Ms L Kennedy v Represented by:10 Mr P Miller - Partner Key Housing Association Limited — 2023

The claimant, a support worker employed from 29 August 2017, resigned with immediate effect on 3 January 2023. Her claim was that the respondents had fundamentally breached the implied term of mutual trust and confidence, relying on three matters: the handling of her request for annual leave in November 2022, contact made by the respondents during her sick absence on 22 November 2022, and the timing of the grievance hearing letter sent on 21 December 2022.

On the annual leave issue, the tribunal accepted that the claimant had asked for leave during the next rota period beginning on 19 November 2022, and that Ms Robertson tried to accommodate a late request by proposing that the claimant work 120 hours over three weeks and take the fourth week off, later suggesting rest time instead so that annual leave entitlement would not be used. The tribunal found that this was not a fundamental breach of contract, noting that the proposal was made to assist the claimant, that other staff had used similar arrangements before, and that the claimant had said at the end of the discussion to "just leave it".

On the sick absence issue, the tribunal found that when the claimant telephoned on 21 November she said she was absent that day because of stress and anxiety and would call back with an update, but did not say she would next contact the respondents on 23 November. The respondents arranged cover for 21 November only and, when she did not contact them on 22 November, sent texts and calls and considered a welfare check. The tribunal accepted the respondents' evidence that these steps were driven by concern and by the need to know whether cover was required, and held that the contact was not harassment or conduct likely to destroy trust and confidence.

The tribunal also found that the grievance hearing letter of 21 December 2022 set a hearing date 16 calendar days later, rather than within the 14 calendar days stated in the policy, and said it was regrettable that the letter was not emailed. However, it held that this point was not relied on in evidence as a reason for the resignation, and in any event it did not amount to a fundamental breach. The tribunal therefore rejected the constructive unfair dismissal claim in full.