Mrs M Warrington v Lloyd-�s Pharmacy Ltd (England and Wales : Unfair Dismissal)

Factual and Procedural Background

The Plaintiff was employed as a dispenser by the Defendant at its Pharmacy located in The City from 19 May 2004 until the Plaintiff’s resignation on 29 November 2016, effective 27 December 2016. The Plaintiff claimed constructive unfair dismissal, relying on nine specific allegations related to the conduct of the Defendant’s branch manager, Mrs Ahmed, and the workplace environment. The Plaintiff’s grievances included inappropriate management of sickness absence, alleged bullying and harassment, lack of support following a grievance by a colleague, and derogatory comments made by management. The Defendant contested these allegations, citing the Plaintiff’s conduct towards a colleague as potentially constituting gross misconduct. The Tribunal heard oral evidence from both parties and witnesses over two days, reserved judgment, and conducted a liability hearing only. A remedy hearing was to be listed if required.

Legal Issues Presented

1. Whether the Defendant’s conduct, as alleged by the Plaintiff, constituted a repudiatory breach of the implied term of mutual trust and confidence, amounting to constructive dismissal.
2. Whether the Plaintiff resigned in response to such a breach, thereby entitling her to claim constructive dismissal under s.95(1)(c) of the Employment Rights Act 1996.
3. Whether the Defendant could establish a fair reason for dismissal, specifically misconduct related to bullying and harassment, and the likelihood of fair dismissal absent the breach (Polkey point).

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff relied on nine allegations of breaches by the Defendant, including inappropriate conduct during a sickness absence review, lack of proper return to work interview, refusal of company sick pay, derogatory comments by management, and failure to support the Plaintiff following a colleague’s grievance.
• The Plaintiff contended that these breaches, individually or cumulatively, destroyed the mutual trust and confidence essential to the employment contract.
• The Plaintiff argued that resignation was in response to these breaches and thus constituted constructive dismissal.

Defendant's Arguments

• The Defendant denied some allegations, particularly the comment about "getting rid of" the Plaintiff, though the Tribunal found this was made.
• The Defendant maintained that the Plaintiff’s conduct towards a colleague was inappropriate and could have justified disciplinary action leading to dismissal.
• The Defendant argued that any dismissal would have been fair due to misconduct, and the Plaintiff’s resignation was not solely due to any breach by the Defendant.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal examined each of the nine allegations individually and cumulatively to determine if they breached the implied term of mutual trust and confidence. It found that some allegations, such as the venue of a sickness absence meeting, inappropriate questions about children, failure to provide interview notes, and sick pay issues, did not amount to breaches or contribute to any breach. The Tribunal accepted that the Defendant’s branch manager, Mrs Ahmed, made a derogatory comment indicating an intention to remove the Plaintiff from employment, which was a serious breach undermining trust and confidence. Moreover, the lack of support on the Plaintiff’s return to work and the management of workplace tensions contributed to a fundamental breach. The Tribunal concluded that these breaches cumulatively amounted to a repudiatory breach of contract, justifying the Plaintiff’s resignation as constructive dismissal.

Regarding the Defendant’s asserted reason for dismissal—misconduct related to bullying and harassment—the Tribunal noted that disciplinary proceedings had not commenced by the time of resignation and the outcome was uncertain. Applying the Polkey principle, the Tribunal assessed a 50% chance that the Plaintiff would have been fairly dismissed had the disciplinary process proceeded. The Plaintiff’s long service and lack of prior disciplinary record suggested mitigation, possibly resulting in a lesser sanction than dismissal.

Holding and Implications

The Tribunal held that the Plaintiff was constructively unfairly dismissed by the Defendant. It found that the Defendant’s conduct, particularly the derogatory comment and lack of support, constituted a fundamental breach of the implied term of mutual trust and confidence, justifying the Plaintiff’s resignation. The Tribunal also found a 50% likelihood that the Plaintiff would have been fairly dismissed following a disciplinary process absent the breach.

The direct effect of this decision is that the Plaintiff’s claim for constructive unfair dismissal succeeds on liability. The Tribunal reserved a remedy hearing, to be listed if required by the parties. No new precedent was established beyond the application of established legal principles. The parties are anticipated to settle the matter given the modest financial loss claimed.