Lucy Griffiths v Gloucestershire County Council

This is an appeal brought against the decision of Employment Judge Hargrove, sitting at Bristol Employment Tribunal. The decision was sent to the parties on 28 January 2021. By that decision, the Judge dismissed the Claimant’s claim of constructive unfair dismissal.

I shall refer to the Appellant as the Claimant, and to the Respondent to this appeal as the Respondent.

The relevant facts are as follows. The Claimant is a social worker. She has over 20 years’ experience of working in that role. She started working with the Respondent as a frontline social worker specialising in adult social care in June 1998. She became a Deputy Team Manager, a Senior Practitioner and Specialist Social Worker in a safeguarding-adult’s team. On 6 November 2017 she became a registered manager for Gloucestershire Shared Lives (GSL). In addition to her significant professional demands, she had a number of personal demands, including responsibilities for children and elderly parents. GSL provides a service to adults with assessed eligible health needs and social-care needs, supported by GSL carers within the home on a temporary or permanent basis. Originally, GSL was situated within the Respondent’s organisation within Children’s Services. As a result, as the registered care manager, the Claimant, had legal responsibility for maintaining a safe service in accordance with Care Quality Commission Regulations. At that time, the Claimant reported directly to Amanda Henderson, her line manager. The Claimant’s deputy, reporting to her, was Rachel Jarvis.

With effect from May 2018, however, the Claimant and the GSL team ‘moved’ from its location within Children’s Services, to the Adult Social Care, Learning and Disability Operations team. As a result of this reorganisation, the Claimant and her team had to move offices. One aspect of the Claimant’s case before the Tribunal was that, following that move, there was inadequate space made for her team within the new office location and that inadequate desks were allocated to the team, which caused working problems for the team, not least because they were no longer working in proximity with other team members with whom they were required to work. The Claimant considered that Keith Vardy, another individual working within the Respondent organisation, was responsible for making those unhelpful working arrangements, or that he failed to change them. At the time of these events, Mr Vardy was the Integrated Social Care Manager in the Council’s learning disability service. The Claimant believed that Mr Vardy’s evidence about that matter before the Tribunal was untruthful. At the time of the hearing before the Tribunal, Mr Vardy was the Head of Adult Social Care.

A further part of the Claimant’s case was that the move of the GSL team into the Adult Social Care, Learning and Disability Operations team came with other problems. In particular, she considered that there was a conflict of interest between the GSL team and the Adult Social Care Learning and Disability Operations part of the Respondent’s organisation. The former provided a service to vulnerable adults. The Adult Social Care, Learning and Disability Operations team was responsible for commissioning the work of the GSL team, as well as other teams providing services. The Respondent denied that there was any such conflict.

In late 2018 and early 2019, decisions were made about how a review of the GSL services should take place. One proposal was that an independent strategic-review manager (SRM) should be appointed for a fixed term of 12 months. The Claimant advanced an alternative proposal, namely that she should be appointed to the role. Ultimately the Claimant’s proposal was not accepted. Instead, a vacancy for the SRM was advertised in February 2019 and subsequently Ms Rose-Snuggs was appointed to the role. It is clear from the findings of the Employment Judge that the Claimant was not alone in expressing concerns about the proposal regarding the SRM role. In particular, Jane Field, the Claimant’s former line manager, expressed concerns about the proposal and the fact that the successful applicant would go on to manage the GSL team (see for example paragraph 6.7 of the decision). The Claimant, as already noted, had similar concerns, and she shared those concerns with Dawn Porter, head of Integrated Adult Social Care. Ms Field was also recorded as communicating the fact that the Claimant had told her in a supervision meeting (on 29 March) that Mr Vardy had made derogatory remarks about the GSL team. I note that latter point because, significantly, Ms Field was the Claimant’s line manager up until the end of May 2019. One aspect of the Claimant’s case was that she was someone to whom the Claimant had confided her concerns after the GSL team had moved, as described above. Ms Field did not give evidence before the Tribunal, although it is clear that the email/letter in which she made those reports was before the Judge. Similarly, in paragraph 6.8 of the Tribunal’s Judgment it was recorded that, although, Ms Field ceased to be the Claimant’s line manager on 13 May 2019, she had undertaken supervision with the Claimant on 8 March, 30 April and 28 May 2019. Within those supervisions the Claimant was recorded as having raised concerns about the proposal to appoint an SRM, about having ongoing issues with Mr Vardy’s management style and the role of the newly appointed SRM. At the last supervision, which took place on 28 May, the Claimant was recorded as feeling undermined and stressed by the situation. It appears that a referral was made to occupational health.

Some difficulties arose in May and June 2019, in particular, some problems regarding an individual described as AH, who, it appears, was a carer appointed for a service user who exhibited challenging behaviour; and, secondly, problems about housing benefit. It appears from the facts recorded within the Judgment at paragraph 6.10 that the Claimant was given no or little advance notice of those problems in advance of a meeting that was due to take place on 13 June 2019 but which was subsequently was arranged for 21 June 2019. The minutes of that meeting were not agreed, the Claimant having added comments to the originals produced. The Claimant asserted in her witness statement that, during the meeting, Ms Rose Snuggs sought to undermine and alienate her. The Judge concluded that there was no support for that serious allegation in either version of the notes.

On 21 June 2019 the Claimant resigned from her employment on notice. She shared her resignation letter with her team at approximately 10.00 in the morning. I was provided today with a copy of the Claimant’s letter of resignation.

The Claimant asserted that she had been undermined for a significant period of time, that the environment she was working in was difficult, disrespectful and unprofessional; that she felt that, despite efforts on her part, it had not improved and that, ultimately, she had been swimming against the tide for long enough. She explained that she believed that there had been systematic dismantling of her authority over the past year, whilst she remained legally accountable should anything go wrong within the service. She stated that she had no confidence or trust in her current line managers, who appeared hostile towards her and appeared to deliberately undermine her decisions and her team at every opportunity. She stated that, having been unable to resolve the difficulties informally over the past year she would be making a formal grievance in writing and, further, putting forward a claim of constructive dismissal. The Judge recorded as follows at paragraph 6.13 of the judgment:

“The contents of that letter are of crucial importance because it summarises and crystallises the then reasons for her resignation [see page B94], which are however limited to generalised allegations, albeit serious, concerning KV’s treatment of her over a period of a year, the appointment of CRS to take over the operational management of SL, with consequent undermining of the Claimant’s authority and responsibilities.”

Pausing there and going back in time for a moment, as I set out above, it appears that after the supervision meeting on 28 May 2019 a referral was made to occupational health. The Judge noted that no records from occupational health were disclosed or were before the Tribunal (see paragraph 6.14). However, it was also recorded that an individual who appears to have been an HR officer within the Respondent organisation, had informed another employee within the organisation that the Claimant had been asked to raise a grievance. On 12 June 2019 that same HR officer met with Mr Vardy and Ms Porter. At that meeting HR asserted that some performance concerns had been raised including the possibility of a GSL assessment. A meeting was scheduled to take place with the Claimant on 13 June 2019, but that was postponed so that, instead, it took place on 21 June 2019. The Claimant did not have knowledge about what that meeting was to discuss until she was invited to it as a rearranged ‘GSL catch-up’. It was also described as a ‘resilience meeting’. The email inviting her to it was sent by Ms Rose Snuggs. Unbeknownst to the Claimant, however, emails about what should take place in that meeting and be discussed in it had been discussed between Mr Vardy and Ms Rose Snuggs.

It appears from relevant emails that the purpose of the meeting (from Mr Vardy’s and Ms Rose Snugg’s perspective) was different to that which the Claimant was led to believe it was to discuss a number of matters, potentially in respect of personal development, and to allow the Claimant the opportunity to add matters which she wished to discuss. In relation to a housing-benefit issue, one matter to discuss was to clarify and minute who the Claimant felt was responsible for openly discussing the housing-benefit issue with a particular GSL carer, stressing in particular the implications for the council as these actions were not sanctioned at a more senior level. However, before the meeting was due to start on 21 June 2019, a pre-meeting appears to have taken place, attended by the HR officer or manager, Mr Vardy and Ms Rose Snuggs. The Judge recorded that it was not clear precisely what was discussed in that pre-meeting. At its highest, however, the Judge’ decision suggests that the evidence before the Tribunal was that suspension was discussed as a ‘possibility’ at that point in time. Before the meeting could start, however, the Director of Social Care attended, with a copy of the Claimant’s letter of resignation. The evidence before the Tribunal was, therefore, that the Claimant had handed in her resignation prior to being informed about suspension, or the possibility of it.

