Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 875/03

CLAIMANT: Kathleen O'Kane

RESPONDENT: United Hospitals Trust

DECISION

The unanimous decision of the tribunal is that the claimant was not dismissed and was not unfairly dismissed.

Appearances:

The claimant was represented by Mr P Moore in his personal capacity.

The respondent was represented by Mr F O'Reilly, Barrister-at-Law, instructed by Central Services Agency

The claim and the issues

1. The claimant's claim was that she was unfairly dismissed by way of constructive dismissal. The issues for the tribunal were:-

(i) Was the claimant constructively dismissed and,

(ii) If the tribunal was satisfied that the claimant was dismissed, was that dismissal fair within the meaning of Article 130 of the Employment Rights (Northern Ireland) Order 1996.

The hearing

2. The tribunal considered the notices of application and appearance; documents referred to by the parties during the course of the evidence; the written statement of the claimant and her oral evidence; the written statement of the claimant's union representative, Mrs Fulton, and her oral evidence and the oral evidence of the claimant's daughter, Miss O'Kane.
3. A preliminary issue was raised by the respondent's representative on a time point, namely that the application had been presented outside the requisite time limit, but was withdrawn by the respondent after submissions had been made.
4. At the conclusion of the evidence for the claimant, the respondent's representative made a submission that the respondent had no case to answer. In determining whether the respondent had no case to answer, the tribunal looked at the claimant's case at its height, taking account of the agreed documentation and the oral and written evidence and any concessions made by the claimant and her witnesses in cross-examination. The tribunal disregarded any points put on the respondent's behalf in cross-examination where no direct evidence had been adduced nor a concession made by the relevant witness. The tribunal then determined whether the claimant's evidence provided a sufficient basis in fact and in law to enable a case for constructive dismissal to be made and, consequently, whether there was a case to be put to the respondent.

The evidence

5. The relevant evidence on the claimant's behalf was as follows:-

(i) The claimant worked as a Nurse at Antrim Area Hospital in the Accident & Emergency Unit. There were difficulties between two nurses in that Unit, namely Staff Nurse M and Staff Nurse McW, which caused difficulties for the staff in general. Staff Nurse M was the claimant's manager. The claimant raised the issue of the friction between the two nurses at a staff meeting on 15 October 1996 with a view to having management sort out the problem.

(ii) Staff Nurse M became aware that the claimant had raised the issue and after that meeting, Staff Nurse M cold-shouldered and ignored the claimant and generally by her behaviour made life difficult for the claimant on her shifts. The claimant felt bullied and humiliated by this behaviour.

(iii) The claimant was distressed on a couple of occasions in work and this was witnessed by her managers and on one occasion the Clinical Director, Mrs Hall, remarked to the claimant in a corridor that she had heard that she was "having a hard time".

(iv) The claimant at no time made a complaint of bullying or harassment and did not raise a grievance about Staff Nurse M's behaviour because she thought the behaviour would "fizzle out".

(v) The claimant had previously been a trade union representative for some years, and was fully conversant with the respondent's harassment grievance and complaint procedures.

(vi) Staff Nurse M made a complaint against the claimant and others of harassment and inappropriate behaviour. The claimant was notified of this complaint on 24 June 1998. An investigation took place and the allegations were determined to be unfounded. The claimant was notified of the completion of the investigation on 15 December 1998. The claimant believed that the investigation had taken 17 months, but conceded at hearing that it had actually taken six months and further, she agreed that this was not an unduly long period for the investigation to have taken place. The claimant also confirmed that she had no criticism of the actual investigation. At no stage during the investigation did the claimant raise any history of bullying or harassment by Staff Nurse M.

(vii) A mediation meeting took place on 23 June 1999 when the claimant felt bullied by Staff Nurse M again. No complaint was made about this behaviour.

(viii) As a result of the investigation, Staff Nurse M was moved to another Department on 17 October 1999 to be a bed manager. The claimant alleged that this new position gave Staff Nurse M even more contact with her, but conceded in cross-examination that the record shows that their shifts overlapped only twice during the period 27 September 1999 to 28 May 2001, although the claimant's evidence was that Staff Nurse M would have called in a couple of times when she was off-duty. The claimant then gave evidence that her concerns and anxiety at that time related to the potential for contact with Staff Nurse M. In evidence the claimant said that, after the move on 17 October 1999, she lost trust and confidence in her employer at that point and felt she had been "left to the wolves". At that stage the claimant felt that her career was over. Despite this, again the claimant raised no concerns about her contact with Staff Nurse M with managers but continued to work.

(ix) The claimant went off sick with a depressive illness on 8 March 2000 and returned on 23 April 2000. After the claimant's return to work, she felt that she could not continue to work in Antrim Area Hospital because of the constant reminders of the bullying, although she could not indicate to the tribunal what those reminders were.

(x) The claimant went off sick again with a depressive illness on 10 May 2001 until she took medical retirement on 11 November 2002. The claimant confirmed that she was not fit to return to work during that period although she wanted to return at some time in the future.

(xi) Staff Nurse M left the hospital's employ on 19 May 2001.

(xii) During the last period of her illness the claimant was interviewed regularly by her managers, accompanied by her experienced trade union representative, Mrs Fulton. The venue of the meetings were changed to another hospital when the claimant indicated that she found it too stressful to attend Antrim Area Hospital.

(xiii) The claimant was offered staff counselling on a number of occasions by the occupational health Doctor and by Personnel but, in the main did not avail of this. At hearing, the claimant maintained that the counselling offered was inadequate, in that specific trauma counselling should have been offered.

(xiv) The claimant had previously suffered from depressive illness unrelated to her work. Tragically, she also suffered two family bereavements very shortly before and very shortly after she went on her final period of sick leave on 10 May 2001.

The law

6. In order to establish a claim of constructive dismissal, the claimant must show four elements:-

(i) There must be a breach of contract by the employer.

(ii) The breach must be sufficiently serious to justify the employee resigning or must be the last in a series of incidents which justify her leaving.

(iii) She must leave in response to the breach and not for some other unconnected reason.

(iv) She must not delay too long in terminating the contract in response to the employer's breach as otherwise she might be deemed to have waived the breach and agreed to vary the contract.

7. The tribunal was referred by the respondent to Paragraphs 401 to 405 and 522 to 600 of Harvey on Industrial Relations and Employment Law, Division DI Unfair Dismissal. The tribunal referred the parties specifically to two cases, namely Bashir v Brillo Manufacturing Company [1979] IRLR 295 and the Court of Appeal decision of Omilaju [2005] IRLR 35.
8. In considering whether to accede to the submission that the respondent had no case to answer, the tribunal considered, and referred the parties to, the decision of the Court of Appeal in Logan  v Commissioners of Customs & Excise [2003] EWCA CID 1068, [2004] IRLR 63 where the learned judge stressed the exceptional nature of the power to dismiss a case after hearing only one side. Both parties made representations in relation to that decision.

Findings

9. The claimant's claim of breach of contract leading to constructive dismissal rested on five allegations which are set out below together with the relevant evidence adduced at hearing:-

(a) Failure to protect the claimant from the behaviour of Staff Nurse M following the meeting in October 1996.

The claimant made no complaint in relation to Staff Nurse M's behaviour following the meeting of October 1996, but continued in work. She was conversant with procedures, having been a trade union representative and yet failed to avail of the grievance or complaint procedures in relation to harassment or bullying. Indeed when Staff Nurse M made very serious allegations against the claimant it was a golden opportunity to raise the issue of Staff Nurse M's behaviour against her, but again she failed to do so.

(b) The investigation into Staff Nurse M's allegations took 17 months to two years and was too long, causing stress to the claimant.

The claimant accepted in cross-examination that the documentation showed that the investigation was completed within six months, rather the 17 months to two years alleged by her and she further accepted that this was not a long time and she had no criticism of the way the investigation was carried out.

(c) Failure to protect the claimant when Staff Nurse M was moved and 'rewarded' in her new position.

After Staff Nurse M was moved to the bed manager post in October 1999, the claimant conceded, when shown the shift rotas, that the scope for contact was very limited indeed and could not indicate to the tribunal in what way the move was a reward for Staff Nurse M other than to say that she was her own boss. Staff Nurse M had been in charge in the A&E Department, so the tribunal found it difficult to see how being her own boss as bed manager was a reward.

(d) Failure to have a back-to-work programme and counselling for the claimant in April 2000 and during her last period of absence.

The documents showed, and the claimant accepted the accuracy of those documents and accepted in cross-examination, that she had been offered counselling on more than one occasion by the OHS Doctor on the respondent's behalf and by Personnel, but she rejected those offers of counselling as she did not feel fit to avail of them. It was only at hearing that the issue of specific trauma counselling was raised but, as the claimant had indicated to her employer that she was not fit to engage in any counselling, the tribunal did not accept that any failure by the employer to offer specific trauma counselling was capable of amounting to breach of contract.

(e) Failure to consider redeployment or reduced hours, to enable the claimant to return to work and forcing her to medically retire or face dismissal.

The documentation showed and the claimant accepted the accuracy of the documentation showing that the issue of redeployment and reduced hours were discussed by the OHS Doctor and by Personnel, but the claimant felt unable to return to the hospital at all, because she was unfit.

The claimant was clear that in the last period of her absence she was keen to return to work and co-operated by attending meetings with her managers, but she was also clearly medically unfit and therefore the question of redeployment or reduced hours was not appropriate. The OHS doctor had discussed these issues at length and the claimant had told him that it would not be appropriate at that time. She confirmed in evidence that she was not fit to return although she wanted to. Mrs Fulton gave evidence that redeployment was mentioned by Personnel, and the claimant rejected it because she was not fit to return any where in the Trust at that time.

The claimant had claimed that she was effectively forced to retire and in interlocutory papers it was alleged, on her behalf, that she was told to retire on ill-health grounds or she would be dismissed. The evidence of the claimant did not bear this allegation out and the evidence of Mrs Fulton expressly contradicted it. The claimant asked for ill-health figures by letter of 27 June 2001 and requested those figures again through her union representative at a meeting on 14 November 2001. Mrs Fulton's evidence was clear that she did not agree with the allegation by the claimant's representative, namely that at that meeting it was the threat of termination which led to the request for ill-health retirement figures. It was clear from the evidence of the claimant and Mrs Fulton, that the claimant was not threatened with dismissal if she did not agree to retire on medical grounds. Mrs Fulton confirmed that it was normal procedure for the employer to tell someone on long-term sick-leave that termination of their contract was a possibility. The claimant was clear that she was not fit to work and she and her trade union representative sought the information on medical retirement figures over a period of some months before she decided to apply.

10. Applying the legal principles to the claimant's evidence, the tribunal found that there was no act or omission by the respondent which was capable of amounting to a breach of contract of sufficient seriousness to warrant the claimant leaving. If such a breach or breaches of contract did occur the tribunal was clearly of the view that the claimant had waived any such breaches.
11. Even if one or more of the five allegations made by the claimant were capable of amounting to a serious breach of contract, the claimant had waived any breach by failing to complain and by continuing to work with the employer and, during her last absence, she continued to engage with the employer by attending regular meetings and making it clear that she wanted to return to work. This behaviour of the claimant was inconsistent with her claim that she was constructively dismissed. Insofar as there was any allegation that it was a series of acts or omissions of the employer which led to the claimant resigning (the last straw doctrine propounded by the Court of Appeal in the Omilaju case), the tribunal found no act or omission which could be capable of amounting to a last straw and, in any event, as found above, none of the acts complained of prior to the final period of absence was sufficient to amount to fundamental breach of contract.
12. The tribunal was, therefore, unanimously of the view that this was indeed an exceptional case and that the claimant had clearly failed in law or in fact to establish what she needed to establish in order to proceed with a constructive dismissal claim. In view of the claimant's own evidence and the evidence of her witnesses, the tribunal found insufficient evidence upon which to base a constructive dismissal claim and therefore acceded to the respondent's application that there was no case for the respondent to answer.
13. As a consequence, the tribunal found there was no dismissal. As there was no dismissal, the tribunal did not have to consider the issue of fairness.

Chairman:

Date and place of hearing: 29 – 30 June 2005, Belfast

Date decision recorded in register and issued to parties: