Case 2401730/2019 · Employment Tribunal
Ms O Dunphy v CDS (Superstore International) Ltd — 2019
- Case reference
- 2401730/2019
- Decision date
- 11 December 2019
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Batten
Parties
2 namedClaimant
Ms O Dunphy
Respondent
Key findings
Tribunal's reasoningMs O Dunphy brought claims of constructive unfair dismissal and holiday pay against CDS (Superstores International) Limited. The tribunal found that her written contract provided for a typical 16-hour week and reserved to the respondent the right to amend hours and rotas on reasonable notice. It found that the increase to 30 hours in late 2017 was an allocation of additional hours to meet temporary staffing needs in the Arts and Crafts department, not a permanent contractual variation.
The tribunal rejected the submission that the reduction from 30 hours back to 20 hours in March 2018 was a repudiatory breach. It also rejected the other matters relied on as breaches of the implied term of trust and confidence, including complaints about the grievance process, alleged hostility, alleged disclosure of personal information, and alleged lack of contact during sickness absence. Applying the constructive dismissal principles derived from section 95(1)(c) of the Employment Rights Act 1996 and the Western Excavating and Lewis authorities, the tribunal held that none of the matters amounted to a fundamental breach.
The tribunal also found that, even on the claimant's case, the resignation on 1 October 2018 was too remote from the March 2018 reduction in hours to be treated as a response to that event. It noted that the claimant continued working for about three months, then remained under contract while off sick, and later chose not to pursue a second appeal. For those reasons, the constructive unfair dismissal claim was dismissed.
On holiday pay, the tribunal accepted the respondent's calculation approach based on the claimant's average hours worked. It found that in the 13 weeks before sickness the claimant averaged 22 hours per week, that she had already taken more holiday than her accrued entitlement at termination, and that no further holiday pay was due. The holiday pay claim was therefore dismissed, and the respondent stated that it had not sought recovery of any overpayment.
Claims and outcomes
2 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Constructive dismissal | Pleaded as constructive unfair dismissal; the tribunal found no repudiatory breach and dismissed the claim. | Dismissed | — | — |
| Holiday pay | Claim framed as holiday pay/unauthorised deductions, including an asserted underpayment of £450; the tribunal found no further holiday pay due at termination. | Dismissed | — | — |
Legal tests applied
6 references- s.95(1)(c) ERA 1996
- Western Excavating (ECC) Ltd v Sharp
- Lewis v Motorworld Garages Ltd
- s.27(1)(a) ERA 1996
- Working Time Regulations 1998 regs 13, 13A and 14
- ss.221-224 ERA 1996
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.
Published on gov.uk under the Open Government Licence v3.0.
How we got this data
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