Ms A Gniadek v BaxterStorey Limited — 2023

The Claimant brought claims that she had been unfairly constructively dismissed and was owed notice pay. During the hearing she withdrew the wrongful dismissal complaint, and the tribunal dismissed that complaint upon withdrawal. The remaining liability issue was whether her resignation on 13 July 2022 amounted to constructive unfair dismissal because the Respondent had committed a repudiatory breach of contract.

The tribunal rejected the alleged repudiatory breaches relied on by the Claimant. It found that although she worked more than 40 hours per week during the short period from 4 to 13 July 2022, she had not shown that the Respondent expected or required her to do those hours, and the hours did not breach either the express contractual terms or the implied term of mutual trust and confidence. It also found no breach arising from the absence of time off in lieu, because the contractual overtime clause depended on additional hours being required and that was not established.

The tribunal also dismissed the allegations that the Claimant had been required to perform tasks outside her job description, had been deprived of breaks, or had been bullied. It found that she had assisted with moving bottles of water but not pallets or fridges, had not been asked to turn on mains power or fix a coffee machine, had not shown that work was organised to prevent breaks, and had not proved the alleged comments by Ms Austin or Mr Delaroue. Considering the matters cumulatively, the tribunal found no conduct reaching the threshold of destroying or seriously damaging mutual trust and confidence.

Although unnecessary because no repudiatory breach was established, the tribunal found that the alleged excessive hours and lack of time off in lieu were part of the reasons for the Claimant's resignation. It recorded that, had a repudiatory breach been established on those matters, the Respondent did not advance any fair reason for dismissal. The constructive unfair dismissal claim was nevertheless dismissed. The tribunal also stated that, had the claim succeeded, it would not have reduced compensation for failure to raise a grievance under the ACAS Code and would not have treated the Claimant's new job from 1 September 2022 as stopping her losses.