IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

JANET YOUNG

CLAIMANT

 

AND

 

 

PAUL SOWNEY

RESPONDENT

 


 

TRIBUNAL JUDGMENT


 

 

Reference:                 [2018] TRE003

 

Hearing Date:                7 June 2018     

 

 

Before:                           Mrs H G Griffin, Chairman

 

Appearance:

 

For the Claimant:           In person

For the Respondent:     In person

                                   

 

THE DECISION

The Claimant’s claims for unfair dismissal, wrongful dismissal and unpaid holiday pay succeed.

 

The Tribunal exercised its discretion and applied a reduction of 70% to the unfair dismissal award.

 

 

THE REASONS

 


1.       The Respondent is a builder who employed the Claimant as his book keeper between 25 August 2009 and 13 December 2018, when the Claimant resigned claiming constructive dismissal.

 

Case Management


2.       By a Claim Form presented on 16 January 2018, the Claimant brought a number of complaints as set out below.

The Claimant’s case as formulated in her Claim Form

 

3.       The Claimant claimed that the Respondent:

 

a)       constructively and unfairly dismissed the Claimant;

b)      in breach of contract, failed to give notice to terminate the Claimant’s employment;

c)       failed to pay to the Claimant outstanding holiday pay; and

d)      failed to pay wages to the Claimant for hours worked.

 (together “the Claims”).

 

4.       The Respondent denied the Claims. 

 

5.       The parties attended a case management meeting (“CMM”) before Deputy Chairman Ian Jones on 29 March 2018.  The Deputy Chairman recorded in the Case Management Orders that the Claimant’s claim for unpaid wages was not to proceed and I heard no evidence regarding this claim.

 

6.       After the CMM, the Respondent’s counterclaim was struck out for failure to comply with an Order to provide more information regarding the basis for that counterclaim.

 

7.       The Deputy Chairman recorded the Claims and the Respondent’s defence in Case Management Orders.  A Hearing (“Hearing”) was subsequently convened to consider the Claims.

 

Constructive Dismissal

 

8.       In her Claim Form and at the Hearing, the Claimant identified certain alleged acts which she submitted amounted to repudiatory breaches of contract by the Respondent which entitled her to treat herself as constructively dismissed.  The Claimant submitted that the Respondent:

 

a)       breached an express term of her employment contract by “forcing” the Claimant to reduce her week’s working hours from 20 hours to 16 hours;

 

b)      breached the implied duty of mutual trust and confidence by:

                                                   i.      using bullying and threatening behaviour to force the Claimant to reduce her hours;

                                                 ii.      attempting to change the Claimant’s contractual annual leave and sick pay terms; and

                                                iii.      suggesting that the Claimant had committed an act of theft by paying herself 20 hours instead of 16 hours,

(together “the Acts”).

 

c)       The Claimant also submitted that, when taken together, the Acts amounted to a course of conduct by the Respondent which cumulatively amounted to a breach of the implied duty of mutual trust and confidence.  The Claimant submitted that the Respondent’s suggestion that she had committed ‘gross misconduct’ and ‘theft’ were the ‘last straw’.

 

9.       The Respondent denied the Claimant’s allegations and denied that the Claimant was constructively dismissed.  The Respondent asserted that the Claimant:

 

a)       resigned from her employment;

b)       agreed to reduce her contractual working hours;

c)       unreasonably refused to agree to resolve the issue regarding holiday entitlement and contractual sick pay; and

d)       behaved in an unreasonable manner towards the Respondent.

 

Notice pay

 

10.   The Claimant asserted that she was entitled to damages for breach of contract for her unpaid notice arising from the alleged constructive dismissal.

 

11.   The Respondent denied this claim on the basis that the Claimant had resigned.

 

Holiday pay

 

12.   The Claimant claimed 11 days’ holiday pay.

 

13.   The Respondent denied the claim.

 

Documents and evidence

Witness evidence

 

14.   Both the Claimant and the Respondent provided witness statements and gave evidence under oath.

Hearing File

 

15.   The Claimant provided an agreed file of documents to which each party referred to during the course of the Hearing. 

 

Submissions

 

16.   Both parties made their arguments orally by way of submissions.

 

Facts


17.   I considered all of the evidence (both written and oral) provided by each of the witnesses and made the findings of facts as set out below. I only summarise in this judgment the facts which were relevant to the issues as agreed by the parties at the CMM and set out in paragraphs 8 to13 above.  Where I have had to resolve factual disputes, I have done so on the balance of probabilities on the basis of my assessment of the credibility of the witnesses and the consistency of their accounts with the rest of the evidence, including the documentary evidence.

 

Background

 

18.   Until 30 October 2017, the parties enjoyed a good working relationship. The terms of the employment relationship were set out in a contract of employment (“Original Contract”).  The Claimant worked 20 hours per week, typically between 11.30am and 3.30pm, although she often left well before 3.30pm due to a lack of work.

 

19.   The Original Contract provided that the Claimant was entitled to 20 days annual leave and to full pay during sick leave. 

 

Respondent’s decision to restructure

 

20.   On 30 October 2017, the Respondent spoke informally to the Claimant (“Informal Discussion”) to tell her that, for personal reasons, he intended to restructure his business so that he could spend more time with his family and re-gain his health following a family bereavement.  This restructuring would result in a reduction in the Claimant’s work.

 

21.   As a result of the proposed restructuring, the Respondent asked the Claimant whether she would agree to a reduction in her weekly hours from 20 hours per week to between 8 to 12 hours per week.  During the Informal Discussion the Claimant orally agreed to reduce her hours.  However, later on the same day, she changed her mind and wrote a letter (“Initial Letter”) to the Respondent stating that:

 

a)       she would not agree to a reduction in her hours and would continue to work 20 hours per week; and

b)      if the Respondent did not want her to work 20 hours per week he would have to “pay [her] off” by way of a redundancy payment and a payment in lieu of notice.

 

22.   The Respondent wrote a note to the Claimant to let her know that he would revert to her in due course.  However, on 4 November 2017, the Claimant sent the following email to the Respondent:

 

“I am very disappointed that you have not had the curtesy [sic] of coming back to me since my letter on Monday 30th October 2017.

May I make you aware that this was your decision to alter my hours and that you approached me regarding this.  So it would be professional for you to at least give me an answer and not to keep me hanging on a string.  There is no need for this worry and stress that you are putting on me.

I would like to think that I have been loyal to you for all these years and I am not impressed by the way you are treating me, as if it is not important, or you not having the time this is no excuse, I have to know where I stand.”

 

23.   After initially sending a holding email to the Claimant, the Respondent replied to the Initial Letter on 7 November 2017.  The Respondent expressed disappointment at the Claimant’s change of mind and instructed her to revert to her previous hours of 9.30am to 1.30pm.

 

24.   Later on 7 November 2017, the Claimant wrote to the Respondent, rejecting the Respondent’s instruction that she work 9.30am to 1.30pm but offering to reduce her hours from 20 hours per week to 16 hours per week (“Proposal”).  Over the following days, the Respondent sought clarification as to the terms of the Proposal, in particular regarding the Claimant’s proposed start times.  The parties held a brief meeting on 9 November 2017 at which the Claimant repeated the Proposal.  However the Respondent gave evidence that he left this meeting believing that the Claimant had agreed to work 12 hours per week.

 

25.   On 10 November 2017, the Claimant wrote a "letter of grievance" to the Respondent in which she refused to work the hours which the Respondent had requested.  The Respondent received this letter on 13 November 2017 and sent a response to the Claimant on the same day in which he:

 

a)       agreed that the Claimant could reduce her hours to 16 hours per week;

b)      agreed to the Claimant’s demand that she continue to work 11.30am to 3.30pm.

 

26.   The Respondent signed off his letter stating:

 

“if this is agreeable I will get a new contract drawn up.”

 

27.   On 15 November 2017, the Claimant wrote a letter to the Respondent in which she:

 

a)       thanked the Respondent for “accepting” her “offer”;

b)      stated that she expected any new contract to reflect the same terms as the Original Contract, save for her working hours; and

c)       specified that her new working hours would commence from Monday 20 September 2017 “if agreement and contract is in place."

