Mrs I Rockliffe v South Gloucestershire Council and Direct Cleaning Services SW Ltd: 1400078/2024
EMPLOYMENT TRIBUNALS
Case No 1400078/2024
Between
Mrs I RockliffeClaimantSouth Gloucestershire Council and Direct Cleaning Services SW LtdRespondent
Before
Employment Judge N J RoperMr Harris (instructed by Counsel) for claimantDate 7 August 2024
JUDGMENT
[1]With respect to the claimant’s claims for unlawful deduction from wages and for accrued but unpaid holiday pay, terms of settlement having been agreed by the parties these claims are adjourned to allow those terms of settlement to be implemented. If neither party has made an application to the tribunal to re-list these claims for hearing before 30 August 2024, then they will stand dismissed on withdrawal by the claimant as at that date; and[2]The claimant’s claims for unfair dismissal and for breach of contract in respect of her notice pay are not well-founded and they are both hereby dismissed.
REASONS
[1]In this case the claimant Mrs Irene Rockliffe claims that she has been unfairly constructively dismissed in the course of a TUPE transfer from the first respondent to the second respondent. She also brings a claim for breach of contract in respect of her notice pay. Her claims for unlawful deduction from wages and for accrued but unpaid holiday pay have now been settled. The respondents contend that the claimant resigned, that there was no dismissal, that they complied with the necessary TUPE requirements, and they deny the claim for notice pay.[2]This has been a remote hearing on the papers which has been consented to by the parties. The form of remote hearing was by Cloud Video Platform. A face-to-face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing. The documents that I was referred to are in a bundle of 142 pages, the contents of which I have recorded. The order made is described at the end of these reasons.[3]I have heard from the claimant. For the first respondent I have heard from Mrs A Fowler, Mrs N Clements and Mrs D Goddard. For the second respondent I have heard from Mr M Chaloner and Miss D Watson.[4]There was a degree of conflict on the evidence. I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.[5]The Facts:[6]The first respondent to this claim is South Gloucestershire Council, which is referred to in this judgment as the Council. The claimant is Mrs Irene Rockliffe, who was employed by the Council as a cleaner from 3 September 2001 until 31 July 2023. She was aged 73 at that time. She was one of a team of 13 employees who were cleaners at Brimsham Green Secondary School (“the School”). On 15 February 2023 the Council decided to withdraw from the provision of catering and cleaning contracts, which involved cleaning contracts at a number of schools, including the School where the claimant worked. On 23 February 2023 the Council gave the School six months’ notice of the termination of its cleaning contract. This left the School with two options: either to bring the cleaning work in-house, or to contract out the cleaning work to a different service provider. The understanding of the Council from the outset was that TUPE would apply, namely the Transfer of Undertakings (Protection of Employment) Regulations 2006, and that the employment of the claimant and her fellow cleaners would be protected.[7]The pay arrangements for the claimant were rather complicated. The claimant was the only cleaner who worked for 16 hours per week. This was usually from 2:45 pm until 6 pm, on each of five days per week, except for one day when she started 15 minutes later. However, this was only during term time. She did not work during school holidays, except for five weeks when the cleaners undertook a “deep clean” of the School. This equated to 44 working weeks each year. Her holiday pay was also calculated on a daily basis and the value of her holiday pay was added to the 44 working weeks. This total sum was then divided into 12 equal monthly instalments so that she received the same consistent amount of pay throughout the year, regardless of whether she was working during the term, doing the deep clean, or not working for the remainder. The holiday year was expressed to commence on 1 September annually.[8]Of the 13 cleaners the claimant and one other, namely Mr Stone, were members of Unite the Union. Their Regional Officer was Mr Ken Fish.[9]A short briefing note dated 22 February 2023 was sent to the 13 cleaners of the School by the Council. It confirmed that the School was looking to change the cleaning provider by way of bringing employees in-house, or seeking an external provider, but that in either event a TUPE transfer would take place and that: “as part of the process of consultation Unions will be informed and will be able to provide appropriate feedback during the consultation period”.