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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Morrison v Kavanagh Retailing (NI) Ltd [2010] NIIT 1565_08IT (07 December 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/1565_08IT.html
Cite as: [2010] NIIT 1565_08IT, [2010] NIIT 1565_8IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1565/08
CLAIMANT: Queenie Morrison
RESPONDENT: Kavanagh Retailing (NI) Ltd
DECISION
The tribunal dismisses the claimant’s claims for unfair dismissal, sex discrimination and disability discrimination.
Constitution of Tribunal:
Chairman: Mr Brian Greene
Members: Ms Eileen Kennedy
Mr Samuel Adair
Appearances:
The claimant was represented by Mr P McCrossan.
The respondent was represented by Mr G Grainger, of counsel, instructed by Worthingtons, Solicitors.
Sources of evidence
1. The tribunal heard evidence from the claimant and on her behalf John Barr. For the respondent the tribunal heard from Martin McBrearty, Paul Duffy, Angela McColgan, Leona Duffy, Noreen Coyle, Lisa Friel, Michael Mullahy and Louise Ferry. The tribunal also received a number of bundles of documents amounting to some 400 pages.
The claim and defence
2. The claimant claimed unfair (constructive) dismissal, disability discrimination and sex discrimination.
The respondent denied the claimant’s claims in their entirety.
The Issues
3. At a Case Management Discussion on 25 February 2009 the following issues were agreed for determination by the tribunal:-
(1) Whether the respondent, by the way Mr McBrearty spoke to the claimant, treated the claimant less favourably than a male comparator and if so whether this treatment was because the claimant was female?
(2) Whether the respondent breached the claimant’s contract, and if so, was the claimant entitled to have treated the contract as repudiated?
(3) Whether the respondent treated the claimant less favourably, and if so, was this on the grounds of the disability of the friend/relative?
(4) Did the claimant raise the subject-matter for complaint with the respondent in the form of a written grievance?
(5) If not, does the tribunal have jurisdiction to hear the claimant’s complaints?
(6) Whether the claimant is disabled for the purpose of the Disability Discrimination Act 1995 as amended?
(7) Whether the friend/relative for whom the claimant alleges she cares is disabled for the purpose of the Disability Discrimination Act 1995, as amended?
(8) If not, whether the tribunal has jurisdiction to hear the claimant’s claim relating to disability discrimination?
(9) Whether the tribunal has jurisdiction to hear the complaint of disability discrimination given that it is not the claimant that is alleged to be disabled?
Findings of Fact
4. (1) The claimant worked as a sales assistant with the respondent and its predecessors in title from 1978. She worked 38 hours over five days from 7.00 am to 3.30 pm mainly in the bakery department and is not a disabled person. The respondent acknowledges that the claimant was a good worker.
(2) The respondent carries on the business of a retail supermarket in the Strabane area. The majority of the staff is female.
(3) The respondent gives employment to persons with disabilities under a Sheltered Placement Scheme. The appointment of a disabled person is done in conjunction with the sponsoring body which thereafter maintains contact with the disabled person while they are in employment.
(4) The claimant lived with a disabled relative who suffers from asthma and arthritis. The claimant is the main carer for the disabled relative. The respondent did not know that the claimant was the main carer or that the relative was disabled. The claimant accepts that she had not told anyone at work about that but believed one or two fellow members of staff knew of her caring responsibilities.
(5) The respondent did not challenge that the claimant’s relative was disabled.
(6) The disabled relative’s condition appeared to be deteriorating requiring the claimant to render more attention and care to her.
(7) The claimant wanted to change and reduce her hours from working full time to working three consecutive days. She believed that this best enabled her to help her disabled relative.
(8) The claimant was injured at work on 30 July 2008 and required to take time off work. She made a successful claim against the respondent for compensation. She was scheduled to return to work on 22 August 2008.
(9) On 21 August 2008 she attended at the respondent’s premises and met Martin McBrearty, the manager. During the course of the meeting with Mr McBrearty the claimant tendered her resignation.
(10) There is a significant conflict between the parties about what happened at the meeting. The claimant asserts;-
(a) that she handed Mr McBrearty a written resignation letter; and
(b) that her resignation arose from his refusal to reduce and change her hours to three consecutive days’ work although Mr McBrearty had offered her reduced hours over five days; and
(c) that she had indicated to him that she had caring responsibilities; and
(d) that she had got the offer of a new position with better hours and better pay.
Mr McBrearty denies that the claimant handed him a letter of resignation but maintains that she resigned to take up a new position with better hours and pay.
(11) The majority of the tribunal accepts that the claimant handed a written resignation to Mr McBrearty. The majority so concluded because it found the claimant more persuasive on this point.
(12) The claimant worked a further week. Again there is a dispute as to the reason for this. The claimant states that this was to cover for two staff members on holiday and to enable Mr McBrearty to reconsider the claimant’s request for three consecutive days work. Mr McBrearty said it related to working her notice. It is common case that part of the reason for the claimant staying on another week was to cover for two staff members who were off on holiday.
(13) On Friday 22 August 2008 a meal was arranged at lunch-time in a local restaurant for the claimant and Dolores McIntyre, hosted by Mr McBrearty. The respondent states the lunch was a farewell meal for both ladies who were leaving.
(14) Photographs from the respondent’s newsletter showed the claimant and Dolores McIntyre in attendance at what is entitled “Farewell”. Both appeared to be happy. Both ladies were presented with a bunch of flowers by Martin McBrearty. The claimant says that the function was to mark her 30 years’ service and not her resignation which she says was on hold at that time but she accepts that Dolores McIntyre was leaving.
(15) The claimant’s resignation took effect from 29 August 2008 because, the claimant asserts, Mr McBrearty had not reconsidered her request for reduced and changed hours of work to three consecutive days per week.
(16) On the day of her departure the fellow members of staff presented to the
claimant a gift and card signed by a number of staff.
(17) Later on 29 August 2008 the claimant was in the local pub where she met up with a number of other employees and spent the evening with them.
(18) The claimant maintains that she was very upset and only went into the pub because she was upset. She accepts that she perhaps did not manifest any upset in her appearance or demeanour. The respondent’s evidence is that she was celebrating her departure in the company of some of her fellow employees.
(19) The claimant accepts that she did not discuss with Mr McBrearty the reason for her desire to change her hours to look after a disabled relative as she regarded this as a private matter.
(20) Over the years the respondent had accommodated a number of requests for shorter hours from staff. Only one member of staff, Angela McColgan, had reduced hours over three consecutive days but that was changed to reduced hours over five days at the instigation of the respondent.
(21) Though Mr McBrearty’s superiors were in the respondent premises from time to time the claimant never raised with them Mr McBrearty’s alleged unwillingness to consider the claimant’s request for reduced and changed hours. The claimant was unaware of the respondent’s internal grievance procedure.
(22) The claimant began working with Better Deals in the bakery department from
1 September 2008. She had been aware that Better Deals were looking for someone from January 2008 as they intended to establish a bakery department. Though it appears the claimant could have accepted the position with Better Deals at an earlier time in 2008 she only agreed to move on 1 September 2008. She had had a discussion with the manager of Better Deals about a position with Better Deals on 21 and 26 August 2008.
(23) The position with Better Deals offered the claimant the hours she wanted. In addition it paid a higher hourly rate of pay. However it did not have a pension scheme as the respondent had. The respondent provided better sick pay arrangements and holiday entitlement.
(24) The claimant experienced considerable difficulty and delay in getting a copy of her Hygiene Certificate from the respondent. The explanations offered for this from the respondent lacked credibility.
(25) At the end of November or early December Mr McBrearty attended at Better Deals. He informed the manager of Better Deals that the claimant had brought proceedings against the respondent. The claimant alleges his comments went beyond that and amounted to him making a number of adverse comments about her. The claimant was relating what others had told her. No corroborating evidence was produced.
However Mr McBrearty accepts that he did raise the subject of the claimant with the manager of Better Deals and expressed his unhappiness with the claimant for having brought a claim against the respondent. The tribunal regards this as unprofessional.
(26) The claimant was made redundant from Better Deals on 8 June 2010 as the business closed down.
(27) John Barr is a disabled person. He worked as a general labourer for the respondent from 1990 to 2003 under the Sheltered Placement Scheme. He left when he was refused two weeks’ leave when his mother was terminally ill, though the refusal was not by Mr McBrearty who was on leave at the time.
