THE INDUSTRIAL TRIBUNALS

CASE REF:	1607/17

CLAIMANT:			Kirsty Allcorn

RESPONDENT:		Martina Kelly t/a Rebel Hair

DECISION 
The unanimous decision of the tribunal is that the correct name of the respondent is Martina Kelly trading as Rebel Hair and the title of the proceedings is amended accordingly. 
Further the tribunal concluded that the claimant was not unfairly dismissed and accordingly the claim is dismissed.

Constitution of Tribunal:
Employment Judge:	Employment Judge Sheehan		
Members:			Mr J Barbour
				Mrs G Ferguson

Appearances:
The claimant was represented by Mrs P McNulty.
The respondent was represented by Ms Leona Gillan, Barrister-at-Law, instructed by Stephen Chambers Solicitors.
ISSUES

1.	This was a claim of unfair dismissal, brought under section 126 (1) (c) of the Employment Rights (Northern Ireland) Order 1996 by the claimant against the respondent in relation to the termination of her employment in February 2017 as a result of the conduct of her employer the respondent.  This provision provides for what is known colloquially and judicially as constructive dismissal.  It means an employee may resign in response to an act of the employer and be unfairly dismissed.  The issue for the tribunal was to determine whether the respondent had acted in such a way towards the claimant that she had been unfairly dismissed.  The claimant also alleged there was breach of contract, namely a breach of the implied term of trust and confidence by her employer.  The respondent disputed the claim in full.

FACTS

2.	We received witness statements and heard oral evidence from the claimant, and the respondent.  A considerable number of documents were also opened to us in the course of the hearing emanating from two bundles of documents, one prepared by the claimant and one prepared by the respondent.  On the basis of the evidence heard we make the following findings of relevant facts.  

3.	The tribunal found at times both the claimant and the respondent to be less than clear and forthright witnesses.  This occurred more often in respect of the claimant than the respondent.  One particular example was the difference in the evidence provided orally to the tribunal by the claimant in respect of an alleged conversation with the respondent on 31 January 2017.  The evidence concerned details which were omitted from her prepared statement of evidence furnished to the tribunal in advance of the hearing, more specifically detailed in the paragraphs below such as paragraphs 5, 9 and 13.  The claimant also made allegations that in the last three months of her employment she was given targets to achieve yet she could not recollect details of the targets set or what the impact was when a target was not achieved.  No mention of this target setting was detailed in the claim form submitted to the Office of the Industrial Tribunal and Fair Employment Tribunal (OITFET).  These are examples of the allegations the tribunal did not find credible and caused considerable concern regarding the accuracy of recall on the part of the claimant.  Equally there were diary entries produced by the respondent on the basis that they were a contemporaneous record of events made in or about the time the events had occurred.  Subsequently, during the respondent’s oral evidence, she was compelled to concede that the notes had not been made contemporaneously, that dates on the diary entries were wrong, that entries such as 12 September 2016 were inconsistent with the prepared statement tendered as the respondent’s evidence in chief.  Eventually on the second day of hearing the respondent advised the tribunal that the diary entries were no longer being relied on as evidence by the respondent.  

4.	The claimant started work for the respondent as a “Trainee Hairdresser” on 7 October 2014.  She continued to work for the respondent on a 30 hours per week contract Tuesdays to Saturdays as roistered.  During the hearing the parties agreed that the claimant’s gross weekly salary was £330.30 and £290.71 nett.  The claimant had been provided with a written statement of main terms and conditions which was signed and dated by both the claimant and the respondent on 30 October 2014.  This document stated that its contents together with the employee handbook, forms the contract of employment.  The claimant was the only full time member of staff as the others were all part time.  As a junior stylist the claimant was not cutting client’s hair but performing wash and blow-dries as well as completing some colouring tasks on behalf of the senior stylists.  By January 2017 the claimant had 3 regular clients for wash and blow-dry.  

