Hinc v Glasswater Lodge Retirement Ho... [2014] NIIT 944

THE INDUSTRIAL TRIBUNALS

CASE REF: 944/14

CLAIMANT: Joanna Hinc

RESPONDENT: Glasswater Lodge Retirement Home Limited

DECISION

The unanimous decision of the industrial tribunal is that the claimant was automatically unfairly dismissed due to her having made an application for flexible working under Article 135C of The Employment Rights (Northern Ireland) Order 1996 (as amended). The respondent is ordered to pay the claimant the sum of £4,137.00.

Constitution of Tribunal:

Employment Judge: Employment Judge McCaffrey

Members: Mrs E Torrans

Mr P Archer

Appearances:

The claimant appeared in person.

The respondent was represented by Mr Philip Boomer.

The interpreter to the tribunal was Anna Pietrzak.

1. Issues

1.1 It was noted that the claimant had named the respondent as “Glasswater Residential Home” in her ET1. The respondent had indicated in its ET3 that the correct name of the respondent was “Glasswater Lodge Retirement Home Ltd” and we direct that the name of the respondent shall be amended accordingly.

1.2 There was a preliminary issue for the tribunal to consider, namely whether we had jurisdiction to deal with this matter on the basis that the claim had been lodged out of time. According to a letter of resignation signed by the claimant on 11 February 2014, she resigned on that date, but her ET1 was not lodged with the Office of the Tribunals until 20 May 2014. The P45 issued by the respondent to the claimant on 23 May 2014 referred to her leaving date as 20 February 2014.

1.3 The respondent alleged that the claimant did not have sufficient service to allow her to bring a claim of unfair dismissal. The claimant’s claim alleged that she had been dismissed because she had sought flexible working under Article 112F of The Employment Rights (Northern Ireland) Order 1996 (as amended). The tribunal therefore had to consider whether the claimant had made such an application and secondly, if she had made such an application, whether she had been automatically unfairly dismissed because of that application having been made, contrary to Article 135C of The Employment Rights (Northern Ireland) Order 1996. Article 135C makes it clear that a claimant who has been automatically unfairly dismissed due to making a flexible working request does not need to have accrued one year’s service to ground an unfair dismissal claim (see below).

2. Facts

2.1 We heard evidence from the claimant, and from Mr Leslie Reid and Mrs Sarah Reid who are the current owners of the respondent home. This was a case where the claimant and the respondent gave very different accounts of what had occurred. The respondent challenged the claimant, alleging that her account of matters at hearing was different from that which was in her claim form. We also note that the respondent’s account of matters at the hearing was rather different to what is set out in their response form. On the basis of the evidence we heard and the documents before us, we make the following relevant findings of fact.

2.2 The claimant was employed as a care assistant by the respondent. She worked at their residential home at Crossgar near Downpatrick. She started work there in March 2013 as a care assistant and worked anything from 30 to 50 hours per week. Although the claimant usually worked nightshifts, she said (and it was agreed by the respondent) that she showed flexibility and was willing to work additional hours if required. Indeed her payslips show that she often worked between 120 and 170 hours per month, although it was originally agreed that she would work 30 hours per week.

2.3 In January 2013 the claimant had what she described as a very difficult personal situation. Her husband and son were arrested for alleged sexual offences and as a result of this her eight year old daughter was taken into foster care. From 13 January until 12 February, the claimant had to attend court every week with a view to having her daughter returned to her custody. Eventually it was agreed that her daughter would be returned to her, but on condition that her husband and son moved out of the family home and that the claimant did not work nights, so that she could be there for her daughter. The charges against her husband and son were subsequently dropped.

2.4 The claimant was at work for the first 12 days of January. Thereafter her manager gave her a week’s paid leave and she subsequently went on sick leave until 10 February. Her doctor certified her as being ill with home related stress.

2.5 The claimant was keen once her daughter was returned to her to resume work. She went back to work for a day shift on 10 February and was rostered to work from 4.00 pm to 10.00 pm. Her evidence (which we accept) was that when she was in town on the morning of 11 February she happened to meet the solicitor who had acted for her in her family proceedings case. The solicitor asked the claimant if she had returned to work. The claimant said that she had and that she was working 4.00 pm to 10.00 pm that day. The solicitor advised her that this was not possible and it was likely that the court would take her daughter back into foster care if she worked those hours. The claimant was alarmed by this and decided to go directly to speak to her employer. When she went to the respondent’s premises her manager was not there, so she spoke to Mandy Kearnan who was a senior care assistant and the manager’s daughter. The claimant said, and we accept, that she told Miss Kearnan the whole story. Miss Kearnan said that she could not make a decision about this and they would have to speak to the owner. Mr Reid was in the premises that day, so the claimant and Miss Kearnan went to his office to speak to him in relation to this matter. The claimant’s account of this meeting and Mr Reid’s account varied considerably. The claimant said that Mr Reid was aware of her domestic situation and the reasons why she was seeking a change to her working hours. She also said that she wanted to change her working pattern on a temporary basis just until things settled down. Mr Reid said that he could not change her hours because if he did that, he would have to change everyone’s hours. Mr Reid’s account was that he had not been aware of the claimant’s individual situation, that she did not make a request for flexible working as such and that he had said he could not change her hours because of problems getting other staff to work nightshift. The claimant agreed that he had mentioned the difficulties of having staff to work nightshift, but she also said clearly that Mr Reid had said that everyone would want their hours changed and that he could not accommodate that. On the issue of whether or not Mr Reid was aware of the claimant’s situation, he initially denied in evidence that he had been aware of her situation. When this was put to him again, he said that he may have been aware in general terms of her situation because the manager had told him of it. We also note that the response form lodged by the respondent in this case indicates that the claimant told Mr Reid on 11 February that she wanted to change her hours “from night time to day time shifts for domestic reasons”. We are satisfied that Mr Reid was aware of the claimant’s situation at this time and that he was aware of the claimant’s reason for seeking a change in her hours, namely that she wanted to care for her child and comply with the Family Court order.

2.6 The claimant also said that after this initial part of the discussion there was a conversation between Mandy Kearnan and Mr Reid. She was in a very difficult situation, as she could not continue working nights and comply with the order of the Family Court. When asked whether he had indicated that the claimant would have to resign, Mr Reid’s answer was that it was “up to herself”. The claimant indicated that she could not recall actually who had said this but Mr Reid and Ms Kearnan were there, and she was aware that Mr Reid had said he could not change her working hours. She thought it was Mandy Kearnan who said that it would be better if she resigned. The claimant’s evidence was also that she had been told that if she resigned, she would get a very good reference from Geraldine the manager. The claimant was going to write a letter of resignation because she felt she had no other choice but to resign. Mr Reid intervened and said that the letter must be in English. Mandy Kearnan then wrote a short letter for the claimant to sign, setting out that she wished to resign. The letter read:-

“To Geraldine, Leslie

As of today 11 February 2014 I wish to resign from my current post as care assistant.

Yours sincerely”

The letter was signed by the claimant and dated by her 11 February 2014.

2.7 Mr Reid indicated in his direct evidence that there was a procedure set out in the respondent’s contracts of employment in relation to flexible working and that the claimant had not followed this. However Mr Reid did not point out to the claimant at the meeting on 11 February that there was a procedure there to be followed in relation to flexible working. He did not clarify with her why she was seeking a change in her hours and he did not go through the procedure set out in the contract of employment or suggest that she make an application for flexible working. Although the respondent’s procedure was referred to in the course of the hearing, a copy of the procedure was not produced to us. We were advised that the procedure would involve an application being referred to a panel of managers for consideration, and then a response to the applicant. We found Mr Reid’s evidence on this issue unconvincing.

2.8 After signing the letter the claimant indicated that she was very upset and that she left the premises.

2.9 A few weeks later, the claimant called back to the respondent’s nursing home because she had not yet received her P45 and she needed it in connection with a claim for benefits. She spoke to a new manager at the nursing home whom she did not know. This manager asked if the claimant had worked at the nursing home before and the claimant confirmed that she had done. The manager asked the claimant if she would like to work there again and the claimant confirmed that she would. The claimant completed an application form and made an appointment to come and see the manager the following week. When the claimant arrived for her interview neither the manager nor the owner was there. The following week the claimant said that the manager telephoned her and said that if they needed her they would give her a call, however she never received a telephone call. We accept the claimant’s unchallenged evidence on this point.

