In Ms M Tracey v ACAS  Ms Tracey was a helpline advisor for ACAS who started in 2013. Shortly after starting employment as a fixed-term employee, she was presented with a contract stating that her employment would terminate after one year. However, Ms Tracey’s employment continued after the expiry of the term stated, having agreed with management that she would continue. An email was sent including a new contract which asked for the document to be signed and returned, which never took place due to a few queries raised which included the number of hours of work and holiday pay. Another contract was sent out after that which reduced the number of days of annual leave Ms Tracey was entitled to, which again was rejected and not signed. Not wanting to press the point too heavily and risk her employment she worked without a new contract for around 3 years.

In early 2018 it became apparent that no leave records could be found. The problem came with the use of a new piece of software that was brought in to assist with payroll and the calculation of holiday entitlement. The staff at the time the software was brought in did not know how to properly record these values, so it went unnoticed that inadequate records were being kept until January 2022, when a new member of staff was brought in. At this stage, several questions were brought up as to exactly how much annual leave Ms Tracey was entitled to and how much of said leave had been taken.

Across multiple points in Ms Tracey’s employment the payroll team wrongly suggested that there had been an overpayment and sought to recover it, only for the matter to be challenged again and then go quiet. This culminated in 2021 where the lack of clarity and the issues caused around holiday pay led to an attempted resignation, which was only prevented by a discussion with her line manager stating that the issue would be resolved in January 2022. While draft letters were sent which looked to agree a final amount of holiday pay owed by ACAS, this was never finalised.

Another payroll administrator joined the Respondent and questions as to the Claimant’s annual leave entitlement were raised again, prompting more discussions around how the figure is calculated. While an agreement was almost reached which resolved to draw a line under the previous years and set out in clear terms how much holiday entitlement was due, these were again never finalised. This situation continued for over 5 months, until, following another discussion which showed the Claimant’s manager had still failed to understand the holiday entitlement situation, the Claimant resigned and brought a constructive dismissal claim.

The Tribunal found that, while the simple discussion before the resignation did not, by itself, amount to a repudiatory breach, the situation as a whole caused the Claimant to feel that she was not secure in her position, that the money could be clawed back, and doubts as to the certainty of her position, which was compounded by the numerous questions asked at a fundamental level over the years by different members of staff. While the question, when taken as a singular event, would not amount to a serious breach, the series of questions and discussions, when taken as a whole, amounted to a level sufficient to show a dismissal.

The Tribunal said ACAS had also failed to adequately investigate the matter. It was only after the Claimant resigned that a genuine attempt by the Respondent was made by an experienced member of staff to resolve the situation.