THE INDUSTRIAL TRIBUNALS

CASE REF:    109/14

CLAIMANT:	Deborah Balmer 

RESPONDENT:	Donna Newman

DECISION

The claimant’s unfair dismissal claim is not well-founded and accordingly it is dismissed.

Constitution of Tribunal:

Employment Judge:	Employment Judge Buggy

Members:	Mr J Kinnear
	Mr P McKenna

Appearances:

The claimant was self-represented.

The respondent was not represented.

REASONS

1.	In these proceedings, the claimant complains of unfair dismissal.  She was not actually dismissed.  The claimant resigned, because of the allegedly bad treatment meted out to her by her employer.  Accordingly, the claimant can only successfully make a claim of unfair dismissal if she can show that she was “constructively” dismissed, in the sense in which that term is usually used in the context of unfair dismissal.

2.	Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”) provides that an employee has the right not to be unfairly dismissed by her employer.

3.	Article 127 of ERO defines the circumstances in which a person is to be treated as “dismissed” for the purposes of Article 126.  Sub-paragraph (c) of paragraph (1) of Article 127 is the only relevant provision in the present context.  In effect, it provides that a person who resigns from her employment is deemed, for the purposes of Article 126, to be dismissed if:

		“(c)	the employee terminates the contract under which [she] is employed ... in circumstances in which [she] is entitled to terminate it without notice by reason of the employer’s conduct”.

4.	An employee in this claimant’s situation would be entitled, within the meaning of Article 127(1)(c), to terminate the contract of employment without notice, by reason of the employer’s conduct, only if she had been constructively dismissed.

5.	Case law shows that an employee will not be constructively dismissed unless she leaves in response to a “repudiatory” breach of contract on the part of the employer.

6.	An action or omission on the part of an employer, or actions or omissions (viewed collectively) on the part of the employer, will only constitute a repudiatory breach of contract if both of two conditions are met:

	(1)	There must be a breach of contract.

	(2)	That breach must be a significant breach, going to the root of the contract of employment.

7.	We regarded the claimant as an honest witness.

8.	She told us that she found it necessary to resign from her employment because of the conduct mentioned by her in her claim form, at paragraph 7.4 of that form.  (In this Decision, we refer to that conduct as “the relevant conduct”).

9.	In favour of the claimant, we have assumed that her sworn account, in her oral testimony, of the relevant conduct, is factually accurate.

10.	Having made that assumption in favour of the claimant, we are nevertheless satisfied that we must conclude that the relevant conduct, even if it is viewed as a course of conduct, did not constitute a repudiatory breach of contract on the part of the respondent.

11.	In essence, the claimant’s account of the relevant conduct can be summarised as follows.  On several occasions, the respondent and another member of staff were talking critically about the claimant behind her back.  (The claimant does not know exactly what they were saying about her).  Not long prior to the claimant’s resignation, the respondent was talking about the possibility of the claimant’s hours being cut, although that was all it was (just talk) and no steps were taken in that connection.  The claimant was asked to train another member of staff on a particular date (5 October 2013), but when she went into work on that day, she found that the potential “trainee” had booked that date off, so the claimant ended up “working properly” on that date, as distinct from merely working as a trainer.  The relevant conduct, even if it is looked at as a whole, and even if it is all assumed to be the responsibility of the employer, does not amount to misconduct which is sufficiently serious to constitute a breach of the contract of employment which went to the root of that contract.

12.	We are personally sympathetic to the claimant.  We think the claimant told the truth to us, as she sees it.  The claimant has had some difficult personal experiences in the past, and her health has been far from perfect.  We wish her well for the future.

13.	The claimant also made a claim for notice pay.  She accepts that, because she resigned, she cannot make a claim for notice pay under Article 118 of ERO.

14.	The claimant points out that she never received any particulars of her contract of employment.  However, we have no power to make an award to the claimant in respect of that failure, because we are not upholding either the notice pay claim or the unfair dismissal claim.  (See Article 27 of the Employment (Northern Ireland) Order 2003).

Employment Judge:       

Date and place of hearing:         8 May 2014, Belfast.

Date decision recorded in register and issued to parties: