The claimant was employed as a Support Worker. She resigned and claimed constructive dismissal, arguing that her hours had not been properly reduced. There had been an agreement, at the request of the claimant, that she would not work in excess of 37.5 hours per week. There was a factual disagreement between both sides in relation to the specifics of the work pattern but the claimant claimed, inter alia, a breach of the implied term of mutual trust and confidence pursuant to the alleged breach of the agreement as to hours. The tribunal held that there was no fundamental breach of contract and cited the fact that the claimant did not actually raise many grievances to management until a number of months later. However, the manner in which the respondent conducted itself went a long way to the dismissal of the claim since it:

1. Facilitated an initial meeting to arrange a reduction in hours

2. Then carried out an investigation after the claimant made allegations of ‘excess working hours’

3. After the claimant’s resignation made efforts to resolve the matter in order to enable her to return to work.

PRACTICAL LESSONS

Whilst much of this decision focuses on the technicalities of rotas, essentially the respondent acted entirely properly throughout. As counsel for the respondent detailed in his submissions, the respondent was: ‘at all material times attempting to address the claimant’s concerns’ and the tribunal accepted this contention.

The relevance of this is apparent when looking at a potential breach of ‘implied terms’. The test against which the respondent’s actions will be gauged is whether it acted in a manner ‘likely to destroy or seriously damage the relationship of mutual confidence and trust’ (Mahmud and Malik v Bank of Credit and Commerce International SA [1997] IRLR 606). Employers who take note of the respondent’s actions here will invariably be less likely to fall foul of the ‘Malik’ test.