IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
MARIA MANUELA LEITE
Reference:  TRE216
Hearing Date: 11
& 12 June 2018
H G Griffin, Chairman
For the Claimant: In
person, supported by her son, Mr N Ribeiro
For the Respondent: Advocate
The Tribunal finds that although the Respondent was in repudiatory breach
of contract, the Claimant affirmed the contract. Consequently, the Claimant’s claim
for constructive unfair dismissal is rejected.
The Tribunal finds that the Claimant’s claim that the Respondent
failed to provide her with a written statement of terms succeeds.
1. The Respondent
is a barber shop located in St Helier.
Mr A Fitzpatrick is the Respondent’s sole owner and he also runs
the business. At the time of the termination of the Claimant's employment, the
Respondent had three employees, including the Claimant.
2. The Respondent
employed the Claimant as a hairstylist between 1 April 2009 and 28 November
2017, when she resigned without notice claiming constructive dismissal.
3. By a Claim Form
presented on 11 December 2017, the Claimant brought a number of complaints as
set out below.
Claimant’s case as formulated in her Claim Form
4. The Claimant claimed
a) she was
constructively and unfairly dismissed by the Respondent;
b) the Respondent
failed to provide the Claimant with itemised pay statements; and
c) the Respondent
failed to provide the Claimant with a statement of employment terms,
(together “the Claims”).
5. The Respondent
denied the Claims.
6. The parties
attended a Case Management Meeting before a deputy chairman on 2 March 2018 at
which various orders were made and subsequently recorded in Case Management
7. At the
Hearing, the Claimant agreed that she had withdrawn her claim relating to
itemised pay statements at the Case Management Meeting. However she denied
withdrawing her claim relating to employment terms. In the absence of a written
confirmation of withdrawal from the Claimant or in the Case Management
Orders, confirmed that the
Claimant's claim relating to the provision of a statement of employment terms
8. The Respondent
withdrew its counterclaim against the Claimant during the course of the
9. The Respondent
accepted that the Claimant was an employee and had sufficient continuous
employment to claim protection from unfair dismissal.
In her written submissions and at the Hearing, the
Claimant claimed that the following acts
amounted to a breach by the Respondent of the implied duty of mutual
trust and confidence:
the Respondent’s response (or lack of
response) to the Claimant’s grievance (“Grievance”);
the alleged comments made by Mr Fitzpatrick and Mr
Marciniak when the Claimant received an abusive telephone call at the salon
(“Phone Incident”); and
the behaviour of Mr Marciniak and Miss Legniece
after the Claimant made a mistake on the till on 20 November 2017 (“Till
The Claimant identified the Till Incident as being
the ‘last straw’ which directly led to her resignation on 28
12. The Respondent
denied the Claimant’s allegations and denied that the Claimant was constructively
dismissed. It submitted that, to a
large extent, the Claimant’s own behaviour contributed to her
situation. The Respondent submitted
that the Claimant resigned for a number of reasons, namely:
a) for personal
b) to start a new
13. The Respondent
submitted that it acted reasonably in view of the circumstances, the
Respondent’s size and administrative resources available to it.
of Article 3 – statement of terms
14. The Claimant submitted
that, in breach of the provisions of Article 3 EJL:
a) the Respondent
did not provide her with a copy of the Contract; and
b) the Contract
did not record the Claimant’s commencement date or the Respondent’s
15. The Respondent
denied the Claimant’s arguments submissions. The Respondent submitted that:
a) Mr Fitzpatrick
provided the Claimant with a signed original copy of the Contract;
b) the lack of
date on the Contract was an oversight which did not cause any adverse impact on
the Claimant; and
c) the Respondent
followed a fair grievance procedure.
16. The Claimant
was not legally represented. She
was supported at the Hearing by her son, Mr N Ribeiro. Mr M Lopes provided translation services
to the Tribunal.
17. The Respondent
was represented throughout the process by Advocate Brown.
18. On behalf of
the Claimant, the Tribunal received witness statements from:
a) the Claimant herself;
b) JK (a
c) PF (a
19. The Claimant, JK
and PF each gave evidence under oath.
PMG did not attend the Hearing to give evidence under oath and was therefore unable to attach any weight
to his witness statement.
20. On behalf of
the Respondent, the Tribunal received witness statements witness statements from:
a) M A
Fitzpatrick (owner of the Respondent);
b) Mr G Marciniak
c) Miss K
(neighbouring business owner).
21. Each of the
Respondent’s witnesses gave evidence to the Tribunal under oath.
