Case 1304200/2018 · Employment Tribunal
Ms M A Fealy v J Cullen Thermals Limited FINAL HEARING — 2018
- Case reference
- 1304200/2018
- Decision date
- 30 June 2018
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Camp Appearances
Parties
2 namedClaimant
Ms M A Fealy
Respondent
Key findings
Tribunal's reasoningMs M A Fealy resigned with effect from 25 May 2018 after being told on or around 18 May 2018 that her hours and pay would be reduced again, following an earlier reduction in November 2017. She claimed constructive unfair dismissal and claims about holiday, pay and lunch breaks; the respondent brought a counterclaim for vehicle-related expenses charged to its account.
The tribunal accepted that the respondent was in financial difficulty and that the 2013 “Deductions from Pay” document allowed short-time working when there was a temporary shortage of work. It found that the November 2017 reduction in hours and pay was handled badly and without adequate consultation, but that the respondent had reasonable and proper cause, that the claimant continued working afterwards, and that this affirmed the contract. The judge applied the high threshold for breach of the implied term of trust and confidence, including the “destroy or seriously damage” test and the last-straw approach.
The earlier matters relied on by the claimant, dating back before November 2017, were found to be either factually unproven, contractually agreed in 2011 and 2013, or too remote to have had any significant effect by the time of resignation. The May 2018 further reduction of 3 1/4 hours per week was also held to be contractually permissible and justified by the respondent’s reduced workload and financial position, even though the way it was presented left much to be desired. The tribunal therefore rejected the constructive dismissal claim.
The freestanding breach of contract and unlawful deduction complaints also failed. The tribunal found that the holiday and sick pay changes had been accepted in the relevant contractual documents, that the lunch-break issue was only a re-designation of paid time as unpaid time and did not reduce pay, and that there was no unlawful deduction from wages. The respondent’s counterclaim for £197.40, £105.26 and £115 failed because the tribunal was not satisfied the claimant lacked authority to authorise those payments or that she had breached duty in relation to them. No monetary award was made.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Constructive dismissal | The claimant alleged constructive unfair dismissal after the November 2017 and May 2018 reductions in hours and pay. The tribunal held that the respondent had reasonable and proper cause, that the May 2018 proposal was within the contract, and that the relationship of trust and confidence had not been destroyed or seriously damaged at the point of resignation. The claimant’s continuation in work after the November 2017 reduction was treated as affirmation. | Dismissed | — | — |
| Breach of contract | Freestanding breach of contract complaints about holiday entitlement, salary/pay reductions, and the contractual effect of the 2011 and 2013 terms failed. The tribunal found those terms had been agreed and that the temporary-shortage-of-work clause permitted short-time working. | Dismissed | — | — |
| Unlawful deduction from wages | The complaint that the respondent failed to pay for lunch breaks and otherwise made unlawful deductions failed. The tribunal found the lunch break had been re-designated as unpaid non-working time and that this did not reduce the claimant’s pay. | Dismissed | — | — |
| Breach of contract | The respondent’s counterclaim for £197.40 insurance, £105.26 RAC breakdown cover, and £115 vehicle tax for the claimant’s own car was dismissed. The tribunal was not satisfied that the claimant lacked authority to authorise the payments as a director and senior employee, or that she had breached duty in making them. | Dismissed | — | — |
Legal tests applied
4 references- ERA section 95(1)(c)
- Western Excavations v Sharp
- Omilaju v Waltham Forest London Borough Council
- Cockram v Air Products Plc
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
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