Ms S M Brennan v Newbarn Limited — 2019

Ms Brennan, a support worker, resigned on 14 March 2017 after a long sequence of disciplinary and grievance events that began with police concerns on 18 March 2015 about visitors in Tenant H's flat. The tribunal found that the respondent's response to the police visit, and the initial disciplinary letter of 23 March 2015, were based on an inadequate investigation and inaccurate wording, including an unsupported statement that the claimant had been a witness to an incident the police were investigating.

The tribunal found that later steps added to a cumulative breach of the implied term of trust and confidence. It criticised the resurrection of disciplinary action in March 2016, the lack of a proper investigation before the renewed hearing, the unclear allegations, the issue of a written warning without a clear explanation of the policy breach, the appeal process in which Mr Giddins remained present, and the delay in giving the claimant Mr Hindle's reasons. It also found that the June 2016 correspondence about the claimant's sickness absence, including the allegation of 'lack of tenacity', and the 24 February 2017 disciplinary letter together formed the final breach that justified resignation.

On whistleblowing, the tribunal held that most of the claimant's tax and National Insurance complaints were not protected disclosures because she was pursuing a private tax issue rather than making disclosures in the public interest. It found that the 1 April 2016 email to the CQC was a protected disclosure because the claimant reasonably believed Newbarn had failed to report a matter it should have reported. Even so, the tribunal held that disclosure was not the reason or principal reason for the constructive dismissal under s.103A ERA 1996; the sequence had begun with the 2015 police visit and the treatment that followed, and the CQC disclosure was only a contributory factor.

The protected disclosure detriment complaints were found to be out of time, so the tribunal said it had no jurisdiction to determine them. It nevertheless said that, if it had jurisdiction, some complaints would not have succeeded, but the 24 February 2017 allegation about the claimant's communication with the CQC would have been well founded as a detriment claim. The tribunal also held that the claimant was entitled to notice after the constructive dismissal, so the breach of contract claim for notice pay succeeded. Remedy was deferred to a hearing listed for 15 July 2019.