Miss J Rayner v W M Morrison Supermarkets plc: 1802356/2021

JurisdictionEngland & Wales
Judgment Date05 November 2021
Citation1802356/2021
Date05 November 2021
Published date12 November 2021
CourtEmployment Tribunal
Case Number: 1802356/2021(V) EMPLOYMENT TRIBUNALS Claimant Miss J Rayner Respondent: W M Morrison Supermarkets Plc Heard by CVP in Sheffield On: 2 August 2021 1 October 2021 Before: Employment Judge Brain Representation Claimant: Respondent: Miss J Linford, Counsel Mrs A Stroud, Counsel RESERVED JUDGMENT The Judgment of the Employment Tribunal is that: 1. The claimant was constructively dismissed from her employment by the respondent. 2. The complaint of constructive wrongful dismissal succeeds. 3. By way of remedy upon the wrongful dismissal complaint, the respondent shall pay to the claimant damages in the sum of £3855.55 (calculated in accordance with paragraph 171 of the reasons). 4. The complaint of constructive unfair dismissal succeeds. 5. By way of remedy upon the unfair dismissal complaint: 5.1. The respondent shall pay to the claimant a basic award in the sum of £1632. 5.2. The respondent shall pay to the claimant a compensatory award in the sum of £3956.35 (calculated in accordance with paragraph 193 of these reasons). 6. It is not just and equitable to make any reduction to the basic or the compensatory award by reason of the claimant’s conduct. 10.5 Reserved judgment with reasons – rule 61 1 March 2017 Case Number: 1802356/2021(V) 7. The claimant’s complaint of breach of contract outstanding upon determination succeeds in part. The respondent shall pay to the claimant the sum of £15 by way of damages. REASONS 1. The second day of the hearing of this case concluded late in the afternoon of 1 October 2021. Given the lateness of the hour, I reserved my judgment. I now give reasons for the judgment that I have reached. 2. The claimant pursues the following complaints: (1) Unfair dismissal contrary to the relevant provisions of the Employment Rights Act 1996. (2) Wrongful dismissal. (3) Breach of contract. 3. The statutory unfair dismissal and the wrongful dismissal claims are brought upon alternative bases: that the respondent dismissed the claimant or in the alternative constructively dismissed her. The breach of contract claim is founded upon matters which arose during the claimant’s contract of employment with the respondent and which remained outstanding upon its termination. 4. The Tribunal heard evidence from the claimant. respondent, evidence was called from: On behalf of the (1) Tracy McTurk. She has been employed by the respondent since April 1988 as a facilities manager. She was the claimant’s line manager throughout the claimant’s employment. (2) Kyle Shah. He has been employed by the respondent for 16 years in a variety of roles. His current role is as a contact centre operations manager which is a role which he has held for a period of 10 years. 5. I shall make my findings of fact and set out the relevant law before going on to arrive at a determination of the issues by application of the relevant law to the issues in the case. 6. I should say at the outset that the events of 15 December 2020 are pivotal to the determination of the case. The respondent says that the claimant resigned from her position that day. The claimant says that she did not do so, and that the respondent dismissed her subsequently. In her closing submissions, Miss Linford submitted that the respondent dismissed the claimant either on 16 December 2020 at the earliest or if not then on 21 December 2020. 7. It is, I think, worth setting out at least some of the relevant law which applies to this case now. 8. A contract of employment may be terminated in a variety of ways at common law. The parties may reach agreement to end the contract. The contract may end because it has been frustrated where, without the fault of either party, a supervening event occurs which was not reasonably foreseeable at the time that the contract was made. The contract may be brought to an 10.5 Reserved judgment with reasons – rule 61 March 2017 2 Case Number: 1802356/2021(V) end by the dismissal by the employer of the employee. This is known as an “express” dismissal. The claimant says she was expressly dismissed by the respondent in mid-December 2020. 9. An express dismissal of the employee by an employer (where there is an open-ended contract of employment) will in the normal course be wrongful if the employer brings the contract of employment to an end on short notice or without notice. The exception to this is where the employer dismisses the employee because they have committed a serious (repudiatory) breach of the contract entitling the employee to terminate the contract summarily. 10. Another of the ways in which the employment contract can be brought to an end is by the resignation by the employee from their employment. Similarly, this must be done with the service of proper contractual notice. The exception to this is where the employee resigns in response to a serious (repudiatory) breach of contract by the employer. In such circumstance, the employee may accept the repudiatory breach and bring the contract to an end there and then. This is often referred to as a “constructive dismissal”. Although it is the employee who has brought the contract to an end in such circumstances, the act of resignation is construed as a dismissal where it is done in response to a fundamental breach of contract upon the part of the employer. 11. In this case, there is a dispute between the parties as to how and when the employment relationship ended. The claimant’s case is that the respondent expressly dismissed her at some point between 16 and 21 December 2020 without proper notice. She says that this is a wrongful dismissal. In the alternative, she says that she resigned on 15 December 2020 but did so in response to repudiatory breaches upon the part of the respondent. She says that those repudiatory breaches entitled her to resign summarily. She therefore claims to have been constructively dismissed as an alternative to her complaint that she was expressly dismissed. 12. The respondent’s case is that the employee resigned on 15 December 2020 and that she did so without notice. The respondent’s case is that they were entitled to accept the claimant’s repudiatory breach in resigning without notice and treat the contract of employment as at an end with effect from that day. The respondent says that the claimant simply resigned and was not constructively dismissed as they were not in fundamental breach of the contract. 13. It is for the claimant to show that she was dismissed either expressly or constructively. She must show this upon the balance of probability. 14. The common law concepts of express and constructive dismissal are incorporated into the statutory law of unfair dismissal in the 1996 Act. In order to pursue her complaint of unfair dismissal, the claimant needs to show that she was dismissed (either expressly or constructively). By section 95(1)(a) of the 1996 Act, an employee is dismissed where the employment contract is terminated by the employer. By section 95(1)(c), an employee is constructively dismissed where they resign, terminating the contract with or without notice, in circumstances such that they would be entitled to resign without notice because of the employer’s repudiatory breach of contract. 10.5 Reserved judgment with reasons – rule 61 3 March 2017 Case Number: 1802356/2021(V) 15. In many cases of unfair dismissal and wrongful dismissal that come before the Tribunals, there is no dispute that the employee has been dismissed. Problems may arise where words or actions give rise to ambiguity. The test as to whether ostensibly ambiguous words amount to a dismissal or a resignation is an objective one. The Tribunal must take into account all of the surrounding circumstances and consider how a reasonable employer or employee would have understood the words used in the circumstances. Occasionally, there may be no direct words at all on either side, but it is nonetheless argued that a dismissal or resignation can be inferred from the actions of the parties. 16. The general rule is that unambiguous words of dismissal or resignation may be taken at their face value without the need for any analysis of the surrounding circumstances. In her written submissions, Miss Linford referred to the case of Sothern v Franks Charlesly Co [1981] IRLR 278, CA. Here, the employee said (at a partnership meeting of the firm of solicitors for whom she worked), “I am resigning”. The firm took her at her word, accepted the oral statement of resignation and recruited a replacement the next day. The Court of Appeal held that, on the facts, these were unambiguous words of resignation and were understood as such by the employer. That concluded the matter. There was no room to consider what the employee actually intended or what a reasonable employer might have assumed she intended. 17. That said, the courts have recognised that there will be some situations where the employee has unambiguously resigned (or the employer has unambiguously dismissed the employee) but these acts have been done in such circumstances that it is appropriate to investigate the context in which the words were spoken in order to ascertain what was really intended and understood. 18. Miss Linford and Miss Stroud both referred me to Sovereign House Security Services Limited v Savage [1989] IRLR 115, CA. In this case, May LJ stated that: “In my opinion, general speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view Tribunals should not be astute to find otherwise”. 19. However, the Court of Appeal in Savage went on to hold that while unambiguous words of resignation should normally be taken at their face value, in special circumstances the Tribunal would be entitled to decide that there was no resignation, despite appearances to the contrary. In Savage, unambiguous words of resignation spoken in the heat...

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