Ms S Cleary v Represented by Ms L Neil - Solicitor Spark of Genius Limited — 2020

Ms Cleary worked for Spark of Genius from 20 July 2008 until she resigned on 12 March 2018 as a residential care worker at Sutherland House, Dunoon. She said she had concerns about understaffing and the use of bank and agency staff, including staff who were not trained in TCI or in dispensing medication, and she relied on an incident in August 2017 when she was injured while working with an agency worker. The tribunal accepted that she had raised some concerns informally, but found that she had not made a formal complaint, grievance, or report to management or any external regulator.

In December 2017 Lynne Harvey began an investigation after serious incident reports concerning the claimant. HR involvement was introduced shortly afterwards, the claimant was interviewed on 22 December 2017, and she was then suspended pending further investigation. The tribunal found that the allegations were serious enough to warrant investigation, that the initial failure to involve HR at the outset was quickly corrected, and that the suspension was legitimate. The disciplinary process resulted in a verbal warning on 16 January 2018 for failing to provide an adequate level of supervision on 7 December 2017 by using her phone upstairs for an extended period and allowing a young person access to the office computer; Mr McFadyen discounted the other allegations and took account of her long service and unblemished record. The SSSC was notified of the suspension, and in February 2019 both parties were told that the SSSC had concluded that the claimant's fitness to practise was not currently impaired and that no further action would be taken.

The tribunal rejected the claimant's case that the investigation, suspension, SSSC referral, welfare correspondence, and texts about returning to work cumulatively amounted to a breach of the implied term of mutual trust and confidence. It preferred the evidence of the respondent's witnesses, found the claimant's evidence unreliable, and held that the respondent's conduct, viewed objectively, was not something she could not reasonably be expected to put up with. The tribunal also found that the welfare meetings and return-to-work texts were innocuous, that the claimant had misunderstood her position with the SSSC, and that there was no identified "last straw" capable of making out constructive dismissal. On that basis, there was no fundamental breach of contract and the claim was dismissed.