 

28.   In this letter, the Claimant also accused the Respondent of being “rude with a terrible attitude problem” and failing to greet her in a friendly manner.  The Claimant stated that such behaviour would not be “tolerated” and that she would not “put up” with it.

 

29.   I accepted the Respondent’s evidence that he believed that he had reached agreement with the Claimant regarding her working hours and that the Claimant’s working hours were to be reduced to 16 hours per week with effect from 20 November 2017.

 

30.   On 20 November 2017, the Respondent sent an email to the Claimant to remind her that, as per the Claimant’s letter of 15 November 2017, her new working hours were to commence on that day. He advised her that the new contract (“New Contract”) would not be available until later in the week as he had scheduled a meeting with JACS for help in drafting it.  In response, the Claimant reminded the Respondent that the New Contract must reflect her existing terms contained in the Original Contract and that she would continue to work 20 hours until the New Contract was agreed and signed. 

31.   On 24 November 2017, the Claimant, who was responsible for payroll, paid herself for 20 hours (instead of 16 hours) for that working week.

 

32.   Having seen that the Claimant had paid herself 20 hours rather than 16 hours, the Respondent wrote to the Claimant:

 

a)       reminding her that she had agreed to work 16 hours per week from 20 November 2017;

b)      noting that she had paid herself for 20 hours; and

c)       requesting that she either refund the overpayment of 4 hours or deduct it from her following week’s pay.

 

33.   The Respondent’s letter was courteous and unthreatening.

 

34.   In response, the Claimant:

 

a)       acknowledged that she had agreed to 16 hours, but stated that this was “on condition we agreed contract and signing of contract;”

b)      stated that, because the New Contract had yet to be signed, she intended to continue to work 20 hours;

c)       stated that if the New Contract was signed in time, she would pay herself for 16 hours from Monday 27 November 2017; and

d)      denied that she owed the Respondent for any overpayment.

 

New Contract

 

35.   The Respondent asked the Claimant to provide him with the signed Original Contract which he could not locate at the office.  There was a dispute between the parties as to where the original had been put and whose responsibility it had been to file it. 

 

36.   The Respondent sought advice on drafting the New Contract for the Claimant.  He believed that the Original Contract:

 

a)       did not look professional; and

b)      did not reflect the terms which he usually included in his standard contracts, particularly relating to the annual leave and sick pay entitlement. 

 

37.   The New Contract contained the following changes from the Original Contract:

 

a)       a reduction in the Claimant’s working hours from 20 hours to 16 hours per week (as agreed with the Claimant);

b)      a reduction in the Claimant’s annual leave entitlement from 20 days per year to two weeks per year;

c)       the removal of the Claimant’s contractual sick pay;

d)      an increase in the notice required to be given by the Respondent to the Claimant to terminate the Claimant’s employment (in line with the statutory minimum); and

e)      a reduction in the notice required to be given by the Claimant to the Respondent to terminate her employment.

 

38.   The Claimant refused to sign the New Contract because she considered all of the changes to be in favour of the Respondent.  During cross-examination, the Claimant conceded that the changes to the notice provisions were, in fact, made in her favour and not in favour of the Respondent. 

 

39.   On 28 November 2017, the Respondent wrote to the Claimant expressing disappointment at the Claimant’s refusal to sign the New Contract.  He reminded the Claimant that her new hours had commenced on 20 November and that the Claimant was not contractually entitled to work or be paid for 20 hours per week.  Again, this letter was courteous and unthreatening.

 

40.   On 30 November 2017, the parties had a telephone conversation, during which the Respondent took notes.  The parties discussed the New Contract and, during the conversation, the Claimant made various disparaging remarks about the Respondent.  She also accused the Respondent of treating her in a “disgusting” and “unprofessional” manner and of being rude to her.  During cross-examination, the Claimant accepted that her behaviour during this call was inappropriate but explained that it was out of frustration that she spoke to the Respondent in this manner. 

 

41.   Later on the same day, the Claimant sent an email to the Respondent:

 

“I am just confirming that I do not agree with you saying to only pay me 16 hours instead of 20 hours, but I have done this for this one week only, just till I seek legal advice.  If this is out of order I will be asking you to refund all monies…

All this emailing and sending letters is getting out of hand.  Why you cannot speak to me face to face and agree a solution together like adults is beyond me.”

 

42.   On 1 December 2017, the Claimant paid herself for 16 hours.

 

43.   On 5 December 2017, the Claimant confirmed in writing to the Respondent that she would not be signing the New Contract because the Respondent had "changed almost everything on the contract in your favour without consulting me of these changes". She therefore stated that she would revert to working 20 hours a week.

 

44.   The Claimant continued to attend work as normal and on 8 December 2017, the Claimant paid herself for 20 hours for the preceding week.

 

45.   On 11 December 2017, the Respondent wrote to the Claimant stating that:

 

a)       although the Claimant did not accept the holiday and sick pay terms in the New Contract, she had agreed to reduce her contractual hours and was contractually obliged to work those hours;

b)      the fact that the Claimant had paid herself for 16 hours on 1 December showed that she had agreed to the reduction in her hours;

c)       by subsequently paying herself 20 hours (contrary to the Respondent’s instructions), the Claimant was at risk of disciplinary action for gross misconduct as “to pay yourself 20 hours in my opinion it is tantamount to theft"; and

d)      the Claimant now owed the Respondent 8 hours’ pay for the overpayment of her wages on 24 November 2017 and 8 December 2017.

 

46.   The Respondent also informed the Claimant that he had arranged a meeting for both parties with JACS on 14 December 2017 to resolve what he considered to be the only "outstanding issues", namely the reduction in annual leave and the removal of company sick pay.

 

47.   On 13 December 2017, the Claimant resigned with immediate effect stating that she was intending to claim constructive dismissal. She denied that she had agreed to the reduction in her hours, asserting that she only paid herself 16 hours on 1 December 2017 because the Respondent was "bullying me into it and threatening me with theft".  The Claimant provided no evidence in support of this assertion; there was no evidence to suggest that the Respondent made any reference to ‘theft’ at any time prior to his letter of 11 December 2017 and, in particular, no such reference was made prior to 1 December when the Claimant paid herself for 16 hours.

 

Respondent’s behaviour

 

48.   The Claimant asserted that the Respondent behaved in a bullying and threatening manner and that he made life “unbearable” for the Claimant.  The Claimant gave evidence that the Respondent:

 

a)       had an attitude problem;

b)      was no longer polite and sociable;

c)       couldn’t bear to look” at the Claimant;

d)      would not speak to the Claimant;

e)      failed to greet her properly in the mornings;

f)         was rude to the Claimant; and

g)      on one occasion, threw papers across her desk.

 

49.   The Claimant asserted that she “couldn’t go on” working in this environment.

 

50.   The Respondent strongly denied throwing papers across the desk and denied behaving in a bullying or threatening manner.  He conceded that he did avoid discussing matters relating to the New Contract with the Claimant face to face, because when he initially had tried to do so, she accused him of bullying her.

 

Holiday entitlement

 

51.   The Claimant gave evidence that she had accrued 11 days holiday which she had set aside to take time off over the Christmas period and for which the Respondent had failed to pay her.

 

52.   The Respondent initially denied this claim on the basis that the Claimant’s holiday year ran from August each year.  However, having heard the Claimant’s evidence on this point, the Respondent conceded that he knew little of how holiday entitlement accrued and acknowledged that the Claimant may be entitled to outstanding holiday.

 



The Law

 

53.   Article 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:

“62.       Circumstances in which an employee is dismissed

(1)        For the purposes of this Part an employee is dismissed by his or her employer if (and, subject to paragraph(2), only if) –

           

(c)        the 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.”

 

54.   In order to establish a successful complaint for constructive dismissal, four conditions must be met:

a)       the employer must be in breach of a contractual term (either an express term or an implied term);

b)      the breach of contract must be fundamental, amounting to a repudiatory breach of contract;

c)       the employee must resign in response to the employer's repudiatory breach of contract; and

d)      the employee must not delay too long in terminating the contract; otherwise the breach may be found to have been waived and the contract affirmed.

(See:  Robinson 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 [1978] ICR 221).

 

Mutual trust and confidence

 

55.   A 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 [1997] 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.

 

56.   Thus, before finding that there has been a breach of trust and confidence, the Tribunal must be satisfied both that:

 

a)       there was conduct which destroyed or seriously damaged trust and confidence between employer and employee; and

b)      the employer’s conduct was done without reasonable and proper cause.

 

57.   Any 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 [2002] IRLR 9).

 

58.   In 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 [1981] 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 assessed.”

 

59.    Richardson J then went on to remind tribunals that:

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.”

 

Acceptance and resignation in response to breach 

 

60.   A 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 [2012] UKSC 63).  

 

61.    It 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.

 

62.   In 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.

 

63.   The employee must be able to show that he or she resigned in response to the relevant breach.  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 [2004] IRLR 703Abbe Cars (West Horndon) Ltd v Ford UKEAT/0472/07Wright v North Ayrshire Council UKEAT/0017/13]. 

 

 

Affirmation

 

64.   If 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 affirmation. 

 

65.   In 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).

 

66.   I 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.  Instead, 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 affirmed the contract through their conduct.

 

Course of conduct and the ‘last straw’

 

67.   In 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:

a)       one of the events in the course of conduct was serious enough in itself to amount to a repudiatory breach of contract; and

b)      the employee did not treat the breach as such by resigning,

the failure by the employee to resign does not automatically mean that the employee has affirmed the contract (Lewis v Motorworld and Abbey National plc v Robinson EAT 743/99).

 

68.   In 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.”


Conclusion

Was there a breach of contract which was repudiatory in nature?

 

69.   I first considered each of the Acts to establish:

 

a)       whether or not each such Act did occur as asserted by the Claimant and, if so:

b)      whether individually, each Act amounted to a repudiatory breach of contract. 

 

Did the Claimant expressly consent to a reduction in her working hours?

Informal Discussion

 

70.   I considered whether the Claimant’s initial agreement to reduce her hours during the Informal Discussion amounted to consent to the reduction in her working hours.

 

71.   It was clear from the evidence that this was an entirely informal meeting and that the Claimant had no forewarning of the Respondent’s wish to restructure the business and reduce the Claimant’s working hours. Furthermore, whilst the reduction of hours was discussed during the Informal Discussion, there was no specific agreement as to the exact hours that the Claimant would work. 

 

72.   I therefore concluded that the Claimant did not consent to a reduction in her working hours during the Informal Discussion.

 

Exchange of emails

 

73.   I then considered whether, by her Proposal on 7 November 2017 (and the Respondent’s reply on 13 November 2017), the Claimant consented to a reduction in her hours.

 

74.   Having carefully considered the evidence, including the wording of each of the emails, I concluded that the Proposal was not an ‘offer’; rather it was the suggestion of a compromise as part of negotiations between the parties. This view was further supported by the fact that:

 

a)       the parties engaged in further discussions (both by email and at a brief meeting) to find a mutually acceptable solution; and

b)      whilst agreeing to the Proposal in his email of 13 November, the Respondent also sought confirmation from the Claimant that she was happy with this course of action.

 

75.   It was therefore the case that the Respondent, having agreed to the Claimant’s suggested compromise, then made an offer of 16 hours per week to the Claimant in his email of 13 November 2017.  The Claimant then accepted the Respondent’s offer in her letter of 15 November 2017, but did so subject to both parties agreeing and signing the New Contract. 

 

76.   I therefore rejected the Respondent’s submission that the Claimant expressly consented to a reduction in her working hours.

 

Did the Claimant, through her conduct, impliedly consent to the reduction in her working hours?

 

77.   I considered the Respondent’s submission that, by working for 16 hours (rather than 20 hours) for the week commencing 27 November 2017, the Claimant impliedly accepted the reduction in her working hours. The Claimant’s case was that she only worked and paid herself the reduced hours because the Respondent “threatened [her] with theft.”

 

78.   There was no doubt that the Claimant paid herself 16 hours because the Respondent instructed her to do so.  Furthermore, the Claimant’s email to the Respondent of 30 November 2017 was clear and unambiguous in setting out the Claimant’s position regarding the reduction in her hours.  This email had the effect of reserving the Claimant’s position so that the Claimant was effectively working ‘under protest’.

 

79.   In view of the above, I concluded that the Claimant did not, by working and paying herself for 16 hours on 1 December 2017, impliedly consent to a reduction in her working hours.

 

80.   It therefore followed that the Claimant’s contractual working hours remained at 20 hours per week throughout her employment.  Consequently, by instructing the Claimant to work and pay herself 16 hours, the Respondent was in breach of contract.  Given that this was a key contractual term which went to the heart of the agreement between the parties, the Respondent’s breach was repudiatory.

 

Did the Respondent bully and threaten the Claimant?

 

81.   I considered the Claimant’s submissions that the Respondent engaged in bullying and threatening behaviour which became ‘intolerable’. 

 

82.   Whilst it was clear from the evidence that the Respondent’s manner towards the Claimant changed during this period, there was no evidence before me of any ‘bullying’ or ‘threatening’ behaviour by the Respondent towards the Claimant.  Each of the emails from the Respondent to the Claimant were courteous, even when the Respondent was angry or frustrated.  I also heard no evidence to suggest that there was any such behaviour when the parties’ met.  Whilst the Respondent’s behaviour was particularly unfortunate for an employer, it was not, when viewed objectively, conduct which could reasonably destroy or seriously damage trust and confidence.

 

83.   In view of these findings, I concluded that the Respondent’s behaviour did not amount to ‘bullying’ or ‘threatening’ behaviour and the Respondent was not in breach of the implied duty of mutual trust and confidence in this regard.

 

Did the suggestion that the Claimant committed an act of gross misconduct and theft amount to a breach?

 

84.   The Claimant submitted that the Respondent’s allegation that she had committed an act of gross misconduct and theft was so serious that she resigned and considered reporting the Respondent to the Police.  The Claimant also asserted that it was an allegation of theft which caused her to decide to pay herself only 16 hours on 1 December 2017. 

 

85.   There was no evidence to suggest that the Respondent made any allegation of ‘theft’ prior to his letter to the Claimant on 11 December 2017.  Given the forthright nature of the Claimant’s correspondence and her manner at the Hearing, I was in no doubt that, had such an allegation been made at an earlier stage, the Claimant would have recorded it in her correspondence.  In particular, I noted that there was no reference to ‘theft’ in her email to the Respondent of 30 November 2017.  This contrasted with the Claimant’s resignation letter, in which she stated that the basis for her paying herself 16 hours per week on 1 December 2017 was because she had been “threatened with theft”.  I therefore concluded that, on the balance of probabilities, no such allegation was made by the Respondent before the Claimant paid herself for 16 hours on 1 December 2017.

 

86.   I noted that the Respondent’s allegation of theft was made after the Claimant had paid herself for 20 hours of work, despite knowing that her hours were disputed by the Respondent.  The Claimant was in a position of responsibility and trust; she had control of the payroll and was able to pay her own wages. However, although the Claimant was contractually entitled to receive wages for 20 hours, she was not entitled to pay herself that sum when the Respondent had made it clear to her that he did not agree to her paying herself for 20 hours. The decision as to whether or not to pay the Claimant the correct wages under the terms of the Original Contract lay with the Respondent and not with the Claimant. 

 

87.   I therefore concluded that, in these circumstances, the Respondent’s allegation was not so serious as to destroy or seriously damage the relationship of trust and confidence between the parties.  Consequently, the Respondent was not in breach of the implied duty of mutual trust and confidence in this regard.

 

Did the proposed variation of the Claimant’s annual leave and sick pay amount to a breach?

 

88.   I considered whether the Respondent’s act of changing the holiday and sick pay terms in the New Contract amounted to a breach of the implied duty of mutual trust and confidence.

 

89.   I noted that the parties were in negotiations during this time.  Whilst I would expect an employer to raise proposed changes to a contract with the employee, this was not a situation where the Respondent forced the changes on the Claimant.  When the Claimant refused to sign the New Contract, the Respondent arranged for a meeting with JACS in an attempt to try to reach an agreement.

 

90.   In the circumstances, I did not consider the proposed variation of these terms to be so serious as to destroy or seriously damage the relationship of trust and confidence between the parties.

 



Were the Acts together a course of conduct which cumulatively breached mutual trust and confidence?

 

91.   This was a very unfortunate set of circumstances which saw both parties express regret at the Hearing that matters had degenerated so seriously.  The evidence showed that both parties were responsible for relations deteriorating so badly.  The Respondent was in repudiatory breach when he instructed the Claimant to only pay herself for 16 hours.  However, in terms of actual conduct over this period, it was clear that the Claimant’s evidence was somewhat inflated and that her own behaviour significantly worsened the situation. 

 

92.   I therefore concluded that, although the Claimant clearly found the whole experience deeply upsetting and stressful, when considered objectively I did not accept that the Acts cumulatively amounted to a course of conduct which was so serious as to destroy or seriously damage the relationship.

 

Did the Claimant resign in response to the breach?

 

93.   Having found that the Respondent was in repudiatory breach of contract when he insisted that the Claimant pay herself for 16 hours on 1 December 2017, I then considered whether the Claimant resigned in response to that breach.

 

94.   The evidence showed that there were many reasons for the Claimant’s resignation, the principal reason being the Respondent’s allegation that the Claimant had committed an act of gross misconduct and theft.  The Claimant also gave evidence that she resigned because the Claimant was ignoring her and making her time at work “unbearable”.  I found, on the balance of probabilities, that these were the main reasons for the Claimant’s resignation.  Indeed, had it not been for the Respondent’s allegation of gross misconduct and theft, the evidence strongly indicated that the Claimant would not have resigned when she did.

 

95.   However, notwithstanding the main reasons for the Claimant’s resignation, I applied the guidance as set out in Nottingham County Council and concluded that the Respondent’s breach of contract (ie having paid the Claimant 16 hours instead of 20 hours on 1 December) also “played a part” in the Claimant’s decision to resign, albeit a small part. 

 

 

 

Did the Claimant affirm the contract?

 

96.   In reaching my decision on this point, I noted that:

 

a)       the repudiatory breach of contract took place on 1 December 2017;

b)      the Claimant reserved her position to allow herself to take advice;

c)       apparently having taken such advice, the Claimant then notified the Respondent on 5 December 2017 that she did not accept that she was required to work 16 hours per week;

d)      the Claimant paid herself for 20 hours on 8 December 2017;

e)      the Claimant continued to work until 13 December 2017, a period of almost two weeks from the date of the breach and over a week after confirming that she did not agree to the 16 hours; and

f)         the parties continued to negotiate about the terms of the New Contract until the Claimant’s resignation.

 

97.   I applied the cases of El-Hoshi and Mari to the facts.  I considered whether any of the above acts by the Claimant amounted to an event which would indicate that she waived the Respondent’s breach and affirmed the Original Contract.

 

98.   I concluded that the following facts supported the conclusion that the Claimant did not affirm the Original Contract before she resigned:

 

a)       negotiations between the parties regarding the New Contract were continuing;

b)      the Claimant made it clear on 30 November and 5 December that she did not accept the 16 hours and was working under protest; and

c)       the Claimant paid herself 20 hours rather than 16 hours.

 

99.   I therefore concluded that the Claimant did not affirm the Original Contract.  I therefore concluded that the Respondent constructively dismissed the Claimant.

 

  Was the Claimant’s constructive dismissal unfair?

 

100.  I considered the fairness or otherwise of the Claimant’s dismissal in accordance with Article 64 of the Law. I considered whether, in accordance with Article 64(1)(a) of the Employment (Jersey) Law 2003 (“Employment Law”), the principal reason for the Claimant’s constructive dismissal fell within any of the potentially fair reasons for dismissal.

 

101.  The Respondent put forward no argument to suggest that the Claimant’s dismissal was potentially fair.  Having considered Article 64(1) of the Employment Law, I did not consider that the Claimant’s constructive dismissal, borne out of the Respondent’s breach of a key term of the Claimant’s contract, fell within the scope of Article 64(1) of the Employment Law.

 

102.  I therefore concluded that the Claimant’s constructive dismissal was unfair in the circumstances.

 

Remedy

 

103.  Under Article 77F of the Employment Law, the Tribunal is obliged to calculate the amount of compensation payable to the Claimant in accordance with the provisions of the Employment (Awards) (Jersey) Order 2009 (“Awards Order”) subject to any reduction which the Tribunal considers to be just and equitable having regard to certain circumstances specified within Article 77F.  The relevant provisions are as follows:

“77F      Compensation awards…

(3)  Award under Article 77(2) or Article 77E(a) may be reduced by such amount as the Tribunal considers just and equitable having regard to any of the circumstances described in paragraphs (4), (5), (7), (8), (9) and (10).

….

(10) Any circumstances that the Tribunal considers would be just and equitable to take into account.”

 

104.  The Claimant had 8 years’ continuous employment and is therefore eligible to receive 26 weeks pay by way of compensation for her unfair dismissal.  The parties agreed at the CMM that the Claimant received pay of £320 per week.  Accordingly, her compensation is calculated as follows:

 

£320 x 26 = £8,320

 

105.  Under Article 77F(10), the Tribunal has a general discretion to reduce an award if there are circumstances which, in the Tribunal’s view, make it just and equitable to do so.  I considered whether the facts of this case were such that it would be just and equitable to exercise the Tribunal’s discretion and reduce the Claimant’s award.

 

106.  In considering this issue, I noted the following points:

 

a)       the repudiatory breach of contract was not the main reason for the Claimant’s resignation;

b)      the primary reason for the Claimant’s resignation was her objection to the Respondent alleging that, by paying herself for 20 hours instead of 16 hours, she was committing an act of gross misconduct and theft; and

c)       the cause of the Respondent’s allegation was the Claimant’s decision to pay herself 20 hours when she knew that the Respondent did not agree to the payment of that amount.

 

107.  The evidence showed that during the period which the parties were in dispute, the Claimant confused her personal view of the situation with her professional duties to the Respondent.  Instead of carrying out the Respondent’s instructions (even though they would have resulted in him being in breach of contract) she decided to ignore those instructions and determinedly pay herself what she believed she was entitled to.  The fact that the Respondent was wrong is not relevant; it was not her role to make the decision as to her pay and it cannot be right that, by virtue of her role in the Respondent’s accounts department, she was entitled to disregard her employer’s instructions.

 

108.  Having considered all of the facts in this case, I concluded that in these circumstances, it was just and equitable to exercise the Tribunal’s discretion under the provisions of Article 77F(10).  Given my finding that the Claimant resigned primarily due to the Respondent’s allegation of theft which, in turn, was caused by the Claimant’s error of judgment in paying herself the disputed sum, it was just and equitable in the circumstances to reduce the Claimant’s award by 70%.

 

109.  The Respondent shall therefore pay to the Claimant the sum of £2,496 by way of compensation for unfair dismissal.

 

Wrongful dismissal

 

110.  Given the finding that the Claimant was constructively dismissed by the Respondent, she was entitled to receive statutory notice to terminate her employment.

 

111.  The parties agreed that the Claimant was entitled to receive 8 weeks’ notice to terminate her employment.  Accordingly, her damages are calculated as follows:

 

£320 x 8 = £2,560

 

112.  The Respondent shall pay to the Claimant the sum of £2,560 by way of damages for breach of contract.

 

Holiday pay

 

113.  The Claimant claimed 11 days’ holiday pay.  I accepted the Claimant’s evidence that she had saved her holiday to take over the Christmas and New Year period.

 

114.  I therefore concluded that the Respondent owed the Claimant 11 days’ accrued holiday pay.

 

115.  At the Case Management Meeting, the parties agreed that this claim for unpaid holiday pay amounted to £704. 

 

116.  The Respondent shall pay to the Claimant the sum of £704 by way of payment for unpaid holiday pay.

 

Summary of Award

 

Compensation for unfair dismissal

£2,496.00

Damages for breach of contract (notice pay)

£2,560.00

Damages for unpaid holiday pay

£704.00

TOTAL AWARD

£5,760.00

 

Embedded ImageMrs H G Griffin, Chairman                                                    Date:           10 August 2018

 

           


Page Last Updated: 10 Aug 2018