At the Tribunal | |
Before
HIS HONOUR JUDGE BIRTLES
MRS A GALLICO
MR S M SPRINGER MBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellant | MR G HARRIS Representing on behalf of the Appellant |
JUDGE BIRTLES
"Last year you stopped paying double time for Bank Holidays, and reduced it to one and a half. That amounts to an unlawful deduction of wages under the Employment Rights Act 1996. You did not liaise with the employees or put a notice on the board. The first we knew of this reduction was when we read our next payslips. Another act also covers existing employees – Council Directive 77/186/EC. The Transferors rights and obligations are transferred to the Transferee. This means of course that wages and benefits of an existing employee must remain when a business is passed onto another Manager. You did not do that. Thereby, this was a fundamental breach giving me the right to resign and claim unfair constructive dismissal."
"39 Some matters for which the Applicant complained of in relation to her status began before the Transfer of the Undertaking to the Respondent. In so far as those are concerned, any complaint the Applicant had in relation to them cannot relate to that Transfer.
40. The Applicant was unable to establish to our satisfaction the reason for her resignation having presented two particular reasons and referring to a number of other matters. In respect of the payments for Bank Holidays, the Applicant was prepared to work for the money she received for a period of almost a year and after the period when the amount was reduced to time and a half; she received double time on one occasion and thereafter on three further occasions at time and a half.
41. The Applicant waived each breach of the contract. Looking at all the facts found, both separately and cumulatively, we do not think that there was any fundamental breach of any term of the contract of employment by the Respondent.
42. As there was no fundamental breach of contract there was no dismissal. The Applicant's complaint of unfair dismissal therefore fails and will be dismissed."
"Before we had heard any evidence the Applicant's representative had expressed himself uncertain as to the complaint pursuant to section 47B Employment Rights Act 1996. At this stage the Applicant's representative conceded that no public interest disclosure had been made. We found that the Applicant had not given any evidence of having made a qualifying disclosure which was protected within the provisions of Section 43 of the Employment Rights Act 1996. It followed that we could not find that there had been a protected disclosure nor detriment following one. We announced our decision at that stage that that part of the Applicant's complaint was dismissed."
"It (meaning the Tribunal) misdirected itself in not asking whether the Applicant held the reasonable belief of what she was disclosing tended to show a relevant failure instead of asking itself whether there were in fact breaches of contract whether they were waived or whether they were repudiatory."