The claimant commenced work with the respondent florist in November 2014.  She worked sporadic hours at first as she was still at school, which included more hours at busy times, such as Christmas.   At the end of her employment, she was earning £8.00 p/h and this was paid either by cash or bank transfer.   There were never any deductions made in relation to tax or national insurance with HMRC having no record of this employment.   The respondent stated that she was seeking to regularise matters but had problems with her accountants.   Indeed, the Tribunal noted that there were no pay slips ever given to the claimant.

The claimant had an interest in entering into the field of domiciliary care and for that reason the respondent did not consider her as having a long-term interest in floristry.  The claimant attended an open recruitment day in October 2018 and received a conditional job offer to start at the beginning of 2019. The claimant was reluctant to tell the respondent about this job due to the effect it would have on her job but she did tell the respondent on 3rd November 2018.  The claimant believed that the respondent was upset about this.  The conditional nature of the offer was realised in early December when it was revoked as a result of the claimant not having a driving licence.  On foot of this, the claimant informed the respondent that she did not get the job.  It was at this point she was informed that there was a downturn in work and that she could work some Saturdays ‘if she wanted to’. This conversation took place on 13th December.  This was a surprise to both the claimant and her aunt who also worked in the florist.

The claimant was advised of alternative work on 17th December through Grafton Recruitment and commenced this at 4pm the same day.  She sent a letter on 18th December objecting to the change of hours with the respondent stating that it was a fundamental change in the terms and conditions of employment.  There was no response to this letter and on 3rd January a further letter was sent with the claimant outlining her resignation.  The Tribunal outlined the four features in Harvey stating that there was a breach of contract by the respondent in the substantial reduction in hours, that it was sufficiently important to justify a resignation, the resignation was related to the breach and that she had no delayed too long to negate any constructive dismissal.  This in ordinary circumstances would mean the claimant would be successful.

The issue was that claimant lodged her claim on 20th March 2019.  The Tribunal found that the claimant’s employment ended on 14th December 2018, the day after the conversation relating to the substantial reduction in hours. The claimant stated that the resignation date of 3rd January should have been accepted but this was not regarded as the effective date of termination.  The fact that there was a reliance on this later date meant there were no submissions made as to whether it was not reasonably practicable to lodge before the 20th March.   For this reason, the case was dismissed for falling outside the 3 month time limit.

Practical Lessons

This case reiterates the importance of complying with the time limits and the difficulties that can be faced when the effective date of termination is not abundantly clear as can be seen with constructive dismissal.   A further issue can be seen from an employer perspective in that there must be greater cognisance of the effect of trying to reduce an employee’s hours.  The employer should be mindful of the effect that it would have on wages and whether it would be a fundamental breach as it could open up the potential for a constructive dismissal claim.

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