22. The Claimant provided
an agreed file of documents to which each party referred during the course of
23. Both parties
provided detailed written representations for my attention before the Hearing
and also made their arguments orally by way of submissions.
24. I considered
all of the evidence (both written and oral) provided by each of the
witnesses. However, I only
summarise in this judgment the evidence which was relevant to the issues. I considered the records of meetings
between the Claimant and both the Womens’ Refuge and CAJ, but I note that
those reports were not statements of fact but summaries of information which
the Claimant provided to those service providers.
25. The Claimant
confirmed that, until the Phone Incident on 30 September 2017, she generally
enjoyed a good working relationship with her colleagues and Mr Fitzpatrick. I
heard that the Claimant was hard-working, conscientious and a highly respected
hair stylist and that the Claimant also had an excellent attendance record; she
was always punctual and, until the final week of her employment, was never
absent on sick leave and never provided any medical certificates to Mr
26. The Claimant
suffered from mental health issues, including depression and anxiety. The
Claimant told the Tribunal that she was:
a) a very private
b) inclined to
worry excessively about what people thought of her; and
c) had a tendency
to over-analyse issues.
27. The Claimant
submitted that Mr Fitzpatrick knew that the Claimant was vulnerable and that he
should have taken extra care when dealing with her in the workplace. She
further submitted that because Mr Fitzpatrick knew that she had thyroid
problems, he should also have known that she may also have been suffering from
depression. The Claimant believed that Mr Fitzpatrick should have investigated
her thyroid health issues on the internet in order to find out any other
potential health issues.
28. Mr Fitzpatrick
gave evidence that he did not know that the Claimant suffered from depression
until he received her grievance from her on 23 October 2017, claiming he was
aware that she suffered from "mood
swings", but he did not know that she was depressed. The parties agreed that, until 22 November
2017, the Claimant was never absent on sick leave.
29. I accepted Mr
Fitzpatrick's evidence that he did not know that the Claimant suffered from,
and was being treated for, depression before 23 October 2017.
30. The parties
agreed that the Claimant’s key terms were set out in a contract of
employment (“Contract”) which was signed by both parties but which was
undated. The Claimant had inserted
her own name and address in manuscript into the Contract.
31. Mr Fitzpatrick
gave evidence that the Claimant signed two copies of the Contract, one of which
he put on file and he gave the other to the Claimant immediately. Mr Fitzpatrick suggested that the
Claimant may have lost the Contact during a series of house moves.
32. The Claimant
strongly denied having received a copy of the Contract. She gave evidence that she was always
very careful with important paperwork and that she still kept copies of
contracts from previous employers.
33. Mr Fitzpatrick
acknowledged that the Contract did not include a record of the Claimant’s
employment start date. Mr
Fitzpatrick gave evidence that this was an unintentional oversight where he
forgot to fill in the space provided on the Contract for the Claimant’s
Incident – 30 September 2017
34. On the
afternoon of Saturday 30 September 2017, an anonymous woman (“Anonymous
Caller”) telephoned the Respondent’s salon (“Salon”)
asking to speak to the Claimant (“Anonymous Call”). The Anonymous Caller was extremely abusive
to the Claimant and accused the Claimant of sending photographs of herself to
35. The Claimant was
deeply affected by the Anonymous Caller. I accepted the Claimant’s
evidence (which was supported by Miss Legniece) that she was tearful after the
call and was shaken up by the experience. Indeed, the Claimant gave evidence
that her mental health “went
downhill after the phone call” and she “worried what people thought”.
36. Miss Legniece gave
evidence (which the Claimant denied) that the Claimant started to speak
obsessively about the Anonymous Call to Miss Legniece and to the
Claimant’s customers. After a
while, Miss Legniece began to find this tiresome.
Allegations against Mr Fitzpatrick
37. The Claimant
gave evidence that, in response to the Anonymous Call, in front of customers
and colleagues, Mr Fitzpatrick called the Claimant to the telephone in a loud
voice saying "a woman is complaining
that you sent photos of yourself to her husband".
38. Mr Fitzpatrick
a) he spoke to
the Claimant in a loud voice which could have been heard by customers over the
noise in the Salon; and
b) he said that
the Anonymous Caller was accusing the Claimant of sending pictures of herself to
39. Mr Fitzpatrick
gave evidence that:
a) he had difficulty
in understanding the Anonymous Caller because she had a strong accent and the
line was poor;
b) he walked to
the rear of the Salon to tell the Claimant that a woman wanted to speak to her
about some pictures and her husband. Mr Fitzpatrick did not know what the
matter was about.
c) he had to repeat
himself three times before the Claimant acknowledged him.
