of contract, either because it fell outside the flexibility clause or because using the clause in that way breached the implied term of trust and confidence. The tribunal also found that the respondent failed to deal appropriately with her letter of 21 September 2019, treating it as a “whinge” rather than a grievance, and that this failure was itself a further repudiatory breach.

By contrast, the tribunal did not accept that the respondent’s redistribution of some duties after the 21 September letter was a separate repudiatory breach, finding that it was a consequence of the planned move and was within the express contractual terms. It found that Ms Potter resigned on 2 October 2019 because her litigation PA role had been taken away, and that she did not delay too long before resigning. The tribunal accepted that she initially tried to tolerate the situation, but held that she resigned in response to the breach once she realised she could not accept the new arrangement.

On fairness, the tribunal found that the respondent had not established a valid business reason for the change and that its explanation was chaotic and inconsistent. It also held that the process was wholly unreasonable: the decision was sprung on Ms Potter without prior consultation, and the respondent had not shown why the new recruit could not have been trained in conveyancing instead. The claim therefore succeeded as constructive unfair dismissal. The judgment on liability did not determine a monetary award; it stated that a remedy hearing would be needed unless the parties reached agreement.