Case 4101053/2023 · Employment Tribunal
Ms E McIntyre v Airdrie Services Club — 2023
- Case reference
- 4101053/2023
- Decision date
- 16 October 2023
- Jurisdiction
- Scotland
- Judge
- Employment Judge S Neilson
- Venue
- person
Parties
2 namedClaimant
Ms E McIntyre
Respondent
Key findings
Tribunal's reasoningThe claimant, Ms E McIntyre, had been employed by Airdrie Services Club since 2001 and signed a new contract in March 2022 for the role of Bar Steward. The tribunal found that she carried out the duties set out in the signed job description during 2022, while Mr McLelland as president took a more active role in the running of the club. It also found that an investigatory meeting in May 2020 about an alleged unauthorised pay rise led to no further action and did not amount to a breach of contract.
The claimant resigned by letter on 25 September 2022, to take effect on 18 December 2022, and sought to retract that resignation on 6 October 2022. The tribunal held that the relevant question for constructive dismissal was whether there had been a fundamental breach as at 25 September 2022, and that events after that date could not be relied on for the resignation. It found no fundamental breach in the alleged removal of duties, the claimant's allegations about the club's business practices, or the incidents involving Louise Johnston and Ms Veldhoven. The tribunal accepted that Mr McLelland's telephone call on 18 September 2022 was inappropriate and that there had been some late payment of wages in December 2021 and January 2022, but held that the wage delay was not material and had been affirmed by the claimant continuing to work.
The tribunal therefore dismissed the constructive unfair dismissal claim. It also held that there was no basis on which the respondent had to accept the claimant's attempted retraction of her resignation, because there was no evidence that the resignation had been given in the heat of the moment or that any special circumstances required a cooling-off period. On the financial claims, the tribunal found no evidence of accrued holiday pay due at termination, no evidence supporting a claim for unpaid wages, and no evidence that notice pay had not been paid in full.
The redundancy pay claim was not insisted upon at the final hearing and was recorded as withdrawn. No monetary award was made.
Claims and outcomes
5 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Constructive unfair dismissal claim dismissed. The tribunal held that the claimant had not shown a fundamental breach of contract entitling her to resign on 25 September 2022. It rejected reliance on events after that date, found no fundamental breach in the investigatory meeting in 2020, the change in duties, the allegations about business practices, or the incidents relied on in August and September 2022, and held that the late wage payments were minor and had been affirmed by continued work. | Dismissed | — | — |
| Holiday pay | Claim for accrued holiday pay dismissed. The claimant could not identify any specific outstanding entitlement and the tribunal found no evidence that holidays were unpaid at termination on 17 December 2022. | Dismissed | — | — |
| Unlawful deduction from wages | Claim for unlawful deductions in respect of arrears of pay dismissed. The claimant accepted she could not say she had been underpaid and offered no supporting evidence. | Dismissed | — | — |
| Breach of contract | Claim for breach of contract/unlawful deductions in respect of notice pay dismissed. The claimant accepted she had been paid in full for her notice period and no contrary evidence was led. | Dismissed | — | — |
| Redundancy | Redundancy pay claim was not being insisted upon at the outset of the final hearing. The tribunal recorded it as withdrawn and dismissed it accordingly. | Withdrawn |
Legal tests applied
13 references- Western Excavating v Sharp
- implied term of trust and confidence
- last straw doctrine
- Waltham Forrest v Omilaju
- Kaur v Leeds Teaching Hospitals NHS Trust
- Williams v Alderman Davies Church in Wales Primary School
- s.94 ERA 1996
- s.95(1)(c) ERA 1996
- s.111 ERA 1996
- Regulation 14 WTR 1998
- Regulation 30 WTR 1998
- s.23 ERA 1996
- Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994
Official outcome judgment PDF
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