Mrs J McGovern v Medsolve UK Limited — 2019

The tribunal heard that Mrs McGovern brought claims for constructive unfair dismissal and for unpaid wages in relation to suspension periods and a Boxing Day shift. Although the respondent argued that there had been a break in employment in 2016 to 2017 which would have defeated jurisdiction, the tribunal found on the balance of probabilities that her employment continued and that it therefore had jurisdiction to hear the constructive dismissal claim.

On the constructive dismissal claim, the tribunal applied the Western Excavating v Sharp approach and asked whether there had been a repudiatory breach of contract by the employer. It accepted that the claimant had experienced anxiety about the police investigation, later disciplinary action and the events leading up to her resignation, but found that the respondent had acted reasonably in not placing her with vulnerable adults while the police investigation was ongoing. It also found no breach in the disciplinary process sufficient to justify resignation, noting that a final written warning was issued rather than dismissal and that the claimant did not appeal.

The tribunal also rejected the suggestion that the incident on 29 December 2018 amounted to a final straw. It found that the claimant should have raised concerns or lodged a grievance if she thought she was being treated unfairly, and that the events described did not amount to a valid basis for immediate resignation. The constructive dismissal claim was therefore dismissed.

The wage claims were also dismissed. On pay during suspension, the tribunal found that the claimant was paid by reference to shifts worked, that the contract entitled her only to payment when she undertook shifts, and that withholding pay while she was suspended was reasonable; it also noted that any such claim would have been out of time. On the 26 December 2018 shift, the tribunal found that the claimant was offered an alternative shift after the original booking could not proceed, but she chose not to work it and went home, so no payment was due. All claims were dismissed and no award was made.