5.	The crucial period of time, concerning events leading to the claimant tendering her resignation in January 2017, occurred from September 2016 onwards.  The claimant had alleged during the hearing that events which occurred in the summer of 2016 were also relevant to the tendering of her resignation.  Those events led to her being absent from work on sick leave early September 2016.  The details of the claim submitted by the claimant to the OITFET on 24 March 2017 recorded “Work progressed satisfactorily until the end of January when just prior to my taking a week’s holiday, Ms Kelly told me I need to get more clients otherwise my job was in jeopardy”.  The tribunal were not satisfied events before 9 September 2016 were relevant to the claimant tendering her resignation given both the claimant and the respondent agreed during the hearing that the parties affirmed the contract of employment on 9 September 2016 and things improved following that meeting.  The claimant accepted in oral evidence that the respondent tried to make things better and that she “felt free to go to her to ask for a meeting after work if she had any issues.”  Further the grievance letter dated 31 January 2017 acknowledged that “since our mediation and agreement (made September 2016, tribunal emphasis) on which I returned to work has been what I have felt productive”. 

6.	The claimant in her prepared statement of evidence claimed although things improved slightly in the salon she “felt isolated and ignored by other staff members” following the affirmation of the contract on 9 September 2016.  Little evidence to substantiate that feeling was detailed either in the claim form, her prepared statement or elicited in oral evidence to the tribunal.  There were snap shots of texts provided to the tribunal.  They mainly concerned June and August 2016 although texts on 8 December 2016 suggested the claimant was not happy in her place of employment as she felt “they are totally isolating me”.  The tribunal did hear evidence of a work environment which appeared regularly to have tensions between staff members who chose to display silence to work colleagues while customers were present.  The tribunal were satisfied that the respondent spoke to more than one staff member about the need for a professional harmonious approach to work colleagues in the work place. 

7.	The tribunal heard oral evidence of an incident on 9 December 2016.  The claimant approached the respondent on that date requesting a meeting.  They agreed to meet outside the work place at the conclusion of the working day in a nearby coffee shop.  At that meeting the claimant indicated she was unhappy with another work colleague and would no longer be prepared to work on the days and times of that work colleague.  The respondent reminded the claimant that December was the busiest time of year and the claimant was required to work those days, namely Thursday and Friday.  Eventually the matter resolved when the claimant in fact changed her mind and continued to work the days roistered.  The claimant conceded in oral evidence that the respondent following the meeting on 9 December 2016 did ask both staff members to be civil with each other and since being spoken to there had been no further arguments or disagreements.  There was therefore little evidence to support the claim made in the grievance letter dated 31 January 2017, namely that “these issues ... are making life on a Thursday and Friday in working at Rebel Hair unbearable due to the tension it is causing”. 

8.	The claimant having had a period of absence on sick leave pre 9 September 2016 then had two short periods of sick absence early and mid-January 2017, but not related to her working conditions. 

9.	In early to mid-January 2017, prior to the claimant going on a week’s holiday leave, the respondent discussed with the claimant her progress within the respondent’s business.  Both agreed there was a need to build on the claimant’s skills and client base.  The claimant in her prepared statement of evidence for the tribunal asserted that the claimant “told her she needed to get more clients or her job was in jeopardy”.  The respondent denied that any such statement was ever made to the claimant.  The tribunal noted there was no mention of this alleged statement by the respondent in the grievance letter submitted and dated 31 January 2017.  The tribunal considered at that date the history of events would be at their clearest in the memory of the participants to any such conversation.  Instead the description of any conversation between the parties is described in the grievance letter as focusing on upsizing her client base and updating her knowledge and skills.  The tribunal concluded the respondent made no threat to the security of the claimant’s employment early to mid-January 2017. 

10.	In the period from 9 September 2016 to January 2017 the respondent had lost one part time beautician in October 2016.  Sometime in November 2016 the respondent obtained the services of her sister, part time, to discharge that role.  When the claimant was absent in January 2017 due to ill health, this resulted in the respondent being short staffed.  The claimant accepted in oral evidence that the respondent had a small salon and could be left short-staffed on a Tuesday when either the claimant or Fiona, a senior stylist was absent.  The respondent commenced in late January 2017, on a temporary contract, a part time junior stylist Anastasia Convery.  This employee had the same job description as the claimant. 

11.	The claimant returned from holiday on 31 January 2017.  The factual situation was that a client whose wash and shampoo would usually be completed by the claimant prior to her annual leave was recorded on the appointment list as allocated to the Ms Convery who had recently joined the respondent’s business.  The client had requested that her hair be done by that staff member.  The respondent was aware that the claimant would be unhappy at this development.  Both parties in their oral evidence to the tribunal agreed changes by clients to other personnel within the same salon occur occasionally within the hairdressing business.  

12.	The respondent advised the claimant upon her return to work on 31 January 2017 that she had commenced a new junior stylist for 2 days a week.  It was not in dispute that the claimant only had a small number of regular clients.  The respondent advised the claimant, when only she and the claimant were present, that one of those clients had requested to been allocated to the new junior stylist.  The tribunal found that the respondent, knowing the sensitivities this development might arouse in the claimant, was unwise to have, as she admitted in cross examination, attempted to make light of the situation by saying the claimant had not liked doing the client anyway.  In contrast the claimant alleged that upon returning from leave on 31 January 2017 she found or was told by the respondent that her clients “had all been assigned to a new stylist”.  The tribunal noted the claimant’s description during hearing of the respondent “making a joke that the claimant did not like doing the clients hair anyway” so “I’m just going to give her all your clients now”.  The respondent disputed that the latter part of the alleged statement regarding the allocation of all the claimant’s clients to the new staff member was ever made.  Instead the respondent averred in oral evidence that she had specifically told the claimant that the new junior stylist “would not be taking other clients”.

13.	The tribunal noted in the grievance letter submitted by the claimant to the respondent, dated 31 January 2017, mention was only of “one” of the regular clients being taken by the new staff member.  In the prepared statement of evidence of the claimant there was no reference to the alleged statement by the respondent that all of the claimant’s clients were to be allocated to the new temporary part time junior stylist.  Instead the assertion was that the claimant checked the computerised list of appointments and discovered her clients had all been assigned to the new staff member.  The allegation in the claim form, the IT1 submitted to the OITFET, was “since the new stylist had serviced my clients when I was on holiday that she would continue to do so”.  The variety of descriptions applied to this wider allegation against the respondent allocating all clients away from the claimant undermined the credibility of the claimant as to whether such a statement was made at all.  

14.	The tribunal formed the opinion that such a statement would have been a substantial change and concern to any employee.  It would clearly be foreseeable to impact on the employee, particularly with regard to their “trust and confidence” in their employer.  The tribunal found it inexplicable that if such a statement occurred, in the way alleged by the claimant at hearing, it would not have been specifically mentioned as part of the grievance.  The grievance letter was prepared shortly after events on 31 January 2017.  Instead the statement recorded in the grievance accords more with the position asserted by the respondent.  The tribunal concluded the statement in the grievance letter more accurately reflected the conversation between the parties on this matter of the existing regular clients attended to by the claimant, in effect “I was told that one of my regular clients had been taken out of my working column and the new member of staff had taken over in regards to supplying the service”.

15.	The tribunal found unsatisfactory that no mention was made in the respondent’s prepared statement of evidence, nor was it put in cross examination to the claimant, the alleged assertion that the respondent expressly advised the claimant that no other clients would be transferred to the new junior stylist.  The tribunal concluded on the balance of probabilities they could not be satisfied that the respondent made any such specific statement. 

