Ms O Dunphy v CDS (Superstores International) Ltd: 2401730/2019
| Jurisdiction | England & Wales |
| Judgment Date | 06 December 2019 |
| Citation | 2401730/2019 |
| Published date | 19 December 2019 |
| Court | Employment Tribunal |
Case Number 2401730/2019
EMPLOYMENT TRIBUNALS Claimant
Ms O Dunphy
Respondent:
CDS (Superstores International) Limited
RESERVED JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD AT:
Manchester
ON:
10 June + 16 August 2019
EMPLOYMENT JUDGE Batten (sitting alone)
Representation
For the Claimant:
For the Respondent:
Ms P Hechter, lay representative Mr P Edwards, Counsel
RESERVED JUDGMENT The judgment of the Tribunal is that:
1.
the claim of constructive unfair dismissal is not well-founded and is dismissed; and
2.
the claim for holiday pay is dismissed.
REASONS
1.
The claimant claimed constructive unfair dismissal and unpaid holiday pay. The hearing of the claim took place over 2 days, having originally been listed for one day. The evidence of the parties and submissions 1
Case Number 2401730/2019 were completed only at the very end of the second hearing day.
Accordingly, the Tribunal reserved its Judgment.
Evidence
2.
An agreed bundle of documents was presented at the commencement of the hearing in accordance with the case management Orders. References to page numbers in these Reasons are references to the page numbers in the agreed bundle. It was agreed the claimant could add copies of text messages (as pages 43a-d) and mitigation documents (as pages 190-196)
to the bundle. At the start of the hearing, the claimant also sought further disclosure from the respondent of all the Southport store employees’ contracts for those employees working between April and June 2018. This was refused as the Tribunal considered that such wide disclosure was not relevant, proportionate or necessary to the determination of the claim or the issues to be decided.
3.
At the start of the hearing the respondent produced a 9-page draft chronology which included a list of allegations of breach of contract that the respondent contended formed the basis of the claimant’s case on that point. As the claimant had not previously seen the chronology, she was afforded time to read and check it and also to check the list of allegations of breach of contract, whilst the Tribunal adjourned to read the witness statements and key documents before hearing oral evidence. When the hearing resumed, the claimant confirmed that she agreed with the list of allegations of breach of contract as drawn. On the second hearing day, the claimant produced an expanded list of issues, which contained her comments on items in the respondent’s list of issues which the parties had agreed on the first hearing day.
4.
The claimant gave evidence from a witness statement. In addition, she called: Karen Senior, a manager with the respondent at the material time;
and Christopher Hechter, the claimant’s fiancé. Each of the claimant’s witnesses gave evidence from witness statements and were subject to cross examination.
5.
The respondent called: Shawn McInnis, the Southport store manager;
Steven Trail, Operations Manager; Deborah Ford, manager of the respondent’s Leyland store; and Kim Riley, manager of the respondent’s Warrington store. Each of the respondent’s witnesses gave evidence from witness statements and were subject to cross-examination
Issues to be determined 6.
At the outset, the respondent produced a draft list of issues for the Tribunal to determine. Following discussion with the parties, it was agreed that the issues to be determined by the Tribunal were: -
2
Case Number 2401730/2019 Constructive unfair dismissal 6.1
Has the claimant established that the respondent was in fundamental and repudiatory breach of the claimant’s contract of employment?
6.2
The claimant relies on the following alleged breaches of the implied duty of trust and confidence:
(a) The reduction in the claimant’s working hours to 20 hours per week, with effect from 29 March 2018;
(b) The failure to provide a written contract confirming the reduction to 20 hours per week;
(c) The store manager’s disclosure of the claimant’s confidential personal data to various employees;
(d) Differential treatment of the claimant in that she was the only employee in store to receive that level of reduction in ours and no offer of a contract;
(e) Hostility in the workplace directed at the claimant;
(f) The respondent’s failure to conduct the grievance proceedings in a timely, fair and objective way;
(g) The respondent’s HR department’s failure to follow standard industry practice;
(h) The failure of the store manager or HR to maintain sufficient contact with the claimant during her period of sickness absence;
(i) The unlawful deductions in the claimant’s pay;
(j) The failure to pay monies as agreed at the grievance hearings;
(k) That the claimant’s leave calculations were manipulated;
(l) The length of time for the claimant’s grievance to be resolved (from 29 March 2018 to 1 October 2018).
6.3 The respondent accepts that the claimant resigned in response to the above matters and did not affirm any alleged breaches.
Holiday pay/unauthorised deductions 6.4
Was the claimant entitled to be paid holiday pay as set out in her ET1, such that she had been underpaid in the sum of £450.00?
3
Case Number 2401730/2019
Remedy
6.5
If the claimant was unfairly dismissed, to what remedy is she entitled? The claimant seeks compensation only.
Findings of fact 7.
The Tribunal made its findings of fact on the basis of the material before it,
taking into account contemporaneous documents where they exist and the conduct of those concerned at the time. The Tribunal resolved such conflicts of evidence as arose on the balance of probabilities. The Tribunal has taken into account its assessment of the credibility of witnesses and the consistency of their evidence with surrounding facts. The findings of fact relevant to the issues which have been determined are as follows.
8.
The claimant commenced employment with the respondent on 22 September 2014 as a retail assistant. The respondent operates a chain of large retail stores known as “The Range”. The claimant worked in the respondent’s Southport store originally under a written contract which provided that a typical working week would consists of 16 hours’ work, and subject to a rota.
9.
The claimant’s contract of employment also stated that the respondent “reserves the right to amend [the claimant’s] working hours and/or rota to meet changes in operating requirements. Any such changes will be subject to reasonable notice.”
10.
In addition, the respondent’s staff handbook provided in respect of changing working patterns, that “We may need to amend your hours or rota from time to time to meet the changing needs of the business. You will be given adequate notice where possible and time to discuss how the changes will affect you.”
11.
On 3 July 2017, the claimant’s hours were increased to 20 hours per week by agreement. Nothing was put in writing to that effect.
12.
On 16 October 2017, the claimant was told that her hours would be increased, to 30 hours per week because, at the time, there was a temporary shortage of staff in the Arts and Crafts section of the store which was expected to continue until after Christmas. Again, nothing was put in writing and the claimant was not issued with a revised contract of employment.
13.
In December 2017, the claimant noticed that her...
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