(28) Mr Barr complained about bad treatment by Mr McBrearty including shouting at him, not providing him with properly fitting waterproof clothing, requiring him to deliver shopping to certain customers or Mr McBrearty’s dry-cleaning to the cleaners and retrieving shopping trolleys from a local travellers’ site where he was stoned. He generally felt exploited by Mr McBrearty.
(29) Mr Barr never complained about his bad treatment to Mr McBrearty, his superiors or his sponsoring body, Ulster Sheltered Employment, whose representative visited him at work every three months. He did complain about being stoned at the travellers’ site.
(30) The respondent’s record keeping of personnel matters concerning the claimant and John Barr was scant and inadequate. The documents relating to the claimant also contained inaccuracies.
(31) The claimant did not believe she had a good relationship with Mr McBrearty. She believed that he treated female members of staff less favourably than male members; that he was abrupt; that throughout her employment he shouted at her and other female members of staff; that he belittled her and demanded that she do errands for him within the shop e.g. fetching tea or snacks for him.
Mr McBrearty denied this but accepted that he was demanding in the standards he sought to implement within the store.
(32) Male members of staff also gave evidence of Mr McBrearty asking them to fetch him tea, snacks or cigarettes.
The Law
5. (1) To establish a constructive dismissal that is unfair the claimant must prove that;
(a) there was a breach of her contract of employment, and
(b) the breach went to the core of the contract, and
(c) the breach was the reason or principle reason for her resignation, and
(d) she did not delay in resigning after the breach occurred, and
(e) in all the circumstance the respondent acted unreasonably.
(2) The breach of contract can be the breach of an express term of the contract or a breach of the implied term of trust and confidence or both.
(3) A breach of the implied term of trust and confidence can be by a single act of the employer or a course of conduct by the employer over a period of time.
(4) Where a course of conduct is relied upon it is not necessary that any single act itself amounts to a breach of the implied term of trust and confidence but the course of conduct, cumulatively, must amount to the breach of the implied term.
(5) It is unlawful for an employer to discriminate against a disabled person whom he employs by subjecting him to any other detriment (Section 4(2)(d) Disability Discrimination Act 1995, as amended).
(6) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or are not materially different from, those of the disabled person (Section 3A(5) Disability Discrimination Act 1995, as amended).
(7) A person also directly discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person (EBR Attridge Law LLP and another v Coleman (No.2) [2010] IRLR 10).
(8) It is unlawful to discriminate against another on the ground of sex (Article 3(1) Sex Discrimination (Northern Ireland) Order 1976).
(9) Discrimination on the grounds of sex is to treat a woman less favourably than a man on the ground of sex (Article 3 Sex Discrimination (Northern Ireland) Order 1976).
(10) It is for the claimant who complains of sex discrimination to prove, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part III or which by virtue of Article 42 or 43 of the Sex Discrimination (Northern Ireland) Order 1976 is to be treated as having committed such an act of discrimination against the claimant (Article 63A Sex Discrimination (Northern Ireland) Order 1976).
(11) It is for the claimant who complains of discrimination on the grounds of disability to prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has acted in a way which is unlawful by virtue of Part II or which by virtue of Section 57 or 58 of the Disability Discrimination Act 1995, as amended, is to be treated as having committed such an act of discrimination against the claimant (Section 17A Disability Discrimination Act 1995, as amended).
(12) The Northern Ireland Court of Appeal in McDonagh and Others v Samuel John Hamilton Thom T/A The Royal Hotel Dungannon [2007] NICA 3 stated that when considering claims of discrimination, tribunals must have regard to the burden of proof. The correct approach to the burden of proof in all discrimination claims is that set out in the Annex to the decision of the English Court of Appeal in Igen v Wong [2005] 3 All ER 812.
In the McDonagh case the Northern Ireland Court of Appeal recommended that tribunals adhere closely to the guidance in Igen.
The guidance set out in the Annex to the Igen case is:-
“(1) Pursuant to s 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of PtII or which by virtue of s 41 or s 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as ‘such facts’.
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in’.
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.
(5) It is important to note the word ‘could’ in s 63A(2). At this stage the Tribunal does not have to reach a definitive conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s 74(2) of the SDA.
(8) Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.
(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.
(12) That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.”
(13) In the McDonagh case Kerr LCJ stated that the first question to be addressed is has the claimant proved on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the act of discrimination. The Lord Chief Justice went on to say:-
“In addressing this question, it would be necessary for the judge to bear a number of ancillary issues in mind. First, that it is unusual to find direct evidence of discrimination. Secondly, that the conclusion on the preliminary issue will usually be a matter of inference to be drawn from the primary facts. Thirdly, it must be clearly understood that the plaintiffs do not have to discharge a final burden, merely whether on the facts as found, it is possible to draw the inference of discrimination and finally it must be assumed at this stage that no adequate explanation for the discrimination exists.”
(14) The application of the burden of proof was also considered in Madarassy v
Nomura International PLC [2007] EWCA Civ 33. In that case Mummery LJ, who gave the decision of the English Court of Appeal, stated at paragraph 52:-
“She [Madarassy] only has to prove facts from which the Tribunal “could” conclude that there had been unlawful discrimination by Nomura, in other words she has to set up a “prima facie” case.”
At paragraph 54 the learned Lord Justice went on to say:-
“I am unable to agree with Mr Allen’s (counsel for the appellant) contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing facts of a difference in status and a difference in treatment of her.”
At paragraph 56 he stated:-
“The court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”
The learned Lord Justice elaborated on “could conclude” at paragraphs 57 and 58:-
“Could conclude” in section 63A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage…., the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.
The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent.”
Further clarification was given by Mummery LJ at paragraph 71:-
“Section 63A(2) does not expressly or impliedly prevent the Tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which the comparisons are made are not truly like the complainant or the situation of the complainant; or that even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.”
(15) An industrial tribunal is prevented from considering a complaint of unfair (constructive) dismissal or discrimination on the grounds of sex or disability if the employee has not set out his grievance in writing and sent a copy of it to his employer and such a breach is either obvious to the tribunal in connection with the bringing of the proceedings or the employer raises the issue of compliance (Article 19(6) of the Employment (Northern Ireland) Order 2003).
Application of the Law and Findings of Fact to the Issues
6. (1) The tribunal does not dismiss this claim for failure to comply with the statutory grievance procedure.
The letter of resignation of 21 August 2008 could satisfy the grievance requirements in relation to the claimant’s claims for unfair (constructive) dismissal and disability discrimination.
In relation to her complaint of sex discrimination a letter on her behalf of 19 January 2009 appears to be the first written letter of complaint about sex discrimination, apart from her claim form. While this is outside the prescribed time there is an argument open to the claimant to seek an extension of time by virtue of the EAT decision in BUPA Care Homes (BNH) v Cann [2006] IRLR 248.
Sex Discrimination
(2) The tribunal is not persuaded that the respondent treated the claimant less favourably than male employees. In so concluding the tribunal had regard to the following matters;-
(a) The respondent’s manager described himself as being demanding towards members of staff in the performance of their duties.
(b) The claimant’s assertion that she and other females were abused by Mr McBrearty is unsupported by any of the members of staff currently employed by the respondent who gave evidence on behalf of the respondent. Significantly the claimant did not call as a witness any current or former employee to support her contention.
(c) A number of the male employees also gave evidence of being required by Mr McBrearty to fetch him tea or snacks or cigarettes as the claimant had complained of having to do.
(d) The claimant’s witness John Barr also gave evidence of what he regarded as a bad treatment by Mr McBrearty e.g. not being provided with proper clothing when working outdoors, having to go to the travellers’ site to retrieve trolleys, having to deliver shopping for certain customers and having to do errands of a personal nature for Mr McBrearty.
(e) Even if the evidence given by Mr Barr and the other male employees of the respondent is accepted as manifesting bad treatment it does not amount to less favourable treatment as the evidence given by the claimant was that female members of staff also suffered similar “bad treatment” at the hands of Mr McBrearty.
(3) As the claimant has not established that she has been less favourably treated than male staff members then her claim for sex discrimination cannot succeed.
(4) In addition even if the tribunal had found that there had been bad treatment of the claimant it cannot have arisen on the ground of sex because the evidence before the tribunal from the claimant, John Barr and male members of staff was that Mr McBrearty treated them all badly.
(5) The claimant therefore has not established a prima facie case of discrimination on the ground of sex. Therefore the burden does not shift to the respondent to explain its conduct.
(6) The claimant’s claim for sex discrimination must therefore be dismissed.
(7) The weaknesses and failings in the respondent’s record keeping are not sufficient to enable the tribunal to draw a prima facie inference of discrimination.
Disability Discrimination
(8) Similarly the tribunal is not persuaded that the claimant was discriminated against on the grounds of the disability of her disabled relative. In so concluding the tribunal had regard to the following matters;-
(a) The claimant seeks to rely on the evidence of John Barr as showing that Mr McBrearty was not sympathetic to disabled persons. Even if that were true, it ceased in 2003, five years before the events of which the claimant complains concerning her disabled relative.
(b) There is no evidence from 2003 onwards to allege Mr McBrearty did not treat disabled persons appropriately.
(c) The claimant’s claim is about associative disability discrimination of a relative.
(d) The claimant did not tell Mr McBrearty that her relative was a disabled person for the purposes of the Disability Discrimination Act 1995, as amended, much less producing to him any evidence in support of that.
(e) The respondent was not opposed to permitting staff to reduce or vary hours and had over the years accommodated a number of staff.
(f) There is not any evidence to show that the reason the respondent, through its manager, Mr McBrearty, refused the claimant three consecutive days was on account of her disabled relative.
(g) Even if the refusal to change the claimant’s hours to three consecutive days amounted to less favourably treatment the absence of a link to the disability of the claimant’s relative means that the claimant has failed to establish a prima facie claim of associative disability discrimination.
(h) The burden of proof does not shift to the respondent to provide an explanation of its conduct.
(i) Therefore the claimant’s claim for associative disability discrimination must be dismissed.
(j) The weaknesses and failings in the respondent’s record keeping are not sufficient to enable the tribunal to draw a prima facie influence of discrimination.
Constructive Dismissal
(9) The claimant does not rely on a breach of any actual term of her contract of employment. She relies on breach of the implied term of trust and confidence.
(10) The claimant alleges that Mr McBrearty treated her badly by belittling her over a considerable period of time culminating in his refusal to permit her to vary her hours to three consecutive days.
(11) The tribunal is not persuaded that the respondent, through its manager Mr McBrearty, belittled her. In so concluding the tribunal had regard to the following matters;-
(a) The respondent and its witnesses deny belittling the claimant.
(b) The claimant did not produce supporting evidence to her claim of belng belittled. Mr Barr’s evidence, if taken at its height, is that he was badly treated by Mr McBrearty prior to 2003. He did not give any evidence to show that the claimant was a victim of bad behaviour by Mr McBrearty.
(c) Whilst the claimant may have been unaware of the respondent’s internal grievance procedure she did not make any complaints about Mr McBrearty’s behaviour over several years to Mr McBrearty or her line manager or Mr McBrearty’s superiors who were in the respondent business on a regular basis.
(12) The refusal by Mr McBrearty to vary the claimant’s hours to three consecutive days does not amount to a breach of contract. In so concluding the tribunal had regard to the following matters;-
(a) The claimant’s contract of employment did not entitle her to reduced or varied hours.
(b) The reduction or variation of hours was dependant on the business needs of the respondent.
(c) The respondent has a history of accommodating requests for reductions and variation of hours.
(d) The decision on whether to reduce the claimant’s hours was entirely a matter for Mr McBrearty.
(e) Mr McBrearty was willing to reduce the claimant’s hours to five mornings or five afternoons per week.
(f) The claimant did not explain to Mr McBrearty that her caring responsibilities were to look after a disabled relative.
(13) The claimant has therefore not persuaded the tribunal that the respondent has breached her contract of employment.
(14) A breach of contract is an essential requirement in a claim for unfair (constructive) dismissal. It is therefore unnecessary to consider the other ingredients necessary for unfair (constructive) dismissal.
(15) Accordingly the claimant’s claim for unfair constructive dismissal is dismissed.
(16) The other matters of which the tribunal is critical, ie the delay in providing the claimant’s Hygiene Certificate to her, the discussion of the claimant having brought a claim against the respondent with her new employer happened after the claimant had resigned and cannot assist her in her claims for unfair (constructive) dismissal, sex discrimination and associative disability discrimination.
Chairman:
Date and place of hearing: 19, 20, 21, 22, 23, 26 and 27 April; 21, 22, 23, 26 and 27 July; and 4 August 2010
Date decision recorded and issued to parties: