BETWEEN MISS ASHLEY MENARD CLAIMANT AND FABRIAH HAIR AND BEAUTY LIMITED TRIBUNAL JUDGMENT

Transcription

1 IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL IN THE MATTER: BETWEEN MISS ASHLEY MENARD CLAIMANT AND FABRIAH HAIR AND BEAUTY LIMITED RESPONDENT TRIBUNAL JUDGMENT Reference: [2017] TRE167 Hearing Date: 8 March 2018 Before: Appearance: For the Claimant: For the Respondent: Mrs H G Griffin, Chairman In person Mr A Marolia, Director Mr T Marolia, Director THE DECISION Introduction 1. The Respondent owns a chain of beauty salons in Jersey. Mr A Marolia ( AM ) and his son, Mr T Marolia ( TM ), are directors of the Respondent. Together with AM s wife, they own and manage the Respondent. 2. The Claimant was employed as a beauty therapist at the Respondent s salon in De Gruchy s Department Store ( De Gruchy s ) in St. Helier between 30 August 2016 and 23 September 2017 when she resigned (having given and worked her notice). 1

2 Background 3. By a Claim Form presented on 4 October 2017, the Claimant brought a number of complaints as set out below. The Claimant s case as formulated in her Claim Form 4. The Claimant claimed that: a) she was constructively dismissed by the Respondent due to AM s conduct which was in breach of the implied duty of mutual trust and confidence. The Claimant claimed that her constructive dismissal was unfair; b) the Respondent made an unauthorised deduction from her wages; and c) the Respondent failed to pay to her all of her accrued but untaken holiday entitlement (together the Claims ). 5. The Respondent denied the Claims. Case Management to date 6. The matter came before me on 22 January 2018 for a Case Management Meeting ( CMM ). At the CMM, the Claimant represented herself and the Respondent was represented by AM and TM. During the CMM, a list of issues was agreed and the matter was listed for a one day hearing. Constructive dismissal 7. The Respondent accepted that the Claimant was an employee and had sufficient continuous employment to claim protection from unfair dismissal. 8. The Claimant relied on the following allegations in support of her claim of constructive dismissal: a) that AM had behaved inappropriately and in a manner which made her feel uncomfortable and invaded; and b) that, on a regular basis, the Respondent paid the Claimant the incorrect wages. 2

3 9. The Respondent denied the Claimant s allegations and denied that the Claimant was dismissed. The Respondent submitted that: a) the incidents upon which the Claimant based her constructive unfair dismissal claim never occurred and that, rather than resigning due to these alleged incidents, the Claimant resigned because she was on a final written warning; b) the Respondent was contractually entitled to deduct the sums in question from the Claimant s final wage; and c) the Claimant had received payment for all outstanding holiday entitlement. Unauthorised deduction from wages 10. The Claimant claimed that, in breach of contract, the Respondent had deducted from her final wages. The Claimant submitted that the Respondent was not contractually entitled to make such deduction. 11. The Respondent admitted that it made deductions as submitted by the Claimant, but the Respondent submitted that the Claimant s contract of employment allowed the Respondent to deduct the cost of training from the Claimant s wages in circumstances where the Claimant left the Respondent within 12 months of the date of completion of the training course. The Respondent submitted that the deductions reflected the total cost of two training courses: a) Bio Gel training which amounted to 410; and b) Crystal Clear Microdermabrasion training which amounted to Unpaid holiday pay 12. The Claimant claimed that the Respondent had underpaid her for accrued but untaken holiday entitlement. She submitted that the Respondent had owed the Claimant 1,584 but had only paid her 1,490. The Claimant therefore claimed 94 for unpaid holiday pay. 13. The Respondent denied that it had underpaid the Claimant s holiday pay. It submitted that the Claimant had 5.5 days holiday outstanding on the termination of her employment and that she had received payment for this upon termination of her employment. 3

4 Application for hearing to be held in private 14. In advance of the CMM, the Respondent made a written application to the Tribunal that the hearing of this matter be heard in private. The Claimant objected in writing to this application. At the CMM, both parties made oral submissions. 15. The Respondent s grounds for this application were that: a) AM believed that the allegations contained in the Claim Form were taken from previous allegations which were formerly contained in a blog ( Blog ); b) despite the author of the Blog being subjected to an injunction prohibiting publication of such previous allegations, AM was concerned that these proceedings might encourage the blogger and his supporters to publish further comments about AM in breach of the former injunction; and c) AM was concerned about the potential impact that such further comments might have on him personally, having allegedly received previously death threats as a result of the Blog. 16. AM did not make any submissions with regard to the impact any evidence might have on the Respondent itself. 17. The Claimant denied having read the Blog and submitted that the allegations contained in the Claim Form were true and reflected her own experiences. The Claimant did not consider it appropriate for this matter to be held in private. 18. I carefully considered both parties submissions and referred to the provisions of Article 90 of the Employment (Jersey) Law 2003 ( Employment Law ). Article 90(1) of the Employment Law provides that, save for specific circumstances as set out in Article 90(2), the Tribunal shall sit in public. Article 90(2) of the Employment Law specifies three separate instances where the Tribunal may sit in private, being where the evidence is likely to consist of: a) information which the person could not disclose without contravening a prohibition imposed by or under any enactment; 4

5 b) information which has been communicated to the person in confidence or which the person has otherwise obtained in consequence of the confidence reposed in him or her by another person; or c) information, the disclosure of which would cause substantial injury to any undertaking of the person, or any undertaking in which the person works, for reasons other than its effect on negotiations with respect to the terms of employment, or the conditions of labour, of the persons in the employment of the undertaking in question. 19. Having considered the provisions of Article 90(2) of the Employment Law and the grounds provided by the Respondent at the CMM (namely that any injury would be to him in his personal capacity rather than to the Respondent s business) I concluded that the grounds for the Respondent s application did not fall within the provisions of Article 90(2). I therefore rejected the Respondent s application. 20. Having rejected the Respondent s application, I then notified the parties that the provisions of Article 90(3) may apply in this case. Article 90(3) of the Employment Law gives the Tribunal the discretion to make a restricted reporting order in cases which involve allegations of sexual misconduct. The parties were notified that should they wish the Tribunal to make such an order, they should make an application at the start of the hearing. This invitation was also included in the Case Management Orders which were sent to the parties. Neither party made a restricted reporting application at any stage of the Hearing. Representation 21. Neither party was legally represented at the Hearing. The Claimant represented herself and the Respondent was represented by its Directors, AM and TM. Documents and evidence Witness evidence 22. In advance of the Hearing, the Tribunal received witness statements on behalf of the Claimant from: a) the Claimant herself; and b) XY, another former employee of the Respondent. 5

6 23. Both the Claimant and XY gave evidence under oath. 24. On behalf of the Respondent, the Tribunal also received a witness statement and heard evidence under oath from AM. 25. In addition, both parties submitted written statements from existing and former employees. I had some concerns about the statements provided by the Respondent, having been shown a copy of a text message from one of the Respondent s employees to the Claimant in which she apologised to the Claimant for not being honest in her statement and explained that her statement had been written by AM and that she had no choice but to sign it. The employee stated that this was also the case with two other employees who provided statements for the Respondent. Hearing File 26. The Respondent provided the Tribunal with an agreed file of documents to which each party referred during the course of the Hearing. Submissions 27. Neither party provided written representations. However, both parties made their arguments orally by way of brief submissions. The Evidence Allegations of sexual harassment 28. The Claimant alleged that AM regularly acted inappropriately towards both her and other members of staff. She described an environment where it was commonplace for AM to make inappropriate jokes and to hug, squeeze and touch some members of the Respondent s staff unnecessarily. 29. The Claimant gave evidence that during the course of her employment, she regularly suffered what she described as "low-level physical harassment by AM. The Claimant stated that she was not alone in receiving this treatment and that she was aware that other female employees experienced similar harassment by AM. 6

7 30. According to the Claimant, the "low-level harassment included AM: a) hugging the Claimant from behind so that AM was "body to body" and placing his hands on the Claimant's stomach; b) making continual sexual jokes; c) behaving inappropriately at the front desk in front of clients which was embarrassing to the Claimant; d) pinching the Claimant on the buttocks as she carried towels to the laundry; and e) taking a picture of the Claimant s cleavage at the staff Christmas meal. 31. The Claimant gave evidence that, although she tolerated AM s low-level harassment, it was an incident which she said took place in her treatment room in June 2017 which was the final straw and which led directly to her resignation some weeks later ( Straddling Incident ). 32. The Claimant gave evidence that, as she was eating a biscuit while sitting by her window in her treatment room during her break, AM entered her treatment room, commented that she had been "sneaking in cookies", placed his legs either side of her legs so that he was straddling her, placed his hand on her chest, leaned over and took a bite from her biscuit. 33. The Claimant gave evidence that she felt intimidated and shocked at the invasion of her personal space. She explained that when AM had behaved inappropriately on previous occasions, she had been standing up which had enabled her to move away from him. On this occasion, however, she was sitting down and could not avoid AM. 34. AM flatly denied any inappropriate conduct towards the Claimant. He did, however, acknowledge that the Claimant used to sit by the window in her treatment room eating biscuits during her break. AM said that because he employed lots of women, it was essential that he provided plenty of biscuits. 35. The Claimant gave evidence that, as a result of the Straddling Incident, she took the decision that she had to leave the Respondent and she immediately started looking for new employment. In the interim period (between making her decision to leave and the termination date itself) the Claimant kept to [herself] and spent most of her time in her treatment room, only emerging to take payment from clients. She said that she avoided AM at all costs and, if she had to be with him, she ensured 7