2.10 The claimant subsequently went to see her employer again to try and obtain her P45. At this stage she saw Mr Reid who asked her to write a letter regarding the P45. Mr Reid’s explanation for this was that a P45 had previously been sent out to the claimant with her last payslip and in order to provide a duplicate, he needed a letter. There was no explanation as to what happened to the original P45, although the claimant was clear that she had received her final payslip, but not the “first” P45. The P45 which was produced to us showed the claimant’s date of termination of employment as 20 February 2014 and was issued on 23 May 2014. Mrs Reid’s evidence to the tribunal was that she sent details of hours worked by each member of staff to their accountant on the 20^th of each month so that pay could be processed on the 24^th of the month. She said that she advised the accountant on the 20^th of the month of any members of staff who had left and that their leaving date would always be given as the 20^th of the month because the accountant had to complete the forms in “real time”. This seemed to us to be a completely unsatisfactory explanation.

2.11 Subsequently the claimant went for an interview for a care assistant post with the respondent in June 2014. The response form indicates, and Mrs Reid confirmed, that the claimant was unsuccessful in that interview although the detail of this was not put to the claimant. The response form indicates that the claimant was unsuccessful due to poor performance at interview and to the content of her access NI vetting report. This vetting report was provided by the claimant to the respondent at the interview, according to Mrs Reid and was opened to us at tribunal, but none of its contents were put to the claimant in cross-examination. We note that none of the matters on the Access NI vetting report post date 2010 and none of them appear to be directly relevant to care for elderly residents. If the Access NI vetting report was carried out when the claimant was first employed by the respondent in 2012, these matters would also have come to light but it appears they were not a barrier to the claimant being employed by the respondent in 2013/14. We find Mrs Reid’s evidence on this issue unconvincing.

2.12 The claimant was in receipt of Jobseekers Allowance of £140 per fortnight for some months after her employment ended. She subsequently found new employment at a local meat factory in late July 2014, some three weeks before the hearing commenced. Her take home pay in that job is £350 per week for 40 hours, more than she was earning with the respondent.

3. The Relevant Law

3.1 The right not to be unfairly dismissed is set out in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). The circumstances in which an employee is dismissed can be taken into account. Cases of constructive dismissal, where the employee has resigned, but alleges that he is entitled to do so by reason of the employer’s conduct, are covered by Article 127(1)(c) which provides as follows:-

“For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2) only 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.”

Mr Boomer suggested in submissions that the claimant had not alleged constructive unfair dismissal. We do not accept this: the claimant has alleged automatically unfair dismissal on grounds that she requested flexible working. It is for the tribunal to decide, on the basis of the facts found, whether the dismissal occurred, if it was express or constructive, fair or unfair.

3.2 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, or else 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 vary the contract.”

3.3 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.

The breach of contract relied on by the claimant may either be a breach of an express term of the contract (e.g., failure by the employer to pay the correct, agreed pay or to allow an employee his statutory leave) or it may be a breach of an implied term. Underhill L J has recently commented that tribunals must first examine the facts in each case to consider if there has been a breach of an express term of the contract, rather than immediately jumping to consider whether there has been a breach of an implied contractual term. The best known of the implied terms in an employment contract is the duty of implied trust and confidence.

The duty of implied trust and confidence was affirmed by the House of Lords in Mahmud and Malik v Bank of Credit and Commerce International SA [1997] IRLR 606 in the following terms:-

“The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.”

3.4 However, it is important to note that the test for breach of the implied duty of trust and confidence is an objective one. The House of Lords noted that the duty of trust and confidence may be undermined even if the conduct in question is not specifically directed at the employee. The duty of trust and confidence may be broken indeed even if an employee’s own trust and confidence is not undermined. Similarly, their Lordships pointed out that it followed that there would be no breach simply because the employee subjectively feels that such a breach had occurred, no matter how genuinely this view is held.

3.5 The case law also 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 his leaving. Harvey comments that where the 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. (Omilaju v Waltham Forest London Borough Council [2005] IRLR 35.)

3.6 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.

3.7 Flexible Working

In relation to flexible working, the right to apply for flexible working is set out in Article 112F of the 1996 Order. The application may relate to the hours an employee is to work, the times he or she is to work, where are they to work, or any other aspect of their terms and conditions of employment. It is relevant to note that the purpose in applying for a change must be to care for a child who has not reached the prescribed age (currently 16) or falls within a prescribed description or a person who is over the age of 18 but falls within a prescribed description. The employer is obliged under Article 112G to deal with the application in accordance with Regulations made by the Department. This includes provision for holding of a meeting between the employer and the employee within 28 days of any application being made, giving the employee notice of the employer’s decision and giving the employee the right of appeal if the employee is dissatisfied with the decision. An employer can only refuse an application if he considers that one or more of the following grounds apply, i.e., additional costs, detrimental effect and ability to meet customer demand, inability to reorganise work amongst existing staff, inability to recruit additional staff, detrimental impact on quality performance or insufficiency of work during the periods the employee proposes to work, amongst others.

3.8 If an employee is dismissed for the reason that he or she has made or proposed to make an application under Article 112F, they are to be treated as unfairly dismissed for the purposes of the 1996 Order. It is also relevant to note that under Article 140(3)(fh) the qualifying period of one year does not apply where the claim is brought under Article 135C.

3.9 Time-Limits for Claims and the Date of Termination of the Contract

Under Article 145(2) of the 1996 Order an Industrial Tribunal shall not consider a complaint unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the tribunal considers reasonable in the case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

3.10 The case law indicates that there are two limbs to the “not reasonably practicable” test. First of all, the employee must show that it was not reasonably practicable to present this claim in time and the burden of proving this rests firmly on the claimant. Secondly, if he succeeds in doing so, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable (see Palmer and Saunders v Southend-on-Sea Borough Council [1984] 1All ER 945) and Harvey Div. PI, para 190et ff). In Palmer, Lord Justice May undertook a comprehensive review of the authorities and proposed a test of “reasonable feasibility”. He also listed a number of considerations which might be considered in deciding whether or not it was reasonably practicable for the claim to be lodged in time. These included the manner of and reason for the dismissal and whether conciliation machinery had been used; the substantial cause of the claimant’s failure to comply with the time-limit; whether there was any physical impediment preventing compliance, such as illness or a postal strike; whether the claimant knew of his rights; whether the employer had misrepresented any relevant matter to the employee; whether the claimant had received any advice on the issue bringing a claim and whether there was any substantial fault on the part of the claimant or his adviser leading to a failure to present the claim in time.

3.11 In this case, the claimant approached her employer a couple of weeks after she was dismissed and at that stage was told there was a possibility of her being
re-employed. She therefore waited a couple of weeks to see what would come of that application. She subsequently contacted ELSG in April 2014 and they wrote a letter on her behalf to the respondent. While the start of that letter sets out in very forthright terms a claim of unfair dismissal, the letter concludes seeking an amicable resolution to the matter and seeking the claimant’s re-employment. No response was sent to that letter to the claimant or ELSG either before or after the deadline of 5 May 2014 which was set out in it. There was no evidence before us to suggest that the claimant had been advised about time limits at that stage. The only reply was sent in July 2014 by Mr Boomer and actually was a reply also to a subsequent letter sent on behalf of the claimant by Kasia Garbal of the Irish Congress of Trade Unions (ICTU) on 19 May 2014. The claimant indicated that she had been attending her doctor after she was dismissed. She was initially put on some medication but subsequently indicated that she was not taking medication although still attending her doctor in June 2014. Her doctor’s approach was that she did not want to give the claimant medication and that the claimant’s mood would be improved if she was able to find an alternative job. This is a refreshing approach but the claimant nevertheless said that she had been very distressed and depressed after her employment ended. We can appreciate that given the upheaval and distress of the previous six weeks that this, compounded with the loss of her job would have led to the claimant feeling very unhappy and unsettled at the very least, and we accept her evidence on this matter.

3.12 The claimant said that she was attending her doctor right up to the end of June and that it was the doctor who suggested to her that she should clarify whether she was entitled to bring a claim to the Industrial Tribunal. At that stage (presumably in mid-May 2014), the claimant then promptly spoke to Kasia Garbal from ICTU by telephone. She was advised then that she had only a week to go before the time-limit for bringing her claim would expire. It was the claimant’s evidence that she sent in paperwork and her P45 to ICTU, and they assisted her in completing her ET1 form. She indicated that this was how the dismissal date of 20 February came to be on the ET1 form, which was lodged on 20 May 2014. There does seem to be some confusion about this, as the respondent’s evidence was that they issued the claimant with a duplicate P45 dated 23 May 2014. That P45 shows the claimant’s leaving date as 20 February. Thus it seems that the respondent indicated to the claimant that her leaving date was 20 February and the claimant relied on that date. There was no information before us to suggest that the claimant had a copy of the resignation letter of 11 February, although she agreed she had signed it. We are therefore of the view that the respondent asserted the claimant was dismissed on 20 February 2014, that her claim was therefore lodged just in time on 20 May 2014, and that the respondent cannot resile from this position in order to deny the claimant her statutory rights.

