E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case no: 4102672/2020 (V)5 Held remotely on 1, 2, 3, 4, 5, 17, 18, 19, 23, and February 2021 Employment Judge W A Meiklejohn Mrs L Malpass v ’s husband BASICS Scotland — 2021

The tribunal held that the claimant resigned on 7 January 2020 and did not withdraw that resignation. It therefore treated the case as one of constructive unfair dismissal and asked whether the respondent's conduct had amounted to a repudiatory breach of contract or a breach of the implied term of trust and confidence. The tribunal identified the relevant period for that assessment as 19 September 2019 to 7 January 2020, when the claimant had become interim General Manager and was dealing with a series of staffing and operational difficulties.

The tribunal accepted that the respondent's organisation was dysfunctional and that the claimant was under significant strain, but it found that the matters relied on, taken individually, did not amount to a repudiatory breach. It held that the board should have announced the claimant's appointment and should have clarified her role and line-management responsibilities, but concluded that these omissions did not cross the legal threshold for constructive dismissal. It also found that the claimant had been raising concerns with directors in a blurred capacity, partly as a sounding board rather than as formal grievances, and that the respondent's grievance procedure was outdated but had not been invoked as a grievance.

The tribunal rejected the argument that Ms Edwards' email of 19 December 2019 was a final straw that, objectively, destroyed trust and confidence. Although the claimant subjectively regarded it as the final pressure point, the tribunal held that the email did not amount to conduct likely to destroy or seriously damage the employment relationship. It also found no later act between 19 December 2019 and the claimant's resignation on 7 January 2020 that changed the position. For that reason, the claimant was not constructively dismissed and the unfair dismissal claim was dismissed.

On the wages issue, the tribunal accepted that the respondent had expected to pay the claimant more than her Office Manager salary when she agreed to act as interim General Manager, and it noted evidence that remuneration in line with the former CEO's salary would have been appropriate. However, it could not resolve on the evidence whether the claimant had been underpaid for section 13 ERA purposes, so it continued the unlawful deduction of wages claim to a further hearing to determine liability and remedy.