Constructive dismissal claim against JFSC was 'out of time', court says

Friday 16 October 2020

A claim of constructive unfair dismissal brought against the JFSC by its former Head of Communications has been ruled as ‘out of time’ by the Royal Court – but the Tribunal Employment might still decide to let the case proceed.

Emma Mathew brought a claim of constructive unfair dismissal to the Employment and Discrimination Tribunal last year, stating that the way she had been treated had led her to resign in January 2019.

She had been employed as Head of Communications by the Jersey Financial Services Commission (JFSC) since 1 October 2014. 

Pictured: Ms Mathew started working for the Government five days before the end of her notice period.

Upon Ms Mathew’s resignation, the JFSC offered to pay her three months’ salary in lieu of notice but she declined, preferring instead to remain employed by the Commission until the end of her notice period on 6 April 2019.

However, she started a new job as the Government of Jersey’s Head of Communications for Justice and Home Affairs on 1 April.

Then on 31 May 2019, she filed a complaint for constructive unfair dismissal against the JFSC. Her claim also made reference to a discrimination claim which she later withdrew.

The JFSC attempted to have the claim struck out saying it was out of the eight-week timeframe, because Ms Mathew contract had ended on 1 April when she had started her new job, and not on 6 April.

The JFSC’s application was first heard in January 2020 by Hannah Westmacott, Deputy Chair of the Employment Tribunal, who ruled in favour of Ms Mathew, concluding that her conduct had not been “serious enough” to be treated as repudiatory and that therefore she had not resigned.

Pictured: Earlier this year, the Employment Tribunal allowed the claim to proceed.

The Tribunal Chairman, Hilary Griffin, then allowed the JFSC to appeal that decision, a case which was heard by the Bailiff, Timothy Le Cocq, in Royal Court in June.

Representing the JFSC, Advocate Vicky Milner suggested the Tribunal had “erred in law” in allowing Ms Mathew’s claim to proceed, arguing that a contract of employment remained live during a notice period and that both parties remained subject to its terms and conditions, which in the case of Ms Mathew included the “main duty” of not going to work for somebody else.

While Ms Mathew was not working during her notice period – she was signed off and then on garden leave – Advocate Milner said she was still required to perform her obligations under the contract just as the JFSC was required to perform theirs.

Ms Mathew, who was represented by Advocate Ashley Hoy, argued in return that she had resigned because of the Commission’s own behaviour, which had caused her “mental anguish” in breach of the implied term of trust and confidence - giving rise to her constructive dismissal claim. 

She said the Commission’s own breach meant the “relationship of trust and confidence” between her and her employer had been “irrevocably destroyed”.

While she acknowledged that by starting work before the end of her notice period was in breach of contract, Ms Mathew rejected the view that the breach had been fundamental. 

Pictured: The Bailiff, Timothy Le Cocq, concluded Ms Mathew's claim had been made out of time.

In his judgment, the Bailiff wrote there was “little doubt” that the relationship between Ms Mathew and the Commission had “broken down”, as evidenced by the Commission’s proposal to pay her immediately and not require her to work gardening leave at all. 

He said that Ms Mathew was “at fault” for not seeking the Commission’s permission to end her contract early so she could start her new job. 

“Although, of course, I cannot say whether the Commission would have agreed to such a course, it may very well be that it would,” he wrote. “There were only five working days left and it is perhaps, unlikely that the Commission would have seen a point in holding Ms Mathews to the full term of her notice period.” 

The Bailiff added that gardening leave is “continue employment” and imposes obligations on both the employer and employee and that taking up a new job “struck at the root and obligation of continuing employment”. “It is a clear repudiation of that Contract,” he wrote.

He therefore concluded that the JFSC’s arguments were correct and allowed the appeal, adding that Ms Mathew’s claim was out of time as result.

The Tribunal could however consider whether or not to extend the period to permit the claim to be brought.