Ms C Mansell v Little Bakery Company Ltd: 1400798/2024 Ms C Mansell v Little Bakery Company Ltd: 1400798/2024

EMPLOYMENT TRIBUNALS

Case No 1400798/2024

Between

Ms C MansellClaimant

Little Bakery Company LtdRespondent

Before

Employment Judge Elizabeth Gibson

Mr Simon Gorton for claimant

Date 21 November 2024

JUDGMENT

[1]The Claimant's claim for constructive unfair dismissal is not well founded and is dismissed.

[2]The Claimant's complaint that the Respondent failed to pay the Claimant the full sum due for accrued but untaken annual leave at the termination of her employment as unlawful deduction in wages is not well founded and is dismissed.

REASONS

[1]The Claimant, Ms Clare Mansell, was employed by the Respondent in the Bakery on the Water in Bourton-on-the Water as an assistant manager from 19 October 2015 until 31 December 2023. She resigned with notice to the Respondent on 04 December 2023.

[2]The Claimant claims she was unfairly dismissed by the Respondent pursuant to s95(1)(c) of the Employment Rights Act 1996 ("the ERA 1996") because it had breached fundamental term(s) of her employment contract which entitled her to be discharged from any further performance. This is often referred to as a constructive dismissal.

[3]The Claimant also claims that the Respondent unlawfully failed to pay her for untaken but accrued holiday leave due to her when her employment ended and this was an unlawful deduction from her wages.

[4]The Respondent, a Gloucestershire-based company which makes and sells bread, fresh pastry goods and cakes, contests both claims.

[5]The Respondent's response to the Claimant's claims is that:a. she resigned voluntarily on 04 December 2023 with notice and there was no dismissal; and

b. it has paid to the Claimant all monies to due to her and that she was not entitled to any payment for untaken accrued annual leave when her employment ended.

The Hearing

[6]The Tribunal heard the claim on 20 and 21 November 2024 via a Cloud Video Platform sitting in Exeter. The Claimant was represented by her nonlegally qualified friend Mr Simon Gorton and the Respondent was represented by Ms Zara Hussein, a litigation consultant from Peninsula Business Services Limited.

[7]The Tribunal considered a hearing bundle consisting of 132 pages of documentary evidence. Page references in this document are references to the pages in the hearing bundle.

[8]The Tribunal heard oral evidence from the Claimant herself and from Mr Alexander Clavel, a director of the Respondent. It also heard from the following witnesses on behalf of the Claimant – former employees of the Respondent, Veronica Woodford, Diana Powell, Richard Lewis, David Fisher and Magalena Montes, the Respondent's former owner Clare Keyte and Jon Carpenter, operations manager at McDonalds in Cirencester (the "Claimant's Witnesses").

[9]Ms Montes, a Spanish national told the Tribunal she had difficulty communicating in English and asked whether her partner Ramon Gonzalez could translate for her when she gave evidence. There were no objections to this from either party and the Tribunal administered the Interpreter's Oath to Mr Gonzalez who then assisted the hearing by helping Ms Montes answer the questions she was asked in cross examination.

Preliminary Matters

[10]Both parties applied for late evidence to be admitted by the Tribunal.

[11]The Respondent asked for two pieces of documentary evidence to be admitted namely:a. An undated extract from an electronic notice board for Bourton-onthe-Water in which the Claimant said was leaving the Bakery on the Water (the "Notice Board Extract"); and

b. Email correspondence in November 2024 between Mr Clavel and a former employer of the Claimant undermining the Claimant's honesty (the "Email Correspondence")

[12]The Claimant objected to the Notice Board Extract and the Correspondence being admitted by the Tribunal on the grounds neither were relevant to the claims of constructive dismissal and failure to pay holiday pay.

[13]The Claimant asked for two pieces of documentary evidence to be admitted namely:a. A photograph of a colour-coded holiday wall chart at the Bakery on the Water; (the "Holiday Chart"); and

b. A job opportunity notice for a head baker for the Respondent (the "Job Notice")

[14]The Respondent did not object to the Holiday Chart or the Job Notice being admitted as evidence.

[15]The Tribunal carefully considered both applications and applied the overriding objective in Rule 2 of The Employment Tribunals Rules of Procedure (the "Rules") in coming to its decision.

[16]The purpose of the overriding objective is to enable Employment Tribunals to deal with cases fairly and justly including (amongst other things) ensuring the parties are on an equal footing; dealing with cases in ways which are proportionate to the complexity and importance of the issues and avoiding unnecessary formality and seeking flexibility in proceedings.

[17]The Tribunal must seek to give effect to the overriding objective in interpreting or exercising any power given to it by the Rules.

[18]Applying the overriding objective, the Tribunal decided it was proportionate to admit the Notice Board Extract, the Holiday Chart and the Job Notice into evidence because they were relevant to the issues of whether the Claimant had been constructively dismissed and whether she had untaken accrued annual leave at the time she left the Respondent's employment.

[19]Applying the overriding objective, the Tribunal decided it would be disproportionate to admit the Email Correspondence into evidence because it was not relevant to issues in the case (as summarised above) and in any event post-dated the events of this matter.

Issues

[20]The parties did not provide the Tribunal with a list of agreed issues. The Tribunal explained the key issues which are set out in paragraphs 21 to 24 (below). Constructive Unfair Dismissal

[21]The Claimant claims that the Respondent acted in fundamental breach of her employment contract in respect of the implied term of the contract relating to mutual trust and confidence.

[22]She claims the breaches were as follows:a. On or around 01 December 2023 the Respondent unilaterally changed the Claimant's terms and conditions of employment; and

b. Through the period of 30 October 2023 to 04 December 2023 the Respondent placed undue pressure on the Claimant to come back to work despite the fact she was caring for her dying mother and then dealing with her mother's death on 01 November 2023.

[23]The Tribunal will need to decide:a. Whether the Respondent, without reasonable cause, behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent, and

b. Whether the breach was so serious that the Claimant was entitled to treat the contract as being at an end, i.e. she had reasonable and proper cause for doing so?

c. Whether the Claimant resigned because of the breach?

d. Whether the Claimant waited too long before resigning and therefore affirmed the contract?

e. In the event that there was a constructive dismissal, was it otherwise fair within the meaning of s98(4) of the Employment Rights Act 1996? Holiday Pay – Unauthorised Deduction from Wages

[24]The Tribunal will need to decide whether the Respondent failed to pay the Claimant for annual leave the Claimant had accrued but not taken when her employment ended, thereby making an unauthorised deduction from her wages and if so, how much was deducted? The Law Constructive Dismissal

The Law

[25]Under s95(1)(c) of the Employment Rights Act 1996 (the "ERA 1996") an employee is dismissed by his employer where: "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."

[26]This statutory language incorporates the law of contract which means that an employee is entitled to treat himself as "constructively dismissed" only if the employer's conduct represents a significant breach going to the root of the employment contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the employment contract.

[27]The leading authority in respect of constructive dismissal and which includes the applicable test for such a claim is Western Excavating (ECC) Limited v Sharp

[1978] IRLR 27

CA. In this case Lord Denning said: "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 elected to affirm the contract."

[28]Employment contracts include an implied term of mutual trust and confidence between the employer and employee. The leading case in respect of this implied term is Malik and Mahmoud v Bank of Credit and Commerce International SA

[1997] UKHL 23

. The House of Lords (as it then was) considered the scope of the implied term of trust and confidence and approved a formulation which imposed an obligation that either party must not: "...without reasonable and proper cause, to conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee." (the "Malik Test")

[29]The Malik Test is objective as described by Lord Nicholls "...it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer,". Underlining is for emphasis.

[30]Not every action by an employer can properly give rise to a complaint by an employee that amounts to a breach of trust and confidence. The Malik Test is a high hurdle to surmount for an employee. 31.The case of Woods v WM Car Services (Peterborough) Limited

[1981] IRLR 347

CA describes the conduct of the employer as being; "conduct with which an employee could not be expected to put up with..."

[32]Each element of the Malik test quoted in paragraph 29 (above) must be met by an employee claiming constructive dismissal where the employer is alleged to have breached the implied term of trust and confidence. Unauthorised Deduction from Wages

[33]Section 13 of the ERA 1996 provides that an employer shall not make deductions from the wages of a worker employed by it except in certain circumstances (which are not relevant to this matter).

[34]Section 13(3) of the ERA states that a deduction occurs when the: "...total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of wages properly payable by him to the worker..." Evidence and Findings of Facts – Constructive Dismissal

[35]There was a degree of conflict between the parties on the evidence. The Tribunal considered the whole of the evidence, both documentary and oral, and listened to the factual and legal submissions made by or on behalf of the parties. Where the Tribunal has had to resolve any conflict of evidence this is referred to at the material point. The Tribunal found the following facts proven on the balance of probability.

[36]The Claimant worked for the Respondent as assistant manager at the Bakery on the Water. She was first employed by the Respondent in October 2105 and worked as a counter assistant, she was promoted to be a team leader and made assistant manager in September 2021.

[37]The Claimant resigned with notice on 04 December 2023 and her employment at the bakery ended on 31 December 2023

[38]At the time the Claimant was first employed by the Respondent, the bakery was owned and operated by Clare and Graham Keyte. Mr and Mrs Keyte sold the bakery business to Mr Clavel and his partner Narda Franco on 01 August 2023.

[39]Between 24 and 26 October 24 2023 the Claimant was on annual leave from the bakery.

[40]The Claimant said in her witness statement that her mother became very unwell on 23 October 2023. The Claimant was told her mother was reaching the end of her life. She died on 01 November 2023.

[41]Due to her mother's worsening condition on 25 October 2023, the Claimant requested Mr Clavel to authorise more time off to which he agreed. 42.

[43]The Claimant's and Mr Clavel's preferred method of communication was WhatsApp and much of the documentary evidence presented to the Tribunal consisted of WhatsApp messages.

[44]The Tribunal considered all of the WhatsApp messages in detail so that it could determine whether the behaviour and/or actions of each of the parties met the legal tests for constructive dismissal as set out in paragraphs 25 to 32 (above).

[45]It sets out in paragraphs 45 to 69 (below) the relevant WhatsApp messages and series of events which led to the Claimant's resignation.

[46]On 30 November 2023 the Claimant and Mr Clavel exchanged a number of messages: Claimant - 13.19 "Hi Alex, Mum is now not able to have even water and is under morphine and a muscle relaxation drug due to suffocation and choking and fluid going to her lungs. This is the most heartbreaking situation I have ever had to encounter. I hope you will understand I physically am not able to come to work. I am praying she will just go to sleep but I need to be with her. I'm very doubtful I will be in this week. I'm so sorry but she is so important to me x". Mr Clavel – 13.37 "Of course. I'm so sorry to hear this and hope at least she's not in pain. How long do you think it'll be before you can come back to work? Narda already doing 7 straight shifts and about to conk out already. We do need someone and might have to hire someone fast to work in your place. We need another body that can be here when scheduled. We're so understaffed and overstretched. Do you want to take a longer time off to deal with these personal matters. We need to be in a more predictable situation to avoid it affecting everyone else who works here. Let me know your thoughts on what you feel will be best for both you and us." Claimant – 14.54 " I so wish life was predictable but it isn't. I'm just looking at each day at the moment through blurred vision. The last thing I want to do is let you or the team down or overstretch them or be a burden. I love my job, please don't let me lose that too. I will try my hardest to be back on Monday." Mr Clavel – 15.05 " I can imagine. It must be so difficult to see things like this for you right now. If it wasn't the case that Toni, Tanya and Charley were away, I'm sure it could easily have been absorbed. But this is the second time that we've been so severely short staffed, with the last time being Toni going down while you were on your holiday. Totally circumstantial and bad luck, but back then it almost brought the whole thing down, and with these 3 out this week plus you, it's that all over again. I get that it's unpredictable, but we do need more bodies here. We can't run a full day on two staff with Narda working for a week straight. I'm worried that if one week turns into two with you, or that when you're here, you're an (understandable) wreck, it's not going to make much difference to the shortage, overstretching and Narda potentially falling to pieces after 10- 14 straight shifts. You know I'm here to support you, but I just need to make sure that we can give you the time you need without taking down the business in the process, and for that, we might need to find someone to cover for you for however long you need. and can come back being effective here." Mr Clavel – 15.07 "I've made your shifts this week vacant and see if they get filled. I'll call around and see who can cover and I'll put something on indeed and see if we can cover more shifts with trials. I'll need to do some last minute manoeuvres here."

[47]There were further exchanges on 30 October 2023 with the most relevant to the issues in this matter being; Mr Clavel 21.06 "Everyone's behind you. We'll do the heavy lifting in the meantime....The only thing I ask in the meantime is to give us all as much notice if you don't feel up for returning next week. This will help us best to continue to support you."

[48]On 2 November 2023 Mr Clavel messaged the Claimant to offer his condolences in respect of the death of the Claimant's mother. He also checked to see whether she would really be all right to be back in work as she planned on the following Monday (06 November 2023).

[49]The Claimant confirmed she would and returned to work on 06 November 2023. The Claimant started her shift but was sent home by Ms Franco because she was so upset.

[50]Mr Clavel was grateful the Claimant has tried to work and messaged her to say: "You know how difficult this makes running the business and we need to make a plan too. Narda and I have been working every day since the last week of October and it's taking a toll on us and the business as a whole....We need a plan that we can stick too [sic]. We're here to support you of course but how much time off do you think you before you can say that you'll be 100% committed?"

[51]The Claimant replied she would not be in for at least a week. Mr Clavel contacted her again on 08 November 2023 asking whether she would be in the following week or whether she needed more time saying to her "Either way is fine, I just need to plan accordingly".

[52]The Claimant replied she had been signed off sick by her doctor for two weeks. This sick note at page 101 of the hearing bundle confirmed this would be until 20 November 2023.

[53]Mr Clavel said the priority was for the Claimant to get well and asked her whether this time off should be holiday or sick leave. The Claimant confirmed it should be sick leave.

[54]There was no more communication until 15 November 2023 when Mr Clavel messaged the Claimant to see if she would be at work the following week. He said: "We can schedule you in or you can have another week of leave. We can with/around it all the same. It's been an awful time for since your last day with us on Oct 20 but you'll be really proud of the team stepping up and filling the void...They're doing great and everything is stable, so don't worry about letting us down. We've got this. Please let me know as soon as you can whatever you decide."

[55]The Claimant replied she would not be back in work until after her mother's funeral on 22 November 2023. Mr Clavel told the Claimant to focus on what she needed and said they could catch up after the funeral.

[56]Mr Clavel messaged the Claimant on 26 November 2023 and asked for her sick note. He contacted the Claimant again on 29 November 2023 to see if she would be back at work the following week and that he hoped she was feeling better. 57.The Claimant replied she had a further sick note (until 12 December 2023, at page 102 of the hearing) and asked Mr Clavel whether she could have a chat with him on Friday 1 December 2023. She said in her witness statement that she wanted to update Mr Clavel on her ability to work and "to discuss changes in my role that I had heard were going to be implemented."

[58]They met that day and the Claimant claimed that she was informed by Mr Clavel that additional duties would be added to her role. It was agreed that she would not return to work until January 2024 and would be paid statutory sick pay for the period covered by her sick notes.

[59]The Claimant said once her sick note ran out, Mr Clavel said he would pay her holiday pay. This was denied by Mr Clavel.

[60]Mr Clavel's version of events at that meeting was different to that of the Claimant and recorded in a long message to her on 03 December 2023 (the "Duties Message").

[61]In his witness statement he said the Claimant had asked for the meeting and told him that she felt the nature of the business had evolved substantially, which she felt profoundly during her long absence.

[62]He said the Claimant raised the issue of whether returning to work as assistant manager would be too difficult for her to manage.

[63]The Claimant in cross examination said at the meeting she asked Mr Clavel to clarify her list of duties which he did.

[64]She said the list of duties which Mr Clavel had taken from a website did not correspond with the duties she performed as assistant manager.

[65]The list of duties (the Duty List") was as follows:a. Organising team schedules, handling staff issues and authorising vacation, annual and sick leave;

b. Interviewing, hiring and training new employees;

c. Evaluating employee performance and providing training and guidance as needed;

d. Managing various department specific initiatives and ensuring that these are completed within the scope and time and budget;

e. Filling in for absent employees and assisting teams as needed to successfully complete projects;

f. Ensuring that employees follow company policies, as well as health and safety regulations;

g. Ensuring that the documents required by EHO are complete, accurate and up to date within a dedicated, physical EHO folder;

h. Ensuring a high and consistent standard of customer service;

i. Initiating and driving marketing efforts and informing clients and employees about promotions;

j. Applying knowledge of emerging and consistent trends to inform. Purchase and inventory decisions and solutions;

k. Ensuring banking receipt, deposit, and petty cash accuracy; and

l. Developing, enforcing and auditing checklists from the kitchen, bar and front of house. And completing and sharing the daily summary report.

[66]Under cross examination the Claimant admitted she had been undertaking some of the duties in the Duty List including organising the rota, holiday, time-off and sick leave (although she did not make the final decisions on these matters); training staff; filling in for colleagues; some stock ordering, some interviewing of potential new staff, ensuring policies were adhered to (in practice but she did not do the paperwork for this); ensuring customer service standards; and coming up with new ideas for specials and promoting new lines.

[67]Mr Clavel's Duties Message confirmed the Duty List and included the following:a. "I am hoping that you'll come back with us after this time away and that we'll be able to address the effects of the lack of leadership we've been facing on the floor in your absence and that effect this is having on our customers!"

b. "For us the most important things is that you get better, which in turn will allow you to work (and live) better!"

c. "Regarding your questions about what would be expected of you in your current role of Assistant Manager, going forward it would be [the List of Duties].

d. "...I continue to feel that you are best placed to maintain this role through the time you've been with the bakery and the relationship you have with both staff and customers."

e. "With that said, and following the tough past few months you've had, if you do not feel you can fulfill this role, I will support you fully in any other that you feel is better suited – Team Leader, Admin Assistant, Counter Staff, whatever you feel you can do best, we'll find the right fit for you, and whatever we find, remember it doesn't have to be forever!"

[68]Mr Clavel added that if the Claimant did not want to continue at the bakery she could count on his support for "stellar references and recommendations".

[69]The next day the Claimant resigned by WhatsApp stating: " Sadly, this message is my resignation. Whilst I greatly appreciate everything we have chatted about, I don't feel I can come back. The changes made and the differences and the stresses of every day will just be too much. It is no longer the bakery as it was and that was where my heart lay. I can't give you 100%, and that's what you need. I wish you all the luck and love in your ongoing adventure with it and hope you achieve what you desire. I will always hope I can pop in and out to see you guys and will help remotely if you need any info always. I have to obviously give one month's notice but am still on sick so I will remain that way. I will provide sick notes until the month is up. Kind regards and best wishes always Clare x."

[70]Mr Clavell acknowledged the Claimant's resignation and reiterated his promise of providing "superb" references and asked for future sick notes so that he could issue her with statutory sick pay until the end of December 2023.

[71]There was no more correspondence between Mr Clavel and the Claimant until 29 December 2023 when the Claimant messaged saying she had not been paid holiday pay for three weeks and asking for ten days sick pay from the previous month.

[72]Mr Clavel replied asking for clarification and said he would ask his accountant to investigate matters.

[73]There was further correspondence between the Claimant and Mr Clavel and a bed tempered meeting in respect of Ms Mansell's complaint of unpaid holiday pay on 24 January 2024 but this evidence was not relevant to the issues in this case.

[74]Both the Claimant and Mr Clavel were extensively cross examined on their witness statements on matters which were relevant to the issues.

[75]They both raised matters which were not relevant to the issues as they primarily related to matters which post-dated the Claimant's employment with the Respondent coming to an end.

[76]In summary after cross examination the Claimant's case was that:a. Mr Clavel's messages around the time of her mother's death were so frequent and so insensitive she considered her job was at risk;

b. Her interpretation of the messages was that Mr Clavel was threatening to replace her if she did not return to work and that he was trying to make her feel guilty about her absence;

c. It was not her fault or responsibility during late October and early November that the bakery was short-staffed and that Mr Clavel and Ms Franco had to work so hard;

d. At the time she was not in a fit state to be able to confirm when she would be able to return to work;

e. Mr Clavel was attitude was cold and condescending and he was intractable, occasionally aggressive and prone to outbursts of temper;

f. She was not computer literate and new IT systems Mr Clavel had introduced made her job more difficult and since Mr Clavel's takeover of the bakery too many negative changes had been introduced to her working environment.

g. She had taken on new clerical and computer-based responsibilities such as dexting and end-of-day banking which meant she was spending less time on the shop floor;

h. She considered that the List of Duties was in fact a change of role and a substantial variation to her contract; and

i. The combination of Mr Clavel's attitude to her bereavement and his unilateral imposition of changes to her employment contract meant he had fundamentally breached the implied term of trust and confidence which left her with no option but to resign.

