McPhee v Albert Bartlett & Sons (Airdrie) Limited — 2021

The claimant worked for Albert Bartlett & Sons (Airdrie) Limited from 1 July 2008 until 4 April 2020 as an office administrator. After a sinus operation in December 2019, she returned to work on 3 January 2020, asked for six weeks' unpaid and paid leave to visit her daughter in Abu Dhabi, and was refused leave because she had already had extended sick leave and the request was contrary to business need. She then produced a fit note on 6 January 2020 and was absent again. The tribunal recorded that the claimant relied on the conduct of the health review meetings and the timing of the disciplinary invite as the alleged repudiatory breach of trust and confidence.

The tribunal found that the health review meeting on 15 January 2020 was reasonable in the circumstances. Although it was held sooner than the usual monthly interval, the claimant had only just returned to work, had threatened to resign when unpaid leave was refused, and her line manager believed the new absence might be related to that refusal. The tribunal found that the claimant had not asked to be accompanied and had not been refused accompaniment. It also found that she had been told there would be two attendees, her line manager and HR, and that she did not raise any issue about that either before or after the meeting.

The same approach was taken to the health review meeting on 5 February 2020. The tribunal found that the meeting was reasonable because the claimant had reported that she was getting out and about, her fit note was due to expire on 12 February 2020, and the respondent wanted to discuss her return to work. It rejected the suggestion that she was bombarded with questions, finding instead that the questions were appropriate and that she was given time to answer them. The tribunal also found that the claimant was not advised she could have someone present because the formal right to be accompanied did not apply to these meetings.

As to the disciplinary invite dated 2 March 2020, the tribunal found that the respondent was entitled to issue it after suspecting that the claimant had gone to Abu Dhabi for six weeks after leave had been refused and had falsely said her absence was for health reasons. It found that the letter was sent to her home address while she was abroad, with sufficient time for the hearing date of 2 April 2020, and that this timing was reasonable. Applying the objective test for repudiatory breach, the tribunal held that the events, taken together, did not amount to conduct calculated or likely to destroy or seriously damage trust and confidence without reasonable and proper cause. It therefore concluded that the claimant had resigned voluntarily and was not constructively dismissed, so it did not need to decide whether the alleged breach caused the resignation or whether the claimant had affirmed any breach.