Industrial Tribunals Northern Ireland Decisions

 


Brannigan v Bryers (t/a Lisa's Hair Studio) (Constructive Dismissal) [2002] NIIT 2595_01 (20 May 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 2595/01

APPLICANT: Paula Brannigan

RESPONDENT: Lisa Bryers

T/a Lisa's Hair Studio

DECISION

The unanimous decision of the tribunal is that the applicant was not constructively dismissed.

Appearances:

The applicant was represented by Mr G Hyland, Solicitor, of Madden & Finucane, Solicitors.

The respondent was represented by Mr P S Brennan, Barrister-at-Law, instructed by Colman R Hanna & Company, Solicitors.

This is a reserved decision in summary form.

THE ISSUE

1. The applicant's claim was that she had been constructively dismissed by her employer, the respondent. The tribunal accordingly had to decide if the applicant's complaint was substantiated.

THE TRIBUNAL'S FINDINGS

In consequence of the written and the oral evidence adduced before it the tribunal found the following facts: -

2. The applicant was employed by the respondent as a trainee hair stylist at the respondent's hairdressing business in Downpatrick, County Down. She commenced this employment in September 1999. It was mutually agreed by the parties that this employment came to an end on 7 June 2001.
3. The respondent was engaged in business in a rather small way. She worked in the business herself and employed two other persons, Isobel Smyth and Cecilia Orr, in addition to the applicant. As a trainee hair stylist, the applicant's work duties included cleaning up both the public area of the business premises and also the staff room.
4. On Thursday 7 June 2001 at approximately 4.30 p.m. the applicant was engaged in the task of cleaning up in the staff room as the day's work was drawing to a close. She was wiping down a work surface when she pricked her finger on what transpired to be a diabetic blood-testing appliance. It transpired that the blood testing appliance belonged to another member of staff, Cecilia Orr, who had been present at work the previous day but was not present on the day in question. Whilst this incident did not cause a serious physical injury it did apparently cause the applicant some concern as to the possibility of blood contamination. It appears that the applicant had previously been employed in a hospital environment and was particularly alert to the possible dangers of blood contamination. There was before the tribunal an unresolved issue as to whether or not the needle contained in the appliance had been used and was therefore potentially contaminated by blood. However, the important factor, as far as the tribunal was concerned, was the issue of the perceived risk as far as the applicant was concerned and any potential implications flowing from the situation which presented itself to the applicant on that afternoon, and also the events of the following day.
5. A few minutes after this incident occurred, the applicant brought the situation to the attention of the respondent. The applicant seems to have merely reported the incident but not specifically or expressly to have requested that any action be taken by the respondent. Whilst the applicant found the occurrence of the incident unpleasant, there is no evidence that she was extremely distressed nor that she conducted herself at the time in any fashion which would have suggested to the respondent that the respondent ought to have sought immediate and urgent medical attention for the applicant nor that the respondent ought to have taken any other steps as a result of the applicant's particular reaction to the occurrence. Specifically, the tribunal noted that the applicant did not make any specific demands nor any requests for particular action on the part of the respondent.
6. The following day, Friday 8 June 2001, the applicant attended work at her normal starting time of 9.00 a.m. The applicant did not raise the previous day's incident with the respondent. Then, at approximately 10.30 a.m., Cecilia Orr, the apparent owner of the blood testing equipment, became free from her work. The applicant approached Cecilia Orr and a conversation ensued. The respondent took no part in that conversation and the tribunal accepted that the respondent might not have been aware of the conversation. Then, at approximately 11.45 a.m., the applicant became free from work and she went to the reception area and sat down to read a newspaper, as there were no clients to be attended to. Cecilia Orr then approached the applicant and a further conversation took place between the two, which the tribunal accepts was conducted in somewhat heated tones. At the time, the respondent was herself sitting at wash hand basins some 15 feet or so distant from the area where the two ladies were talking. The tribunal accepts that the conversation was more in the nature of an argument and voices were raised and that the respondent did overhear the conversation but she chose not to become involved in this. The tribunal believes that the respondent took the view that this was an argument between two members of staff, which, if there was no intervention on her part, might have achieved some resolution without the necessity for her direct involvement, at that point. The conversation however ended rather abruptly and in an unresolved fashion. A few minutes later, the applicant went into the staff room, collected her coat and her handbag and made for the door of the premises. As she left, she handed the sum of £40 in cash to the respondent, as this apparently was money owed by her, and made it clear that she was leaving. The respondent endeavoured to restrain the applicant and to prevent her from leaving but, despite this, the applicant left the premises. The tribunal accepts that the contract of employment terminated at that point.
7. The tribunal heard a considerable amount of additional evidence which was very much in dispute as between the applicant and the respondent. The tribunal found some of this evidence rather unsatisfactory and attached whatever weight it felt appropriate to this evidence in the context of the primary facts as determined by the tribunal.

THE TRIBUNAL'S DECISION

8. In terms of the general law of constructive dismissal, once an express or an implied term of a contract of employment has been breached by an employer to such an extent that there is evidence that the employer has committed a fundamental breach of contract, or shows an intention no longer to be bound by the contract, the employee is entitled, as a matter of law, to treat the contract as being at an end. This is what is commonly referred to as "constructive dismissal". The law is as set out by the Court of Appeal in England in the case of Western Excavating [ECC] Limited –v- Sharp [1978] IRLR 27 and in many authorities since then.
9. The tribunal considered the facts of the matter as these might bear upon any express or any implied terms of the contract of employment, and any potential breach of any such terms. The tribunal accepts that the applicant's account of the occurrence of the incident on that Thursday afternoon, 7 June 2001, is an accurate account of her own perception. However, the manner in which the applicant brought the fact of the incident to the attention of the respondent presents the proposition that the respondent was acting quite reasonably in taking the view that this was not a particularly serious incident. The applicant waited for a few minutes before approaching the respondent. There was no evidence of blood at that stage. The applicant's finger was not proffered to the respondent for close inspection of any injury sustained. There was no expressed need for medical care nor was any requested by the applicant. Then, on the following day, 8 June 2001, having had an opportunity to consider matters overnight, the applicant did not approach the respondent upon her first attendance at work. Indeed, it took the applicant until 10.30 a.m. that day to approach the "culprit" as she saw it, Cecilia Orr. There was no express nor any implied grievance raised by the applicant with her employer. (See W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516 or Waltons and Morse v Dorrington [1997] IRLR 488 both EAT). There is therefore no issue that any implied term of the contract of employment to that effect was breached regarding any grievance not being properly or promptly dealt with by the respondent.
10. We then turn to a consideration of any potential breach of the implied term of trust and confidence that ought to exist in every contract of employment. (See Mahmud v Bank of Credit and Commerce International SA [1997] IRLR 462 HL). The fact is that the applicant at no stage brought to the attention of the respondent any particular or unusual sensitivity on her part in respect of potential blood contamination or contact with needles or blood-testing appliances. The applicant's demeanour on that Thursday evening appears to have been more one of annoyance than of distress. The applicant stated to the tribunal that she was aggrieved that the respondent did not enter the occurrence in the respondent's accident book on that Thursday evening. She did not request the respondent to do that. The tribunal's view is that if the applicant had been seriously injured or was seriously distressed at the prospect of possible blood contamination, the issue of an entry of the incident into the respondent's accident book ought to have been very much a secondary consideration when compared to the issue of seeking urgent medical attention and making that request quite clear to her employer. Whilst the applicant did later seek medical attention she did so privately and without informing the respondent. In the tribunal's view the conduct of the respondent on that Thursday afternoon, 7 June, was not unreasonable, given the way in which the matter was addressed by the applicant and given the respondent's state of knowledge, and there was no breach of any express or implied term of contract on the respondent's part in regard to the respondent's approach to the matter.
11. Turning then to the events of the subsequent day, 8 June 2001, the applicant's approach to the matter, as far as the respondent was concerned, was not to formally address any relevant issues directly with the respondent. Rather the applicant chose to confront directly Cecilia Orr in mid-morning. There was no evidence before the tribunal that the respondent even directly witnessed or was even aware of that first conversation between the applicant and Cecilia Orr. However, a further confrontation occurred towards the end of that morning. A very short time after that confrontation the applicant left the premises. Whilst the respondent did witness this latter confrontation, and another employer might have acted in a different fashion, the respondent opted for a non-interventionist approach. Although at tribunal the applicant interpreted the respondent's approach in a very adverse fashion, indeed to such an extent that the applicant stated that she felt unsupported and felt obliged to leave the employment, nonetheless the tribunal notes that events at that time occurred with considerable alacrity and, notably, occurred in the absence of any further endeavour on the part of the applicant to request the respondent to intervene and to do something to resolve the situation. The tribunal feels that the respondent's conduct and management of the events of which she was consciously aware that day and which occurred in her business premises is not conduct and management of a character which might suggest, of itself, a sufficiently serious or damaging breach of the implied term of mutual trust and confidence in the contract of employment such as to entitle the applicant to claim constructive dismissal.
12. This leaves finally the issue of health and safety at work and the implied duty placed upon any employer to provide a suitable working environment. (See again Waltons and Morse v Dorrington [1997] IRLR 488 EAT). The tribunal takes the view that in a different industrial context, for instance in a hospital environment, the respondent's lack of positive or proactive response as employer to being advised as to the discovery of the blood testing equipment being left in such a situation, would have been a cause of some concern. However, the tribunal notes the size, the nature, and the character of the respondent's business. Any employer, becoming aware of a significant health and safety risk, ought properly to address that risk in a reasonable manner as far as any employee is concerned. In the instant matter, the tribunal had to ask itself if this employer was entitled or obliged to assume that there was material or a significant risk of injury or of contamination based upon the employer's actual knowledge at the material time of the presence or use of the blood testing equipment in the workplace and based upon the employer's actual understanding or appreciation of any material danger or risk. On the facts of this case, the tribunal does not regard any such express or implied term as is mentioned above as having been breached in this instance by the respondent, such as to entitle the applicant to claim constructive dismissal.
13. As no express nor any implied term of contract as between the applicant and the respondent has been breached to such a significant degree as to show evidence that the respondent had either committed a fundamental breach of contract or had indicated an intention no longer to be bound by the contract, the applicant was not, upon the facts, entitled to treat the contract as being at an end and to claim constructive dismissal. That being the case, the applicant's complaint must fail and the applicant's claim is accordingly dismissed.

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Date and place of hearing: 26 February 2002, Belfast

Date decision recorded in register and issued to parties: 20 May 2002