IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
Reference:  TRE003
Hearing Date: 7
H G Griffin, Chairman
For the Claimant: In
For the Respondent: In
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.
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
2. By a Claim Form
presented on 16 January 2018, the Claimant brought a number of complaints as
set out below.
case as formulated in her Claim Form
3. The Claimant claimed
that the Respondent:
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
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.
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
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:
using bullying and threatening behaviour to force
the Claimant to reduce her hours;
attempting to change the Claimant’s
contractual annual leave and sick pay terms; and
suggesting that the Claimant had committed an act of
theft by paying herself 20 hours instead of 16 hours,
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’.
The Respondent denied the Claimant’s
allegations and denied that the Claimant was constructively dismissed. The Respondent asserted that the
resigned from her employment;
agreed to reduce her contractual working hours;
unreasonably refused to agree to resolve the issue
regarding holiday entitlement and contractual sick pay; and
behaved in an unreasonable manner towards the
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.
12. The Claimant claimed
11 days’ holiday pay.
13. The Respondent
denied the claim.
Documents and evidence
14. Both the
Claimant and the Respondent provided witness statements and gave evidence under
15. The Claimant provided
an agreed file of documents to which each party referred to during the course
of the Hearing.
16. Both parties made
their arguments orally by way of submissions.
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.
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;
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.
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
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.
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.
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.”
On 15 November 2017, the Claimant wrote a letter to
the Respondent in which she:
a) thanked the
Respondent for “accepting”
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”
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
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
that she either refund the overpayment of 4 hours or deduct it from her
following week’s pay.
Respondent’s letter was courteous and unthreatening.
34. In response,
that she had agreed to 16 hours, but stated that this was “on condition we agreed contract and signing
b) stated that,
because the New Contract had yet to be signed, she intended to continue to work
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.
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
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
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
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.
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
b) was no longer
polite and sociable;
c) “couldn’t bear to look” at
d) would not
speak to the Claimant;
e) failed to
greet her properly in the mornings;
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.
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.
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).
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
… 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.”
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.…
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.”
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.
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. 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; Abbe Cars (West Horndon)
Ltd v Ford UKEAT/0472/07; Wright v North Ayrshire Council
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.
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. 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
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,
the failure by the employee to
resign does not automatically mean that the employee has affirmed the contract
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.”
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?
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.
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
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
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
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
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
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
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
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.
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
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.
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;
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
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
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:
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
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
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:
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).
circumstances that the Tribunal considers would be just and equitable to take
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%.
Respondent shall therefore pay to the Claimant the sum of £2,496 by way
of compensation for unfair 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.
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
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
for unfair dismissal
for breach of contract (notice pay)
for unpaid holiday pay
Mrs H G Griffin, Chairman