Mr Otchie (counsel) For the v Respondent — 2017

The tribunal recorded that harassment complaints had already been found out of time at a preliminary hearing on 12 September 2018 and did not proceed, so the final hearing concerned constructive unfair dismissal and pay issues. Although lay members were initially listed, they were released at the start and the case was heard by Employment Judge King alone.

On the evidence about the alleged incidents from May to October 2017, the tribunal rejected most of the claimant's allegations. It found that the 2 May changing-room allegation was not proved because the alleged witness was not at work; that comments on 8 June were overheard but not shown to have been directed at the claimant; that the July wig comment was made; that the trolley incident on 27 July was not proved; that the August staff survey was not a complaint; that the 5 September complaint to Denise Dunleavy was not made as alleged; that the college-form issue involved a discussion about the course rather than bullying; and that the 2 October stores allocation did occur but was a one-off rota decision and part of normal duties.

Applying section 95 and section 98 ERA 1996 and the authorities cited, including Western Excavating, Malik, Buckland, Omilaju, Kaur and Morrow, the tribunal held that the claimant's reliance on 27 October 2017, when she went to see Ms Hill and Mr Trinidade after work but found them unavailable, did not amount to a repudiatory breach or a valid last straw. It found the employer had reasonable and proper cause, that the act was innocuous in context, and that any earlier possible breach had in any event been affirmed because the claimant remained in employment until October. The constructive unfair dismissal claim and the separate breach of contract claim for notice pay were therefore dismissed. The respondent conceded the separate £106 final-pay deduction point, and judgment was entered for the claimant on that element; the remedy hearing was vacated.