[10]The second respondent to this claim is Direct Cleaning Services SW Limited, which is referred to in this judgment as DCS. On 16 June 2023 the School notified the Council that it had decided to contract out the cleaning work to DCS and that it had also decided it would make some small changes to the cleaning services after DCS had taken over the contract. The Council then sent a second briefing note to the affected cleaning staff dated 19 June 2023. It reported that following a procurement process the contract had been awarded to DCS. It confirmed that there would be a period of consultation between 19 and 26 June 2023, and that there would be a consultation meeting at the School on 21 June 2023. The briefing note confirmed that a letter setting out what measures might be adopted on the transfer (referred to in this judgment as the “Measures Letter”) would be forwarded shortly, and that the potential transfer would be with effect from 1 August 2023. Again, the briefing note reassured the employees that the relevant trade unions would be informed and able to provide appropriate feedback during the consultation period.[11]The Council also prepared a “Consultation Report for Staff and Unions” dated 19 June 2023, which was sent to all employees, including the claimant. In a table of employee roles which were affected there was one role only for 16 hours, which was that of the claimant, so that it was clear that the claimant was in the scope of the TUPE transfer. Paragraph 5.1 of that Report made it clear that: “In accordance with the TUPE Regulations staff will transfer on their current terms and conditions of employment. However, please see Appendix 4 with details of the proposed “Measures”. Full consultation will commence on Monday, 19 June 2023 …” In addition, paragraph 7.3 provided: no one is at risk of redundancy arising from this review. This TUPE exercise will not result in posts being deleted or fundamentally changed, nor will it see there being any change to, in particular, contractual terms and conditions of employment of those staff affected, i.e. in accordance with the TUPE regulations. As such there is no significant impact upon the post holders directly. Any proposed changes to working arrangements are outlined in the TUPE “Measures” document which shall be fully discussed with staff and the trade union during formal consultation, Appendix 4.”[12]Appendix 4 did not attach details of the Measures Letter, but it merely confirmed that this would be forwarded to the employees imminently. This letter was from DCS to the affected employees, dated 14 June 2023, and it gives “Notification of Measures Envisaged”. It provides: “as part of the transfer, due to the requirements of the School going forward, we are proposing the following measures:(i) employees will receive a monthly salary paid up to and including the last Thursday of each month and will normally credit their account on the Friday. However if the last day of the month is a Thursday payment will credit that day …(ii) shift times will change in accordance to site needs, am shift will change to 6.30 am to 8 am and pm shift will change to 3 pm to 6:15 pm;(iii) employees will be required to work 43 weeks per annum to include five inset days and three weeks deep cleaning during the holidays (normally during the Summer/Easter/October break but will be site dependent) - this is a reduction of one week per annum;(iv) all operatives will receive a 2.8% pay increase subject to a Bradford Factor review of attendance;(v) holiday pay will form part of the employee’s salary and therefore any time taken during term time will be unpaid leave;(vi) holiday period runs from 1 January to 31 December;(vii) employees will be issued with a new uniform and ID lanyard which must be worn on site at all times; and(viii) employees will receive pay statements electronically via email from their first pay date after transfer - should employees require a paper statement this must be requested prior to the first pay date.” This letter concluded: “We are informing you of these measures now, to give time for consultation to take place, and all transferring operatives will have the opportunity to discuss these changes prior to any adjustments being made to employment terms.”[13]I find that the majority of these proposed changes are insignificant administrative matters. However, (ii) was a change in the claimant’s shift times since they were all being put back 15 minutes. More importantly, (iii) was a proposed detrimental change in that the claimant was effectively going to lose one week’s pay as her requirement to work might be reduced from 44 weeks to 43 weeks. CRS has argued that this is mitigated and offset by (iv), the 2.8% pay increase, but I find that this was not unconditional. It was subject to the employees meeting certain sickness attendance records, and not triggering Bradford Factor sickness procedures. As it happened the claimant had a good sickness record, but this proposal suggested removing one week’s pay and replacing it with a new bonus arrangement which was conditional upon a good sickness record, and without specifying whether this was historical, or forward-looking. For these reasons I find that if the Measures Letter were to have been imposed without agreement, it would have been a detrimental change in the claimant’s terms and conditions.