FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 54/10 FET
CLAIMANT: Geraldine Hope
RESPONDENTS: 1. Praxis Care
2. Niall Smyth
Certificate of Correction
In the decision in this case issued on 29 September 2011 the following paragraph was omitted:-
“8(i) Around 14 November 2009 the claimant submitted a sick line for work-related stress. It certified her as unfit to work until 14 December 2009 and a further sick line was sent in covering the period until 4 February 2010.”
Date: October 2011
FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 54/10 FET
CLAIMANT: Geraldine Hope
RESPONDENTS: 1. Praxis Care
2. Niall Smyth
(i) The decision of the Tribunal, by a majority, is that the claimant was unfairly (constructively) dismissed by the first-named respondent. The amount of compensation payable will be assessed at a further hearing.
(ii) The Tribunal unanimously dismisses the claimant’s claims of harassment on the ground of her religious belief.
Constitution of Tribunal:
Chairman: Mr D Buchanan
Members: Mr F Murtagh
Ms M-J McReynolds
The claimant was represented by Mr N Phillips, Barrister-at-Law, instructed by Worthingtons, Solicitors.
The respondents were represented by Mr B Wall, Barrister-at-Law, instructed by Judith Blair, Employment Law Solicitor.
1 The claimant, Ms Hope, alleges that she was constructively dismissed by the first-named respondent, Praxis Care. Although in the original list of issues for determination by the Tribunal the claimant’s claim of constructive dismissal involved allegations of the breach of express terms of her contract in addition to breach of the implied term of mutual trust and confidence, it was effectively accepted at the conclusion of the hearing that this claim stood or fell on the latter allegation. She further alleges that the second-named respondent, Mr Smyth, an Assistant Director of the first-named respondent’s organisation, harassed her on the ground of her religious belief by making remarks of a sectarian nature to her.
2 In order to determine this matter, we heard evidence from the claimant, Ms Hope, and from Ms Catherine Frazer, a former employee of the first-named respondent, on her behalf. We heard evidence from Mr Smyth, Mr Paul Leitch (Assistant Director, Human Resources) and Ms Rosalyn Duff (Senior Human Resources Officer) on behalf of the first-named respondent. We also had regard to the documentation submitted by the parties. We find the facts set out in the following paragraphs.
3(i) The claimant commenced employment with the first-named respondent on 26 November 2007. She resigned on 4 February 2010. She was employed as a ‘House Supervisor’ at Parklands, a residential home in Lisburn run by the first-named respondent. Although she was employed as a ‘House Supervisor’, Parklands suffered from staff shortages during the currency of the claimant’s employment and at times her position was more like that of a de facto manager. Her contractual duties included supervising staff, looking after residents (Parklands was a ‘low-support’ home with eight residents, who still had a degree of independence, and the emphasis was on providing support, safety and security to them, as opposed to nursing and care), ordering food, drawing up rotas and ensuring shifts were covered.
(ii) In a letter to the claimant, which she received before taking up her employment, it was stated:-
“Your hours of work will be 30 hours per week, working pattern will be determined at a later date, you will be expected to work a flexible shift to include morning, evening and weekend work, sleep-in duties will be required.”
(iii) However, Mr Smyth, the second-named respondent, accepted that it was likely that at the claimant’s job interview, the claimant had stated, and it had been agreed, that she would not do evening work and sleep-ins, and following discussions with her and having regard to her domestic circumstances, the second-named respondent accepted that she would only do nights or sleep-ins when it suited her. Her 30 hours per week were to be carried out between 8.00 am and 2.00 pm, and she would show flexibility by being available, when necessary, until 4.00 pm to accommodate visits by doctors and social workers to elderly residents. It appears that such visits usually took place in the afternoons.
4(i) The shortages in staff during the currency of the claimant’s employment, to which reference has been made at Paragraph 3(i) above, placed employees at the home, and in particular the claimant as house manager, under constant pressure.
It was a feature of her employment that her line manager was frequently changing, and there were long periods of time when she was left without any line manager to whom she could turn for support and guidance. By way of example, on 30 September 2008, Beverley Lunney, who had been her manager left. An office administrator also left, and was not replaced, with the claimant taking over some of her work. The cook was suspended from work for a period of time. Another line manager, Geraldine McCann, took up employment, but after a comparatively short period of time went off on sick leave.
A discernible consequence of this was that the claimant was left to shoulder a level of management responsibility with which, through no fault of her own, she was unable to cope. We say that this was through no fault of her own because in relation to other staff, her role was vague and ill-defined and she had been given no training or induction in relation to managing staff.
Effectively, she was left in a position where she was out of her depth.
We are satisfied that senior managers were aware of this situation but took no steps to remedy it.
(ii) At an early meeting with Rosalyn Duff, the claimant complained about working long hours and the difficulty in contacting senior managers. She was clearly stressed at this stage, for a suggestion was made that she see Occupational Health. However, she did not in fact see Occupational Health until she went off with work-related stress in mid-November 2009.
5(i) Another significant feature of working life in the Home was that there appeared to be friction between staff, with allegations and counter-allegations leading to grievances being lodged and disciplinary proceedings. The claimant had made complaints against another member of staff which had been upheld, and she herself, as we shall see, was the subject of complaints by others.
(ii) A disciplinary investigation carried out into complaints against the claimant reported on 25 June 2009. It was carried out by Mrs Frances Philpott, an independent manager unconnected to Parklands.
In her report she recommended that three of six complaints against the claimant should go forward to a disciplinary hearing. This hearing ultimately took place on 19 August 2009 and the claimant received a Final Warning, to stay on her file for a period of 12 months. Any further disciplinary hearing within that period would result in her dismissal.
(iii) However, what is significant in relation to the report of 25 June 2009 (which appears to have been sent to Zara Carson, Assistant HR Manager) is that Mrs Philpott, who had been charged with carrying out a disciplinary investigation, chose – very fairly it has to be said – to set out as an addendum to her report a list of factors relating to the claimant which she felt required attention. It is worth setting these out in full:-
· In the course of this investigation it has become apparent that Ms Hope does not appear to be coping well in her role as House Manager.
· It has been difficult to fully ascertain this, as Ms McCann, her direct line manager, has left post and was unavailable to provide information on any of the issues. There does not appear to have been a full local induction or clear definition as to Ms Hope’s role in relation to those of other staff. Ms Hope’s job description in relation to managing a staff team is vague and there does not appear to have been specific training in this respect. Ms Hope does not seem sure of, or confident in, managing a staff team. Ms Hope’s direct line manager appears to have been quite fragmented with changing of managers and a long period when there was no direct line manager. There seems to be little evidence of formal supervision or the opportunity for clear guidance/support. Ms Hope’s conversations with the investigating team and evidence from Mr O’Neill would support that she feels stressed and unable to cope with other staff members and wear the mantle of a team leader. She regrets having made the initial complaint about Ms Farrelly. Prior to Ms McCann coming into post, Ms Hope appears to have been poorly supported and she does present as having very limited experience or knowledge of how to manage a team.
· The investigation has identified a strong need for training, regular, focused supervision and monitoring of Ms Hope’s capability for the position and role of House Manager.”
(iv) However, no action was ever taken on foot of this Addendum to address the problems which it identified, and not only was this accepted by Miss Duff in cross-examination, but she also stated these matters had not been brought to her attention. Mr Smyth, however, in evidence, accepted that it was not ideal that the claimant had no Project Manager to report to for an extended period of time.
6(i) Additionally, a Parklands staff meeting was held on 16 September 2009. Mr Leitch and Mr Smyth were among managers present at it.
The main purpose of the meeting appears to have been to discuss the financial viability of Parklands which was running at a loss, and proposed new shift patterns. However, staff expressed concerns about what they saw as a lack of support. Mr Smyth told them that priority had been placed on opening a new phase at St Paul’s, another Praxis facility, and reassured staff that more support would be available in future, that the post of a new manager had been advertised and that interviews were being held later that month. It seems to us that these comments, at the very least, were a tacit admission that there had been a lack of support, and in any event promises made and assurances given to the claimant that things would get better did not materialise.
(ii) One of the claimant’s duties was to draw up a rota providing cover in Parklands. This became a problem, and she ended up performing extra hours on a regular basis.
In particular, she often performed the shift from 6.00 pm – 9.00 pm which was the most difficult to fill.
(iii) Management policy was that Parklands staff should be given first refusal of additional or overtime hours. If staff members did not want to work them, then agency workers could be engaged. However, there is some evidence that management discouraged the use of agency staff, and that working out shifts against a background of staff shortages caused the claimant stress.
Although Mr Smyth maintained that the claimant was under no pressure to work extra hours, he did consider that overall the hours she was working were ‘not desirable’, albeit ‘not excessive’.
He did not consider moving staff to Parklands from other Praxis facilities. We accept that this would have to have been done on a voluntary basis, as at the relevant time staff did not have mobility clauses in their contracts of employment.
(iv) In relation to excess hours we find that the claimant was not required or forced to work hours in excess of what she was contractually obliged to perform. Indeed there is evidence that she had in the past requested extra hours when it suited her domestic circumstances, and she had regularly worked overtime since she was a couple of months into the job, including the period before Beverley Lunney left. However, although these excess hours were considerable, they were not on the same scale as in the later period of her employment when there were problems with staff shortages.
(v) A majority of the Tribunal would find that in this latter period at least part of the reason for the claimant working so many hours was because she felt morally obliged to step into the breach and that in this respect management took advantage of her good nature.
7(i) We have alluded above to the poor relations among the staff.
On or around 23 October 2009 another staff member, Yvonne Rice, made allegations of bullying and harassment against the claimant.
She stated that the claimant was not giving her a fair allocation of hours. Ms Rice also complained that she was not given the opportunity to work towards an NVC qualification.
(ii) Mr Leitch and Mr Smyth met with the claimant, and explained the allegation against her. She was annoyed by it and offered to resign. She was advised against doing this or making any hasty decision. She did not make any complaint about excessive hours or make any complaint of discrimination against Mr Smyth. Mr Smyth’s initial impression was that Ms Rice’s complaint arose out of a clash of personalities. At this meeting and in subsequent phone calls the claimant raised no issues of her own, such as working excess hours beyond her contractual hours or any alleged discrimination by Mr Smyth.
(iii) On 11 November 2009 the staff member who made the complaint was interviewed, and on 13 November 2009 the claimant was invited by letter to a meeting on 19 November 2009. On 13 November 2009 she phoned Mr Leitch. She was concerned about the disciplinary process, and she raised matters relating to alleged harassment of her by other staff (but not by Mr Smyth) and indicated that she had asked police to come and see her at work. She was told not to ask the police to come to her workplace for the sake of vulnerable residents. However, she ignored this instruction.
8(i) Around 14 November 2009 the claimant submitted a sick line for work-related stress. It certified her as unfit to work until 14 December 2009 and a further sick line was sent in covering the period until 4 February 2010.
(ii) On 16 November 2009 the claimant spoke to Mr Leitch. By this time he had become aware that the police had visited Parklands at the claimant’s request. The claimant again expressed concerns about the ongoing disciplinary process, the fact that she had a Final Written Warning hanging over her and, in the light of this, the potential for the loss of her job. She indicated that she wanted any disciplinary proceedings over with as soon as possible, and again offered to resign. Mr Leitch again advised her against taking such a course and told her he would be consulting Occupational Health on the issue of whether the investigatory and disciplinary meetings should proceed.
(iii) On 1 December 2009, the claimant attended an appointment with Occupational Health, who had recommended that the investigation meeting be put back two to three weeks.
Occupational Health, in a report, recorded the claimant as describing what was termed a “complex situation with ongoing and increasing difficulties as regards interpersonal relationships within the staff of the Home”. The claimant ‘felt bullied’ by members of staff and … there appears to be quite a complex and difficult situation within the workplace.
The Occupational Health report made no reference to excessive hours or religious discrimination by Niall Smyth.
(iv) Around this time there were phone calls and correspondence from the first-named respondent to the claimant about the appointment with Occupational Health and the re-scheduling of investigatory and disciplinary meetings. The claimant characterised this as harassment and bullying during a period of sick leave. We do not find this to be so, and are satisfied management acted reasonably in this respect.
9(i) On 23 December 2009 the claimant met with Niall Smyth (she had wanted the meeting before Christmas). She was told that she should not have called the police to the Home in November 2009, and that this would also be considered as part of the investigatory process.
(ii) On 13 January 2010 the claimant was invited to a meeting so that the findings of the investigation could be communicated to her personally. She was told that the matter would be going forward to a disciplinary hearing. On this occasion also she asked if she should resign. She was told to take her time and think about such a course of action, and it was emphasised that any decision about her future was that of the disciplinary panel.
(iii) According to the claimant, Mr Smyth told her that if she got a new job he would not give her a reference. She also alleged that she was threatened with demotion, transfer or dismissal.
Mr Smyth denies these allegations. We find that in relation to a reference, he told the claimant that it would be factual and accurate, and that in relation to the disciplinary proceedings he did not threaten her, but told her the possible outcome of disciplinary proceedings. These included transfer and the possibility of other sanctions up to and including dismissal. Significantly, he also told her that disciplinary proceedings could result in her being exonerated, and mentioned matters of potential mitigation.
(iv) The claimant asked for time to consider the matter and resigned her employment with effect from 5 February 2010. This was communicated to the first-named respondent by letter, which they received on 22 February 2010.
10(i) In relation to the claim of constructive dismissal the Tribunal reminds itself that in order to establish constructive dismissal, an employee must show that there has been a fundamental breach of the contract of employment by the respondent, that the employee accepted that breach and resigned because of that breach and that the employee did not waive the breach, thus affirming the contract of employment.
It is for the employee to establish these matters.
(ii) As indicated at the outset, in this case we are concerned with a potential breach of the implied term of mutual trust and confidence. Where an employer breaches this term, it has been suggested that the breach will ‘inevitably’ be fundamental. See : Morrow v Safeway Stores PLC  IRLR 9 at 14, per Ms Recorder Cox QC.
As far as causation is concerned, there may be more than one reason why an employee resigned his position, and in such circumstances, the Tribunal must determine what was the effective cause of his or her resignation from post. See : Jones v F Sirl & Sons (Furnishers) Ltd  IRLR 493.
(iii) On the facts of this case, a majority of the Tribunal are satisfied that the first-named respondent, Praxis Care, conducted itself in a manner which was likely to destroy or seriously damage the relationship of confidence and trust between it and the claimant; and that the employer did not have reasonable and proper cause for such conduct. They find that the claimant was placed in a situation at work where she was, in effect, taken advantage of, that undue burdens were place upon her, that she struggled to cope without adequate support or supervision and that she operated on the basis of promises of help and support which were not fulfilled. While the Chairman does not disagree that this is an accurate reflexion of the position in which the claimant found herself, he finds that the effective cause of resignation was that she was concerned that the disciplinary proceedings which she was facing would result in her dismissal (she was subject to a Final Written Warning at this time) and that in the absence of a reference she would find it difficult to find a new job.
Indeed, she had previously spoken of resigning on more than one occasion when it was clear that she would face a disciplinary process.
(iv) All members of the Tribunal agree, however, that no issue of contributory fault arises in this case, and furthermore that there is insufficient evidence on which to base a conclusion that if the claimant had not been constructively dismissed as found by the majority, she would have been dismissed in any event in disciplinary proceedings.
11(i) We now deal with the claimant’s allegations of harassment on the ground of religious belief against Mr Smyth.
Mr Smyth is a Roman Catholic, as is the claimant who is in a relationship with a Protestant. Mr Smyth knew the claimant was in a mixed relationship, as she had told him this.
It seems that she and Mr Smyth shared a common interest in football and would frequently have discussed the subject. It is accepted that for the most part these discussions were generally cordial.
(ii) According to the claimant, things changed when she told Mr Smyth that her son played for the Linfield Under-14s. He allegedly said:-
“You’re having a laugh”.
Mr Smyth has no recollection of making such a comment and believes it unlikely that he made it. Mr Smyth also passed comment to the claimant about the fact that Linfield supporters had burned an Irish Tricolour at a Linfield/Derry City match which he had attended.
On the basis of these two comments, the claimant alleges that Mr Smyth had subjected her to harassment on the ground of her religion.
(iii) It is, of course, generally unlikely that a Roman Catholic will subject another Roman Catholic to religious harassment, but we do not discount the possibility of that happening here because of the fact that the claimant’s son played for what is perceived as a Protestant football club.
However, the evidence of religious harassment here is weak.
We are not satisfied that the comment about ‘having a laugh’ was ever made, and there is nothing to suggest that any comment about burning the tricolour, if made, was other than an accurate statement of something which actually happened. The claimant did not complain about these alleged remarks at the time, and only seems to have raised them subsequent to the termination of her employment.
The Tribunal therefore unanimously dismisses the claim of harassment on the ground of her religious belief.
12. In the absence of agreement between the parties, it will be necessary to hear further evidence on the issue of compensation in respect of the claim of constructive dismissal.
Date and place of hearing: 31 January 2011; and 1 – 3 February 2011, Belfast
Date decision recorded in register and issued to parties: