THE INDUSTRIAL TRIBUNALS

CASE REF:	2330/10

CLAIMANT:			Ewa Helena Mycan

RESPONDENT:		Cuisine de France Limited

DECISION
The unanimous decision of the tribunal is that the claimant’s claim for unfair constructive dismissal is dismissed.

Constitution of Tribunal:
Chairman:		Mr Patrick Kinney
Members:		Mr Pat Killen
			Mr Jim Hughes

Appearances:
The claimant appeared in person and represented herself.
The respondent was represented by Ms Byrne, of the respondent company.

Issues

1.	The issue for the tribunal to determine is whether the claimant was unfairly constructively dismissed.

Findings of fact

2.	The claimant was employed by the respondent as a deli assistant from mid-2007.  She worked in a delicatessen based on a Spar Outlet on the Malone Road, Belfast.  The respondent is the manufacturer and wholesaler of bread products.  As part of a trading arrangement with the Henderson Group, it leased the deli unit within the Spar.  It was the only deli within the respondent’s business.  

3.	The respondent’s trading agreement with the Henderson Group was due for renewal on 31 July 2011.  Negotiations had been carried out over the preceding months and in mid-June 2011 it was suggested that the deli transfer directly to the Henderson Group.  Those negotiations continued.  The respondent wished to ensure that if there was to be a transfer of the deli business, the employees would remain in employment and maintain the same terms and conditions of employment.  The Henderson Group confirmed on 26 July 2010 that they were intending to proceed with the acquisition of the deli business.  The respondent immediately contacted staff and arranged a meeting.  The meeting took place on 28 July 2010.  The meeting was attended by the deli staff, including the claimant.  The respondent was represented by Ms Byrne, Human Resources Officer, and Gillian Hobson, the Area Manager.  Mr Colin Clinton of the Henderson Group also attended.

4.	At the meeting it was confirmed to the staff that their jobs were secure and that they would continue on the same terms and conditions of employment.  It was intended that the transfer would complete on 2 August 2010.  Henderson wished to refurbish the deli unit, a process which would take approximately three weeks and so the staff were to be sent on a training programme over those three weeks.

5.	The claimant raised concerns at that meeting.  She had effectively been managing the deli unit for some months and she asked if there would be opportunities for a higher position with the new employer.  She also asked if there would be a position within the transferee’s organisation which was closer to her home.  She was told at the meeting that there was a possibility of applying for a higher position and that there may be something closer to her home at a supervisor level.  However, she was given no guarantees or assurances that such positions would be available.  The employees also had some concerns about how they were to travel to the training locations.  This was resolved by the respondent by Friday 30 July 2010.  

6.	The day following the meeting, Thursday 29 July 2010, the staff were sent a list of questions and answers relating to the transfer.  The answers confirmed the reason for the transfer, confirmation that there would be no changes to terms and conditions of employment, and that the transferee could not make changes to the employee’s contract as it was protected by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’).  The document also confirmed that if an employee decided to leave this would be treated as a resignation.  

7.	The claimant did not attend the training which commenced on Monday 2 August 2010.  She had decided not to transfer to the transferee.  She did not advise either the transferor or the transferee of her intentions prior to 2 August 2010.  The respondent sent a letter to the claimant dated 4 August 2010 saying that they had been informed she had not attended the training and invited her to contact Mr Clinton of the transferee on his mobile phone and also reaffirmed that her employment remained secure and her terms and conditions of employment would remain the same.  The claimant did not contact Mr Clinton or the respondent but subsequently sent, on 24 August 2010, a letter of grievance to the respondent.  Ms Hobson met with the claimant to discuss her grievance and wrote to the claimant, again confirming that her terms and conditions would not change.

8.	The claimant felt that she had been treated the same as the other employees although they were doing less duties than her and she felt that the respondent wanted rid of her.  The claimant considered that there was a change to her terms and conditions in being asked to carry out training.  She had also spoken to other individuals who were employed by the transferee and who told her they were on lesser rates of pay and working different hours.  The claimant was concerned that the terms may change.  At all times, however, the claimant had been told that there would be no change to her terms and conditions of employment.

The law

9.	By virtue of the TUPE Regulations 2006 where there is a relevant transfer from one business to another the individuals who are employed by the original business immediately before their transfer automatically become the employees of the new business from the time of the transfer on the terms and conditions they previously held with the original business.  A relevant transfer occurs where there is a transfer of an economic entity which retains its identity.  An employee has a right to object and will not transfer to the employment of a new employer against her will.  In that event, the transfer will terminate the employee’s contract of employment but she will not be treated for any purpose as having been dismissed.

10.	If the transfer involves or would involve a substantial change in working conditions to the material detriment of the employee whose contract of employment transfers, then the employee may treat the contract of employment as having been terminated and the employee shall be treated for any purpose as having been dismissed by the employer.  Thus, where there is to be a substantial change in working conditions, it is open to the employee to regard her contract as having terminated and to claim constructive unfair dismissal. 

The tribunal’s conclusions

11.	It is necessary for the tribunal to distinguish the situation where an employee objects to her transfer and will not then be able to claim that she has been dismissed, from the case where an employee treats her contract as terminated by the employer.  In the latter case, the employee can seek compensation.  On the facts, as found, it is clear that there has been no repudiatory breach of the claimant’s contract of employment.  The claimant was consistently reassured throughout the process that her terms and conditions of employment would remain the same.  The tribunal does not accept that the requirement to attend training during the refurbishment of the premises was a repudiatory breach of her contract of employment.  The claimant’s conversations with other individuals, who were already employed by the transferee, may well have created some confusion in her mind, but in fact she had been reassured on several occasions that her own terms and conditions of employment would remain unchanged.  The tribunal, therefore, unanimously determines that she was not unfairly constructively dismissed and the tribunal dismisses her claim for unfair dismissal.

Chairman:

Date and place of hearing:	29 March 2011, Belfast

Date decision recorded in register and issued to parties: