Ms Warrington, a former employee of Lloyd’s Pharmacy Limited, accused her previous employers of constructive dismissal after overhearing her branch manager describe ‘getting rid’ of her as a ‘work in progress’.
Was Ms Warrington constructively dismissed?
Warrington v Lloyds Pharmacy
Ms Warrington was employed by Lloyd’s Pharmacy as a dispenser from 2004. Throughout her employment she was accused of inappropriate behaviour towards multiple colleagues within the branch. A particularly notable alleged encounter was where Ms Warrington was seen to speak to a colleague in a condescending and intimidating manner, something which had become a regular occurrence. On one occasion, Ms Warrington was viewed raising a hand towards the face of the colleague in an attempt to stop her from talking. A grievance was raised against Ms Warrington. This was not brought up for discussion until a later date where Ms Warrington was asked to ‘reflect a little bit on her own behaviour’.
Ms Warrington was later signed off work for a pre-planned surgery. Following the surgery, she was advised that there would be an absence review meeting regarding her return to work. This was in order to discuss any modifications to her usual work roles, which would better accommodate her through the recovery process. This review meeting was held in a neutral location (a coffee shop). Ms Warrington claimed that the location was unsuitable and during this meeting her line manager made inappropriate comments about her childcare arrangements and told her she was not entitled to discretionary sick pay.
Upon her return to work, Ms Warrington claims she was not given a formal meeting allowing her to discuss her concerns and be properly supported. Ms Warrington also raised a grievance against her line manager alleging that she had made a comment about Ms Warrington to a colleague in the pharmacy, suggesting that getting rid of Ms Warrington was ‘work in progress’. Following this, Ms Warrington attended a work event at which she claims to have heard the area manager questioning ‘Why is Mel here?’ Ms Warrington interpreted the comment to be asking why she had not been ‘got rid of yet’, considering it was made in close proximity to comments made by her line manager.
Ms Warrington resigned in December 2016 and brought claims of constructive dismissal.
The Employment Tribunal found that Ms Warrington had been constructively dismissed. It found that there was a breach of the implied term of trust and confidence between the employer and employee on the part of Lloyds and the breach was sufficiently serious to allow Ms Warrington to resign in response. Of the nine breaches Ms Warrington alleged, the Tribunal found that it was the ‘work in progress’ comment which caused the fundamental breach. It was a remark that substantially undermined the employment relationship.
The Tribunal went on to find that Ms Warrington could have been fairly dismissed based on her own misconduct (bullying and harassment), which were being investigated. The Tribunal reasoned that there was a 50% chance of this happening by the end of January 2017. The Tribunal left it to the parties to see if they could agree compensation on the basis that Ms Warrington was claiming relatively small sums.
This case highlights to employers the damage that seemingly throwaway comments can cause in an employment context. The ‘work in progress’ comment would seem innocuous to many but in context was sufficiently serious to enable Ms Warrington to succeed with a constructive dismissal claim.
Employers (and employees) must have regard to the implied term of mutual trust and confidence in the employment relationship and must not (without reason) conduct themselves in a manner calculated or likely to destroy that relationship. If an employer’s conduct on the whole is such that an employee cannot be expected to “put up with it”, it is likely that there will be a breach of the term and employers could face constructive unfair dismissal claims.
If you have any queries on constructive dismissal or any other Employment Law or HR enquiries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.