Miss A McDonnell v St Mungo’s Community Housing Association — 2020

Miss A McDonnell worked for St Mungo’s and, after a TUPE transfer and a later restructure, was an outreach worker in the Oxford Street Population Outreach Team. Her role was to work with verified rough sleepers, and the tribunal found that the respondent’s focus was on its commissioned rough sleeper service, not on sex-worker support as such. The claimant developed a particular interest in modern slavery and sex-worker outreach, did training in that area, and carried out a monthly night shift, but the tribunal found that sex workers formed only a small part of her caseload and that very few were verified rough sleepers.

The tribunal accepted that managers became concerned from late 2017 that the claimant was prioritising sex-worker-related work over her wider caseload. It found that the instruction to limit time spent on modern slavery and sex-worker work was not unreasonable, that the withdrawal of the night shift was justified by winter pressures and the need to prioritise core work, and that the appraisal concerns reflected genuine performance issues rather than bullying. It also found no evidence that colleagues were encouraged to look at the claimant’s social media for improper reasons; the only evidence pointed to a welfare concern after suspension.

The tribunal further found that the respondent had reasonable and proper cause to start disciplinary action after discovering emails and discussions with commissioners and external contacts, including attempts to explore funding for a role in the same area of work. It accepted that the claimant had been told to follow proper channels with commissioners, that she did not make her managers aware of the discussions, and that the respondent had reasonable grounds to treat the conduct as potentially serious misconduct and later to suspend her when it concluded she had breached restrictions and had not given a full account of her contacts. It did, however, say that some matters relating to performance were more properly capability issues than misconduct, and that treating them as misconduct was unreasonable, but not enough on its own to destroy trust and confidence.

On causation, the tribunal found that the claimant did not resign in response to a fundamental breach by the respondent. It concluded instead that she resigned because she wished to avoid dismissal for disciplinary misconduct, which she must have known was a real risk by the time of her resignation. The unfair dismissal claim therefore failed and was dismissed.