ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4111453/2019 Hearing Held at Dundee on 13, 14, 15, 16, 17, and December 2021 Employment Judge: M A Macleod Daniel Devine v MML Legal — 2022

The claimant had worked for the respondent firm since 2002 and had reduced his working week from five days to four in 2017, when his salary moved from £45,000 to £40,000. The tribunal accepted that Mr Muir had told Ms Clancy that the claimant’s full-time salary had been increased to £50,000 before the pro rata reduction, but it could not resolve with confidence exactly what was said between Mr Muir and the claimant about that earlier change.

The central dispute concerned January 2019, when the claimant sought to reduce his working week from four days to three. The claimant said Mr Muir agreed that he would work three days a week for £35,000 per year; Mr Muir said no salary figure was agreed at all. The tribunal attached weight to the absence of any written confirmation and to Ms Clancy’s evidence that the claimant did not tell her he had agreed a £35,000 salary. It therefore found that the claimant had not proved a contractual variation to £35,000 and that the respondent was entitled to pay £30,000 on a pro rata basis.

The tribunal also rejected the sick pay complaint. It found no express contractual term, and no verbal agreement, requiring the respondent to pay more than two weeks’ sick pay. On the trust and confidence issue, the tribunal accepted that the meeting on 15 April 2019 was inappropriate and that Mr Muir shouted and used expletives, but held that the conduct, viewed in context, did not amount to a repudiatory breach. It also found that the grievance and appeal process, conducted by Mr Fraser and Mr Laverty, did consider the claimant’s points and did not itself destroy trust and confidence.

Applying section 95(1)(c) ERA 1996 and the authorities cited on constructive dismissal, the tribunal concluded that there had been no fundamental breach of contract and that the claimant’s resignation on 6 July 2019 did not amount to constructive unfair dismissal. The claim therefore failed in full and no award was made.