Mrs M Leonard v Represented by: Ms J McArthur - Lay Representative South Ayrshire Council — 2022

Mrs M Leonard brought a claim of constructive unfair dismissal arising from a series of events between her acting appointment as programme review manager, the later competition for the chief internal auditor post, her period of sickness absence, and her retirement in January 2022. The tribunal set out the constructive dismissal issues as whether there had been a breach of contract, whether it was sufficiently serious to justify resignation, whether she resigned in response to that breach, and whether she delayed too long in leaving. It also directed itself to the implied term of trust and confidence, the objective nature of the test, and the possibility of a cumulative or 'last straw' breach.

The tribunal found that the claimant had acted up as programme review manager from August 2015 to August 2017 and that a new chief internal auditor post was later proposed and advertised. It accepted that she was disappointed to be unsuccessful at interview in August 2017 and that she felt hurt by being told the result by telephone, but it found that the respondent had reasonable and proper cause to run the selection process and that, viewed objectively, the process was not unreasonable. It also found that the claimant had not been demoted, because she retained her substantive senior internal auditor post.

On the later events in 2021, the tribunal found that the respondent again had reasonable and proper cause to hold interviews for the vacant chief internal auditor post and to use the process it did. It accepted that the claimant was interviewed, that other candidates performed better, and that the offer of second interviews to two candidates was explained by the evidence. It also found that it was not unreasonable in the circumstances not to ask the claimant to act up pending the post being refilled. The tribunal noted that the claimant considered raising a grievance and had concerns about a whistleblowing issue, but found that the respondent had procedures in place and could not force her to use them.

The tribunal accepted that the claimant felt humiliated and that she retired on 5 October 2021 after the second unsuccessful application, but it found that her decision to retire pre-dated the audit and governance committee meeting on 3 November 2021 and therefore that meeting could not have caused the retirement. It was not satisfied that the respondent had committed a fundamental breach of the implied term of trust and confidence. The claim was dismissed and no monetary award was made.