16.	The claimant’s response to being advised of the regular client’s request was to go out to the back of the salon for a cigarette.  The claimant upon returning into the salon claimed she was unwell and wished to go home.  She left the salon at 10.15 am to 10.20 am.  The claimant described herself as “annoyed”.  The claimant advised the tribunal she told the respondent she was not feeling well as she did not want to start an argument.  Again there were differences between what the parties asserted in their prepared statements of evidence for the tribunal and the eventual evidence provided orally regarding events which occurred subsequent to the claimant leaving the salon on 31 January 2017.  The claimant’s prepared statement of evidence referred to leaving the salon and supplying a sickness certificate from her doctor for a two week period.  The claimant also contended that “I sent a grievance letter to Ms Kelly on 31 January 2017 hoping to resolve problems amicably as we had on a previous occasion”.  The tribunal noted the claim form recorded “I supplied a sick line that day and consulted with a friend of my dad…is union official … He advised … to write a grievance letter and to ask … respond within 28 days”.  In her oral evidence the claimant advised she had visited the Citizens Advice Bureaux (CAB) and contacted Ms McNulty, who was appearing on her behalf before the tribunal, in advance of any visit to her GP. 

17.	At hearing, the claimant’s timeline involved a meeting at the CAB, then her doctor’s appointment, then Finaghy Library where she drafted her grievance letter.  The claimant insisted that she did not “post” or send the grievance letter to the respondent but instead used a taxi driver to deliver the correspondence and sick line on 31 January 2017 to the respondent’s salon.  The respondent contended that while the sick line was delivered by a taxi driver on 31 January 2017 the grievance letter was received on the 3 February 2017.  On 7 February 2017 the same taxi driver delivered a letter of resignation signed by the claimant.  The tribunal concluded that the difference between the assertions made by the claimant in her claim form regarding the source of advice concerning the raising of a grievance, as well as the description of events, undermined the credibility of the claimant as to the timing and mode of delivery of the grievance letter and sick line.  The tribunal found, on the balance of probabilities, the delivery of the various communications occurred as the respondent contended both in evidence and in the response filed with the OITFET on 8 May 2017.   

18.	The respondent sent the grievance letter to her brother in law a Mr Noel Ritchie, who was a human resources consultant.  Neither the respondent nor the claimant received any communication from him prior to the claimant’s letter of resignation on 7 February 2017 being issued or received.  The first action taken by Mr Ritchie towards the claimant was the issue of a letter to her dated 20 February 2017 by post.  At the time the claimant wrote her letter of resignation, she had not received any response from the respondent regarding the grievance letter delivered on 3 February 2017, or any notification as to who would conduct the investigation into her grievance.  The only reason the respondent pursued the investigation of the grievance was following advice that the investigation into the grievance should be completed.

19.	The letter of resignation advised the respondent that the claimant was leaving her employment with immediate effect on that date.  It also stated that as her sick line “runs for another week I will be using it as my weeks’ notice period”.  The claimant’s final pay slip issued by the respondent detailed one hour worked in that monthly pay cycle as well as sick pay for the period covered by the Doctor’s certificate.  However as the claimant had been overpaid for holiday leave accrued at the time of termination of her employment this reduced the final amount discharged as salary. 

20.	The claimant stated in evidence that as far as she was concerned she ceased to be an employee on 14 February 2017.  The claim form submitted to OITFET stated 23 February 2017 as the date her employment ended.  The respondent indicated in evidence that while she was aware the claimant was required under contract to provide two weeks’ notice she accepted the one weeks’ notice.  This was consistent with the response filed 8 May 2017 and also the lack of action taken to deduct any monies from the claimant’s final salary of “an amount equal to any additional cost of covering your duties during the notice period not worked” which was an express written term of the contract of employment (R 36) when an employee fails to give the required period of notice. 

21.	The claimant did not produce any medical evidence in support of her claim that medical treatment for stress was solely (tribunal’s emphasis) related to her place of work.  Two documents covering the assessment made by the claimant’s GP regarding the claimant’s fitness for work on 1 September 2016 and 31 January 2017 were provided to the tribunal.  The claimant gave evidence that she had not been on medication for stress or anxiety related illness between November 2016 and 31 January 2017.  However, the claimant gave evidence that on 2 February 2017 she requested her GP to provide that medication again as she was upset and crying.  The claimant also contended her friends, family and GP advised her for health reasons to move on from her employment with the respondent.  No supporting documentation or evidence to this effect was called or placed before the tribunal. 

22.	The respondent made a number of assertions in the response filed 8 May 2017 and in oral evidence regarding the standard of work completed by the claimant.  There were no records made or documentation provided by the respondent of the alleged complaints made by clients in connection with the claimant’s capability to discharge the tasks allocated to her.  The tribunal noted there was clearly an issue regarding the training opportunities offered to the claimant which occurred mainly on a non-working day for the claimant.  However any difference between the parties with regard to the training provided to the claimant played no role in the claimant tendering her resignation to the respondent.  This tribunal gave no credence to the capability issues raised by the respondent, post the resignation of the claimant, as it appeared inexplicable that the respondent would not have addressed these matters professionally during the claimant’s employment particularly when the respondent had paid human resources assistance available throughout that time. 

23.	The tribunal considered the contents of the decision dated 7 March 2017 and sent under cover of letter dated 15 March 2017 could not reasonably be viewed as the product of an independent or impartial investigation into the claimant’s grievance.  The utilisation of a close family member as investigator and another family member as note taker was particularly ill advised by the respondent.  However the investigation occurred post the claimant tendering her resignation and its acceptance with effect on 14 February 2017.  The tribunal were cognisant that the claimant expressed her concern in a letter sent in early March 2017 despite the date being typed as 4/2/17, over the appointment of a closely related person to the respondent being placed in charge of the investigation.  The claimant also raised potential breach of the Data Protection Act 1998 as her personal address details had been utilised by Mr Ritchie.  Any remedy for an alleged breach of the Data Protection Act does not rest with this tribunal.

24. 	The tribunal concluded, on the balance of probabilities, the claimant submitted the grievance letter not from any genuine interest in resolving matters with the respondent but because she was advised that she “had to write a grievance letter and give 28 days for a response”.  The claimant did not wait 28 days before she submitted a notice in writing terminating her employment with the respondent upon completion of one week’s notice from 7 February 2017.  The only reason put forward by the claimant for not waiting 28 days for a response to her grievance was that the claimant felt she should have had a response sooner to her leaving her place of work.  The claimant claimed she “felt she was being forced to leave”.  The tribunal concluded the claimant was more interested in pursuing a remedy for a breach of her employment rights as she was annoyed over what she perceived as a “threat” to her position as a junior hair stylist. 	 

25.		The claimant gained alternative employment on 13 April 2017 and has been working part time hours in that employment.  The claimant was unable to obtain any income support as she was considered as having left her job voluntarily. 

THE RELEVANT LAW

26.	The relevant law in relation to constructive dismissal is to be found at Article 127 of the Employment Rights (Northern Ireland) Order 1996 which provides as follows:-

		“127	(1)	For the purpose of this Part an employee is dismissed by his employer if...

				(c)	The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

27.	Harvey on Industrial Relations in Employment Law (“Harvey”) states at Division D1, Paragraph 403 as follows:-

		“In order for the employee to be able to claim constructive dismissal five conditions must be met:-

		1.	There must be a breach of contract by the employer.  This may be an actual breach or an anticipatory breach.

		2.	That breach must be sufficiently important to justify the employee resigning, whereas it must be the last in a series of incidents which justify his leaving.

		3.	A genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

		4.	He must leave in response to the breach and not for some other, unconnected, reason.

		5.	He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he will be deemed to have waived the breach and agreed to bury the contract.”

28.	The conduct relied upon to constitute a breach of contract must be a repudiatory breach of contract and not simply unreasonable behaviour on the part of the employer.  In Brown-v-Merchant Ferries Ltd [1998] IRLR 682 NICA, the Court of Appeal in Northern Ireland indicated that, although the correct approach to constructive dismissal is to ask whether the employer was in breach of contract and not whether the employer acted unreasonably, if the employer’s conduct is seriously unreasonable this may provide sufficient evidence that there has been a breach of contract.  In this case, the breach of contract alleged essentially and the act which compelled the claimant to leave her place of work on 31 January 2017 is the respondent’s employment of a further junior hair stylist and the alleged transfer of all the regular wash and blow dry clients previously allocated to the claimant to that newly hired junior hair stylist. 

