Claimant constructively dismissed when the respondent unilaterally suspended her without pay due to perceived personal issues.

The claimant was employed by the respondent from February 2014. In March 2023, the relationship became strained when the claimant was assisting the respondent’s ill uncle and administered his estate following the uncle’s death. At the end of March 2023, the respondent presented the claimant with a final written warning without any process regarding consumption of alcohol during working hours. This was despite a previously relaxed approach towards alcohol in or around the workplace.

On 19th July 2023, the respondent called at the claimant’s doorstep without any prior warning and presented her with a letter stating that due to incoherence, slurred speech, and smell of alcohol following her return from holiday she should take a period of unpaid leave for two months.  The claimant challenged this stating ‘how and when?’ to the allegations but no specifics were provided.

On 1st September 2023 the claimant wrote to the respondent setting out that she had concerns about the lack of process and stated that the suspension without pay was a breach of contract. There was no response and she further contacted the respondent on 20th September stating that she considered herself dismissed and, in the alternative, was resigning effective immediately in response to repudiatory breach of contract.

A claim for unfair dismissal and unlawful deduction from wages followed.

The Tribunal had to determine whether the claimant had been dismissed or resigned.  The respondent argued that it was a voluntary termination of her employment. The claimant, subsequent to her email of 20th September, only found out that her P45 had been issued with the date of 13th September.  The Tribunal found that an objective observer would not view the communication from the respondent as an unequivocal communication of an intention to dismiss.  However, the unilateral placement of the claimant on a period of unpaid leave amounted to a clear breach of the fundamental term of her contract of employment in relation to the continuing implied duty to pay her when she was ready and willing to work.  Therefore, it was found that the resignation took place due to the fundamental breach of contract and was a constructive dismissal.  In looking at its nature, the Tribunal found that the action of the respondent was unreasonable especially bearing in mind the lack of process meaning that the claimant did not get an opportunity to be accompanied, state her case or appeal against the action being taken.

As a result, the unfair dismissal action succeeded. There was a 25% uplift in the compensatory award due to the lack of proper process and procedure being adopted by the respondent. In total, including the arrears in wages, notice pay and holiday pay, the claimant was awarded £19,156.13.

This case stemmed from the lack of process regarding a suspension without pay.   The use of suspension without pay is alarming to begin with but the subsequent lack of communication from the respondent put the claimant in a very difficult position.  As a result, the Tribunal easily found that there had been a fundamental breach of contract due to the unilateral action in suspending the claimant.

NI Tribunal decisions are available on the OITFET website.