Employment Judge LancasterIn person for claimantDate 18 July 2025
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.
REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore the claimant is not entitled to bring such a complaint.[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment. Approved by Employment Judge Lancaster Date: 10 June 2025 Case No: 6017469/2025 10.7 Judgment with reasons – rule 62 March 2017 EMPLOYMENT TRIBUNALS Claimant: S Shafqat Respondent: Homecare Perfection Limited Heard at: Leeds (by video) On: 14 July 2025 Before: Employment Judge T Knowles Representation Claimant: In person with Ms S Chapman, McKenzie Friend Respondent: Ms A Wright, Tribunal Advocate
Issues
[1]The issues for me to determine are:a. Did the Claimant resign in circumstances in which she was entitled to resign and treat herself as dismissed (constructive wrongful dismissal)?b. Is she therefore entitled to a payment of 4 weeks notice?c. Was the deduction from her termination pay in the sum of £300 authorised by a term contained in her contract of employment?
Evidence
[2]This case was heard by video with an estimated length of hearing of 2 hours. Owing to it being a contested constructive wrongful dismissal claim, we were only Case No: 6017469/2025 10.7 Judgment with reasons – rule 62 March 2017 able to hear the evidence and submissions and I needed to reserve my Judgment with Reasons.[3]The Claimant produced a bundle of documents, 90 pages.[4]The Respondent produced a bundle of documents, 102 pages.[5]I heard evidence from the Claimant who affirmed she would tell the truth. The Claimant produced a written witness statement.[6]I heard evidence from Ms Holmes, who is the Respondent’s Registered Manager, who gave evidence under oath. Ms Holmes produced a written witness statement.
Findings of fact
[7]I made the following findings of fact on the balance of probabilities.[8]These findings are not intended to set out all of the evidence which I considered and heard. It is a summary of my main findings that are relevant to the issues only.[9]The Claimant’s case presented today is that she resigned for numerous[10]Those are firstly because of bullying and harassment from another employee.[11]Secondly because of being overworked which was affecting her health.[12]Thirdly because of she was pressured into working with children despite only being trained to deal with adults.[13]Fourthly because client data and photos were shared without consent.[14]Lastly because she was recorded without her permission by an ex-employee which led to unfair accusations.[15]In my finding, these claims run contrary to the contemporary evidence which has been recorded during her employment.[16]The only point which the Claimant referred to in her resignation email on 19 March 2025 was the last point concerning being recorded without her permission.[17]This is in accordance with her claim form submitted to the tribunal on 12 May 2025, which refers to an unlawful recording being made of a phone call which was sent to her manager.[18]I doubt the recording of the call without her permission was unlawful but the sending of a copy of that phone call to her manager may well be.[19]It is important to note that the recording was not undertaken by the Respondent or one of their employees, it was an ex-employee who the Claimant had confided in about leaving the Respondent’s employment. Case No: 6017469/2025 10.7 Judgment with reasons – rule 62 March 2017[20]The Claimant has not explained in evidence how the allegations which arose from the details shared by an ex-employee with Ms Holmes were unfair.[21]It is an issue she has not addressed.[22]It is however noteworthy that the Claimant resigns from her employment, with immediate effect, straight after being invited by a letter sent by email inviting her to an investigatory meeting to discuss alleged breaches of confidentiality.[23]The Claimant had shared the issue of bullying and harassment from another colleague but the evidence suggests that these were circumstances which the Claimant had already raised with her manager who had considered what was sent to her.[24]It does not appear that either party followed up the sharing of that information.[25]It is difficult to see from the evidence presented by the Claimant how this is related in any way the Claimant’s decision to resign in circumstances where she never followed it up and did not mention it when she resigned.[26]The Claimant’s concerns over being overworked run contrary to the evidence presented about her working arrangements.[27]The evidence suggests that her working hours were no more than average around the time of resignation.[28]When the Claimant was asked to reflect on that in questioning she replied that it was the “universal credit” that required her to work more hours, and the Respondent had not given her enough hours.[29]It is very difficult to square the Claimant’s evidence about being overworked with the evidence that she worked only her average work profile, and the work provided was insufficient for universal credit purposes on her evidence.[30]Again this was not mentioned when she resigned, or in her original claim to the Tribunal.[31]The evidence appears to suggest that when working one shift the Claimant found that an adult they were responsible had a child with them and they intervened and attended to the child’s need at that time.[32]I heard no evidence from the Claimant to support her contention that she had been pressured into working with children, the only evidence was that they needed to do so because of particular circumstances she was presented with at a particular time.[33]I was not presented with evidence that photographs of clients or the Claimant were shared without consent. Indeed the evidence presented by the Claimant in support of this contention confirmed that the Respondent would not share such photographs without consent.[34]Again these issues were not mentioned in her resignation letter or in her original claim to the Tribunal. Case No: 6017469/2025 10.7 Judgment with reasons – rule 62 March 2017[35]I noted that the Claimant had raised no concerns about any of these matters during her documented monthly wellbeing meetings with her manager from January and February 2025. Indeed, she appears to have presented completely the opposite to what she states now.