3.13 If for any reason it is found that 20 February 2014 was not the correct date of termination of employment, and the claimant’s employment actually ended on 11 February, we note that with a week’s notice (to which the claimant was entitled), this would have extended the effective date of termination to 18 May 2014. Given that the claimant explained to us that she was endeavouring to see if she could get her job back by contacting her employer on at least two occasions, and writing through ELSG seeking a return to work, we can understand that the claimant did not pursue proceedings immediately. She was also still attending her doctor, recovering from a distressing series of personal events and was initially on medication. In mid-May, she went to ICTU and on their advice, lodged a claim as promptly as possible. We are therefore of the view that the claimant in this case has shown that, because of the circumstances of her health and because she was pursuing other avenues to try and resolve the situation, it was not reasonably practicable for her to lodge her claim in the Office of the Tribunals sooner. When she did obtain advice about time limits, she did lodge her claim, it was done promptly and without undue delay. In all the circumstances we find that it was not reasonably practicable for her to lodge her claim within the three month time-limit for the reasons we have stated and we consider that in all the circumstances it would be appropriate to extend the time by two days to allow the claim to be treated as within time.

3.14 Unfair Dismissal

In this case, the issue of the application for flexible working and the alleged dismissal of the claimant are inextricably linked.

3.15 It was the respondent’s case that the claimant resigned of her own free will and that she had not made an application for flexible working. The respondent did not seek to argue that if the tribunal found the claimant had been dismissed, the dismissal was fair in all the circumstances. The claimant on the other hand argued that she had made an application for flexible working by calling to see her employer on 11 February. Given the flat refusal of her employer to entertain such an application, she was effectively invited to resign and felt that she had no other option but to do so. It is relevant in all of this to note that the claimant is a Polish national and that her English is poor; she required the assistance of an interpreter to conduct these proceedings.

3.16 It is also relevant that the claimant was in an extremely difficult personal situation at the time. Her daughter had just been returned to her care and she had then quite coincidentally met her solicitor while in town. Their conversation led the claimant to be extremely concerned that, if she could not change her working arrangements to avoid working evening shifts and nightshifts, her daughter may well be taken away from her again. Clearly this caused her understandable anxiety and she immediately went to her employer to discuss the matter. As we have said above, we are of the view that Mr Reid knew very well of the claimant’s domestic circumstances. He eventually conceded that the Manager had told him something about it and it is clear from the claim form that he was aware of this as well. Given that the claimant had been off work for some three or four weeks because of the fact that her daughter had been taken into care and she needed to attend court, we have no hesitation in making the finding that Mr Reid was clearly aware of the claimant’s circumstances. He also knew that she had shown flexibility in the past in working extra shifts when required to cover for others. In the circumstances, we find it extremely surprising that the respondent did not at least discuss with the claimant why she was seeking a change to her working patterns, exactly what change she was seeking and the reasons for it and consider whether anything could be done to try and accommodate her, even on a temporary basis as she requested.

3.17 The claimant did not appear to be familiar with the flexible working procedure under the contract of employment. Although the application for flexible working was referred to in the contract and the claimant confirmed that she had received her contract, she pointed out that her English was not particularly good. It is significant that at the meeting on 11 February, neither Mr Reid nor Mandy Kearnan suggested to the claimant that she should make an application for flexible working. The conversation appears to have consisted of the claimant asking if she could change to dayshifts, Mr Reid refusing, and it then being put to the claimant that it was, “up to her”, as to what she did. There was then the suggestion from Mandy Kearnan that the claimant could resign, and Miss Kearnan wrote a letter for the claimant to sign. Clearly the claimant felt that she had no option but resign at this point, as she simply could not work nights and look after her daughter, without breaching the order of the Family Court.

3.18 The issue for us to decide is whether the claimant was constructively unfairly dismissed by the respondent or whether she resigned for personal reasons. Harvey refers to Shaw v CCL Ltd [2008] IRLR 284 where an employee on maternity leave requested to work flexibly on her return to work by working reduced hours and not staying away from home overnight, amongst other things. She resigned when this request was refused. The tribunal at first instance rejected a claim of constructive unfair dismissal, reasoning that the resignation was in response to the refusal of the flexible working request, an act which was lawfully open to the employer. However, on appeal, the Employment Appeal Tribunal held that on the facts of the case, the flat refusal of the flexible working request because the claimant was a woman or the application of a condition which adversely impacted on her as a woman was capable of constituting (and in this case did constitute) a breach of the duty to maintain trust and confidence. We have considered in this case whether the action of the employer constitutes a fundamental breach of contract and in particular the duty of implied trust and confidence as far as the claimant is concerned. We note that Article 135C requires the employer to go through a particular procedure in considering requests for flexible working as a basic minimum. This requires him to meet with the employee, consider her request and then let her have a reasoned response. We can entirely appreciate that there will be situations where an employer cannot grant a request for flexible working, for good business reasons and that is permitted under the legislation. What is not acceptable or permitted is that an employer gives a flat refusal without properly considering the request.

3.19 In this case, the claimant had shown flexibility in her attitude to her employer in that she had on various occasions worked additional hours to assist the employer in covering shifts for other people. She gave examples in her evidence of individuals who had moved from nightshifts to dayshifts. She pointed out that she had been off work for approximately a month before she came with her request and that the employer had managed to cover those shifts. Mr Reid’s only response was that he knew from experience that it was difficult to get people to cover nightshifts and he could not grant the application for flexible working.

3.20 As we have set out above, we believe that Mr Reid was well aware of the claimant’s personal circumstances and that she had shown flexibility in her approach to her employer by working additional hours on numerous occasions. In the circumstances, it is extremely disappointing that the employer did not show similar consideration towards the employee. We consider that the employer’s failure to give proper consideration to the claimant’s request for flexible working in this case constituted a breach of the implied duty of trust and confidence. The refusal by Mr Reid to consider the claimant’s verbal request for flexible working, coupled with the proposal, (either from Mr Reid or from Mandy Kearnan), that it was up to her but that she could resign, seems to us to be a clear indication that the respondent was not willing to show any flexibility towards the claimant. Indeed, if anything, they were pushing her towards resignation. We find that constitutes a fundamental breach of the implied duty of trust and confidence such that the employee was entitled to resign in response to it. Given that her resignation occurred immediately after the breach of contract, we are content that the claimant was constructively dismissed. The issue remains as to whether she was unfairly dismissed. The respondent has not produced any argument to suggest that the claimant was fairly dismissed, and has agreed that he refused to consider changing her shifts. At no time did the respondent seek to show that the claimant was dismissed for a fair reason.

3.21 Accordingly, it is our finding that the claimant was automatically unfairly dismissed under Article 135C of the 1996 Order in that she was dismissed because she had made an application for flexible working under Article 112f of the 1996 Order. We order the respondent to pay the claimant compensation as follows.

(1) Basic Award

As the claimant did not have a full one year’s service at the time she was dismissed, she is not entitled to a basic award.

(2) Compensatory Award

The claimant worked a variable number of hours when employed by the respondent. It was unclear as to how much she had worked during the month of February and the respondent indicated that a substantial part of her wages for that month constituted holiday pay. She worked during the first part of January, but then was on leave and on sick leave. Accordingly, we propose to take an average of her wages for the last 12 weeks (three months) when she was earning her normal wage (i.e., October, November and December 2013), to enable us to calculate her normal week’s pay. On that basis, we calculate her average net week’s pay during those three months as £197.02 net. The claimant advises that her current net pay in her new job is £350.00 per week for a 40 hour week, and more if she works additional hours, so the claimant has no ongoing loss.

3.22 Accordingly, we order the respondent to pay to the claimant her loss of earnings from 20 February 2014 to 21 July 2014, when the claimant found new work, calculated as follows:-

£197.00 per week x 21 weeks = £4,137.00

3.23 The protected period is from 20 February 2014 to 21 July 2014. The prescribed element is equivalent to the compensatory award, and the monetary award does not exceed the prescribed element.

3.24 This is a relevant decision in accordance with the Employment Protection (Recruitment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 as amended by the Social Security (Miscellaneous Amendment No 6) Regulations (Northern Ireland) 2010.

3.25 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Employment Judge:

Date and place of hearing: 12 August 2014, Belfast.

Date decision recorded in register and issued to parties:

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Industrial Tribunals Northern Ireland Decisions