The claimant claimed constructive dismissed from her job, pursuant to Art.127 of the Employment Rights (Northern Ireland) Order 1996. She worked as a sous-chef at the respondent’s business, but resigned as a result of a decision by the respondent to alter her work location and hours which she essentially argued would make her position ‘economically unviable’. The tribunal had to look closely at whether the respondent had made, if at all, an actual or an anticipatory breach of contract in the context of a constructive dismissal.

The Tribunal decided that the claimant’s case rested on two main issues which she claimed amounted to a repudiatory breach of the contract:

1. The respondent’s instruction that she was to change location and shifts with approximately one week’s notice, and without any consultation; and

2. Circumstances surrounding how her grievance was dealt with in that there was no consultation or discussion before she was spoken to.

Since the respondent had proposed moving the claimant, it was not actually implemented and thus amounted to an antici patory breach of contract. The tribunal identified an issue about the ‘temporary ‘ nature of any move and the need to consult, but since the claimant accepted that the respondent had the right to move her she did not put this forward as her case.

The tribunal also made reference to the respondent’s ‘right to change shift patterns and hours according to the needs of the business’ and indicated their right to rely on this clause. The more substantive issue was the grievance procedure, and the tribunal made explicit reference to the respondent’s failure to sit down with the claimant and discuss the changes with her. Ultimately, however, the manner in which the respondent conducted the grievance and appeal procedures impressed the tribunal and they remarked:

"We are of the view that these matters could not have been handled better by the respondent." Salient facts counting towards this conclusion were that the respondent made a number of offers to accommodate the claimant (including a return to her original position on more or less the same terms and conditions as before) and an offer to return to discuss matters a later stage. There was no breach of the implied duty of trust and confidence and the claim was subsequently dismissed.


Practical lessons from this decision

The tribunal ostensibly treated the second of the two aforementioned main issues in the case as being decisive and made much reference to the conduct of the employer. The significance of this is that the employer can take proactive steps to protect itself from unfair dismissal claims by demonstrating a reasonable approach during meetings with an employee and offering realistic, mutually beneficial solutions. There is a clear appreciation from the tribunal that when considering the often ambiguous ‘circumstances’ of an employee’s departure, how the employer engages with the employee in order to reach an amicable outcome is a key factor.

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