29.	The case law emphasises that the breach of contract complained of must be repudiatory in nature.  It must be sufficiently important to justify the employee resigning or it must be the last in a series of incidents which justify her leaving.  Harvey comments that where an alleged breach of the implied term of trust and confidence constitutes a series of acts, the essential ingredient of the final act is that it is an act in a series, the cumulative effect of which amounts to the breach.  It follows that although the final act may not be significantly blameworthy or unreasonable, it must contribute something to the breach even if it was relatively insignificant.

30.	The question also arises as to what happens if an employer has indicated a clear intention not to fulfil the terms of the contract in the future and the employee accepts that intention to commit a breach is bringing the contract to an end.  It is clear that what is a repudiatory breach of contract depends on the facts in each case.  In Financial Techniques-v-Hughes [1981] IRLR 32, the Court of Appeal held that in that particular situation, matters had not reached a stage where the employer was unequivocally refusing to be bound by the contract and so they did not consider that his conduct was a repudiatory breach.  There was a difference of opinion in that case between the employer and the employee as to the amount of a bonus to which the employee was entitled on leaving employment, but no final decision had been made by the employer as to whether or not he was willing to pay the amount claimed by the employee.

31.	It is also significant that an employer will have the opportunity to change its position and withdraw the threat of a breach of contract at any time up until the employee accepts a repudiation.  If an employee resigns after the employer has withdrawn his threat to breach the contract, there will be no constructive dismissal (see Harrison-v-Norwest Holst Group Administration Ltd [1985] ICR 668.

32.	By contrast if there has been an actual breach of contract, whether of an express or implied term of the contract, the Court of Appeal in England and Wales has found that once the breach has been committed, it is for the wronged party to decide how to respond.  In Buckland-v-Bournemouth University [2010] IRLR 445 CA, the Court of Appeal found that once a breach of contract had been committed, it was for the wronged party to decide how to respond:-

		“The defaulting party cannot choose to retreat.  What it can do is invite affirmation by making amends.”

	If the claimant rejects the offer, he or she can still resign and claim constructive dismissal.  Sedley L J noted that employment law in this regard forms an integral part of the general law of contract where no doctrine of cure applies.  He considered whether there was good and sufficient reason to introduce such a doctrine into employment law alone.  While he could see the attraction of this, he ultimately rejected the idea saying:-

		“Albeit with some reluctance, I accept that if we were to introduce into employment law the doctrine that a fundamental breach, if curable and if cured, takes away the innocent party’s option of acceptance, it could only be on grounds that were capable of extension to other contracts and for reasons I have given I do not consider that we would be justified in doing it.  This does not mean, however, that tribunals of fact cannot take a reasonably robust approach to affirmation; a wronged party, particularly if it fails to make its position entirely clear at the outset, cannot ordinarily expect to continue with the contract for very long without losing the option of termination, at least where the other party has offered to make suitable amends.”

REASONS AND DECISION

33.	We have considered carefully the evidence put before us and the applicable law.  The claimant’s allegation in this case, at its height, is that the respondent fundamentally breached her contract of employment by allocating clients normally allocated to her to a newly recruited member of staff.  These events following a conversation regarding the need to upskill and increase her client base resulted in the claimant feeling that the respondent wished to force her to leave.  While the claimant had asserted that events preceding the employment of a further temporary junior hair stylist in January 2017 also resulted in leaving her vulnerable and stressed, to the extent that she no longer had any trust or confidence in her employer, the tribunal were not satisfied on the balance of probabilities that this was in fact the case.  The tribunal were satisfied that in the absence of the additional staff member being employed the claimant would not have terminated her employment by letter dated 7 February 2017.

