Mrs S Frost v Mr J Head and Mrs B Smith (in partnership) T/a Jago’s Hair Design: 6004294/2025
EMPLOYMENT TRIBUNALS
Case No 6004294/2025
Between
Mrs S FrostClaimantMr J Head and Mrs B Smith (in partnership) T/a Jago’s Hair DesignRespondent
Before
Employment Judge N J RoperIn person for claimantIn person for respondentDate 2 July 2026
JUDGMENT
The judgment of the tribunal is that:(i) the correct name of the respondent is Mr J Head and Mrs B Smith in partnership trading as Jago’s Hair Design, and the record is amended accordingly; and(ii) the claimant’s claim for constructive unfair dismissal is not well- founded and it is hereby dismissed.
REASONS
[1]In this case the claimant Mrs Sharon Frost claims that she has been unfairly constructively dismissed. The respondent contends that the claimant resigned, that there was no dismissal, and in any event that its actions were fair and reasonable.[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 165 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 respondent I have heard from Mr Jonathan Head and Mrs Beryl Smith. I was also asked to consider statements from Kiera Samuel, Emily Lidbetter, Katrina Hunt and Karen Keegan on behalf of the respondent, but I can only attach limited weight to this because they were not here to be questioned on this evidence[4]There was a degree of conflict on the evidence. I have heard the witnesses give their 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 respondent is a partnership of Mr Jonathan Head and Mrs Beryl Smith who trade as Jago’s Hair Design in Lancing near Brighton. The claimant Mrs Sharon Frost was employed by the respondent as a senior hairstylist. She was initially employed between 2004 and 2010 following the completion of her apprenticeship. She was subsequently re-employed between December 2018 until her resignation which took effect from 26 September 2024.[7]The claimant developed allergic contact dermatitis as a result of an allergic reaction to certain chemicals which are present in hair styling products, particularly colour products. The two chemicals in question in this case are paraphenylenediamine (PPD) and paratoluenediamine (PTD).[8]The respondent was aware as long ago as 2006 that the claimant had an allergy to PPD. The respondent did not know that the claimant was also allergic to PTD until she verbally notified the respondent in around October 2022.[9]Between December 2018 and approximately January 2022, the colour products used by the respondent in the salon were manufactured by Wella. These products did not contain PPD or PTD. With effect from January 2022 the respondent made a business decision to change their hair colour product largely because the Wella products were perceived to be too expensive and the respondent had financial concerns. The respondent reviewed a number of competing products and in January 2022 decided to use a competing brand, namely Alfaparf. This product is PPD free and it was chosen specifically so as not to cause the claimant any difficulty with regard to her known allergy.[10]Unfortunately, it became clear between January and September 2022 that the claimant was experiencing allergic reactions to the new product. The respondent provided barrier creams and vinyl gloves to minimise the claimant’s exposure to the product which she suggested was causing the symptoms. In September 2022 Mr Head of the respondent attended a colour training course and raised the matter of the claimant’s allergic reaction with the training provider. The provider recommended that the respondent should trial an alternative Alfaparf colour which was also PPD free. The claimant agreed to a skin test so that this product could be assessed, but unfortunately the product still caused an allergic reaction. Shortly thereafter Mr Head discussed the claimant’s situation with the training provider again and it was suggested that the claimant might also be allergic to PTD. On returning to the salon Mr Head checked the product and confirmed that it did contain PTD. He contacted the manufacturer who confirmed that the product was PPD free but did contain PTD which is a product from the same chemical family.[11]In February 2023 Mr Head and Mrs Smith met with the claimant to discuss her dermatitis and her allergies in order to discuss how best to support her. The respondent’s evidence is that the claimant was reluctant to discuss the matter in detail and reassured them that she was fine.[12]On 17 May 2023 the claimant was unwell and reported to the respondent that she had been sneezing and suffered from congestion and chest pain. She was advised to attend the A&E department at hospital. Following her return the respondent implemented further measures to seek to reduce airborne exposure to the Alfaparf colour product. Where possible windows were kept open to increase ventilation, and further steps were taken to limit the claimant’s contact with the product. This included ensuring colleagues workstations were kept tidy so that the product was not left out and that the product was stored in a specific location to avoid accidental contact. The claimant was encouraged to continue using barrier creams and the vinyl gloves provided. The respondent was also able to provide facemasks if the claimant wished to use these to alleviate any chest symptoms. The claimant did not report any concerns about any of the protective equipment provided.