40. Mr Fitzpatrick
denied that he spoke loudly or inappropriately in front of customers. The Claimant admitted that she initially
ignored Mr Fitzpatrick when he called her to the phone.
Allegations against Mr Marciniak
41. The Claimant
gave evidence that Mr Marciniak told customers in a loud voice that someone had
accused the Claimant of sending photos of herself to another woman's husband.
The Claimant gave evidence that when she tried to deny this, Mr Marciniak said
42. Mr Marciniak
anything about the Claimant sending photographs to the Anonymous Caller’s
b) telling the
Claimant to “cala-te”.
43. Mr Marciniak
did, however, admit that he teased the Claimant, and asked whether the
Anonymous Call was "about a bad
haircut?" or whether someone was "not happy with their hair cut".
44. Mr Marciniak
gave evidence that up until this time, he and the Claimant were good friends
but after the Anonymous Call, the Claimant became "aggressive" and started "accusing everyone around her". Mr Marciniak said that he and the
Claimant had always previously joked around and teased each other, but this
ceased after the Anonymous Call.
response to the Claimant’s Grievance
45. On 23 October
2017 Mr Fitzpatrick received a grievance letter ("Grievance Letter")
from the Claimant dated 18 October 2017. The Grievance Letter raised the
a) that AF had told
the Claimant in a loud voice in front of colleagues and customers that “a woman is complaining that you sent photos
of yourself to her husband”;
b) that Mr
Marciniak had commented in a loud voice that the Claimant had sent photos of
herself to someone else’s husband and then told the Claimant to “cala-te” (meaning to shut up);
c) that Mr
Marciniak had belittled the Claimant, called her “crazy” in front of customers and said no-one would believe
her story about the photos because she took medication;
d) that Mr
Marciniak had taken photos of the Claimant during work and then showed them to
e) that the
Claimant did not have a copy of her Contract; and
that Miss Legniece treated the Claimant like her
46. The Grievance
Letter also disclosed that the Claimant was suffering from depression and requested
that Mr Fitzpatrick:
a) treat the
Grievance "in confidence";
b) give the
Claimant the opportunity to meet with him privately to discuss the contents of
the Grievance Letter; and
c) allow the
Claimant to be accompanied by an independent party for moral support.
47. Upon receipt
of the Grievance Letter, Mr Fitzpatrick became angry, waving the Grievance
Letter in the air in front of the Claimant and shouting "what the hell is this?” Mr Fitzpatrick accepted that he behaved
in this manner. I accepted the
Claimant’s unchallenged evidence that Mr Fitzpatrick also read parts of
the Grievance Letter out loud to Mr Marciniak. Mr Fitzpatrick then left the Salon to
seek advice. In his evidence, Mr
Fitzpatrick admitted that he did not speak to the Claimant for the rest of the
48. Upon his
return from CAJ, Mr Fitzpatrick immediately spoke to Mr Marciniak about the Claimant’s
allegation that Mr Marciniak had taken photographs of the Claimant and shown
them to customers. During this conversation with Mr Marciniak, Mr Fitzpatrick
a) Mr Marciniak
had not taken photographs of the Claimant; and
b) the Claimant
had sent “provocative” selfies
of herself to Mr Marciniak.
49. Mr Marciniak
showed the selfies to Mr Fitzpatrick, who instructed him to delete them
immediately. I was shown a copy of
one such photograph. In her
evidence, the Claimant admitted that she did send such photographs to Mr Marciniak
although she denied that they were provocative, pointing out that she was
wearing a summer dress and that lots of people take selfies in everyday life.
50. Mr Fitzpatrick
confirmed in his evidence that he did not raise any of the other issues contained
in the Grievance Letter with Mr Marciniak.
Mr Fitzpatrick gave evidence that, having been present when the Claimant
received the Anonymous Call, he knew that the Claimant’s Grievance Letter
did not accurately reflect what had happened at that time and that Mr Marciniak
had not said the words attributed to him by the Claimant.
51. Mr Fitzpatrick
was unable to speak to Miss Legniece about the Grievance Letter because she was
absent on four weeks’ annual leave from 14 October 2017 to 14 November
52. Mr Fitzpatrick
gave evidence that on 25 or 26 October 2017, when he and the Claimant were
alone in the Salon, he sat down with the Claimant to discuss the Grievance
Letter (“Grievance Meeting”).
He did not do this formally and did not notify the Claimant in advance
of the discussion.
53. Mr Fitzpatrick
gave evidence that at the Grievance Meeting he:
a) explained to
the Claimant that the till-roll paper which he provided to her with her pay
each week was her payslip.
According to Mr Fitzpatrick, the Claimant commented that the “lady confused me”, which Mr
Fitzpatrick understood to mean that the Claimant had been confused by the
advice given to her at CAJ;
b) showed the
Claimant a copy of the Contract and reminded her that he had provided her with
a copy at the time of signing. The
Claimant did not request a copy at the time and Mr Fitzpatrick did not offer to
provide her with one;
c) informed the
Claimant that he had spoken to Mr Marciniak who had informed him that he had
not taken photographs of the Claimant but that the Claimant had sent selfies of
herself to Mr Marciniak. Mr
Fitzpatrick informed the Claimant that he had instructed Mr Marciniak to delete
all of the selfies immediately;
d) suggested that they "put the telephone incident behind them"
and "move on"; and
e) reminded the
Claimant not to bring her personal life into the Salon (something about which
Mr Fitzpatrick had had reason to raise with the Claimant on a number of
previous occasions, as the Claimant was very frank with her customers about her
54. Mr Fitzpatrick
gave evidence that after his discussion with the Claimant, he believed that the
grievance had been appropriately addressed and that the Claimant was happy with
the outcome and wanted to “move on”. He did not offer the Claimant a right of
55. The Claimant
failed to make any mention of the Grievance Meeting in her witness
statement. However, during
cross-examination the Claimant confirmed AF’s summary of the Grievance
Meeting but said that she and Mr Fitzpatrick did not sit down together and that
Mr Fitzpatrick did not give her a chance to say anything.
56. In her
evidence, the Claimant confirmed that between 23 October 2017 (the date on
which Mr Fitzpatrick received the Grievance Letter) and 20 November 2017 (see
below), nothing of any consequence happened at work. However the Claimant gave evidence that,
during this period, she was overworked and was suffering from poor mental
health following the Anonymous Call.
The Claimant did not inform Mr Fitzpatrick of her increased anxiety and
depression and she continued to attend work, although there was some evidence
to suggest that the Claimant suffered panic attacks during this time.
57. There is no
dispute that the Claimant’s increased work load was caused by Miss
Legniece’s four week absence on annual leave, which was then immediately
followed by Mr Fitzpatrick’s two week holiday from 14 November to 28
November. It was normal practice at the Salon to cover for work colleagues when
they were away, but Miss Legniece’s period of leave was unusually long. The Claimant gave evidence that because
of the lengthy periods of leave, the Claimant was expected to provide cover
without a day off (except on a Sunday) for six weeks.
November 2017 – last straw incident
58. Mr Fitzpatrick
went on annual leave on 14 November 2017, the same day on which Miss Legniece
returned from her four week break.
Mr Fitzpatrick therefore did not see Miss Legniece from 14 October 2017
until 28 November 2017 when he returned from his holiday.
59. On 20 November
2017, the Claimant made a mistake on the till; while taking payment from a
customer, she accidentally keyed in Miss Legniece’s code instead of her
own. In order to correct her mistake,
the Claimant asked that when Miss Legniece took payment from her next customer,
she offset the mistake by using the Claimant's code instead of her own.
60. Miss Legniece
refused to do as the Claimant requested and insisted to the Claimant that the
correct procedure was for the Claimant to make a note of her error and put the
note in the till.
Legniece’s refusal to follow the Claimant’s instruction angered the
Claimant. In her evidence, the
Claimant explained that she had been working for the Respondent for nine years,
whereas Miss Legniece had only been there for a few months. Miss Legniece should therefore have
listened to the Claimant and that her refusal to follow her instruction was
unreasonable. She alleged that Miss Legniece "started shouting at me and was very rude I had to ask her to stop
62. The Claimant then
asked Mr Marciniak to tell Miss Legniece to correct her error as she had
requested. Mr Marciniak also
refused to do so because this was not the correct procedure to follow. Mr Marciniak confimed that he told the
Claimant that her continual mistakes of this kind were causing him extra work when
cashing up at the end of the day.
63. Miss Legniece
denied shouting at the Claimant. She gave evidence that while she was with her
customer, she overheard the Claimant say to Mr Marciniak in an "extremely loud voice" that it was
Miss Legniece’s fault that there was a problem with the till because she
would not reverse the Claimant’s mistake. According to Miss Legniece, she
said to the Claimant “excuse me,
this is not my fault it's your mistake" and that the Claimant then
started shouting at her in front of a customer.
64. Miss Legniece
gave evidence that after the customer left, she approached the Claimant and
said "how dare you judge me in front
of customers". Miss Legniece denied that she raised her voice but
spoke in a firm manner and pointed her finger at the Claimant. She gave
evidence that the Claimant then started screaming at her.
65. Miss Legniece
was very upset by the Claimant's behaviour, started crying, left the Salon and
did not return until she received a text from Mr Marciniak, telling her to
ignore the Claimant’s behaviour and to carry on as normal.
66. I was obliged
to discount ADC’s evidence relating to the argument on 20 November 2017
because his evidence was entirely at odds with that provided by the Claimant,
Mr Marciniak and Miss Legniece. Whilst
I was satisfied that ADC did see an incident as he described, it clearly did
not occur on 20 November 2017.
67. The Claimant
and Miss Legniece continued to argue the following day. I accepted Miss Legniece’s
evidence that the Claimant spoke continually about the Till Incident,
eventually prompting Miss Legniece to tell the Claimant that “I don’t want to talk. Imagine that I don’t exist.” The Claimant interpreted these words as
stating that, in Miss Legniece’s opinion, the Claimant no longer existed.
68. On 22 November,
the Claimant went to her doctor and was signed off with depression. She posted her resignation letter to the
Respondent on 28 November 2017. The
Claimant identified the Respondent’s failure to appropriately deal with
her Grievance Letter as the principal reason for her resignation.
61 of the Employment (Jersey) Law 2003 ("Law") states that an
employee shall have the right not to be unfairly dismissed. Article 62(1)(c) of
the Law states:
in which an employee is dismissed
the purposes of this Part an employee is dismissed by his or her employer if
(and, subject to paragraph(2), only if) –
employee terminates the contract under which he or she is employed (with or
without notice) in circumstances in which the employee is entitled to terminate
it without notice by reason of the employer's conduct.”
order to establish a successful complaint for constructive dismissal, four
conditions must be met:
employer must be in breach of a contractual term (either an express term or an
breach of contract must be fundamental, amounting to a repudiatory breach of
employee must resign in response to the employer's repudiatory breach of
employee must not delay too long in terminating the contract; otherwise the
breach may be found to have been waived and the contract affirmed.
v States of Jersey, Department of Education, Sport & Culture (JET
1910-028/05); Oprey v Woolworths plc (JET 2604-085/07); Western
Excavating (ECC) v Sharpe  ICR 221).
Mutual trust and confidence
breach of contract may be in the form of a breach of an express or an implied
term. The most common implied term
is that of 'mutual trust and confidence'.
The test of whether conduct amounts to a breach of this implied term was
addressed in Malik v BCCI  UKHL 23, and has been applied by the
Tribunal on previous occasions (Carratu v United Fashions Limited JET
110/2011). In Malik, the
House of Lords stated:
the employer will not, without reasonable and proper cause, conduct itself in a
manner calculated or likely to destroy or seriously damage the relationship of
confidence and trust between employer and employee.”
before finding that there has been a breach of trust and confidence, the
Tribunal must be satisfied both that:
was conduct which destroyed or seriously damaged trust and confidence between
employer and employee; and
employer’s conduct was done without reasonable and proper cause.
breach of the implied term of trust and confidence will necessarily strike at
the root of the contract and will therefore always be repudiatory (Morrow v
Safeway Stores  IRLR 9).
the recent case of McLoughlin v London Linen Supply Limited UKEAT/0299/16/BA,
the EAT provided some helpful guidance as to how tribunals should assess claims
that there has been a breach of the implied term of trust and confidence. In
his judgment, Richardson J referred to Woods v WM Car Services
(Peterborough) Ltd  IRLR 347, in which the Court of Appeal stated:
“17. … To constitute a breach of [the
implied term of trust and confidence between employer and employee], it is not
necessary to show that the employer intended any repudiation of the contract:
the Tribunal's function is to look at the employer's conduct as a whole and
determine whether it is such that its effect, judged reasonably and sensibly,
is such that the employee cannot be expected to put up with it… The
conduct of the parties has to be looked at as a whole and its cumulative impact
Richardson J then went on to remind
“Firstly, it is important to assess the
conduct of the parties as a whole. It may be necessary for the purpose of
making findings to look at different aspects of conduct individually, but it is
vital in the end to look at the overall picture. Secondly, the assessment applies an
objective standard of reasonableness.…
29. …The question is whether looking at the
matter objectively, the conduct was likely to destroy or damage the
relationship of trust and confidence. People will react differently when they
are badly treated at work. Some will put up with it; some will not. If the
conduct is likely to destroy or damage the relationship of trust and
confidence, the fact that some people will put up with it does not negate a
breach of this implied term.”
and resignation in response to breach
repudiatory breach by an employer does not bring the contract to an end
automatically. The contract is not
terminated until the point at which the breach is accepted by the employee (Société
Générale, London Branch v Geys  UKSC 63).
is not necessary for an employee to expressly communicate their acceptance of
the breach to the employer.
However, the fact that they have accepted the repudiatory breach must be
unequivocal and unambiguous.
Weathersfield Ltd v/a Van and Truck Rentals v Sargent 1999 IRLR 94, CA
the Court of Appeal held that it is not necessary for an employee to inform the
employer of the reasons for resignation in order to prove that the resignation
was caused by the employer’s breach of contract; it is up to the Tribunal
to decide whether or not the employee resigned in response to the breach rather
than for some other reason.
employee must be able to show that he or she resigned in response to the
relevant breach, although this does not mean that the breach must be the only
cause of the employee’s resignation.
Once a repudiatory breach of contract has been established, an employee
can claim constructive dismissal so long as the breach “played a part” and was “one of the factors relied upon” in
the employee’s resignation [Nottinghamshire County Council v Meikle
 IRLR 703; Abbey Cars (West Horndon) Ltd v Ford UKEAT/0472/07;
Wright v North Ayrshire Counciil UKEAT/0017/13].
an employee delays too long in resigning in response to an employer’s breach
of contract, the employee may be deemed through their conduct to have affirmed
that contract with the result that the employee will lose the right to claim
constructive dismissal (Western Excavating v Sharp). However, in Bournemouth University
Higher Education Corporation v Buckland 2010 ICR 908, the Court of Appeal
stated that, due to the pressure on employees at such times, a careful analysis
of the facts is necessary before deciding whether there really has been an
the case of Cantor Fitzgerald International v Bird  IRLR 867,
McCombe J stated that ‘affirmation’ ‘is essentially the legal embodiment of the everyday concept of
“letting bygones be bygones”.’
El-Hoshi v Pizza Express Restaurants Ltd EAT 0857/03, the EAT stated
that there must be some express or implied event which indicates
affirmation. The EAT stated that
mere delay was a neutral act and was not itself capable of amounting to
affirmation. However, there may be
circumstances where affirmation may be implied by a prolonged delay in
resignation (Mari v Reuters Ltd UKEAT/0539/13).
take from the above cases that an employee’s delay in resigning in
response to a repudiatory breach by the employer is one factor which the
Tribunal must take into account in deciding whether or not the contract has
been affirmed. However, delay in
and of itself will not lead automatically to the conclusion that the employee
has affirmed; there must be an event which indicates affirmation and the
Tribunal must look at all the circumstances to establish whether, on the facts
of each case, the employee did indeed affirm the contract through their
Course of conduct and
the ‘last straw’
Maclagan v States Employment Board 79/15 the JEDT confirmed the
principle that a course of conduct can cumulatively amount to a repudiatory
breach of the implied term of trust and confidence, entitling an employee to
resign and claim constructive dismissal. A ‘last straw’ incident does
not, by itself, have to be repudiatory in its nature, but it must contribute (however
slightly) to the breach of the implied term of trust and confidence (Lewis v
Motorworld Garages Ltd 1986 ICR 157, CA). In circumstances where:
of the events in the course of conduct was serious enough in itself to amount
to a repudiatory breach of contract; and
employee did not treat the breach as such by resigning,
Omilagju v Waltham Forest London Borough Council 2005 ICR 481, CA, the
English Court of Appeal set out what constitutes a ‘last
straw’. The court stated that
a tribunal must only focus on “whether
the final straw is the last in a series of acts or incidents which cumulatively
amount to a repudiation of the contract by the employer.” The court set out the following
guidelines on how to assess whether an act or omission amounts to the
act may not be entirely innocuous or trivial;
is not necessary for the act to be of the same character as earlier acts;
act “must contribute, however
slightly, to the breach of the implied term of trust and confidence”
although the act does not have to be “unreasonable”
or “blameworthy” conduct;
test of whether an employee’s trust and confidence has been undermined is
an objective one.
86. The Claimant
submitted that the Respondent:
a) failed to
properly consider her grievances;
b) did not
conduct a proper investigation or Grievance Meeting; and
disregarded the Claimant's request that it deal with the grievance in a
87. The Respondent
a) it was
unreasonable for the Claimant to expect that Mr Fitzpatrick could carry out a
grievance investigation without speaking to the person against whom the
allegations were made;
b) Mr Fitzpatrick
carried out an appropriate investigation in the circumstances;
c) Mr Fitzpatrick
conducted the Grievance Meeting in a manner which was appropriate in the
d) the Claimant
confirmed that she was happy with the outcome of the Grievance Meeting and
wanted to move on.
Was there a breach of contract which was repudiatory
The Phone Incident
88. The Claimant
submitted that the alleged conduct of Mr Fitzpatrick and Mr Marciniak at the
time of the Anonymous Call amounted to a repudiatory breach of contract.
89. There was no
doubt that the Claimant was deeply shocked, upset and humiliated by the
Anonymous Caller. In her own
evidence, the Claimant confirmed that the Anonymous Call increased her anxiety
about what people thought of her and it was the Anonymous Call which triggered
a deterioration in her mental health.
90. It was clear
to me that the Claimant’s feelings of humiliation and embarrassment meant
that she was, understandably, very sensitive to any comments made by her work
colleagues after she had received the Anonymous Call. However, being upset by a
work colleague's behaviour does not automatically amount to a breach of the
implied duty of mutual trust and confidence; whilst Mr Fitzpatrick and Mr
Marciniak may have behaved in a thoughtless and insensitive manner, their
behaviour was not so serious as to beach this implied duty.
91. I considered
whether Mr Fitzpatrick’s conduct of the grievance process as a whole
amounted to a breach of the implied duty of mutual trust and confidence.
92. It was clear
to me from the evidence that the Claimant was anxious about sending the
Grievance Letter. However, irrespective of whether Mr Fitzpatrick thought that
there were grounds for the Claimant’s grievances, the Claimant sent the
Grievance Letter in good faith and was entitled to expect her employer to act
professionally and in a non-threatening manner.
93. By his own
admission, Mr Fitzpatrick reacted badly to the Grievance Letter; instead of
behaving in a professional manner, he expressed his anger in front of the
Claimant and in front of other members of staff. Mr Fitzpatrick did not challenge the
Claimant’s evidence that he read out parts of the Grievance Letter to Mr
Marciniak. I therefore accepted the Claimant’s evidence in this regard.
94. In reaching a
decision regarding the conduct of the Grievance Meeting, I noted the following:
a) the Claimant
was anxious about submitting her Grievance Letter;
b) the Grievance
Letter disclosed the Claimant's vulnerable mental health and requested
Fitzpatrick's initial reaction was humiliating and unprofessional;
d) the Respondent
was a small employer with only three employees;
e) the Respondent
did not have an HR function; and
Mr Fitzpatrick had never previously dealt with a
formal grievance and took the Claimant's grievances personally because he was
upset by them.
95. I applied the
test as set out in Malik. I kept in
mind the Respondent's small size and limited resources and noted that a small
employer such as the Respondent will not always be able to undertake a lengthy
and detailed process. However, whatever the size of the employer, employees
must feel that they are able to submit grievances without fear of humiliation.
96. In this case,
Mr Fitzpatrick's outburst upon receipt of the Grievance Letter served to taint
the entire grievance process. After the outburst, the Claimant would have been
in no doubt of Mr Fitzpatrick’s feelings of anger and frustration and,
particularly in view of her fragile mental health, the Claimant was unlikely to
challenge Mr Fitzpatrick at the Grievance Meeting when he suggested that they
"move on". I therefore
concluded that Mr Fitzpatrick's outburst did amount to conduct which destroyed
or seriously damaged trust and confidence between the Respondent and the
Claimant and it tainted the entire grievance process. I was also satisfied that
there was no acceptable explanation for such an outburst.
97. The Respondent
was therefore in breach of the implied duty of mutual trust and confidence in
its conduct of the grievance process. In accordance with Safeway Stores,
this breach was automatically repudiatory in nature.
98. I considered
whether the Till Incident by itself was a breach of the implied duty of mutual
trust and confidence.
99. The evidence
showed the Till Incident to be an argument borne from the Claimant's mistake on
the till and her subsequent resentment that Miss Legniece refused to do as the
Claimant instructed. Having applied the provisions in Malik, I did not
accept that the Till Incident amounted to a breach of the implied term of
mutual trust and confidence.
the Claimant resign in response to the breach?
I next considered whether the Claimant resigned in
response to the Respondent’s failure to conduct an appropriate grievance
process or for some other reason. The
evidence showed that the Claimant resigned for a number of reasons, including:
a) the fact that she
was working very hard for a prolonged period to cover holidays;
b) her belief
that the “atmosphere at work was
not going to be the same again” after the Till Incident; and
c) the fact that
she searched for and found a new job on 27 November 2017.
However, I also noted that the Claimant identified
the flawed grievance process in her resignation letter and, whilst I did not
believe that this was the primary reason for her resignation, I accepted that
Mr Fitzpatrick's conduct of the grievance process "played a part" in
her decision to resign. In accordance with the guidance set out in Nottingham
County Council, I therefore concluded that the Claimant did resign in
response to the breach.
the Claimant affirm the contract?
Finally, I considered whether or not, through her
conduct, the Claimant affirmed the contract. On this point I considered only the
Claimant’s behaviour at work and ignored the contents of her discussions
with her advisors (as disclosed in the CAJ summary).
I noted that:
a) the Claimant
continued to work as normal until 22 November 2017, when she was signed off
sick by her doctor;
b) the Claimant
took on significant extra work during this period due to Miss
Legniece’s absence; and
c) the Claimant
knew and understood that the grievance process ended at the Grievance Meeting,
but she did not resign for over a month after that date.
Whilst I acknowledge that delay in itself is a
neutral act and is one just factor which I must consider in determining the
question of affirmation, I was satisfied on the facts that the Claimant’s
overall conduct showed that she did affirm the contract.
I considered the Claimant's submission that the Till
Incident was the "last straw" which caused her to resign, thereby
effectively 'rekindling' the previous repudiatory breaches.
I did not see any evidence to suggest that there was
a course of conduct by the Respondent which cumulatively amounted to a
repudiatory breach of contract. The Respondent committed one repudiatory breach
of contract, namely in its conduct of the grievance process. However this was a
one-off event and the Claimant's own evidence was that, up until the Anonymous
Call, Mr Fitzpatrick was a good employer. I did not accept that the other issues
about which the Claimant complained amounted to a course of conduct.
I therefore rejected the Claimant's submission that
the Till Incident amounted to a "last straw" event.
Therefore, because the Claimant affirmed the
contract and waived the Respondent’s breach, the Claimant’s claim
of constructive unfair dismissal is rejected.
a) whether the Respondent provided
the Claimant with a signed copy of the Contract when the two parties signed it;
b) the impact on the Claimant of
the Respondent’s failure to include the Claimant’s start date on
the Contract; and
c) whether the Respondent
should have provided more details regarding a grievance procedure.
Having considered all the evidence, I
concluded that, on the balance of probabilities, Mr Fitzpatrick did fail to
provide the Claimant with a copy of the Contract at the time of signature. His evidence that they each had separate
original signed copies meant that the Claimant would have had to write out her
name and address on the Contract twice.
I considered it unlikely that Mr Fitzpatrick would have asked the
Claimant to do this and a more likely scenario would have been that Mr
Fitzpatrick photocopied the Contract and gave a copy to the Claimant. I also accepted the Claimant’s
evidence that she is careful with her paperwork and would not have mislaid such
an important document.
Regarding the failure to provide the
Claimant’s start date and/or continuous employment date, this is a breach
of Article 3 of the EJL.
I did not consider the failure to provide
further details of a grievance procedure to be in breach of Article 3)g)(vi)
which simply provides that a statement of terms shall contain “any terms
and conditions relating to disciplinary and grievance procedures.” Whilst the Tribunal expects employers to
have a set of proper disciplinary and grievance policies, failure to have one
does not constitute a breach of Article 3.
On the grounds that the Respondent:
a) failed to provide a copy of
the Contract; and
b) to include the
Claimant’s start date/continuous employment date on the Contract,
I found that the Respondent was in breach of the provisions of Article 3
I did not believe that Mr Fitzpatrick
deliberately failed to provide a copy of the Contract to the Claimant. However, when she raised in in the
Grievance Letter and it was clear that she did not have a copy of the Contract,
Mr Fitzpatrick still did not provide her with one. This was a prolonged oversight on the
part of the Respondent. The EJL is
clear in its requirement that a copy of the statement of terms are provided to
an employee within four weeks of the commencement of employment.
In view of the above, I concluded that the
Respondent should pay the maximum amount of compensation permitted under the
EJL. The Respondent shall therefore
pay to the Claimant four weeks’ pay as compensation for failing to provide
her with a written statement of terms and for failing to include the
Claimant’s start date in the Contract.
At the Case Management Meeting, the parties
agreed that the Claimant’s weekly wage was £440 per week.
£440 x 4 = £1,760
The Respondent shall pay to the Claimant the
sum of £1,760 as compensation for its failure to provide the Claimant
with a written statement of terms.
Summary of Award
for failure to provide written statement of terms
Mrs H G Griffin, Chairman