8 that there were other people in the room with her. She also stopped engaging in his banter. The Claimant, who described herself as a friendly, bubbly person, no longer laughed at AM s jokes and deliberately maintained a distance between herself and AM. 36. The Claimant s evidence was that AM was not happy with her change in demeanour and that he started to engage in bullying behaviour, such as questioning her about forthcoming pre-arranged holidays and putting pressure on her to change her contractual payment terms. Failure to report harassment 37. AM denied all of the Claimant s allegations and submitted that the Claimant had simply brought the Claim in order to extract money from him. He described the atmosphere in the salon as being a relaxed family atmosphere designed to ensure that clients had a nice experience. He said that some staff members remained with him for many years and that the Respondent was a trusted trainer of Highlands College, Back to Work and the States Education Department. He submitted that if the Claimant s allegations (and those of the Claimant s five witnesses) were true, someone would have reported him to the various mentors and tutors who attended the salon. He acknowledged that there was banter in the workplace, but denied that his jokes were sexist, offensive or inappropriate. He commented that if he had made inappropriate jokes in front of clients, they would simply have stopped visiting the salon. 38. The Respondent submitted that the Claimant s failure to report what TM described during crossexamination as a sexual assault showed that the allegations were untrue. TM questioned why, if such harassment had occurred, the Claimant did not report it, either to the police or in the form of a grievance. 39. The Claimant said that she regretted not reporting AM s behaviour. She commented that, being one of the older beauticians, she should have been stronger and reported his actions. However, she explained that she did not go to the police because she thought she would "look stupid". She said that, whilst AM s behaviour was not acceptable, it was not violent and, as AM also behaved like this to other female members of staff, she had not been singled out. She said that she had wanted to "play it down". 8

9 40. The Claimant also gave evidence that it was difficult to raise a grievance internally about AM s behaviour internally because to do so would involve speaking about it with either AM's wife or with his son. 41. During his evidence, AM made the following assertions: a) if the Claimant had felt unable to raise a grievance internally, she could have done so with the HR Department at De Gruchy s. AM gave evidence that De Gruchy s provided HR support to all of the businesses within its store; b) that a copy of the Grievance Procedure was on the wall outside the locker room and that a copy of the Staff Handbook was kept in the salon; c) that the Claimant must have known that she could complain to the De Gruchy s HR Department because she had received a warning from the De Gruchy HR Department in December 2016 due to the misuse of a Staff Discount Card; d) that the Claimant was issued with a final written warning by letter dated 6 July 2017; and e) that the Claimant resigned because she was on a final written warning and not because of any incidents of harassment. 42. The Claimant denied ever having seen the Handbook prior to these proceedings and stated that she was not aware of a copy of the Grievance Procedure being posted outside the locker room. Similarly, XY stated in her evidence that she was not aware of the Handbook or of the Grievance Policy. Furthermore, the Claimant denied knowing that the HR Department at De Gruchy s was available to her; she pointed out that De Gruchy s was not her employer and she said that it did not even occur to her to approach De Gruchy s to address her own employer s behaviour. 43. The Claimant also denied having received any warnings during the course of her employment. She described the issue with the Staff Discount Card as an embarrassing error over the use of the card but gave evidence that her apology to De Gruchy s was accepted during a conversation on 31 December 2016 with the head of the HR Department. 44. The Claimant gave evidence that AM had verbally extended her probationary period after the error with the Discount Card and that her use of the Discount Card was stopped by De Gruchy s. However she received no formal warning either from AM or from De Gruchy s and she considered the matter to be closed. For his part, AM acknowledged in his evidence that, while De Gruchy s had investigated the Claimant s mis-use of the Discount Card, he told the Claimant that if De Gruchy s 9

10 required AM to remove the Claimant from the salon, he would simply move her to one of his other salons because she was a very good therapist. In the event, De Gruchy s did not take the matter any further. 45. The Claimant also denied having ever received the final written warning dated 6 July 2017 and stated that she was not aware of its existence until it was disclosed to her during these proceedings. AM gave evidence that the Claimant did receive this letter, although there was no formal process followed regarding the matters raised in the letter. Resignation 46. The Claimant resigned approximately 10 weeks after the Straddling Incident. When asked why, if the environment at the salon was so intolerable, she had not left sooner, the Claimant stated that: a) AM was not at the salon every day as he split his time between the three salons; b) she could cope with continuing to come to work for that period because she took action to avoid AM by remaining in her treatment room, including during her breaks; and c) whilst she wished that she could have left sooner, she could not afford to leave her employment without first securing alternative employment. 47. AM gave evidence that the Claimant could easily have found alternative work as there were lots of beauty jobs available at the time, some of which paid their employees more than the Respondent. The Claimant gave evidence that she did not apply for any beauty therapy jobs, choosing instead to move out of the beauty sector and apply for roles in finance. The Claimant gave evidence that she sent out lots of applications for such roles and gave one week s notice to terminate her employment with the Respondent as soon as she received an offer of employment for such a role. 48. The Claimant ed her resignation to AM on 19 September 2017 and her employment terminated on 23 September Her of resignation was short and made no mention of her reasons for leaving. XY s evidence 49. XY was one of the younger staff members at the salon. She did not witness the Straddling Incident, but gave evidence in support of the Claimant s assertion that AM behaved inappropriately 10

11 towards female members of staff. XY gave evidence that she had suffered similar harassment and described an environment in which AM made inappropriate sexual jokes about the private lives of his staff and about the breast sizes of some of his female staff members. AM denied making such comments, although in his witness statement he did refer to the Claimant s breasts and to the Claimant s private life. 50. XY described two incidents which she said made her feel shocked and confused: a) On one occasion, while working at the reception desk, AM commented on the colour of XY s bra. The comment made her feel uncomfortable and she adjusted her tunic. During his evidence, AM acknowledged that this incident had occurred but asserted that the comment was intended as a friendly way of telling XY to adjust her tunic. b) On another occasion, XY was suffering from hiccups and she asked AM if he knew how to stop them. According to XY, AM took XY to her treatment room, locked the door, undid her tunic, placed one hand at the top of her chest at the base of her throat and the other on her back. The pressure exerted over approximately 30 seconds stopped her hiccups. However XY said that she felt a bit flustered and was confused as to why it was necessary to lock the door and undo her tunic and why it could not been done in reception. AM acknowledged that this incident had also occurred. AM s evidence was that, as a former nurse, he knew how to cure hiccups. AM explained that it was not appropriate for him to carry out this manoeuvre in reception, so he took XY near to her treatment room. AM said that he could not remember locking the door to the treatment room and he denied undoing XY s tunic since the pressure point was at the base of her throat and did not require him to undo her tunic. Incorrect wages/holiday pay 51. The Claimant gave evidence that the Respondent had frequently made errors when calculating her wages and that she constantly had to "confront" AM about her wages being incorrect. The Claimant said that it came to a point where she could no longer be bothered to confront AM and described obtaining the correct payment of her wages being a "constant battle". 52. The Claimant also claimed that staff frequently had to reconcile holiday pay against the appointments book to confirm the days they had taken off and would frequently find errors. The 11

12 Claimant stated that she had recalculated the holiday pay owed to her and believed that she was owed seven days but was only paid five and a half days. 53. During cross-examination, the Claimant was unable to explain how she had calculated that she was owed seven days rather than five and a half days and conceded that her calculations were "not always the best". 54. AM denied the allegation that he had incorrectly calculated holiday pay. AM gave evidence that, on occasions when there were mis-calculations, he always rectified matters immediately. On one occasion, AM went to the cashpoint and took out cash owed to the Claimant. Training 55. The Claimant s contract of employment contained the following clause ( Training Clause ): if the employee leaves the company within 12 months of any training course the costs incurred by the employer including travel and accommodation will be repaid/deducted from final salary". 56. The evidence showed that the Claimant attended two training courses during her employment with the Respondent: a) Bio Gel training, which took place at the beginning of her employment on 30 and 31 August The Claimant then completed an assessment on 19 October 2016 ( Assessment ); and b) Crystal Clear Microdermabrasion training which took place in May Bio Gel training costs 57. The Claimant asserted that the Respondent was not contractually entitled to deduct the Bio Gel training and Assessment costs from her salary because: a) training took place on 30 and 31 August 2016, which was over 12 months before her employment terminated; and b) the Training Clause did not apply to the Assessment. 12

13 58. The Respondent asserted that the Assessment was the final stage of the Claimant's training in the use of Bio Gel products. AM gave evidence that the Claimant was only qualified to use the products once she completed the Assessment and that she received the necessary certification on 19 October I was shown copies of the Claimant's Bio Gel Certificate of Merit, together with an from Bio Sculpture to the Claimant confirming that "Training" took place on 30 and 31 August and the "Assessment" took place on 19 October. I was also shown Bio Sculpture s invoice to the Respondent in which it broke down its charges, identifying training days separately to the Assessment. 60. The evidence showed that during the period from the second training day (31 August) to the date of the Assessment (19 October), the Claimant provided a full service to her clients using the Bio Gel products. Clients were charged in full for their treatments; they did not receive a discount because they were being treated by a trainee. The Claimant was not supervised while using the products. The Claimant submitted that the evidence showed that she was fully trained in the use of Bio Gel products when she completed the two days training on 31 August She submitted that if this was not the case, any Bio Gel work performed during that period was undertaken by untrained staff, in contravention of health and safety and Bio Gel requirements. 61. AM gave evidence that at the time of the training days in August 2016, the salon was only provided with approximately 6 weeks' worth of Bio Gel product. It was only once the Assessment had been completed that Bio Gel would allow the Respondent to order as much of its product as it required. AM stated that the additional requirement for an assessment day was Bio Gel s way of extracting more money from the Respondent; this was a commercial enterprise. Indeed, AM gave clear evidence that once a salon had paid for training and assessment on one occasion (and could therefore order the product at will) there was no need to enrol subsequent employees on the training course. The Claimant disagreed with this, stating that all employees who were using the products should have received training. Crystal Clear training 62. The Claimant submitted that she should not be required to pay for the Crystal Clear training because: 13

14 a) she had already received training in its use and had not agreed to undertake the training; b) she did not complete the course as she was sick on the second day and did not receive a certificate; c) the training was not, in fact, training but was instead a sales pitch from Crystal Clear; and d) the Training Clause did not permit deductions for travel expenses other than for the Claimant s own travel. The cost of the trainers travel was not covered by the Training Clause. 63. I was shown an invoice from Crystal Clear which referred to training in May 2017 and the cost of return flights to Birmingham (amounting to a total of ). The Law 64. Article 61 of the Employment (Jersey) Law 2003 ("Law") states that an employee shall have the right not to be unfairly dismissed. Article 62(1)(c) of the Law states: 62. Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his or her employer if (and, subject to paragraph(2), only if) (c) the employee terminates the contract under which he or she is employed (with or without notice) in circumstances in which the employee is entitled to terminate it without notice by reason of the employer's conduct. 65. In order to establish a successful complaint for constructive dismissal, four conditions must be met: a) the employer must be in breach of a contractual term (either an express term or an implied term); b) the breach of contract must be fundamental, amounting to a repudiatory breach of contract; c) the employee must resign in response to the employer's repudiatory breach of contract; and d) the employee must not delay too long in terminating the contract; otherwise the breach may be found to have been waived and the contract affirmed. 14

15 (See: Robinson v States of Jersey, Department of Education, Sport & Culture (JET /05); Oprey v Woolworths plc (JET /07); Western Excavating (ECC) v Sharpe [1978] ICR 221). Mutual trust and confidence 66. A breach of contract may be in the form of a breach of an express or an implied term. The most common implied term is that of 'mutual trust and confidence'. The test of whether conduct amounts to a breach of this implied term was addressed in Malik v BCCI [1997] UKHL 23, and has been applied by the Tribunal on previous occasions (Carratu v United Fashions Limited JET 110/2011). In Malik, the House of Lords stated: the employer will 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. 67. Thus, before finding that there has been a breach of trust and confidence, a tribunal must be satisfied both that: a) there was conduct which destroyed or seriously damaged trust and confidence between employer and employee; and b) the employer s conduct was done without reasonable and proper cause. 68. Any breach of the implied term of trust and confidence will necessarily strike at the root of the contract and will therefore always be repudiatory (Morrow v Safeway Stores [2002] IRLR 9). 69. In the recent case of McLoughlin v London Linen Supply Limited UKEAT/0299/16/BA, the EAT provided some helpful guidance as to how tribunals should assess claims that there has been a breach of the implied term of trust and confidence. In his judgment, Richardson J referred to Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347, in which the Court of Appeal stated: 17. To constitute a breach of [the implied term of trust and confidence between employer and employee], it is not necessary to show that the employer intended any repudiation of the contract: the Tribunal's function is to look at the employer's conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it The conduct of the parties has to be looked at as a whole and its cumulative impact assessed. 15

16 70. Richardson J then went on to remind tribunals that: Firstly, it is important to assess the conduct of the parties as a whole. It may be necessary for the purpose of making findings to look at different aspects of conduct individually, but it is vital in the end to look at the overall picture. Secondly, the assessment applies an objective standard of reasonableness. 29. The question is whether looking at the matter objectively, the conduct was likely to destroy or damage the relationship of trust and confidence. People will react differently when they are badly treated at work. Some will put up with it; some will not. If the conduct is likely to destroy or damage the relationship of trust and confidence, the fact that some people will put up with it does not negate a breach of this implied term. Acceptance and resignation in response to breach 71. A repudiatory breach by an employer does not bring the contract to an end automatically. The contract is not terminated until the point at which the breach is accepted by the employee (Société Générale, London Branch v Geys [2012] UKSC 63). 72. It is not necessary for an employee to expressly communicate their acceptance of the breach to the employer. However, the fact that they have accepted the repudiatory breach must be unequivocal and unambiguous. 73. In Weathersfield Ltd v/a Van and Truck Rentals v Sargent 1999 IRLR 94, CA the Court of Appeal held that it is not necessary for an employee to inform the employer of the reasons for resignation in order to prove that the resignation was caused by the employer s breach of contract. It is up to the tribunal to decide whether or not the employee resigned in response to the breach rather than for some other reason. 74. The employee must be able to show that he or she resigned in response to the relevant breach. This does not mean that the breach must be the only cause of the employee s resignation. Once a repudiatory breach of contract has been established, an employee can claim constructive dismissal so long as the breach played a part and was one of the factors relied upon in the employee s resignation [Nottinghamshire County Council v Meikle [2004] IRLR 703; Abbe Cars (West Horndon) Ltd v Ford UKEAT/0472/07; Wright v North Ayrshire Council UKEAT/0017/13]. 16

17 Affirmation 75. If an employee delays too long in resigning in response to an employer s breach of contract, the employee may be deemed through their conduct to have affirmed that contract with the result that the employee will lose the right to claim constructive dismissal (Western Excavating v Sharp). However, in Bournemouth University Higher Education Corporation v Buckland 2010 ICR 908, the Court of Appeal stated that, due to the pressure on employees at such times, a careful analysis of the facts is necessary before deciding whether there really has been an affirmation. 76. In the case of Cantor Fitzgerald International v Bird [2002] IRLR 867, McCombe J stated that affirmation is essentially the legal embodiment of the everyday concept of letting bygones be bygones. 77. In El-Hoshi v Pizza Express Restaurants Ltd EAT 0857/03, the EAT stated that there must be some express or implied event which indicates affirmation. The EAT stated that mere delay was a neutral act and was not itself capable of amounting to affirmation. However there may be circumstances where affirmation may be implied by a prolonged delay in resignation (Mari v Reuters Ltd UKEAT/0539/13). 78. I take from the above cases that an employee s delay in resigning in response to a repudiatory breach by the employer is one factor which the Tribunal must take into account in deciding whether or not the contract has been affirmed. However, delay in and of itself will not lead automatically to the conclusion that the employee has affirmed. There must be an event which indicates affirmation and the Tribunal must look at all the circumstances to establish whether, on the facts of each case, the employee affirmed the contract through their conduct. Conclusion Constructive dismissal 79. The Claimant claimed that she was constructively dismissed by the Respondent due to: a) low-level harassment of the Claimant by AM; b) the Straddling Incident; and c) the incorrect payment of wages. 17

18 80. The Respondent denied that the above incidents occurred and submitted that the Claimant resigned because the Claimant had been issued with a final written warning, rather than as a result of any inappropriate behaviour on the part of AM. Did the alleged incidents take place? 81. I found the Claimant and XY to be reliable, clear and consistent witnesses. By contrast, I found AM to be insincere and lacking in any understanding of what constitutes appropriate or inappropriate behaviour in the workplace. 82. Although the Claimant was unable to provide specific dates on which each of the alleged incidents occurred, I was satisfied from the evidence provided (by the Claimant, XY and AM) that each of the allegations (including the Straddling Incident) did occur during the course of the Claimant's employment. I also accepted that the Straddling Incident occurred in June It was clear to me that this was a work environment where AM believed that a happy and relaxed atmosphere meant that he could touch and foist himself upon his employees at will. Many of the employees were teenagers who were working in their first employment or were students undertaking work experience (XY being one such example). These younger employees were more likely to laugh along with AM and it was clear from the evidence that AM only behaved inappropriately with women who engaged in his banter and laughed at his jokes. Both the Claimant and XY commented that as soon as they stopped laughing along with AM the inappropriate behaviour ceased, but that AM then became more confrontational with regards to contract terms and holiday requests. 84. It was particularly instructive to me that AM acknowledged that the hiccup incident occurred. However it was clear from AM s cross-examination of XY and from his evidence that he had no understanding that such behaviour from an employer towards one of his employees was entirely inappropriate. He would not have been able to behave in this manner outside the workplace, but because of his position as the boss he was able to do so because his employees felt that they had no option but to go along with it. 85. I did not accept TM s submission that the Claimant s failure to report AM s behaviour to the police or to raise it as a grievance amounted to proof that the incidents did not occur. I accepted the Claimant s explanation: 18

19 a) for not going to the police (for fear of looking stupid ); b) for not filing an internal grievance with AM s wife or son; and c) for not filing a grievance with De Gruchy s (who were not her employer). 86. The evidence therefore led me to the conclusion that each of the allegations, including the Straddling Incident, did occur. Did AM s behaviour constitute a breach of the implied duty of mutual trust and confidence 87. I next considered whether AM s conduct amounted to a breach of the implied duty of mutual trust and confidence. Any such breach is automatically deemed to be repudiatory in nature. 88. I accepted the Claimant's evidence that AM s behaviour in general made her feel uncomfortable but that she tolerated it. 89. I also accepted the Claimant s evidence that the Straddling Incident made her feel intimidated and shocked. I considered that the Straddling Incident was evidence of AM seeking to dominate the Claimant. His behaviour would be unacceptable in any circumstance, but was all the worse because of his duties as an employer 90. Every employee has a right to a safe system of work and to be able to carry out their duties safe from harassment. As set out above, I noted AM's submission that he wanted a relaxed family atmosphere for the clients but it is perfectly possible to create such an atmosphere without harassing employees. AM used his position of power and authority over the Claimant and other young women to routinely harass them both physically and verbally. Such behaviour is not acceptable in the workplace. 91. The fact that AM behaved in a similar manner towards other employees does not mean that his conduct was acceptable. As stated in Woods, when one considers AM s conduct as a whole, it is clear that any reasonable and sensible person would conclude that the Claimant could not be expected to put up with it. The fact that others did put up with it does not make such conduct acceptable. 92. In view of the above, and considering the evidence objectively, I am satisfied that: 19

20 a) AM s low-level harassment of the Claimant; and b) the Straddling Incident each amounted to conduct which destroyed or seriously damaged trust and confidence between the Claimant and the Respondent and that the Respondent had no reasonable and proper cause for such conduct. AM was in a position of trust and responsibility and he abused that position under the guise of creating a relaxed atmosphere for clients. 93. I therefore concluded that AM s conduct did constitute a breach of the implied duty of mutual trust and confidence, which was necessarily repudiatory in nature. Did the Claimant resign in response to the breaches? 94. The Claimant claimed that she resigned as a direct result of the Straddling Incident which followed several months of low level harassment. 95. At the hearing, the Respondent submitted that the Claimant resigned because: a) she had received a final written warning; and b) she wanted to leave the beauty industry and to start working in the finance sector. 96. I considered all the evidence and noted in particular that although the Claimant s probationary period was extended by the Respondent, the Claimant received no warning for the Discount Card incident. I also noted that AM would have been willing to continue to employ the Claimant had De Gruchy s insisted upon her leaving the salon. 97. I accepted the Claimant s evidence that the Respondent did not give the Claimant the final written warning dated 6 July The lack of any formal process supported the Claimant s evidence in this regard. It was unclear to me whether this warning was drafted at the time or in preparation for these proceedings, but the evidence was that the Claimant did not receive such warning until the disclosure process for these proceedings. It was therefore clear to me that the Claimant could not have resigned because of a final written warning because she had not received any warnings. Indeed, she believed her position with the Respondent to be secure. 20

21 98. The Claimant s evidence was that, whilst she had tolerated AM s low-level harassment for several months, the Straddling Incident was the final straw which caused her to leave the Respondent. I noted that AM s conduct had the effect of undermining the Claimant s self-confidence and that rather than take AM to task on his behaviour, AM s behaviour instead had the effect of making the Claimant want to play it down for fear that she would look stupid. Indeed, the Claimant expressed regret that she was not stronger and report AM, but it seems to me that AM s behaviour was designed precisely to make the Claimant feel ashamed and embarrassed and therefore unlikely to report it. It was in this vein that I noted that the Claimant did not refer to her reasons for resigning in her letter of resignation. In my view, this non-referral arose from her own wish to play the matter down and to move on, and is entirely consistent with her description of how AM made her feel. I therefore considered such non-referral to be entirely neutral in terms of the Tribunal s factual analysis. 99. It is therefore entirely unsurprising that the Claimant quietly went about finding herself a new job to remove herself from AM, rather than confronting him about his behaviour In view of the above findings, I concluded that the Claimant did resign in response to the Straddling Incident. Did the Claimant affirm the contract? 101. The Claimant left her employment with the Respondent approximately 10 weeks after the Straddling Incident occurred. During this period, the Claimant: a) took specific and deliberate steps to remove herself from AM when he was in the salon by remaining in her treatment room for the majority of her working day; b) ensured that she was not left alone with AM; and c) sent out applications for roles in the finance industry The Claimant also gave evidence that she could not afford to simply resign without finding alternative employment. As noted in Buckland, this is a common issue for claimants and one which the Tribunal must consider in its analysis of the facts of this case The Respondent argued that if AM s treatment of the Claimant had been so bad, the Claimant could have secured alternative employment much more quickly in the beauty industry. Implicit in 21

22 this submission is that by seeking employment in the finance industry, the Claimant delayed her departure thereby: a) suggesting that AM s behaviour was not repudiatory; and b) affirming the contract I carefully considered the Respondent s submission in the context of the breaches themselves and the situation in which the Claimant found herself. I concluded that in the circumstances (bearing in mind that delay in itself is a neutral act), the Claimant s failure to resign immediately did not constitute an affirmation. I accepted the Claimant s evidence that she took specific steps to protect herself from AM. Had she not taken those steps and continued to engage in banter with AM after the Straddling Incident, this may have constituted an affirmation of the contract. However the evidence showed that this was not the case. Indeed, the steps taken by the Claimant to protect herself from AM show clearly that this was not a case of letting bygones be bygones Consequently, I concluded that the Claimant did not affirm the contract Accordingly, I find that the Respondent constructively dismissed the Claimant. Fairness of the dismissal 107. I considered the fairness or otherwise of the Claimant s dismissal in accordance with Article 64 of the Law. I considered whether, in accordance with Article 64(1)(a) of the Employment Law, the principal reason for the Claimant s constructive dismissal fell within any of the potentially fair reasons for dismissal The Respondent put forward no argument to suggest that the Claimant s dismissal was potentially fair. Having considered Article 64(1) of the Employment Law, I did not consider that the Claimant s constructive dismissal, borne out of the Respondent s breaches of the implied duty of trust and confidence, fell within the scope of Article 64(1) of the Employment Law I therefore conclude that the Claimant s constructive dismissal was unfair in the circumstances. 22

23 110. Having been employed by the Respondent for a little over one year, the Claimant is entitled to compensation for her unfair dismissal amounting to 8 weeks' pay. At the CMM, the parties agreed that the Claimant s weekly wage was 342 per week. 342 x 8 = 2, As required under the provisions of Article 77F of the Employment Law, I considered whether there were any grounds upon which it would be appropriate to reduce the Claimant s compensation. However the facts of this case provided no reason for me to exercise my discretion in this regard The Respondent shall therefore pay to the Claimant the sum of 2,736 by way of compensation for unfair dismissal. Training costs 113. The Claimant claimed that the deduction from her salary of the costs for training amounted to an unauthorised deduction from her wages The Respondent admitted making the deductions but claimed that the Training Clause permitted it to make such deductions. The Training Clause stated that: if the employee leaves the company within 12 months of any training course the costs incurred by the employer including travel and accommodation will be repaid/deducted from final salary It was clear to me that the Training Clause provided that if the Claimant left her employment within 12 months of completing a training course, she was liable for the cost of that training course. However the Training Clause was less clear on the question of travel and accommodation. Crystal Clear - Travel costs 116. The Claimant claimed that the Training Clause did not permit the Respondent to deduct the cost of the trainer s flights to Jersey I considered whether the wording permitted the Respondent to deduct: 23

24 a) the employee s travel and accommodation costs only; or b) the travel and accommodation costs of the employee and/or of the trainers I noted the following points: a) the Training Clause only referred to the employee and costs to the employer. It did not explicitly specify that the Respondent was entitled to recover the cost of the trainer s flights and accommodation; and b) the Claimant had no control over the cost of the trainer s travel. The trainer could, unbeknownst to the Claimant, have booked Business Class seats and have been travelling from further afield than the UK, thereby increasing the travel costs for which the Claimant would be unknowingly liable Furthermore, I considered that, in reading the Training Clause, the Claimant could not reasonably have been expected to know that it included the cost of the trainer s travel as well as her own In view of the above, I concluded that the Training Clause covered circumstances where the Claimant herself incurred travel and accommodation costs. The Training Clause did not apply to the travel and accommodation costs of the trainers travelling to Jersey to provide training I also considered the Claimant s submissions that she was not liable for the cost of the Crystal Clear training course itself. I rejected these submissions; she provided no evidence that she objected to the training at the time and the fact that she was off sick on the second day did not negate the cost to the Respondent. The training took place within 12 months of the termination of the Claimant s employment and the Training Clause was unambiguous in this regard I therefore concluded that the Respondent: a) was entitled to deduct the cost of the Crystal Clear training days from the Claimant s final wages; but b) was not entitled to deduct the cost of the trainer s travel costs The Respondent therefore made an unauthorised deduction from the Claimant s wages of for the trainer s flights. 24

25 Bio Gel - Did the Assessment form part of training? 124. I then considered whether or not the Assessment for the Bio Gel formed part of the Claimant s training (thereby falling within the scope of the Training Clause) or whether the Assessment was entirely separate to training. In this regard, I considered the following points to be relevant: a) the Assessment day was identified as such in the invoice from Bio Sculpture to the Respondent. There was no mention of training on the date of the Assessment; b) the two training days took place over 12 months prior to the termination of the Claimant s employment; c) during the period from the second training day to the Assessment, the Claimant provided a full and unmonitored service to clients using the Bio Gel products for which she had received training; d) during such period, the Respondent did not notify clients that the Claimant was still in training on the Bio Gel products and the Respondent did not apply a reduction in cost for clients as a result of the Claimant s on-going training ; the Respondent charged its clients in full; and e) AM s evidence that after completion of the training and Assessment by the Claimant it was not necessary for other employees to undergo such training In view of the above, I concluded that the Assessment did not form part of the Claimant s training in the use of Bio Gel The Claimant was therefore: a) not liable for the cost of the training sessions on 30 and 31 August 2016 because they occurred over 12 months before the termination of her employment; and b) not liable for the cost of the Assessment because it did not form part of the Claimant s training and the Training Clause did not apply to the cost of exams or assessments The Respondent therefore made an unauthorised deduction from the Claimant s wages of

26 Unpaid holiday pay 128. The Claimant was unable to particularise her claim for unpaid holiday pay and provided no evidence in support of this head of claim. It is therefore rejected. Summary of Award Compensation for unfair dismissal 2, Damages for unauthorised deduction from wages TOTAL AWARD 3, Mrs H G Griffin, Chairman Date: 23 April