[13]There was a further meeting in on 6 March 2024 when the claimant confirmed that she had occasional flareups of her occupational allergic dermatitis but again stated that she was fine. She seemed reluctant to discuss her dermatitis or her allergies, and the respondent did not pursue the matter further. During this period the respondent accommodated any request by the claimant to attend medical or hospital appointments.[14]The respondent also carried out regular risk assessments, although these were not discussed with the claimant. During this time the respondent considered and put in place the above precautionary measures.[15]On 26 September 2024 the respondent received a letter of resignation from the claimant which was sent by email on 25 September 2024. This letter records: “I am writing to inform you that I’m resigning from my position as Hairstylist at Jago’s due to the impact being in the salon is having on my health and well-being. As you are aware I have been experiencing reactions including allergic contact dermatitis, breathlessness, lightheadedness, rapid heart rate, sneezing, runny nose, swollen eye and swollen lips. The skin tests that we have done in the salon before changing the colour showed that I had a quick allergic reaction to the Alfaparf colour. As you are aware I’ve been having his difficulties with my allergy to PPD and PTD since the salon changed from Wella koleston perfect colour to Alfaparf Milano evolution colour. After discussing this with yourselves a number of times since 2022, nothing has changed and I’m still working on being affected by this situation. I feel that I have no other option but to resign as continuing to work using this chemical will continue to have an effect on my health. I am resigning and terminating my employment with immediate effect from today’s date. Can it be arranged for my P 45 to be sent to my home address.”[16]At that stage the respondent had also provided a reference for the claimant in connection with a job application for employment at a local nursery. The claimant was concerned about the financial circumstances that would arise following her resignation. There is no evidence to suggest that the claimant resigned her employment because of an offer of alternative employment, rather than because she was unable to work on in the salon because of her allergies.[17]The respondent was genuinely surprised and upset at the claimant’s resignation. She was a valued employee, and the parties had known each other for many years and were friends. The respondent was under the impression that it had assisted the claimant in doing all that it could to reduce the threat of symptoms, and that the claimant had given no indication that she would be unable to continue working. On the contrary, the claimant had been reluctant to discuss her allergies and indicated that she was fine to continue working. At no stage did the claimant raise any grievance, formally or informally, as she was entitled to do under the terms of a contract of employment.[18]Having established the above facts, I now apply the law.[19]The Law:[20]Under section 95(1)(c) of the Employment Rights Act 1996 (“the Act”), an employee is dismissed if he 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.[21]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”.[22]I have 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 Hospitals NHS Trust [2018] EWCA Civ 978; Omilaju v Waltham Forest London Borough Council [2005] IRLR 35 CA; Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666 CA; Tullett Prebon PLC and Ors v BGC Brokers LP and Ors [2011] EWCA Civ 131; Nottingham County Council v Meikle [2005] ICR 1 CA; Abbey Cars (West Horndon) Ltd v Ford EAT 0472/07; and Wright v North Ayrshire Council [2014] IRLR 4 EAT; Wilsons and Clyde Coal Co v English [1938] AC 57; and Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110.[23]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”).[24]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.”[25]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.”[26]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.[27]In Kaur v Leeds Teaching Hospitals NHS Trust the Court of Appeal listed five questions for the Tribunal to ask in order to determine whether an employee was constructively dismissed:(i) what was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, their resignation?(ii) Has the employee affirmed the contract since that act?(iii) If not, was that act (or omission) by itself a repudiatory breach of contract?(iv) If not, was it nevertheless a part (applying the approach explained in Omilaju v Waltham Forest London Borough Council [2005] IRLR 35 CA) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of a possible previous affirmation, because the effect of the final act is to revive the right to resign.)