A solicitor who described a Citizens Advice policy to award hard-working staff their birthday off as ‘dubious’ has lost her claim for constructive unfair dismissal.
The claimant, Sarah Guest, brought a complaint of constructive unfair dismissal to the employment tribunal in Manchester, relying on an alleged breach of the implied duty of mutual trust and confidence.
In July 2023, the director of operations announced the launch of a “Good Citizen Award” on an internal forum.
Each month, staff could nominate colleagues for being excellent collaborators. Nominations would be reviewed by the leadership team and winners would be able to take their birthday off as an additional day’s leave.
Guest, who started working as a solicitor at Citizens Advice Manchester in 2010, posted in response: “That sounds a bit dubious to me.”
Constructive dismissal
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Another employee posted: “We are all good citizens. We know that it’s really important for you all to be recognised for your achievements so maybe we should all have our birthday off.”
HR manager Jo-Anne Sharkey responded that she was disappointed by their negative reactions and struggled to see how celebrating positive work colleagues was dubious or unwelcome. She added that holiday entitlement was generous and that people could still book their birthdays off each year.
Andy Brown, chief executive, then posted that it was a shame that a few had reacted with such negativity. He added: “What is dubious is whether those negative people are really aligned with the values and culture of CA.”
The tribunal accepted that Guest had found Brown’s post humiliating.
Around a fortnight later, she spoke with her manager Dan Pye. She said she was annoyed with Sharkey and Brown’s post and that she did not feel valued. Pye assured her she was valued. He said staff had worked hard on the Good Citizen Awards and that they might feel undermined by the inappropriate comment she posted.
Pye was not critical of Brown’s post. They talked about making concerted efforts to post success stories that might highlight Guest’s work and to refrain from making negative comments towards others for their attempts to foster a positive working culture.
Employment Judge Slater accepted that Pye did not view Brown’s post as demeaning or a veiled threat to Guest’s job security.
In October 2023, Guest, who had begun applying for other jobs, accepted a job at Citizens Advice Bury and Bolton. When she resigned her role in Manchester, she did not mention the conduct of Brown.
In her submission to the tribunal Guest accepted her post was ill-judged but said the response was “disproportionate and inappropriate”. She said it was designed to humiliate her and that insult was intended.
She told the tribunal she “could not bear to continue to work there” and gave other reasons for her resignation because she did not want to “lose face or admit it had the effect it did”.
The judge concluded that whether the claimant was constructively dismissed, stands or falls on the post made by Andy Brown.
‘Dubious’
“The claimant has admitted that her comment was ill-judged, and I agree,” said the judge. “To describe the initiative as ‘dubious’ on a forum open to all employees was an inappropriate way of raising any concerns that she might have.”
The judgment concluded that Brown had “reasonable and proper cause” to respond in the same employee-wide forum supporting the initiative and regretting the negative reactions from the claimant and another employee.
However, Brown did not have reasonable and proper cause for commenting “What is dubious is whether those negative people are really aligned with the values and culture of CA”, said the judge. “I consider this went beyond a proportionate and appropriate employee-wide response to the posts.”
This comment could have been damaging “but not to such a serious extent that there was a breach of the implied duty of mutual trust and confidence.”
The judge added: “The complaint of constructive dismissal fails for this reason.”
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