34.	The tribunal were satisfied for the reasons set out at paragraphs 13 to 15 above that the claimant was advised of a single client’s wish to have her wash and blow dry completed by another member of staff.  On the basis of the evidence given before us, it is our finding that the respondent did not remove or threaten to allocate clients normally allocated to the claimant to the newly recruited temporary part time trainee junior stylist.  Further it is clear that the respondent was vulnerable to a shortfall of staff, having lost one beautician late 2016 and when staff like the claimant is unwell.  The tribunal were satisfied that it was reasonable for the respondent to arrange cover, knowing the claimant was to avail of annual leave late January 2017, to support the work or tasks of the senior stylists.  The claimant had not disputed in oral evidence that the respondent could be left short-staffed on a Tuesday when either the claimant or Fiona, a senior stylist, was absent.

35.	We are satisfied that the claimant’s first instinct upon hearing this news regarding the transfer of responsibility for one client’s wash and blow dry was to take advice regarding her employment.  The tribunal noted that the respondent’s response filed 8 May 2017 and her prepared statement of evidence recorded the claimant, after her smoke break on 31 January 2017, leaving the salon stating “I’m not well, I’m going to my doctor then to my solicitor”.  The accuracy of this statement was not challenged by the applicant or her representative at hearing. 

36.	The tribunal is satisfied that the claimant did not resign her job on 7 February 2017 as the result of any inaction on the part of the respondent to her grievance letter.  The letter was received on 3 February 2017.  The respondent did not initiate any contact with the claimant in respect of the resignation or to proffer further reassurance regarding the claimant’s role in the salon.  We are satisfied that the respondent accepted the claimant’s resignation with one week’s notice. 

37.	The respondent’s actions in delegating investigation of the claimant’s grievance appeared to the tribunal to be aimed at avoiding any fiscal penalty arising should the claimant submit a claim to the industrial tribunal at a later date.  Equally the tribunal concluded the main reason that the claimant did not await the 28 days indicated for a reply to the letter of grievance dated 31 January 2017 is the claimant had no genuine motivation for the grievance to be resolved.  The tribunal considered the grievance had been initiated following receipt of advice that the claimant would have difficulty pursuing an application for unfair dismissal if no such grievance was submitted.  It was also clear to the tribunal that the identity and mode of investigation into the grievance played no part in the decision of the claimant to tender her resignation.  The letter of resignation was tendered well in advance of the claimant being notified of Mr Ritchie being appointed as the investigator into her grievance.

38.	We are therefore not satisfied that the respondent committed a fundamental breach of contract or a breach sufficiently important that the claimant was entitled to resign in response to it.  The tribunal were satisfied that there was no evidence of unreasonable behaviour on the part of the respondent between 9 September 2016 and 14 February 2017.  There tribunal could not be satisfied on the balance of probabilities that any of the actions of the respondent during December 2016 or January 2017 could reasonably have undermined the implied terms of trust and confidence between the parties to this employment contract. 

39.	The tribunal concluded the respondent made no threat to the security of the claimant’s employment in January 2017.  In particular the tribunal found telling the lack of mention in the grievance letter prepared by the claimant in or about 31 January 2017 of the transfer of “all clients” from the claimant to Ms Convery, the temporary part time junior hair stylist.  The tribunal, in these circumstances concluded no such statement was made but that the claimant perceived the arrival of a further junior stylist as a threat to her job security.

40.	The tribunal could not be satisfied on the balance of probabilities that the claimant’s belief that there was a threat to her job security by the employment of this new junior hair stylist was “reasonable” in the circumstances but in any event the employment of a further junior hair stylist could at most amount to an anticipatory breach of contract, not actual.  If there was any anticipatory breach of contract on the part of the respondent, we are satisfied that the employer in this case had not reached the stage where the employer was unequivocally refusing to be bound by the contract (see Financial Techniques – v – Hughes referred to above).  We consider that the claimant’s resignation was premature and no breach of contract had taken place.

41.	For all these reasons, we consider that the claimant was not constructively dismissed but resigned her job and accordingly her claim of unfair dismissal is dismissed.

Employment Judge:

Date and place of hearing:  24 and 25 October 2017, Belfast.

Date decision recorded in register and issued to parties: