Mrs C Gibson v Liverpool Victoria Financial Services Ltd — 2023

The claim form originally included constructive unfair dismissal, age discrimination, unlawful deduction of wages for accrued but unpaid holiday pay, and wrongful dismissal for notice pay. The age discrimination claim was withdrawn at a preliminary hearing on 1 February 2023, and the holiday pay and notice pay claims were withdrawn on 25 July 2023. The only claim determined on the merits was constructive unfair dismissal under s.95(1)(c) ERA 1996.

The tribunal accepted that the 2021 investigation and disciplinary process was not handled well at the outset and that the investigation should not have reached disciplinary stage on the material available. It also found that the initial invite letter could have been clearer. However, it held that the later disciplinary hearing before Mrs Suttie was fair, that the claimant had a fair opportunity to answer the allegations, and that no formal disciplinary sanction was imposed. The tribunal also accepted that the policy did not give a statutory right to accompaniment at an investigation meeting and that the appointment of an independent hearing manager was fair.

On the 2022 cleaner incident, the tribunal found that Mrs Roethenbaugh was not impartial and that, on balance, she said the claimant's behaviour bordered on bullying and gave the impression that she thought the claimant was lying. It also found that the claimant was invited to a meeting on 29 March 2022 which was intended to explore a s.111A protected conversation about possible termination, that she declined to take part, and that this did not amount to a breach of contract or trust and confidence. The grievance process was found to be overall reasonable: Mr Brown partially upheld the complaint about the 2021 disciplinary because low-level incidents had been combined into a formal process and recommended training had not been provided, but he rejected the wider bullying and harassment allegations.

The tribunal accepted that the claimant resigned in response to the 2022 cleaner incident and grievance, and that the respondent's conduct was not always reasonable. It also dealt with the claimant's complaint about the LV Engage meetings and the later third-party complaint, but found neither amounted to a fundamental breach. Applying the objective trust and confidence test, including the principles in Malik and related authorities, the tribunal held that none of the complained-of matters, taken separately or together, were sufficiently serious to amount to a repudiatory breach. The constructive unfair dismissal claim was therefore dismissed, and the remedy hearing listed for January 2024 was vacated.