[14]Against this background DCS had requested employee liability information from the Council in connection with the 13 employees. This required the consent of the employees, and the claimant declined to provide this consent. CRS was thus unable to communicate with the claimant directly. In any event the claimant has confirmed that on 20 June 2023 Mrs Clements of the Council, from whom I have heard, sent an email to her which had attached to it the Measures Letter dated 14 June 2023. The claimant had also received the Briefing Note dated 19 June 2023 confirming that the consultation meeting would take place at the School on 21 June 2023. This was the first consultation meeting which was attended by the affected employees, including the claimant, and representatives of both the Council and DCS. Mr Fish of the claimant’s union was unable to attend because the meeting been called at short notice.[15]Meanwhile DCS provided a one-page “Disclosure Check List” which it requested employees to complete. This form invited completion of a series of questions of personal information, including whether a DBS certificate was held. At the bottom of the form in red it stated: “A charge of £55 for the DBS check will apply to any operative who does not successfully complete their three-month trial period”. This was a standard form for all DCS employees, which was not intended to apply to long serving employees who had already completed their probationary periods and who were transferring over.[16]The claimant asserts that she was presented with a new contract of employment at this first consultation meeting which she was required to sign. The weight of evidence is against the claimant on this point, and I find that the claimant was only asked to sign the Disclosure Check List along with the other employees. Both the claimant and her fellow employee Mr Stone, who were the two Union members, both declined to sign this Disclosure Check List. Miss Watson, from whom I have heard, is the HR and payroll manager for DCS, and she attended that meeting. I accept her evidence that all staff were made aware at that meeting that these forms were not an application form for employment and that all of their positions would be protected and that all of their terms and conditions of employment would stay the same unless they chose to accept the measures proposed by DCS. Accordingly, I find that the claimant knew at this stage that her agreement to the proposed changes in the Measures Letter was optional.[17]The other 11 employees did sign the form. Mrs Clements emailed both the claimant and Mr Stone after that meeting to say: “Thank you for attending the consultation meeting today regarding the TUPE transfer … [DCS] have requested permission to pass over your personal data which allows [DCS] to set you up on their payroll systems. You both refused to sign the form in the meeting today. I fully appreciate you didn’t have union representation, which is important to you, but signing this form does not commit you to accepting any of the proposed changes in the future that have been driven by the requirements of the School … At the point you transfer from [the Council], your terms and conditions remain the same, no changes are made, and any changes that [DCS] would like to make after the transfer are just alerting you to their thoughts and potential changes they are considering … If you decide you do not wish to transfer to [DCS], please let Alison Miles know in writing and your employment will therefore cease with [the Council] as at 31 July 2023.”[18]As at 21 June 2023 therefore, the claimant had attended the first consultation meeting at which the reasons for the TUPE transfer were discussed, she was aware of the proposed changes set out in the Measures Letter, she was aware that these were optional, she had declined to sign the Disclosure Check List, but she had been repeatedly reassured that her existing terms and conditions of employment would be protected on the transfer unless she agreed otherwise.[19]As part of the internal procedures of the Council, any proposed changes of this nature must be signed off by a relevant Director. This is done by way of a detailed “Decision Report for the Director”, and an initial report was completed on 28 June 2023. This was not a final report, and it was not signed off, and for some reason it did not include the claimant’s role of 16 hours per week in the list of employees. Paragraph 10 of that report made it clear that the proposals would be implemented in accordance with the Council’s TUPE procedure and that both staff and trade unions would be kept informed throughout. Paragraph 11 of the report recorded the Council’s obligation to comply with TUPE and with regard to pensions the need for a comparable pension scheme to be in place.[20]Meanwhile there was an email exchange between the Council and DCS under which the Council expressed concerns that any proposed changes could not be imposed upon the employees. The Council made its position clear, namely that all existing terms and conditions of employment would remain the same following the TUPE transfer unless the employees agreed otherwise. DCS also produced a slightly amended version of the Measures Letter dated 4 July 2023 which the claimant accepts she received at that time. The proposed measures were all the same, but above the place for signature at the bottom of the letter the following sentence was added: “I Irene Rockliffe Agree/Disagree (delete as appropriate) with the above measures being in place.” This was effectively further confirmation as at that stage that these changes would not be imposed, and that they would only apply if the claimant specifically agreed to them.[21]The Council’s Area Cleaning Manager was Mrs Miles. She wrote to the claimant on 10 July 2023, and also emailed the claimant with a copy of that letter attached. The email stated: “Hi Irene, hope you are well I have attached a letter for you for the TUPE transfer to DCS, can you please let me or Helen know you have got your email please. Irene I have sent you the same as I’ve sent all the rest of the staff at Brimsham Green I know you have not signed anything and HR are talking to Ken Fish but I would not leave you or Tim [Mr Stone] out of anything so it’s just so you have got it, kind regards”. The attached letter referred to the (first) consultation meeting and it gave the following formal confirmation: “I am now writing to confirm the transfer of your employment to Direct Cleaning Services on 1 August 2023 in accordance with your employment rights. As previously stated, your employment on South Gloucestershire Council terms and conditions of service including pension rights will transfer directly to Direct Cleaning Services and remain unchanged. Should you not wish to transfer employment to Direct Cleaning Services please submit this in writing to myself at the earliest opportunity. To this end, I must draw to your attention that if you do not wish to transfer your employment to the new organisation you will be deemed to have resigned from the Council’s employment in accordance with the TUPE regulations and your last day of employment will be 31 July 2023. I would like to thank you for your service while working with [the Council] and wish you all the best going forwards.”[22]There was then a further (second) consultation meeting on 21 July 2023. It was originally intended to be a meeting with the claimant and Mr Stone, the other employee who had not agreed to transfer to DCS, and their Union representative Mr Fish. In the event all of the affected employees attended, and it became a second group consultation meeting. Mr Chaloner, the Commercial Manager of DCS from whom I have heard, was not able to join the meeting because of technical difficulties. Nonetheless there was a meeting of all other parties who were able to discuss the various issues.[23]Another meeting was then arranged for 24 July 2023 so that Mr Chaloner could attend. This was the third group consultation meeting. All the affected employees attended, as did the claimant and Mr Stone, and Mr Fish the Union representative. The Council had prepared an updated Decision Report for the Director dated 24 July 2023, and a copy was given to each employee including the claimant. This again made it clear in paragraph 7.2 that the employees would transfer to DCS on their existing terms and conditions of employment unless the Measures Letter took effect. Meanwhile the Council had clarified with DCS that the requirement for employees to repay the £55 for the DBS check if they did not pass their probationary period was not something that was going to apply on the transfer for pre-existing staff who had already completed their probationary periods. The claimant specifically raised this point at this third consultation meeting and was reassured that this would not apply to her. It was also explained to the employees that the updated Director’s Decision Report did now contain the correct number of posts (including the claimant’s post of 16 hours per week).[24]The final paragraph of the Council’s notes of meeting records as follows: “Following the meeting, Irene and Tim went into another room with Ken from Unite, who then asked to speak to Allison Fowler from HR. Irene and Tim confirmed that they didn’t want to transfer to Direct Cleaning and were therefore resigning. Alison asked them to go away and reconsider, so they were sure, and if they were, we would require their resignation in writing.”[25]By email dated 27 July 2023 the claimant and Mr Stone wrote to Miss Fowler of the Council’s HR department to this effect: “HR Nicola Clements emailed observations does not reflect all facts of the meetings that took place on 21st and 24th July 2023. I believe South Gloucestershire Council (Integra) has breached our contract of employment by allowing a transfer to Direct Cleaning Services to take place in the guise of a 2006 TUPE transfer without duty of care to its current employees. We wish to claim for constructive dismissal/redundancy on the grounds of the breaches that have come to our attention.”[26]Mrs Goddard of the Council, from whom I have heard, responded by email dated 31 July 2023. This letter explained the background to the TUPE transfer and the consultation which had already taken place. Under the final paragraph headed “Outcome” the letter reported: “I can confirm that you will transfer to Direct cleaning from 1 August 2023 and your employment with South Gloucestershire Council will cease on 31 July 2023. If you decide not to transfer to Direct Cleaning your employment will cease with both organisations. Because this is a TUPE transfer there is no entitlement to any redundancy payment. I appreciate that this is a difficult and unsettling time for you both.”[27]By email to Ms Watson on 31 July 2023 Mrs Clements confirmed that the claimant and Mr Stone had not sent in their resignation in writing, but that they had refused to confirm to the Area Manager whether they were willing to confirm their position in writing or to let them know they were resigning, and she alerted DCS to the possibility that the claimant Mr Stone might not turn up for work with effect from 1 August 2023. It was also clarified in an exchange of emails at that time that both the claimant and Mr Stone had completed their deep clean cleaning duties as required by the Council up until the date of the transfer on 31 July 2023. The claimant was also paid by the Council up to and including 31 July 2023.[28]Thereafter the claimant did not turn up for work or undertake any further work with DCS. The Council asserts that the claimant has not resigned because she failed to confirm her resignation in writing. I do not agree with that analysis, and I find that the claimant resigned her employment with effect from 31 July 2023 for the following reasons.[29]In the first place there is the general background of the TUPE transfer on 1 August 2023 to which the claimant objected. The claimant evinced a general reluctance to engage in consultation and to embrace the possibility of working for DCS after the transfer. It never appeared that it was her intention to do so. Secondly, I find that the claimant made it clear to the Council at the end of the third consultation meeting on 24 July 2023 that she had no intention of transferring to DCS, and that she intended to resign. She followed this up with an email on 27 July 2023 to the effect that she wished to claim for constructive dismissal or redundancy, which are claims which are consistent with her resignation and the termination of her employment. She failed to undertake any work for DCS with effect from 1 August 2023, but in the meantime, she had completed deep clean cleaning duties with the Council up to 31 July 2023, which was the date to which she was paid by the Council. In addition, the claimant did not specifically confirm the exact date of her resignation despite repeated requests to do so. She was told in writing that if she wanted to resign rather than transfer her employment, then this would be with effect from 31 July 2023. If that was not the claimant’s intention, she had every opportunity to notify the Council to the contrary, but simply failed to do so.[30]In my judgment this all amounts to sufficient indication to the effect that the claimant had decided to resign her employment with effect from 31 July 2023, rather than to allow her employment to transfer automatically to DCS under a TUPE transfer. Accordingly, I find that the claimant resigned her employment with the Council with effect from 31 July 2023.[31]The claimant commenced the Early Conciliation process with ACAS on 26 October 2023, and ACAS issued the Early Conciliation Certificate on 7 December 2023. The claimant presented these proceedings on 7 January 2024.[32]Having established the above facts, I now apply the law.[33]The Law:[34]Under section 95(1)(c) of the Employment Rights Act 1996 (“the Act”), an employee is dismissed if she terminates the contract under which she is employed (with or without notice) in circumstances in which she is entitled to terminate it without notice by reason of the employer’s conduct.[35]If the claimant’s resignation can be construed to be a dismissal, then the issue of the fairness or otherwise of that dismissal is governed by section 98 (4) of the Act which provides “…. the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and –(b) shall be determined in accordance with equity and the substantial merits of the case”.[36]The relevant regulations are the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("the Regulations”).[37]Regulation 3(1) provides that the Regulations apply to –(a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity;(b) a service provision change, that is a situation in which – (i) …; (ii) activities cease to be carried out by a contractor on a client's behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person ("a subsequent contractor") on the client's behalf; or (iii) …[38]Regulation 4(1) provides that: Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee.[39]Regulation 4(2) provides that: Without prejudice to paragraph (1), but subject to paragraph (6), and regulations 8 and 15(9), on the completion of a relevant transfer –(a) all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and(b) any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to the organised grouping of resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee.[40]Regulation 4(7) provides that: Paragraphs (1) and (2) shall not operate to transfer the contract of employment and the rights, powers, duties and liabilities under or in connection with it of an employee who informs the transferor or the transferee that he objects to becoming employed by the transferee.[41]Regulation 4(8) provides that: Subject to paragraphs (9) and (11), where an employee so objects, the relevant transfer shall operate so as to terminate his contract of employment with the transferor, but he shall not be treated, for any purpose, as having been dismissed by the transferor.