[77]In summary the Respondent's case was:a. The Claimant was not dismissed, she voluntarily resigned on 04 December 2023 due to personal circumstances;

b. Mr Clavel did not act in any way that would breach the Claimant's employment contract fundamentally or at all;

c. Mr Clavel considered it was reasonable in his communications with the Claimant at the time of her bereavement to ask when she might be able to work particularly because she was a vital part of his management team;

d. Mr Clavel did not want the Claimant to leave the bakery as she was "its heart and soul".

e. There were no substantial changes to the Claimant's role as assistant manager at the Bakery on the Water.

f. The Duty List was an industry standard he had used as the basis for his meeting with the Claimant on 01 December 2023 which she had requested.

g. He had bent over backwards in the Duties Message to reassure the Claimant that she was wanted and needed and that she could return to work in any capacity she wanted.

h. Although Mr Clavel had introduced changes to the operation of the bakery business with the introduction of IT systems for matters such as pay roll and annual leave – these were necessary so the business could transition from being paper-based which was inefficient and unreliable.

i. Mr Clavel said: "The first change to the payroll system was my highest priority. The former owner's system was beyond comprehension and consisted of paper notes written in pencil and what appeared to be a system for paying people in advance."; and

j. Mr Clavel knew he could sometimes be abrupt with staff members and that he apologised if he considered he had upset anyone.

[78]The Tribunal also heard from the Claimant's Witnesses. The Claimant was seeking to adduce evidence of Mr Clavel's unreasonable behaviour from these witnesses to show that her claim for constructive dismissal was made out. In summary the Tribunal was told -a. By Veronica Woodford who worked for Respondent in the kitchen and at front-of-house, that she resigned in August 2023 after an argument with Mr Clavel about not being paid for her 15-minute break.

b. Clare Keyte, the former owner of the Respondent, who confirmed: i. she had an excellent relationship with the Claimant who she had employed in 2015 and on whom she relied upon in all matters such as handling cash, managing staff, holding the keys and who would come to work if she ever needed cover; ii. "She was my eyes and ears; she was excellent at managing the team. She was their manager; I was the boss."; iii. the Claimant's biggest strength was with people and she treated both staff and customers very well.

c. By Diana Powell who had worked a few shifts at the Bakery on the Water and who said Mr Clavel had accused her of lying about the reason for her being absent one day and had an argument with him. She also confirmed that when she had called in sick it was the Claimant she went to as she was the person to talk to about shifts and availability.

d. By Richard Lewis who was head baker and had worked at the Bakery on the Water for about five years, who said he had witnessed Mr Clavel raising his voice many times and he had seen the incident with Ms Powell for which Mr Clavel apologised. Her also confirmed that the Claimant did much of the front-of-house ordering and promoted new products and changed menus, trained new members of staff and had a hands-on role as a manager;

e. By Jon Carpenter who had witnessed a meeting at his restaurant between the Claimant and Mr Clavel which post-dated her resignation. He said he saw Mr Clavel act aggressively towards the Claimant who was visibly upset.

f. By Magdelana Montes a part-time cleaner at the Bakery on the Water who said after Mr Clavel and Ms Franco took over the bakery it had less of a family atmosphere and she left after Mr Clavel tried to change her terms and conditions to a zero hours contract. She confirmed that the Claimant managed her shifts and provided her with a list of duties and was the contact for booking holidays.

g. By David Fisher a delivery driver for the business, who said Mr Clavel had "put upon" him and lost his temper during a confrontation and that as a result he resigned.

[79]The Tribunal read the Claimant's Witnesses statements and carefully listened to their oral evidence. It considered much of the evidence did not assist the Claimant in proving on the balance of probability that Mr Clavel's conduct had fundamentally breached her contract of employment.

[80]However, the Tribunal considered that Ms Keyte, Ms Powell, Mr Lewis and Ms Montes did provide good factual evidence that the Claimant's duties as assistant manager were closely aligned to the Duty List provided by Mr Clavel. Evidence and Findings of Facts – Holiday Pay

[81]The Claimant alleged the Respondent did not pay her for annual leave accrued but not taken on the date her employment ended (31 December 2023).

[82]The evidence she submitted in respect to the amount of leave she had taken during 2023 was unclear. The Tribunal considered this was primarily due to the former owner's use of a paper-based time off in lieu system where the Claimant was given what she described as extra holiday for shifts she had covered beyond her normal working pattern of four days a week.

[83]The following elements in relation to the Claimant's annual leave were agreed:a. The Claimant's holiday year was from 01 January to 31 December;

b. The Claimant was entitled to 22.5 days annual leave each year because she worked for four days a week;

c. The Claimant accepted she had taken 11 days annual leave by the end of July 2023; and

d. That therefore between 01 August and 31 December 2023 she would accrue a further 11.5 days of leave.

[84]The Claimant said up to the time Mr Clavel and Ms Franco took over the business, staff relied on the Holiday Chart which listed when staff were unavailable for work but not necessarily on annual leave.

[85]Mr Clavel introduced a new electronic payroll system soon after purchasing the business which included a system for requesting time off, including annual leave and when a member of staff was unwell.

[86]He said in his witness statement and under cross examination that the Claimant was mistakenly onboarded to the new system with a full annual leave balance giving the impression she would accrue 22.5 days annual leave between 01 August and 31 December 2023.

[87]He said he told the Claimant this and when he undertook a final analysis of the amount of annual leave the Claimant had taken he realised she had been over-compensated.

[88]Under cross examination the Claimant was taken to the Holiday Chart (at page 133 of the hearing bundle) and a screen shot of her annual leave requests from the new payroll system (at page 54 of the hearing bundle). She agreed the following:a. In August 2023 she had taken a total of six days annual leave;

b. In September 2023 she had taken a total of eight days off; of which two days were annual leave;

c. In October 2023 she had taken a total of four days annual leave;

d. In November 2023 she took three days off as annual leave; and

e. This came to a total of 15 days.

[89]The Claimant said notwithstanding her agreement to the figures set out in paragraph 87 (above) she still considered the Respondent owed her for untaken leave prior to 31 December 2023 because she was accruing annual leave through December.

[90]The Tribunal considered the Claimant's admissions and the fact she said in the WhatsApp message tendering her resignation that she would remain on sick leave from 13 December to 31 December 2023.

[91]It makes findings of fact that between 01 January and 31 July 2003 the Claimant took 11 annual leave days and between 01 August and 31 December 2023 she took 15 annual leave days. The total amount of annual leave taken by the Claimant was therefore 26 days. Her annual leave entitlement for the year was 22.5 days. Discussion, Further Findings and Conclusions

[92]In reaching its decision the Tribunal considered all the evidence it was directed to throughout the hearing and where the Tribunal was directed to part of a document it read the whole of such document along with the witness statements. It also listened carefully to the oral evidence of the witnesses and the submissions of both parties. Not every matter is referred to in these reasons which are provided to assist the parties in understanding why the Tribunal came to the decisions it made. Constructive Dismissal

[93]The Claimant claims that the Respondent acted in fundamental breach of her employment contract in respect of the implied term of the contract relating to mutual trust and confidence. She claims the fundamental breaches were:a. On or around 01 December 2023 the Respondent unilaterally changed the Claimant's terms and conditions of employment (the "Contract Changes Issue"); and

[94]In determining both of these issues the Tribunal took account of the Malik Test and reminded itself that in order for there to be a fundamental breach of the implied term of trust and confidence in an employment contract it has to decide on the balance of probability whether an employer, without reasonable and proper cause, behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the employee the employer.

[95]The Tribunal in coming to its conclusions also reminded itself that the Malik Test is an objective test, meaning that due to the conduct of the employer the employee was reasonably entitled to conclude the employer had breached the implied term of trust and confidence.

[96]In relation to the Contract Changes Issue, the Tribunal makes a finding of fact that the Respondent did not unilaterally change the terms and conditions of the Claimant's employment.

[97]Whilst the Tribunal accepts the Claimant felt vulnerable at the time of these matters and was under considerable personal stress, her assertions in respect of the Contract Changes Issue was not supported by the evidence because:a. She requested the 01 December 2023 meeting with Mr Clavel to discuss her role following her bereavement;

b. The Duty List was an example of the responsibilities an assistant manager in a catering establishment would undertake. It was an industry standard and Mr Clavel made this clear to the Claimant in their meeting;

c. Albeit that the Duty List was drafted in "management-speak" terms, when the Claimant was taken through the elements individually and in language directly applicable to her work at the bakery, she accepted that she did in fact do most of elements;

d. This was corroborated by some of the Claimant's Witnesses who had direct knowledge of her duties in the bakery.

[98]The Tribunal considered it was significant that in the Duties Message the Respondent made it very clear to the Claimant he did not want to lose her.

[99]The quote below from the Duties Message shows that the Respondent was prepared to find the Claimant any role in the bakery and as such the Tribunal finds that the evidence does not show that the Claimant could objectively conclude the Respondent's behaviour met the requirements of the Malik Test, "I continue to feel that you are best placed to maintain this role through the time you've been with the bakery and the relationship you have with both staff and customers." "With that said, and following the tough past few months you've had, if you do not feel you can fulfill this role, I will support you fully in any other that you feel is better suited – Team Leader, Admin Assistant, Counter Staff, whatever you feel you can do best, we'll find the right fit for you, and whatever we find, remember it doesn't have to be forever!

[100]In relation to the Undue Pressure Issue, the Tribunal finds the Claimant's evidence and particularly the WhatsApp Messages do not objectively show that Mr Clavel's conduct was such that it was calculated or likely to destroy or seriously damage the trust and confidence between them.

[101]While some of Mr Clavel's messages could be construed as being a little insensitive in his description of the staffing issues at the bakery during the Claimant's absence, this was not evidence she was entitled to treat the WhatsApp messages as a fundamental breach of the implied term of trust and confidence.

[102]The Tribunal finds that the WhatApp messages did not imply the Claimant was about to lose her job. The Tribunal finds they were messages to an assistant manager (with a wide range of responsibilities) seeking clarity as to how much time she needed off in the wake of her bereavement.

[103]Mr Clavel did not pressure the Claimant to come into work, he was trying to determine whether he needed to cover the Claimant's absence and for how long. This was not unreasonable behaviour in the circumstances of an owner of a small business and it was telling that the Claimant did not raise this as an issue when she met with Mr Clavel on 01 December 2023.

[104]It was also clear from the WhatsApp message on 15 November (07.45) that Mr Clavel sought to reassure the Claimant that all was well at the bakery and she could have a further week off or come into work.

[105]The Tribunal concluded that the Respondent's conduct did not fundamentally breach the implied term of trust and confidence in respect of either the Contract Changes Issue or the Undue Pressure Issue.

[106]Therefore the Claimant did not have a reasonable and proper cause which entitled her to treat the employment contract as being at an end.

[107]The Claimant did not resign because of any breach of contract by the Respondent. She resigned of her own volition as evidenced by her WhatApp message of 04 December 2003.

[108]She was not constructively dismissed by the Respondent pursuant to s95(1)(c) of the ERA 1996.

[109]Given these findings the Tribunal did not need to consider whether the Claimant affirmed her employment contract or whether in the event there was constructive dismissal it was fair.

[110]The Claimant's claim for unfair constructive dismissal pursuant to s95(1)(c) ERA 1996 fails and is dismissed. Holiday Pay – Unauthorised Deduction from Wages

[111]As set out in paragraph 90 (above) the Tribunal found that the total amount of annual leave taken in the holiday year 2023 by the Claimant was 26 days. Her annual leave entitlement for the year was 22.5 days.

[112]Consequently she had no accrued but untaken holiday leave entitlement on the date her employment contract ended on 31 December 2023.

[113]The Claimant's complaint that the Respondent made unauthorised deductions from her wages pursuant to s13(3) of the ERA 1996 fails and is dismissed.