Background:

The claimant was employed by the respondent from 2001 until April 2021 as a receptionist. The issues leading to the case were related to the Coronavirus pandemic. A few days before the first national lockdown the claimant informed her line manager that she felt unsafe without a protective screen.  The claimant suggested the manager laughed, yet that was rejected by the respondent and the Tribunal.

Following the Prime Minister’s address on 23rd March 2020 where the lockdown was outlined, the line manager outlined that those who were not comfortable to come into work could stay at home for personal health concerns and they would not be ‘thought less of’. However, it was the case that the work would be taking place on site. Indeed, the manager felt that as they were architects their work was ‘essential’ and permitted to remain open.  There were steps taken in the office prior to the lockdown, but this did not extend to a protective screen for the claimant.  The claimant continued to attend work, and when laptops arrived with the manager stating that it was a safety net if they had to work from home the claimant stated that the ‘time is now’.  The claimant then subsequently worked from home from 30th March to 1st June 2020.  The claimant suggested that she was being frozen out as a result of working from home but the Tribunal found that it was actually related to the fact that she was receiving less work as some tasks could not be carried out from home.

The claimant contacted the manager at the end of May 2020 asking if he was ready for her to return to work.  He stated yes and that she should never have been at home.  The claimant felt that she was being treated badly and that it was related to the company’s lack of Covid compliance.  The Tribunal did not find, however, that there was any pressure put upon the claimant to return.  The claimant also stated she felt uneasy when she was asked to travel to Cork in November 2020 where she was given a letter to state that she was an essential worker for travel through the Republic of Ireland.   The Tribunal again found that the claimant did not raise objections at the time and she was not being pressured into doing this work.  These issues then came to a head in January 2021, when the claimant’s children were in contact with a positive Covid case.   The claimant outlined that she would have to stay at home with the children and the manager questioned whether her husband was also at home with the children.  This was not the case, and the claimant stated she could work from home, yet this was rejected by the manager stating that it was not possible for her.  The issues relating to Covid compliance and return to work continued with the manager forwarding the emails to his daughter with some rather blasé statements.  The Tribunal found that the manager was using his daughter as a sounding board rather than it demonstrating a concerted effort to remove the claimant.

The claimant asserted that there was a toxic environment in her place of work and was then looking for other opportunities.  She was offered a new position, and she decided to hand in her notice.  This was not detailed in the resignation letter. Prior to her notice ending she did outline a series of matters relating to furlough, breach of privacy and about staff being treated poorly. The manager replied stating he had to seek legal advice and that the claimant was no longer required to work the rest of her notice but she would receive her pay.

Outcome:

The Tribunal rejected the claims made by the claimant.  In terms of constructive dismissal the Tribunal did not find that there was a ‘last straw’ as a result of the manager’s actions.  Indeed, the Tribunal found that the claimant had made her decision to resign after what she indicated was a ‘last straw’, which was an altercation with another member of staff.  As a result, it was found that there was no repudiatory breach of the claimant’s contract. The Tribunal did question some of the steps taken by the manager in handling issues but stated that whilst they could be categorised as unreasonable they did not constitute a repudiatory breach of contract.  A second claim was brought for detriment based upon a public interest disclosure.  This related to the disclosure relating to the furlough claim.  The detriment suffered, according to the claimant, was that she did not have to come in for the final two days of her notice.  However, she suffered no financial detriment.  The Tribunal found that there was no detriment due to the grounds of the disclosure but rather the manner in which it was made, and therefore the claim was dismissed.

Practical Guidance for Employers:

Getting to grips with the Covid Regulations for employers was very difficult considering the ever-changing landscape.  This case demonstrates a situation in which it can coalesce into legal claims relating to dismissal and protected disclosures.  Despite some difficulties in application the Tribunal has found in favour of the respondent and in that sense it demonstrates the high threshold arising for both constructive dismissal and detriment vis-à-vis a protected disclosure. The claimant was unable to satisfy the burden of showing a repudiatory breach and this stopped the dismissal claim.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/