EMPLOYMENT TRIBUNALS (SCOTLAND) Case no: 4100880/2020 (V) Held by Cloud Video Platform (CVP) on 2, and November 2020 Employment Judge: W A Meiklejohn v Ms Lynn Haugh — 2020

The claimant, a Band 5 staff nurse, brought a constructive unfair dismissal claim arising from a long-running dispute about a 2014 secondment to Psychiatric Liaison, later temporary Band 6 work, grievance handling, placement away from CFMHT, and disciplinary proceedings. The tribunal accepted that the claimant had genuinely lost trust and confidence in the respondent over a number of years, but it also found that the respondent had tried to find alternative placements and to resolve matters, including through grievance processes and discussions about redeployment.

Applying section 95(1)(c) ERA 1996 and the Western Excavating and Malik principles, the tribunal held that the matters complained of did not amount, either individually or cumulatively, to a repudiatory breach of contract. It accepted that there had been unsatisfactory delay in dealing with the claimant’s grievances and that the disciplinary process had also taken too long, but found that delay alone did not show that the respondent no longer intended to be bound by the contract. The tribunal also found that the decisions not to return the claimant to CFMHT and to place her elsewhere were reasonable in context.

On the alleged final incident in late November 2019, the tribunal preferred the respondent’s evidence and found that Mr Gilfedder had not knowingly done anything to upset the claimant. It concluded that there had been no last straw event capable of supporting a constructive dismissal case. The tribunal also noted that by 27 November 2019 the claimant had already accepted a Band 6 post with Greater Glasgow Health Board and agreed a start date of 2 December 2019. The claimant’s resignation was therefore treated as a resignation rather than a constructive dismissal, and the claim was dismissed. The tribunal had previously refused the respondent’s strike-out application under Rule 37(1)(a) so that the claimant could give and test her evidence.