Ms A Mensah v JC Fitness Ltd — 2022

Ms A Mensah worked as a fitness instructor for JC Fitness Ltd from 1 October 2016, with the employment transferring on 1 April 2019. She resigned on 24 January 2020 and brought a claim for constructive unfair dismissal, together with claims for unlawful deduction from wages and compensation under regulation 14 of the Working Time Regulations 1998. Employment Judge Ainscough, sitting alone, dismissed all three claims.

The tribunal accepted that the respondent unilaterally changed the holiday year and later changed overtime pay to time off in lieu. The holiday-year change was a breach of contract but was not a fundamental breach, and the claimant had affirmed it by taking leave afterwards. The overtime change was treated as a fundamental breach because it replaced contractual pay with TOIL, but the claimant carried on working overtime and the tribunal found she did not resign because of that change. The tribunal also found no breach in relation to shift patterns, lone working, or risk assessments, and held that the lack of rest breaks on the two July 2019 shifts was not a fundamental breach in the circumstances, including John Small's illness and hospitalisation.

The disciplinary suspension on 17 September 2019 was found not to breach the contract. The tribunal found the respondent was entitled to investigate the training-session incident, that the claimant had been told why she was suspended, and that the later disciplinary process and grievance handling did not amount to a repudiatory breach. Looking at the situation cumulatively, the tribunal held that the implied term of trust and confidence had not been breached and that the claimant's resignation was caused by her new business being a preferable alternative to returning to work for the respondent.

The unlawful deduction from wages claim failed because the claimant conceded she had not provided a fit note for January 2020, so she was not entitled to statutory sick pay for that period. The regulation 14 holiday-pay claim also failed because, by the hearing, the claimant accepted that the respondent had paid the correct holiday pay on termination, and the remaining dispute concerned tax treatment rather than unpaid leave pay.