After the Claimant’s resignation took place, the Claimant was, in fact, suspended, the reasons for that suspension being set out in an email of the 26^th June 2019. The evidence before the Tribunal was that, potentially, the issues which, previously, were to be considered as performance issues (as recorded in the emails exchanged by Mr Vardy and Ms Rose-Snuggs) had subsequently been expanded/ exaggerated into conduct issues. That was, clearly, relevant evidence, in the context of the claim before the Tribunal.

The Claimant lodged a formal grievance on 18 July 2019, as she had previously indicated she would do. That earlier statement of intention to do so, was, evidentially, relevant to the issue of whether the grievance was a reaction to, her suspension. That grievance was investigated by a Ms Holder. She produced a report dated 7 August 2019. That did not uphold the Claimant’s allegations of systematic bullying or that there was a conspiracy to suspend her or to force her resignation. The Judge recorded that those were the findings of Ms Holder. However, the Judge himself made no independent findings about the validity of that investigation or its conclusions, nor did he set out his own findings or conclusions about those allegations.

On 30 August 2019 the same individual, Ms Holder, completed a disciplinary investigation report, in which she concluded that there was evidence to warrant a formal disciplinary hearing in respect of six separate issues. A disciplinary hearing was scheduled to take place. The Claimant, with legal assistance, submitted detailed written submissions. Within those submissions she made the point that the allegations against her were, in truth, not conduct issues but at most capability issues, which should have been dealt with by way of a personal improvement plan (PIP) rather than disciplinary proceedings.

The disciplinary hearing was scheduled to take place before a Mark Branton, deputy director of adult social care. In a letter dated 18 September 2019 Mr Branton set out his conclusions. He stated:

“Having read the investigation report, management’s submission and your own submission and having worked through the various evidence logs it is evident that there are clear management concerns about your performance. However, notwithstanding that they are of sufficient concern to have warranted your suspension so that they could be formally investigated I would accept the argument in your submission that they amount to performance issues and did not meet the threshold for consideration as gross misconduct.”

He accepted, therefore, that these were matters that should have been pursued by way of a PIP, had the Claimant not resigned. The Judge recorded that, by this stage, the Claimant had reported herself to Social Work England. The Judge stated that the case was considered by that case examiners from that organisation, with input from the Respondent. The conclusions of Social Work England, set out in a letter dated 3 August 2020, were that if the case were sent to a fitness to practise hearing, there was no realistic prospect of a finding of impairment. This, the Judge noted, was consistent with the outcome of the disciplinary process. The evidence before the Judge, therefore, was that, whilst there were performance issues which could reasonably have been addressed, there was nothing in the Claimant’s work or performance which would have amounted to gross misconduct.

The Judge set out his conclusions in paragraph 7. At the outset of that paragraph the Judge stated clearly that in his view the Claimant had not proved that the Respondent, in particular by the actions of Mr Vardy and Ms Rose Snuggs, had acted without reasonable and proper cause, in such a way as to be calculated or likely to destroy or seriously damage trust and confidence in the Respondent by the Claimant. It also appears that he may not have concluded that she resigned in response to that breach.

In the following paragraphs the Judge set out a clear view that the Claimant was unhappy about her work, and working environment for the team, following the move of the GSL team.

However, although the Judge, in the opening paragraphs of the Reasons, had identified that the factual issues in the case were ‘complex’ and required a ‘detailed consideration of social work practice and procedure’, and whilst he identified factual issues (and differences of view between the Claimant and the Respondent) regarding the allocation of office space to the GSL team, the possible conflict of interest regarding the GSL team’s move into the Adult Social Care, Learning and Disability Operations team, and appointment of Ms Rose-Snuggs as the Strategic Review Manager, the Reasons set out short conclusions about some of those matters, but no explanation as to how those conclusions were reached; he did not express a conclusion about the evidence he heard and saw regarding them, although they were relevant issues about the Claimant’s allegation that there had been a breach of the implied term of trust and confidence.

The Judge set out his conclusions at pages 8-10 of the Reasons. He identified that the appointment of Ms Rose-Snuggs was a reasonable management decision. Similarly, he concluded that ‘much of’ the Claimant’s discontent arose from the decision to appoint Ms Rose-Snuggs. He also concluded that there was no conflict arising from the move of the GSL team, nor that there was any deliberate attempt to disadvantage the GSL team regarding allocation of work space. He stated that the Claimant’s belief that Mr Vardy’s account about access to computer terminals was a deliberate lie was ‘fanciful’. He stated that he did not consider that the Claimant’s authority was seriously undermined by MS Rose-Snuggs or otherwise. Significantly, however, the Judge did not set out how, or why, he reached those conclusions.

The Judge stated:

“I am reinforced in my conclusions by the fact that the Claimant did not raise a grievance until weeks after her resignation, and only after she had been suspended. I reject her explanation that she was reluctant to raise a grievance before resigning because of the Respondent’s possible reaction. She is not the sort of person to shirk challenges. I consider that a provoking factor was her suspension.”

The Judge referred to the submissions made on behalf of the Claimant that she had resigned before she was suspended, and, the fact that it was asserted that conduct issues, possibly raised, initially, in the email of 19 June 2019 were later exaggerated in subsequent emails and that, consequently, this undermined Mr Vardy’s credibility and/or demonstrated bad faith on his part. The Judge recorded that Mr Vardy claimed not to remember and could not explain the reason for the differences. The Judge noted that one possible explanation, however, was that the second letter was a reaction to the content of the Claimant’s resignation letter of 21 June, which was highly critical of him.

The Judge then went on, however, to state that, in order to succeed in her claim of constructive unfair dismissal, the Claimant had to prove that she has resigned in response to a breach of contract. He noted that the Claimant had only discovered the emails of 19 and 26 June 2019 after she had resigned and that, evidentially, her case might have been stronger had she known about their existence and contents before she resigned. He concluded that the facts of these documents did not, however, affect his view of the credibility of the evidence given by Mr Vardy and Ms Rose Snuggs in respect of matters which had occurred prior to the Claimant’s resignation.

Three grounds of appeal were permitted to proceed to this full hearing as follows:

The Respondent contended that when read as a whole, there was no error in the Judge’s approach or decision. The Respondent addressed each of those grounds of appeal of appeal in turn, setting out the relevant case law and the relevant parts of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the 2013 Rules”). In particular, it was submitted that when considering whether or not there were adequate reasons for the decision, as required by the decision in Meek v City of Birmingham District Council [1987] IRLR 250, a Judge is only required to set out within the judgment sufficient information about the reasoning process so as to allow either party to understand why one lost, and one won. Adequacy is a matter of assessment in each particular case, and failing to address trivial or irrelevant matters should not result in a criticism of a tribunal’s decision. The Respondent emphasised the principle that an appellate court must read a judgment as a whole, and it is not the particular format or style of the Judgment that is determinative of an appeal but whether or not there is substantial compliance with the requirements set out in paragraph 62.5 of the 2013 Rules. All of those principles were summarised in the decision of Cavanagh J in Frame v The Governing Body of The Llangiwg Primary School and Anor UKEAT/0320/19/AT. Further, parties should be left in no doubt as to why they have won or lost. See Flannery v Halifax Estate Agencyes Ltd (t/a Colleys Professional Services) 2000 1 WLR 377 CA.

The Respondent submitted that the totality of the Judgment provides the reasons that are required and that the Judge clearly rejected the Claimant’s case and her evidence. It was submitted that the Judge identified matters that were critical to the decision and adopted a coherent structure. It was submitted that the Judge had clearly contextualised the basis upon which he would assess the actions of the Respondent’s witnesses and the relevance of credibility to each individual issue. The Respondent submitted that, to the extent that the Grounds of Appeal raised an allegation of perversity, the Claimant came nowhere near to establishing the overwhelming case required in order to disrupt the decision or the findings of fact of the tribunal. In particular, the Respondent referred me to paragraph 7 of the decision and the fact that the Judge’s analysis of the reasons why the Claimant raised her grievance as she did only reinforced the Judge’s conclusions.

The Claimant began by addressing Ground 3. It was submitted that the finding that the Claimant had lodged a grievance in response to her suspension simply was not one that was supported by the evidence, even from a relatively cursory examination of relevant documents. In particular, the Claimant resigned on 21 June 2019 and she did not have forewarning of what might occur in the meeting due to take place on that day. She gave notice, in the letter of resignation shared with her team at 10.30 am on that day, that she proposed to lodge a grievance. She attributed the need to resign to the actions of the Respondent, in particular her line managers. In addition, it was submitted that the Claimant was not challenged about this matter when she gave evidence; it was not put to her that this was the reason why she lodged her grievance. Further, it was submitted that in respect of Grounds 1 and 2 that whilst the Judge had recorded within the judgment, at different points, the potential relevance of the evidence regarding the email of 19 June 2019 (page 67 of the bundle) and that of 26 June 2019 (page 69), he failed to engage with the very real issues which those documents raised. A comparison of the emails clearly raised questions about the difference between the allegations raised about the Claimant and raised issues of credibility which demanded to be addressed. However, the Judge simply failed to engage with the issues raised. The Judge noted the submissions of the Claimant but either did not engage with them or, if he did, he merely stated his conclusions without setting out his rationale and reasons for reaching that decision in any detail at all.

I consider that I should allow the appeal in respect of each of the grounds advanced.

The Judge, in my view, had been assiduous in ensuring that there was a full list of issues prepared by the parties for the hearing. Through that careful case management, the basis for the allegation of breach of the implied term of trust and confidence was identified and the case was properly prepared for trial. His thorough approach to case management is also evident in the opening paragraphs of the Reasons. The list of issues was detailed. It runs to some four pages. In it the Claimant made specific allegations as to why she said that there had been a breach of the implied term of trust and confidence. She raised, in particular, the asserted failure of the Respondent to take seriously her concerns about a potential conflict of interest once the team moved to its new location within the Learning Disability Operations team; the alleged undermining of her position as the registered manager and the dismantling her authority; her assertion that she was prevented from running the GSL service effectively; Mr Vardy’s treatment being dismissive, excluding her and treating her in an oppressive and disempowering management style; similarly Ms Rose Snuggs making operational decisions which undermined the Claimant, by excluding her from meetings, making her position untenable by taking an adversarial attitude towards her in supervision and other meetings; the Respondent failing to act on the Claimant’s concerns once she had raised them with Ms Porter and Tina Reed, both of whom were managers senior to Mr Vardy; and HR failing to address the issues she raised.

Turning to the specific grounds of appeal, as the Claimant did, I begin with Ground 3. The Judge set out a clear conclusion that the Claimant did not raise her grievance until weeks after her resignation, particularly at page 9 of the Reasons. Both parties agreed that that had not been contended for by either party at the Tribunal hearing. The Judge also concluded that the suspension was a provoking factor in raising her grievance. The Judge did not, within that paragraph, or elsewhere, explain how that conclusion sat with the evidence before him that the resignation letter was dated 21 June 2019, that in it the Claimant gave clear notice of her intention to lodge a claim of constructive dismissal and a grievance and that she subsequently did so. However, on the morning of 21 June 2019 the Claimant did not know that she was to be suspended. Further, to the extent that the Judge engaged with the reasons for the Claimant’s resignation, he merely alluded to the fact that the Claimant had made a number of unparticularised, albeit serious, allegations in her letter of resignation. There is not, at that point, or elsewhere, any analysis of those serious allegations with the subsequent grievance the Claimant raised and the findings made within it. Some consideration of those issues was, in my judgment, required. This was a case where the Claimant asserted that there had been a fundamental breach of contract; she asserted that things had occurred that amounted to a breach of the implied term of mutual trust and confidence, and relied upon a number of asserted factual events in order to prove that matter.

Unlike a claim of unfair dismissal, this was not a case where the Judge was required merely to consider the reasonableness of the Respondent’s actions. In a claim of constructive unfair dismissal based on the implied term the Judge and the Tribunal itself had to grapple with the factual evidence about what in fact occurred, make findings about whether the matters asserted to have taken place did, in fact do so, and then determine whether the established facts did amount to a breach of the implied term. Reading the Judgment and Reasons as a whole, fairly, and in context, I cannot discern within it the necessary analysis of the facts, factual determinations and evaluation to undertake that task. The Judge did not make factual determinations about the matters the Claimant raised and complained about in the list of issues. The conclusion at the end of page 9 is one that appears not to have been based on any evidence, alternatively was one which the Judge failed to explain.

Similarly, in respect of Ground 1, whilst the Judge properly recognised that the reasons for the Claimant’s resignation had to be looked at from the standpoint of the date upon which the Claimant decided to resign, he appeared not to have done so, alternatively, not to have addressed issues relevant to that assessment. The Claimant’s resignation letter set out that which she believed the situation was at the time, namely that she was being bullied, undermined as a manager and that, despite her efforts to address it informally, that conduct had not changed and, she believed, would not change. She did not know that she might be suspended. That cannot, therefore, have fed into her decision to resign. As a matter of fact, however, after she had made the decision to resign and explained her reasons for doing so in her resignation letter, she was suspended and subjected to disciplinary proceedings. There was evidence before the Tribunal (particularly in the form of the emails of 21 and 26 June 2019) that matters which originally had been suggested to have been suitable for resolution as performance issues, were subsequently, exaggerated/ enlarged, so as to be said to amount to conduct issues. The Judge acknowledged within his decision that evidence regarding matters which occurred after her resignation could have had probative value in respect of that which was, in fact, taking place prior to her resignation. What he did not do, however, was then to analyse and consider the probative value of that evidence.

In this context, the Judge’s conclusions set out in page 10 of the Reasons rather miss the point. The Judge appeared to suggest that the Claimant’s case would have been stronger if she had waited until she had been suspended, and then resigned. That fails to engage with the fact that the evidence which came to light after her resignation may have provided credible and probative evidence about what was happening on the ground before she resigned, i.e., which might have supported the Claimant’s case that her perception of the then existing events, was correct. In my judgment, the Judge failed to grapple with those issues and failed to address them in the decision. In those circumstances I also find that the Judge erred as contended by Ground 1.

The same logic applies to Ground 2. As I have already stated, what the Judge did not do was make any specific findings about those matters about which the Claimant complained in the list of issues and within her grievance. In order to determine her case properly he was required to do so.

The Judge was not required to set out all relevant issues, set out all matters or make findings about every matter in dispute. What will be ‘adequate’ analysis will differ between different cases. However, in this particular case, the Judge was, in my judgment, bound to set out reasoning sufficient to enable the parties to understood why they won or lost having regard to the material factual allegations relating to the asserted breach of the implied term of trust and confidence. That was not done in this case. I allow the appeal.

Finally, I make a number of observations which are not relevant to my conclusions, but which I consider are appropriate to add. In recent years, over the Covid pandemic, the Respondent organisation and the Claimant worked during a particularly demanding and difficult time. Social work is a profession which rarely appears in the media for its successes, rather, only tends to receive media attention when things have gone badly wrong. Those working in this field are, in my view, often under-recognised for the valuable, positive, work they do, on a day-to-day basis, sometimes with the most vulnerable members of society who can be faced with acute challenge and difficulty. So too, local authorities. Finally, I pay tribute to the Judge himself who was dealing with this case in 2021, at a time where the difficulties caused by the Covid pandemic continued to have significant implications for those working in the administration of justice. He too should be thanked and recognised for his hard work and service to the administration of justice.