Member C Jackson Tribunal Member J McCaig KW v , Solicitor KN and 1 other — 2022

KW was employed as a support worker by KN and CG in the home of two severely disabled service users. The tribunal found that from November 2020 KN and CG were jointly employers, and that KW raised repeated concerns in March and April 2021 about family members visiting during the COVID lockdown without observing distancing, mask-wearing, or hand-hygiene guidance. The tribunal preferred KW's evidence on the disputed facts and found that her emails of 2 March, 26 March, and 7 April 2021 disclosed information about possible health and safety and legal-compliance failings.

On the constructive dismissal claim, the tribunal held that the respondents' failure to respond meaningfully to KW's complaints, together with the unsafe environment she described, amounted to a repudiatory breach of the implied term of trust and confidence. It accepted that KW resigned in response to that breach, and that she had not affirmed the contract before resigning. The tribunal therefore upheld constructive unfair dismissal under s.94 ERA. It awarded a basic award of £2,831.54 and £350 for loss of statutory rights, but no award for past or future earnings because it found she had failed to mitigate her loss.

The automatic unfair dismissal claim under s.103A ERA was dismissed. Although the tribunal found that the March and April 2021 emails were qualifying protected disclosures within s.43B ERA and were made to the employers, it concluded that the reason for the dismissal was not the making of those disclosures. Rather, the respondents' failure to address the concerns was driven by a more general unwillingness or inadequacy in dealing with the issue and by annoyance that KW had raised it.

KW also succeeded on her working time claim. The tribunal held that regulation 21 did not disapply regulation 12(1) in the way the respondents argued, because no designated uninterrupted rest break was specified in advance and KW could not know at the start of any break whether it would be uninterrupted. Relying on Gallagher and MacCartney, it found a breach of the rest-break obligation, but made no compensation award. KW further succeeded on the section 1 ERA claim because the draft contract given to her in 2019 was materially incomplete and inaccurate; the tribunal awarded £501.24, equivalent to two weeks' pay.