(v) Did the employee resign in response (or partly in response) to that breach?[28]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”.[29]There is an implied term in the contract of employment that an employer shall take reasonable care to ensure that plant, tools, equipment, premises and the system of work used are safe: see Wilsons and Clyde Coal Co v English, and not to subject the employee to unnecessary risk, see Wilson v Tyneside Window Cleaning Co.[30]Decision.[31]In this case the burden of proof is on the claimant to satisfy the tribunal that there has been a fundamental breach of contract which has given rise to her resignation such that her resignation can be construed to have been her dismissal. There are two implied terms in the contract of employment relied upon by the claimant to this end. The first is that an employer must take reasonable care to ensure the health and safety of its employees at work. The second is that of trust and confidence, which put more accurately is that an employer must not act in such a way which, without reasonable or proper cause, is calculated or likely to destroy or seriously damage the trust and confidence between the parties.[32]The claimant has argued that the respondent was in fundamental breach of contract as long ago as 2022 when it changed its products in the salon from Wella to Alfaparf. If that were the case, then the contract of employment would have been affirmed by the claimant despite the alleged breach by her continuing to work on for another two years or so. The claim would have failed for that reason. In any event I find that there was no breach of contract at that time. The respondent decided for sound business reasons that it had to change the hair products in its salon. It knew that the claimant had an allergy against PPD, and after considering a range of options decided to use the Alfaparf colour products which were free of PPD and on the face of it safe for the claimant to use.[33]It became gradually clear that despite this the claimant remained allergic to the hair product and the respondent made investigations to seek to resolve the matter. It became clear that the claimant was also allergic to PTD, and that the new products contained this chemical to which the claimant was allergic. The respondent then put into place preventative measures and provided PPE in order to seek to limit the claimant’s exposure to PTD. There were informal discussions between the parties, and informal risk assessments, but the claimant seemed reluctant to discuss her allergies, and she reassured the respondent that she was fine to continue.[34]It is not the case that the claimant raised any complaint, or grievance, either informally or formally, as she continued to make the best of it and continued working. There was certainly no request by the claimant for the respondent to abandon all Alfaparf products and restock the salon with some other products failing which she would have no option other than to leave. In any event it is certainly not clear that to do so would have been financially viable for the respondent.[35]This seems to me to be rather a sad case in which the parties had known each other for many years and were friends. The claimant clearly had a very nasty allergy to some of the chemicals used in hair products which were always likely to cause difficulty in her chosen employment as a senior hairstylist. The respondent had made decisions to avoid the claimant’s first known allergy, and it had then put in place steps to minimise further risk when the second allergy became clear. They were generally shocked and upset when the claimant decided to leave. It is not obvious on the face of the above facts what more the respondents could have done, or could have been expected to have done.[36]In the light of the above I am unable to find that the respondent acted in fundamental breach of contract. The claimant has failed to establish that the respondent failed to take reasonable steps to protect her health and safety. Similarly, the claimant has failed to establish that the respondent has acted in a way which, without reasonable proper cause, was calculated or likely to destroy or seriously damage the trust and confidence between them.[37]I find that there has been no fundamental breach of the employment contract on the part of the respondent. Her resignation cannot therefore be construed to have been her dismissal, and it remains as her resignation. The claimant was not dismissed. In these circumstances her claim for unfair dismissal is not well founded, and that claim is therefore dismissed.[38]These reasons are given pursuant to Rule 60 of the Employment Tribunal’s Rules of Procedure 2024 following a request for the same by the parties. For the purposes of Rule 60(7),(a) the issues which the tribunal determined are at paragraph 1;(b) the findings of fact made in relation to those issues are at paragraphs 6 to 17;(c) a concise identification of the relevant law is at paragraphs 20 to 29; how that law has been applied to those findings in order to decide the issues is at paragraphs 31 to 37.