Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 3101/04

CLAIMANT: Bertella Todd

RESPONDENT: Prospects

DECISION

The unanimous decision of the tribunal is that the claim is dismissed

Appearances:

The claimant appeared in person and represented herself.

The respondent was represented by Mr Flannagan, Barrister-at-Law, instructed by Curwens Solicitors.

1. The tribunal heard oral evidence from the claimant and from Alison Gordon, Heather Frizzell, Heather Maguire and Samantha Graham on behalf of the respondent. The tribunal also received a bundle of documents from each party. During the course of the hearing a small additional bundle of documents was provided by Mrs Gordon without objection. A written statement was also received from Orlaith Dynes.
2. The claimant was employed as a senior support worker by the respondent from 18 August 2003 to 21 November 2004. She was a member of a team of approximately six staff who provide round the clock support for three people with learning disabilities who resided in a bungalow in Donaghadee. On 5 September 2004, the claimant phoned in sick and never returned to work for the respondent. On 11 October 2004 the claimant formally resigned from her position and on 30 November 2004 she filed an originating application in which she claimed constructive dismissal.

In order to claim constructive dismissal it is necessary for to prove:

1. an actual or anticipatory breach of contract by employer sufficiently important to justify resignation;

2. the claimant resigned in response to that breach and not for an unconnected reason; and

3. that there was no undue delay in resigning.

The breach may be either of an express or an implied term of the contract. The authors of Harvey provide a number of examples of the scope of implied terms some of which are relevant in the present case. These include the duty of trust and confidence, the duty of co-operation and the duty to promptly address grievances. The duty of trust and confidence may embrace unreasonable conduct by an employer. Constructive dismissal may also result from an employee leaving in response to a course of conduct carried out over a period of time, the so called 'last straw' doctrine.

The claim filed by the claimant also contained a possible complaint under the Working Time Regulations but the claimant indicated that she had not intended to bring any such complaint and it is not therefore necessary for us to address it.

3. The basis of the claimant's complaint of constructive dismissal is set out in Paragraph 13 of her originating application and was expanded upon in her evidence to the tribunal and may be summarised as follows:-

(i) The claimant's line manager, Mrs Alison Gordon, was unsympathetic and rude on 19 June 2004 when the claimant approached her about her problems with the night shift.

(ii) Subsequently, Mrs Gordon put the claimant on a six day week whereas the other staff were on a five day week and informed the claimant that she would have no more weekends off.

(iii) Thereafter, Mrs Gordon completely ignored the claimant and would only acknowledge her when there was no alternative.

(iv) Mrs Gordon questioned the claimant about the times that she was dispensing medication and tried to find fault with her work.

(v) When the claimant referred her problems through the grievance procedure, she felt that no-one believed her.

(vi) Mrs Gordon's refusal to allow the claimant to attend a review meeting about one of the respondent's clients.

(vii) Mrs Gordon's refusal of the claimant's request for leave on 10, 11 and 12 July 2004.

(viii) The threatening manner in which Mrs Gordon treated the claimant in relation to her going on a planned holiday whilst on sick leave.

4. The respondent disputed the factual basis of the claimant's complaint and denied that she was entitled to complain of constructive dismissal. The main issue therefore for the tribunal to determine was whether or not the claimant was entitled to claim constructive dismissal on the basis alleged or at all.
5. The tribunal found the following facts in relation to the claimant's complaints:-

(i) On 18/19 June 2004 the claimant had a very difficult nightshift. The claimant telephoned her line manager, Mrs Gordon, who was on call at approximately 1.45 am on 19 June 2004 and told her that she was having problems with Eva who was one of the people that she was looking after. Mrs Gordon advised her to try and calm Eva down. Mrs Gordon also spoke to Eva and helped to settle her. Mrs Gordon offered to attend the bungalow, but the claimant said that she could manage.

On the morning of 19 June Mrs Gordon came on shift at Donaghadee at 9.00 am. She asked the claimant how the rest of the night shift had gone. The claimant told her that Eva had eventually settled down, but that she was not at all happy because Eva had hit her. She was also unhappy that Eva had disturbed her night's sleep as a result of which she only enjoyed two hours' sleep. The claimant was upset and claimed that this was because Mrs Gordon had said that she sounded very sharp with Eva. The claimant accepted that she could sound abrupt. The claimant alleged that Mrs Gordon apologised to her for being rude and having a bad attitude. We are satisfied that that Mrs Gordon merely said that she was sorry that the claimant had a hard night and that Eva had hit her. Mrs Gordon was unable to allow the claimant go home as she did not have any other staff to replace her. We are satisfied that Mrs Gordon probably did criticise the claimant for being sharp with Eva but was entitled to do so as the claimant's line manager. There is no substance to the allegation that Mrs Gordon was unsympathetic or rude.

(ii) The claimant's contract provided that her normal working hours were 40 hours per week exclusive of meal breaks and that she would be required to work these hours on such days and times as designated by her line manager. In relation to night shifts it was stated that the employee may be required to 'sleep-in' on the premises for which a nightly allowance would be paid as advised by the home manager. The nightshift was from 3.00 pm until 3.30 pm the following day. Employees would normally get eight hours sleep between 11.00 pm and 7.00 am. It was common case that at the outset of her employment and for some time thereafter the claimant worked five days together with two night shifts. The arrangements were that the three staff members on 40-hour contracts performed two 'sleep–ins' or 'sleepovers', as they were referred to in evidence, each. In addition, one staff member with a 30-hour contract performed one sleepover. Another staff member was on a 16-hour contract and did not do sleepovers on a regular basis due to problems with childcare but would help out if there were any difficulties. On the morning of 19 June the issue of sleepovers was discussed. The claimant told Mrs Gordon that she was not prepared to have her sleep disturbed and would no longer be doing two sleepovers. The claimant asserted that her contract only required her to do one nightshift. Mrs Gordon reminded the claimant that she had agreed to do sleepovers when she was interviewed for the post and that if she was dropping one sleepover she might have to drop from her 40 hours. The claimant's reaction was that she did not need to drop below 40 hours and she would not be dropping below 40 hours.

Following a staff meeting on Monday 21 June 2004, there was a further discussion between the claimant and Mrs Gordon about this issue. Mrs Gordon advised the claimant that if she was dropping one sleepover she would need to work long hours to bring her up to a 40-hour week. It was clear that Mrs Gordon was not happy with the prospect of the claimant working long shifts on a regular basis due to the knock on effect on other staff. Mrs Gordon gave the claimant three options which were as follows:-

(1) To leave things as they were and try to spread sleepovers.

(2) To work a six day week and keep to forty hours with only one sleepover.

(3) To reduce the forty hour week stipulated by the contract if the claimant was only prepared to do one sleepover.

On 23 June 2004 the claimant informed Mrs Gordon that she would take up the second option. There was a further discussion about rotas at a supervision meeting on 24 July 2004. Mrs Gordon suggested that the claimant should plan her leave around Eva and should take a complete break every eight weeks. She also offered the claimant other shifts in Bangor with other easier clients. The claimant was not interested in any of these suggestions. Mrs Gordon volunteered to investigate the matter further with Mrs Frizzell, the personnel officer.

A meeting was subsequently arranged with Mrs Frizzell on 26 August 2004 to discuss the claimant's shift pattern. Mrs Gordon and Mrs Heather Maguire, the Service Manager for Prospects in North Down and Ards were also in attendance. The claimant was again given various options, either to go contracted hours or spread sleepovers or work a six day week and spread the sleepovers. She was also offered sleepovers in Bangor. Mrs Maguire agreed to a similar arrangement to that previously accepted by the claimant on 23 June, namely a six day week with one sleepover on a trial basis.

We are satisfied that the claimant had a contractual requirement to sleepover in the Donaghadee bungalow as designated by her line manager, Mrs Gordon. While the claimant clearly expressed concerns about the rota these were treated sympathetically by the respondent and by Mrs Gordon in particular in the wake of the difficulties that emerged on 18/19 June. Efforts were made both by Mrs Gordon and Mrs Maguire to accommodate the claimant. We are further satisfied that in view of the claimant's decision to opt for a six day rota with one sleepover there is no substance to her complaint about the rota.

(iii) The claimant alleged that Mrs Gordon virtually stopped speaking to her shortly after the dispute about rotas and only spoke to her if she had to and that this continued for three months. Mrs Gordon accepted that she stopped speaking to the claimant on a social basis and claimed this was due to the amount of wrangling about shifts and rotas. She further denied trying to undermine the claimant and turn other staff against her. We are satisfied that other members of staff raised concerns with Mrs Gordon about the stress caused by working with the claimant due in the main to her constantly complaining. One staff member, Samantha Graham was moved to Bangor as a result. Another asked for a two week break from working on the same shift as the claimant. Mrs Gordon decided not to raise these matters with the claimant in order to avoid further friction. We would question the wisdom of this decision. Another example provided by the claimant of Mrs Gordon's behaviour was the occasion on 3 September 2004 when Mrs Gordon communicated with the claimant via a text message to one of her colleagues. We accept the explanation offered by Mrs Gordon that she did so because she was unaware of the claimant's new mobile phone number. While the absence of conversation between workers would undoubtedly create a difficult working environment we do not consider that taken on its own it provided justification for the claimant to resign and claim constructive dismissal.

(iv) Mrs Gordon was informed by a member of staff that all three clients and Leslie in particular, were being given their medicine early because the claimant wanted to watch television. This was denied by the claimant. One evening when Mrs Gordon returned to the bungalow with the shopping at 7.00 pm she noticed that the claimant was dispensing medication. Mrs Gordon asked the claimant whether there had been change in the medication without her being informed. The claimant said that there had not been a change and that Leslie wanted to go to bed. Mrs Gordon regarded 7.00 pm as too early and thought that Leslie could sit up to 10.00 pm. Mrs Gordon marked down 8.00 pm on the medication sheet. She regarded this as doing her job properly and not 'nit-picking'. The claimant accepted that 'nit-picking' was not the right word to describe this complaint. It was more that the claimant felt isolated because Mrs Gordon was giving her no support and she was scared to approach her about anything. We prefer Mrs Gordon's evidence on this issue and we are satisfied that she was doing no more than carrying out her duties in a professional manner.

(v) The first intimation that the claimant gave of a grievance was on 8 September 2004 when she wrote to Mrs Maguire in the following terms:-

"I refer to our meeting of Thursday 26^th August 2004 at Prospects Office, 37 Movilla Street, Newtownards, which was called to discuss shift patterns. I wish to complain that I did not have any opportunity to discuss my difficulties and grievances at my place of employment at this meeting. The only item up for discussion was the duty rota.

I feel that I am being totally ignored by my line manager, Alison Gordon. As well as ignoring me she 'nit picks' on a constant basis and I find this working environment very stressful and these conditions are having a detrimental effect on my general health. I referred all the matters concerning the case to the Labour Relations Agency and have sought legal advice. I feel I am being bullied by Alison Gordon and this action is making me ill.

I would like this matter resolved so that I have my statutory right to work in a stress free environment recognised."

On 5 October 2004, Mrs Maguire replied by letter and invited the claimant to meet with her when she could air her concerns. Mrs Maguire asked the claimant to provide her with written details of her concerns prior to the meeting. The claimant set out her concerns in a letter dated 11 October 2004 and met with Mrs Maguire on the same day. The claimant's letter of 11 October included complaints about the manner in which Mrs Gordon handled Eva but the claimant did not put these forward as in any way connected with her decision to resign. At the end of the meeting she handed in a formal letter of resignation.

On 20 October 2004 Mrs Maguire held a meeting with Mrs Gordon in order to discuss with her the complaints which had been made by the claimant. Mrs Maguire outlined the claimant's complaints and asked Mrs Gordon to provide a written response. Mrs Gordon responded by providing Mrs Maguire with a lot of written material, including supervision notes, going back for several months.

On 22 October 2005 the claimant attended a feedback meeting with Mrs Maguire and Mrs Frizzell. They went over the complaints with the claimant and advised her of Mrs Gordon's response. The claimant was not happy and did not agree with Mrs Gordon's responses. Mrs Maguire told the claimant that she had investigated the matter as far as she could and was satisfied with Mrs Gordon's answers. Mrs Maguire informed the claimant of her right of appeal to her superior, Sandra Steele, and that she should do so within seven days. The claimant indicated that she would appeal.

On 26 October 2004 the claimant wrote to Sandra Steele stating that she disagreed with Alison Gordon's answers. It would appear that this letter was not treated as an appeal and nothing further was done. Sandra Steele is no longer employed by the respondent and she was not called to give evidence.

An issue arose as to whether or not the claimant had in fact raised a formal grievance and it was submitted on behalf of the respondent that the matter had been dealt with informally. The respondent's Notice of Appearance certainly conveyed the clear impression that that the matter was dealt with under its grievance procedure and a copy of same was provided to the tribunal. The manner in which the claimant's grievance was handled contained both formal and informal elements and did not conform to the respondent's written guidance on this topic. We consider that the matter was dealt with in a most unsatisfactory manner and it would have been far preferable for the grievance to have been dealt with more formally. However, the crucial issue for us in considering a claim of constructive dismissal is whether the treatment of the claimant's grievance is capable of supporting her complaint and this must be answered in the negative for two straightforward but linked reasons. Firstly, it is clear that the claimant did not raise any sort of grievance, formal or informal until her letter of 8 September having effectively left the respondent's employment on 5 September 2004 notwithstanding that she did not formally resign until 11 October 2004. Secondly, the claimant did not advance any complaint about the grievance procedure apart from the failure to process her appeal. This again occurred a long time after she ceased to work for the respondent and more importantly after she had resigned. The failure to address the claimant's appeal was unfortunate and symptomatic of the chaotic manner in which the claimant's grievance was handled by the respondent but the claimant had by that time long since left the respondent's employment and therefore this defect is not capable of sustaining her claim of constructive dismissal. In reality the claimant's main complaint about the grievance was that she wasn't believed but in our view that does not qualify as a legitimate complaint about the grievance procedure. There is no evidence that the respondent did not treat the claimant's grievance seriously and if anything the evidence points to the respondent going further than might be considered necessary for a person who was no longer employed by it.

(vi) A review was to take place with Eva and her family during the summer months. The claimant was the key worker for Eva and this meant that she attended all reviews concerning Eva. This involved writing out notes about Eva's progress in advance of the review. The claimant alleged that Mrs Gordon told her that she only wanted the good parts and prevented her from attending the review. Mrs Gordon's evidence was that she explained the importance to the claimant of being positive without hiding anything. The claimant believed that the reason for excluding her from the review was because she would have expressed concerns about Eva's mental health. The claimant did not dispute Mrs Gordon's evidence that the decision to exclude her from the review was taken by David Nesbitt, the Trust's Care Manager, who was in charge of reviews. The claimant accepted that she didn't resign because she was stopped from going to the review.

(vii) Dates of holidays had to be agreed with the line manager. On 30 June 2004 the claimant asked Mrs Gordon if she could take annual leave on 10, 11 and 12 July 2004. Mrs Gordon refused and gave her 13 July off instead. Mrs Gordon refused to give the claimant the other days off because as she was working a six day rota it was not possible for her to have three consecutive days off. In addition, other staff had already booked time off and if the claimant had been allowed to take leave on those three days there would not have been sufficient staff to carry out the work. The claimant suggested that Mrs Gordon told her that she would never be getting a weekend off again. As the claimant was by this stage working on a six day rota, we have little doubt that Mrs Gordon explained the difficulties about the claimant having weekends off whilst she was working on this rota. There was a further acrimonious discussion about rotas and holidays on 5 July 2004 when Mrs Gordon attended the bungalow to do the rest of the evening shift. In order to placate the claimant Mrs Gordon volunteered to work on 17 July 2004, so that the claimant could have one day off at the weekend. We do not consider that the claimant's complaint about the treatment of her request for leave is well founded and as such does not assist her claim of constructive dismissal.

(viii) On 5 September 2004 the claimant went off sick. She telephoned Mrs Gordon on 6 September to say that she would not be in for the rest of the week and would not be back until after her holidays. The claimant was due to go on a three week cruise holiday and Mrs Gordon raised a query about her going on holiday while she was on sick leave. Mrs Gordon was aware that the claimant had a cruise booked but was uncertain how it worked if a person on sick leave then went on annual leave. Mrs Gordon told the claimant that she would have to seek advice from Mrs Frizzell. The claimant responded that she was going on a cruise and Mrs Gordon could not stop her. When Mrs Gordon tried to explain the situation to the claimant, she talked over her and hung up. The claimant alleged that she found Mrs Gordon's attitude threatening. In her evidence in chief, Mrs Frizzell suggested that spoke to the claimant about the matter before she went on holiday and told her that there was no difficulty about moving from sick leave to a planned holiday. When pressed in cross-examination, Mrs Frizzell seemed less certain that she had in fact told the claimant that there would be no difficulty in taking her holiday. She recalled speaking to Mrs Gordon about the issue but did not know if anyone told the claimant that there was no problem about going on holiday after sick leave. The claimant said that she could not remember being told this and claimed that she worried throughout the holiday that she would be sacked on her return. We prefer the claimant's evidence on this point and we are satisfied that the claimant was not given any assurance that she could go on holiday without any difficulty. This undoubtedly caused the claimant genuine distress. However this appears to have been at least partly the claimant's own fault. There was nothing wrong with Mrs Gordon wanting to check the rules about staff moving from sick leave to annual leave and if the claimant had been prepared to be patient whilst the matter was checked there would not have been a problem. Nor was there any justification for the claimant's perception of Mrs Gordon's attitude as threatening. We cannot therefore accept that the respondent's handling of this issue is capable of supporting the claim of constructive dismissal.

6. Having carefully considered the evidence in relation to the rota and nightshifts we are satisfied that there was no breach of any express term in the claimant's contract of employment. At its height the claimant's case amounts to unreasonable conduct by the respondent and failings in the grievance procedure both of which might be regarded as being in breach of the implied terms of the claimant's contract. Whilst we have identified several shortcomings in the manner in which the respondent dealt with claimant, we are not satisfied that the grounds on which the claimant seeks to base her claim of constructive dismissal are sufficient either individually or collectively to sustain such a claim. The claim must therefore be dismissed.

Chairman:

Date and place of hearing: 17 June 2005, 6 July 2005, 7 July 2005 and 9 August 2005, Belfast

Date decision recorded in register and issued to parties: