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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Andrews v Fold Housing Association [2009] NIIT 390_09IT (18 June 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/390_09.html
Cite as: [2009] NIIT 390_9IT, [2009] NIIT 390_09IT
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THE INDUSTRIAL TRIBUNALS

CASE REF: 00390/09


CLAIMANT: Jennifer Andrews


RESPONDENTS: 1. Fold Housing Association

2. Marie Pickles



DECISION


The decision of the tribunal is as follows:-


  1. The only correct respondent to the claim is the claimant’s former employer the first respondent. The proceedings against the second respondent are therefore dismissed.


  1. The claim of breach of contract against the first respondent is dismissed in its entirety since the claimant’s contract of employment was terminated by mutual agreement on a mutually agreed date.




Constitution of Tribunal:


Chairman (Sitting Alone): Ms Turkington


Appearances:


The claimant did not appear at the hearing.


The respondent appeared at the hearing and was represented by Lucy Haugh.



The Claim

  1. The claim was a claim of breach of contract, namely alleged failure to pay notice monies.


The Issues


  1. The issues which the tribunal had to determine were, firstly, the correct respondent to the claim and, secondly, whether there was any breach of the claimant’s contract of employment, namely failure to give notice or make payment in lieu of notice.


Disposal of the claim in the absence of the claimant


3. The claimant did not attend at the hearing. The tribunal was satisfied that the Notice of Hearing had been sent to the claimant at the address given` in the claim form. The claimant had not contacted the office to provide any explanation for her non-attendance. In the circumstances, the tribunal decided that it was appropriate for it to proceed to hear the claim in the absence of the claimant. In doing so, the tribunal considered the content of the claim form lodged by the claimant.


Sources of Evidence


4. The tribunal heard evidence from Fiona Campbell, HR Manager on behalf of the respondent and the respondent also referred the tribunal to a number of documents.


Facts of the Case


Having heard the oral evidence given by Ms Campbell at the hearing and having considered the documents referred to in evidence, the tribunal found the following relevant facts:-


  1. The claimant was employed by the first respondent as an HR Officer commencing on 14 April 2008. The second respondent is the HR Director of the first respondent. Initially, the claimant was employed on a fixed-term contract of 6 months ending on 14 October 2008. From the outset, the claimant had made it clear that she was only able to accept a temporary post as she was intending to move to the USA in late 2008/early 2009. In introducing the claimant to the first respondent, Reed Human Resources indicated that the claimant was “looking for a temporary position until Jan/Feb 08 (sic)”.


  1. Towards the end of her initial 6 month contract, there were regular meetings between the claimant and her line manager Ms Campbell. At a meeting between the claimant and Ms Campbell on 11 September 2008, it was agreed between the parties that the claimant’s contract which had been due to end on 14 October 2008 would instead end on 7 November 2008. The claimant’s contract of employment terminated on 7 November 2008.


  1. Under the claimant’s written terms and conditions of employment, if she was employed for a continuous period of employment of at least one month but less than 6 months, she was entitled to receive 1 weeks notice from the employer. If the claimant was employed for at least 6 months, but less than 5 years, she was entitled to receive 1 months notice from the employer.


  1. Ms Campbell considered that she had enjoyed a good working relationship with the claimant and was surprised to receive the claimant’s Claim Form. Prior to receiving the Claim Form, the first respondent had not received any written complaint from the claimant or any other indication that the claimant intended to bring this claim.





Statement of Law


  1. It is open to the parties to an employment contract to bring the contract to an end by mutual agreement. This is confirmed by the case of Birch and Humber v the University of Liverpool 1985 IRLR 165 where Acker LJ stated that it is possible to terminate a contract of employment by mutual agreement, and that, if this is done, the termination will not amount to a dismissal by the employer. Rather, where the contract is genuinely terminated by mutual agreement, it may properly be said that the contract is terminated by both the employer and employee jointly. In such a case, the contract of employment is terminated without the need for notice of termination to be given by the employer.


Conclusions


  1. The claimant was employed by the first respondent. Accordingly, the claimant’s claim of breach of contract can only be brought against the first respondent and any claim against the second respondent is therefore dismissed.


  1. On the basis of the evidence presented to it, the tribunal was satisfied that, for personal reasons, the claimant had only been able to commit to a temporary post with the first respondent. Against this background, the tribunal concluded that this was a case where the claimant was agreeable to her employment being terminated in or around November 2008. Accordingly, the tribunal was satisfied that the claimant’s contract of employment was genuinely terminated on a mutually agreed date by mutual agreement between the parties. The claimant’s contract terminated on 7 November 2008 as mutually agreed between the claimant and her manager at the meeting on 11 September 2008.


  1. Therefore, in the circumstances, this was not a case where the first respondent was required to give notice of termination to the claimant. There was no breach of contract on the part of the first respondent and the claimant’s claim therefore fails in its entirety.




Chairman:



Date and place of hearing: 7 May 2009, Belfast.


Date decision recorded in register and issued to parties:

1.

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