Miss K Allatt v Smyths Toys UK Limited — 2023

The claimant worked as a Store Manager at the Meadowhall store from 18 May 2015 until she resigned in November 2022. The tribunal accepted that she injured her foot around the end of August 2022, and preferred the respondent's evidence that on 31 August 2022 Mr Nicolson noticed she was in pain, insisted she attend A and E, and arranged a paid taxi. After that hospital visit, the tribunal found that she was told to take the rest of 31 August and 1 September 2022 off on full pay.

On the alleged request for annual leave to rest her foot, the tribunal preferred the evidence of Mr Nicolson and Ms Yates that no such request was made on 10 October 2022 or 23 November 2022. It noted there was no contemporaneous email, message, written leave request, or grievance about a refusal of leave, and it also recorded that the claimant had been allowed annual leave on 12 September 2022 and 2 November 2022 for unrelated reasons. In relation to the November discussion about working six days a week, the tribunal found that the claimant said her foot and back were hurting, that Mr Nicolson accepted she would only work five days a week, and that he told her to seek further medical advice.

Applying section 94 ERA 1996, section 95(1)(c) ERA 1996, section 98 ERA 1996, the implied term of mutual trust and confidence, and Western Excavating (ECC) v Sharp [1978] ICR 221, the tribunal held that the respondent had not acted in a way likely to destroy or seriously damage trust and confidence. It found no fundamental breach of contract, no constructive dismissal, and therefore no unfair dismissal. The claimant's resignation email of 23 November 2022 did not refer to a refusal of annual leave or a failure of support, and the tribunal concluded that she resigned of her own accord.