[36]The Claimant had also had a supervision meeting on 11 February 2025; no concerns were noted.[37]The Claimant’s staff survey form, completed only a week before her resignation, also appears to present the opposite picture to the one presented to me today in relation to the circumstances at work which caused her to resign.[38]In all there were 4 opportunities to raise concerns immediately before resignation but none of them were taken.[39]I find it unlikely that any of those matters played any part in the Claimant’s decision to resign.[40]The Respondent had grounds to investigate breaches of confidentiality from information provided by an ex-employee and reasonable and proper cause for doing so.[41]If the Claimant had issues with the allegations, she was being afforded the opportunity to put her side of the story but chose to resign instead.[42]I cannot find any evidence that the Respondent behaved in a way calculated or likely to destroy or seriously damage the relationship of trust and confidence between the claimant and the respondent.[43]There appears no connection between the last act (invitation to a disciplinary) and the others.[44]Even looked at cumulatively, I see no evidence of any repudiatory breach.[45]In essence, the Claimant has not discharged the evidential burden upon her to establish the acts which she asserts were done by the Respondent which form the basis of her claim of constructive wrongful dismissal.[46]The Claimant had been presented with a contract around the time she began working for the respondent which permitted deductions for costs pertaining to an employees failure to work their notice.[47]The contract also made provision for the Respondent to provide an explanation of the deduction before the deduction was made.[48]The Respondent deducted £300 from the Claimant’s wages as it predicted it would need to pay overtime to another employee to cover the 50 hours of shifts that the Claimant was scheduled to work but failed to when she left without notice.[49]The Respondent did not explain the deduction very well before it made the deduction.[50]However, the deduction was authorised by a term in her contract. Case No: 6017469/2025 10.7 Judgment with reasons – rule 62 March 2017[51]The Respondent may have been in breach of a term relating to explanation but that does not mean that the deduction was not authorised.[52]The Claimant has not challenged that the costs were incurred.
Law
[53]The principles of constructive dismissal have developed over many years and consequently there are many authorities that guide employment tribunals in determining these claims. Harvey on Industrial Relations and Employment Law puts the position as follows. ‘In order for the employee to be able to claim constructive dismissal, four conditions must be met:(i) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.(ii) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.(iii) He must leave in response to the breach and not for some other, unconnected reason.(iv) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.[54]In Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1, the Court of Appeal Underhill LJ made helpful observations concerning the ‘last straw’ and different applications that might be encountered depending upon the circumstances of the case. The questions for a last straw case were effectively put as follows:a. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?b. Has he or she affirmed the contract since that act?c. If not, was that act (or omission) by itself a repudiatory breach of contract?d. If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the duty of trust and confidence?e. Did the employee resign in response (or partly in response) to that breach?[55]Section 13 of the Employment Rights Act 1996 contains the right not to suffer unauthorised deductions from wages and provides as follows.(1) An employer shall not make a deduction from wages of a worker employed by him unless— Case No: 6017469/2025 10.7 Judgment with reasons – rule 62 March 2017 (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.(3) Where 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 the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion. Conclusions What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?
Conclusions
[56]The invitation to a investigatory interview is the last alleged act. Has he or she affirmed the contract since that act?[57]No, the Claimant resigned immediately thereafter. If not, was that act (or omission) by itself a repudiatory breach of contract?[58]No, the invitation to the investigation meeting was entirely within the terms of the Claimant’s contract. The breach of data protection relied upon by the Claimant was a breach by a third-party, if there was any breach at all. If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the duty of trust and confidence?[59]No, as I have set out in my findings of fact, the Claimant has not in this case discharged the evidential burden which is upon her to establish that any of these acts were without reasonable and proper cause on the part of the Respondent, or that cumulatively they amounted to a repudiatory breach. Did the employee resign in response (or partly in response) to that breach?[60]In my conclusion there was no breach. Even had I been wrong in that conclusion, my conclusion would be that the Claimant resigned not in response to Case No: 6017469/2025 10.7 Judgment with reasons – rule 62 March 2017 a breach of contract but instead to avoid attending an investigation meeting.[61]The Claimant’s claim of constructive wrongful dismissal is not well founded and fails. Unauthorised deductions from wages Was the deduction from her termination pay in the sum of £300 authorised by a term contained in her contract of employment[62]I answer this question in the affirmative as set out in my findings of fact.[63]The provisions of Section 13(2)(a) are met. The deduction was not unlawful.[64]The Claimant’s claim of unauthorised deduction from wages is not well founded and fails.