[42]Regulation 4(9) provides that: Subject to Regulation 9 [which relates to insolvency and is not relevant in this case], where a relevant transfer involves or would involve a substantial change in working conditions to the material detriment of a person whose contract of employment is or would be transferred under paragraph (1), such an employee may treat the contract of employment as having been terminated, and the employee shall be treated for any purpose as having been dismissed by the employer.[43]Regulation 4(10) provides that: No damages shall be payable by an employer as a result of a dismissal falling within paragraph (9) in respect of any failure by the employer to pay wages to an employee in respect of a notice period which the employee has failed to work.[44]Regulation 4(11) provides that: Paragraphs (1), (7), (8) and (9) are without prejudice to any right of an employee arising apart from these Regulations to terminate his contract of employment without notice in acceptance of a repudiatory breach of contract by his employer.[45]Regulation 7(1) provides that: Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee shall be treated for the purposes of Part X of the 1996 Act (unfair dismissal) as unfairly dismissed if the sole or principal reason for his dismissal is –(a) the transfer itself; or(b) a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce.[46]On behalf of the claimant, I have been referred to University of Oxford v Humphreys and Anor [2000] 1 All ER 996 CA in support of the proposition that where an employee objects to proposed changes against the background of a business transfer, this may well support a claim for constructive unfair dismissal as against the transferor. I note however that this case predates the TUPE Regulations 2006 which specifically introduced updated provisions relating to the resignation of employees who object to a proposed transfer.[47]I have also considered the cases of Western Excavating (ECC) Limited v Sharp [1978] IRLR 27 CA; Malik v Bank of Credit and Commerce International SA [1997] IRLR 462 HL; Courtaulds Northern Spinning Ltd v Sibson [1987] ICR 329; Kaur v Leeds Teaching Hospital NHS Trust [2018] EWCA; Omilaju v Waltham Forest London Borough Council [2005] IRLR 35 CA; Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666 CA; Buckland v Bournemouth University Higher Education Corporation [2010] IRLR 445 CA; Tullett Prebon PLC and Ors v BGC Brokers LP and Ors [2011] EWCA Civ 131.[48]I have also considered section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, and in particular section 207A(2), (referred to as “s. 207A(2)”) and the ACAS Code of Practice 1 on Disciplinary and Grievance Procedures 2009 (“the ACAS Code”).[49]The best known summary of the applicable test for a claim of constructive unfair dismissal was provided by Lord Denning MR in Western Excavating (ECC) Limited v Sharp [1978] IRLR 27: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of his employer’s conduct. He is constructively dismissed. The employee is entitled in these circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”[50]In Tullett Prebon PLC and Ors v BGC Brokers LP and Ors Maurice Kay LJ endorsed the following legal test at paragraph 20: “… whether, looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract.”[51]In Courtaulds Northern Spinning Ltd v Sibson it was held that reasonable behaviour on the part of the employer can point evidentially to an absence of significant breach of a fundamental term of the contract. However, if there is such a breach, it is clear from Meikle, Abbey Cars and Wright, that the crucial question is whether the repudiatory breach “played a part in the dismissal” and was “an” effective cause of resignation, rather than being “the” effective cause. It need not be the predominant, principal, major or main cause for the resignation.[52]With regard to trust and confidence cases, Dyson LJ summarised the position thus in Omilaju v Waltham Forest London Borough Council [2005] IRLR 35 CA: The following basic propositions of law can be derived from the authorities: 1. The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Limited v Sharp [1978] 1 QB 761. 2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example Malik v Bank of Credit and Commerce International SA [1998] AC 20, 34H – 35D (Lord Nicholls) and 45C – 46E (Lord Steyn). I shall refer to this as “the implied term of trust and confidence”. 3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract, see, for example, per BrowneWilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666 CA, at 672A; the very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship. 4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must: “impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer”.[53]This has been reaffirmed in Buckland v Bournemouth University Higher Education Corporation [2010] IRLR 445 CA, in which the applicable test was explained as:(i) in determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Malik test should be applied;(ii) If, applying Sharp principles, acceptance of that breach entitled the employee to leave, he has been constructively dismissed;(iii) It is open to the employer to show that such dismissal was for a potentially fair reason;(iv) If he does so, it will then be for the employment tribunal to decide whether the dismissal for that reason, both substantively and procedurally (see Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23 CA) fell within the range of reasonable responses and was fair.”
Decision:
[55]In the first place it is not in dispute, and I so find, that there was a relevant transfer under the TUPE Regulations on 31 July 2023 from the Council to DCS. There was a service provision change of the cleaning contract under Regulation 3(1)(b). The claimant was employed in the relevant undertaking immediately before the transfer, and the default position under TUPE is that her contract of employment would not terminate, but that her contract, with all rights, powers, duties and liabilities under or in connection with it, would transfer to DCS as the transferee. The effect of TUPE is that her contract of employment is not terminated, but rather it is novated on the transfer to the transferee.[56]The first issue which was in dispute was whether or not the claimant resigned her employment, and if so when. For the reasons set out in my findings of fact above, I find that the claimant did resign her employment, and that this was with effect from 31 July 2023.[57]The next issue which was in dispute was the extent to which the detrimental change in the claimant’s terms and conditions of employment had been imposed on her during the process of the relevant transfer. For the reasons explained in my findings of fact above I find that the combination of the Measures Letter, and the client disclosure Check List indicating a potential requirement to repay the £55 DRB fee linked to a probationary period of three months, were potentially detrimental changes to the claimant’s existing contractual terms and conditions of employment. However, I find that none of these changes were imposed. It is true that some relevant information during the process was passed from DCS to the Council, or from the Council and/or DCS to Mr Fish of Unite the Union, and not directly to the claimant. This is against the background of the claimant being repeatedly encouraged to become involved in the consultation process, but with her failing to engage in that process. Nonetheless the claimant still had clear and sufficient information at the time of the third consultation meeting on 27 July 2023, and before her resignation, of the following key points, (about which she had been clearly informed by the Council and/or her trade union):(i) the Council repeatedly reassured all staff that absent any agreement to the contrary, all employees would be transferred to DCS on Council terms and conditions of employment, with all rights preserved, including pension rights;(ii) she was told that the DRB £55 fee and three month probationary period would not apply to existing employees;(iii) she was told that the Measures Letter was optional and that it would only apply if she agreed to the same, and she was given the option of confirming in writing whether she agreed to the Measures Letter or not. If she did not do so the Council repeatedly reassured her that her existing Council terms would remain protected; and(iv) if she chose to resign her employment rather than to transfer, then her employment would end on 31 July 2023.[58]For these reasons I conclude that no detrimental changes to the claimant’s terms and conditions of employment were imposed during the transfer process.[59]The next contested issue to be determined is whether or not the claimant’s resignation amounts to her constructive dismissal. The claimant relies on a fundamental breach of the implied term of trust and confidence, namely that an employer must not, without reasonable cause, act in a way which is calculated or likely to destroy or seriously damage the trust and confidence between them.[60]I find that there was no such fundamental breach. The Council tried repeatedly to engage the claimant in the consultation process, and generally it informed, consulted, and reassured its employees, including the claimant, as to how their rights were protected during the transfer process. There was no imposition of any less favourable terms and conditions of employment during this process. I reject the assertion that the Council acted in breach of the fundamental term requiring them not to act in a manner which is calculated or likely to destroy or seriously damage the trust and confidence between them.[61]In conclusion I find that the claimant resigned her employment with effect from 31 July 2023, and that she was not constructively dismissed.[62]Applying the effect of the TUPE Regulations to the above findings, in my judgment the result is this. Regulation 4(7) applies because the claimant effectively told the Council that she objected to being employed by the transferee DCS after the transfer. The effect of Regulation 4(8) is that the transfer operates to terminate the claimant’s contract of employment with the transferor, but she is not to be treated as having been dismissed by the transferor. Regulation 4(9) does not apply because there was no substantial change in working conditions to the material detriment of the claimant.[63]Having found that the claimant resigned her employment and that there was no dismissal, the claimant’s claim for automatically unfair dismissal following the transfer under Regulation 7 is not well-founded and it is hereby dismissed.[64]Similarly, the claimant’s claim for general unfair constructive dismissal under sections 95(1)(c) and 98(4) of the Act is not well-founded and it is hereby dismissed.[65]Finally, the claimant’s claim that the Council failed to pay her notice pay in breach of contract is also not well-founded and is also hereby dismissed, because the Council did not dismiss the claimant when she effectively resigned without notice.[66]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 1; the findings of fact made in relation to those issues are at paragraphs 6 to 31; a concise identification of the relevant law is at paragraphs 34 to 53; and how that law has been applied to those findings in order to decide the issues is at paragraphs 55 to 65.