Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 859/05

CLAIMANT: John Murdock

RESPONDENT: Ards Citizens Advice Bureau

DECISION

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

Constitution of Tribunal:

Chairman: Mr Davey

Members: Mr Hesketh

Mr Patterson

Appearances:

The claimant conducted his own case.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Bates Wells & Braithwaite, Solicitors.

REASONS

The Claim

1. The claimant, in his claim, claimed compensation for failure to provide written reasons for dismissal and compensation for breach of contract, such compensation to be adjusted for failure to comply with the statutory dismissal procedures.

ISSUES

The Issues

2. The issues for the tribunal were:-

(i) Whether, in dismissing the claimant, the respondent was in breach of the contract of employment.

(ii) Whether the contract had been avoided or had been brought to an end by operation of law.

(iii) Whether the matter was affected by the provisions relating to the statutory dismissal procedures.

The Facts

3. There was no real dispute about the facts. The claimant, during the course of 1993 was sentenced to life imprisonment. In 2003 he was released from custody on licence and was subject to supervision by the Probation Board for Northern Ireland. He became a volunteer adviser with Central Belfast Citizens Advice Bureau. Before taking up this post, discussions took place between the Citizens Advice Bureau, the Probation Service and NIACRO with a view to ensuring that the nature of the work involved was suitable in all the circumstances. The claimant's understanding was that it would have been regarded as inappropriate for him to be alone with persons seeking the services of the Bureau and that consequently it would not be possible for him to undertake one to one meetings or home visits. This was not a problem in Belfast as the interview room doors had glass panels through which both interviewer and interviewee could be seen. The claimant worked satisfactorily in this office for approximately one year.
4. .1 A post was advertised in another Citizens Advice Bureau, at Ards. Citizens Advice Bureaux are not, the tribunal was informed, branches of a single organisation but are independent offices affiliated to a central body which lays down certain standard policies and provides training. Management recruitment is carried out by the offices individually. The job advertised for Ards Citizens Advice Bureau was for a money adviser. The claimant sought details and found that the job was for the provision of a direct money advice case work service. The post holder was also required to provide a range of short courses on money management to local schools, youth clubs and community groups, to provide a debt counselling service, to prepare a range of materials for use in schools, youth clubs and community groups and to provide information sessions and short courses to interested groups or organisations. There were a number of other duties as well. The claimant discussed the possibility of applying for this job with his Probation Officer. There was some conflict of evidence as to whether the Probation Officer was given the job description or was aware of the full details of the post. However, whether in principle or otherwise, the claimant was allowed to apply for the job.
5. .2 The application form included a section on any applicants educational and training history. The claimant stated in the form that he had studied with the Open University from 1996 up until the date of the application and Lisburn Adult Education Centre during the course of 1998 and 1999. The form also contained a section seeking information as to employment history. The form specifically requested applicants to explain any gaps in their employment history. In this section the claimant indicated that he had been a CAB volunteer from October 2003 until the date of the application. No other information as to his employment history was given.
6. .3 The policy promoted by the umbrella organisation of CAB on the employment of offenders suggests that where the employing body considers there may be a risk then specific disclosure of convictions can be called for. For whatever reason no specific request for the disclosure of convictions was made in this case.
7. .4 At interview the claimant was asked about his career prior to his volunteer work commencing in 2003. He indicated that he had been in banking but that he had wanted a change and had been studying.
8. .5 The claimant accepted that in completing the application form he had intentionally concealed his conviction and that in describing himself as having been engaged in banking and studying he had revealed only part of the truth. He agreed that on the basis of these replies one would not think of prison and accepted, with hindsight, that the interviewing panel might have been misled.
9. .6 The claimant received an offer letter indicating the salary of the post and a post update, the leave entitlement and the length of the working week. By letter of 17 January 2004 he responded accepting the offer of the post. The claimant stated that it was his belief that, in the absence of any stipulation about termination, the contract could not be terminated on either side by less than two years notice. He also said that he knew that he would get terms and conditions of employment in due course and said that he expected to be bound by those terms and conditions or to be in a position to negotiate them if there was a problem. He regarded the letter, he said, as a letter of offer.
10. .7 The claimant started work at Ards CAB. On the first day of his employment he was interviewed by the manager of the Centre, Ms Higginson, and received a staff pack containing a number of documents outlining various terms and conditions and information. There was a conflict of evidence as to whether the staff pack included a blank contract of employment similar to what was to be provided for the claimant as soon as it was prepared. The blank contract contained a number of terms and conditions of employment including provision for termination of the contract by either side on giving periods of notice varying according to length of service. It also contained details of the disciplinary procedure, grievance procedure, pension scheme and other matters.
11. .8 It was at this stage that the claimant learned more about some of the work he was to do. One aspect in particular gave him concern. He sought advice from his Probation Officer. He raised with her a variety of difficulties which he could foresee. He did not specifically raise the issue of his attendance at schools although he could see that there might well be such a difficulty, both with his attendance at schools and with his going to people's homes if that was required. The claimant stated that he knew he might have a problem with the schools issue. His Probation Officer said that she would have to think about it and told him to tell his employers about his conviction, giving him a time span within which this was to be done. She indicated that she wished to see his employers.
12. .9 Following this disclosure a meeting took place on Friday 6 May 2005 attended by representatives of Ards CAB, NIACRO and the Probation Service. At that meeting it was indicated by the Probation Service that they would not be supportive of the claimant retaining the post as it stood, given the requirement to work and engage in information sessions with schools and groups with vulnerable people involved. According to the Area Manager of the Probation Service, in evidence given to the tribunal, they could only have been agreeable if a variety of adjustments had been made and they understood, on the basis of information given to them at the meeting, that those adjustments could not be made given the nature of the funding for the post. Further evidence was given to the tribunal as to the difficulty of making the adjustments which would have been required. No real evidence was given to the tribunal by the claimant to suggest that adjustments could have been made easily. Following this meeting there was a meeting of the Management Committee of Ards CAB at which it was decided that the claimant should be dismissed as being unable to carry out the duties required in his post.

The Respondent's Submissions

13. There were three submissions on behalf of the respondent. First that the claimant's contract of employment was subject to rescission for misrepresentation. In that regard it was not sufficient for the party against whom rescission was sought merely to be silent. In this case the application could not be regarded as a misrepresentation on its own. However, an application taken in conjunction with the nature of the claimant's answers at interview or the claimant's conduct could amount to a misrepresentation as to matters material to the contract which induced the respondent to employ him and as such entitled the respondent to rescind. Alternatively, the contract was frustrated by operation of law. This took place where, without fault of either party, some supervening event occurred which made the contract either impossible to perform or something completely different from that which was originally envisaged. Thirdly, if neither of the foregoing were to apply the contract was lawfully terminated. It was submitted that the terms of the contract, including provisions for termination of the contract were communicated to the claimant on his first day at work as appeared from the evidence of Ms Higginson, that the claimant was bound by them and that, under the terms of the contract, the respondent was entitled to terminate the contract on giving proper notice which, given the time elapsed of the contract, amounted to one weeks notice. The claimant's assertion that he believed the contract required two years notice on either side was not, taken in conjunction with the rest of his evidence, credible.

Finally it was submitted by the respondent that under the terms of the claimant's contract he withheld information, information which was highly relevant to his employer and that that withholding would tend to destroy trust and confidence. This would amount to breach of contract, if not to fraud, for which provision was specifically made in the disciplinary procedures.

The Claimant's Submission

14. The claimant's submission was that when the respondent placed an advert for a money advice worker they could have imposed a requirement for the disclosure of convictions. They did not do so. He applied for the job knowing that this was the case. He had sought approval from his Probation Officer before doing so. He was offered the job by letter of 12 January 2005. He was asked to accept the offer in writing and when he did so by letter of 17 January a contract was formed. The Centre Manager had described the letter in her evidence as containing the main terms of his contract and in his view that included the notice period. He was supported, he suggested, by the provisions of Article 33 of the Employment Rights (Northern Ireland) Order 1996.
15. .1 As regards the submissions of the respondent he denied misrepresenting things to the interview panel and pointed out that the criminal records disclosure policy was there or, in the alternative, a check could have been carried out. The doctrine of frustration was one which the Courts were generally reluctant to apply and in any event frustrating events usually involved matters such as sickness or actual imprisonment. As regards the question of whether the contract had been lawfully determined he reiterated his evidence that he did not receive any draft contract at the commencement of his employment. He suggested that if there had been a frustrating event at the instance of the Probation Board then the respondent should make a claim against the Probation Board for any loss.

The Tribunal's Conclusions

16. As regards misrepresentation it is clear that the claimant was seeking to conceal his criminal conviction from the respondent. The claimant himself said that, in relation to the application form, he had done so intentionally. In relation to the interview he stated initially, in his statement of direct evidence, that 'at no time during this interview was the subject raised of what I had done prior to October 2003 …'. However, in cross examination he readily accepted that it had been mentioned 'in passing'. The respondent's evidence, which was not inconsistent with that of the claimant and which the tribunal accepts, was that, when asked, the claimant said that he had been in banking, that he wanted a change and that he had been studying. In the tribunal's view the clear inference which would be drawn by the ordinary reasonable person from this statement would be that the respondent had given up banking to attend full time education. Indeed, the claimant himself admitted that, with hindsight, the panel could have been misled. The tribunal further considers that the claimant must have been aware that such an inference would be drawn and made the statement in that knowledge and, indeed, in the expectation that such an inference would be drawn. In the tribunal's view that amounted to a misrepresentation as to a material matter entitling the respondent to rescind the contract on discovering the true position.
17. .1 Even if this were not so the tribunal considers that as events unfolded the feasibility of the claimant undertaking the duties of the post changed. The tribunal does not accept the claimant's assertion that he furnished his Probation Officer with a copy of the job description when asking for her approval to his applying for the post. It is clear the minutes of the meeting between Ards CAB, the Probation Service and NIACRO on 6 May, and from the evidence of one of the Probation Service's representatives at that meeting, that the detail as to the nature of the duties the claimant would be expected to undertake came as something of a surprise to the Probation Service. Furthermore, on the claimant's own evidence, his Probation Officer told him in his first week of work, when he sought her advice about his own concerns, that she would need to see his employer herself. This fits neatly and logically with the evidence of the Area Manager of the Probation Board that the Probation Service could not have been supportive of the claimant's deployment in the post without significant adjustments. The tribunal is not suggesting any improper or sinister motive on the claimant's part in relation to his discussions with his Probation Officer. It seems perfectly reasonable and natural that approvals at the application stage should be on the basis of a broad view and in principle, with closer scrutiny being given at the stage of offer or actual employment. In the event when the full nature of the duties became apparent the Probation Service made their position clear. Their co-operation was, it was common case, necessary to the whole operation. Without their support the claimant's position would have been untenable. The tribunal accepts, as indeed the Probation Service, and NIACRO accepted, that there were real difficulties preventing the making of the kind of adjustments which would have been necessary. The result of the Probation Services position, coupled with the impossibility of adjustment, made it impossible for the claimant to carry out the contract as it was originally envisaged and amounted to frustration.
18. .2 It seems proper to deal also with the question of whether the contract, if extant, could have been lawfully terminated in the manner in which it was or whether, as the claimant in effect submitted, it could only be determined by effluxion of its full two year term. The tribunal finds it difficult to reconcile the claimant's admitted expectation that terms and conditions attaching to his employment by which he would be bound would be forthcoming following the exchange of letters with his further assertion that, as regards termination, there would be no provision whatsoever. The imbalance seems inherently unlikely and the tribunal does not find it credible, particularly in the face of the claimant's admission to the tribunal that it would have been understandable if the employer could have dismissed him if he had been underperforming and that he would not have expected to be paid if he had been sick throughout the period of employment. It had not apparently entered his mind that he might be sick for the long term or even that he might dislike the work or might for any other reason wish to leave himself. The tribunal finds that the claimant was expecting terms and conditions, including terms and conditions relating to termination, to reach him in due course. The tribunal further finds that a draft contract was included with the papers given to the claimant on his first day of employment. The claimant did not suggest that he objected at that stage, or at any other stage, to the termination provisions and the tribunal finds that he was bound by them and further that they were observed. Consequently, no claim would lie.
19. .3 In the alternative, it was suggested that the claimant's failure to inform his employers about his conviction could amount to a breach of the term prohibiting conduct which would have the effect of damaging the relationship of trust and confidence which ought to exist as between employer and employee which can be implied into contracts of employment generally. Indeed, according to the respondent's submission it could amount to fraud which is specifically provided for as a ground for summary dismissal. The tribunal is doubtful if the fraud provision was intended to cover this kind of event though the tribunal has little doubt but that the failure to disclose would indeed have the effect of damaging the relationship of trust and confidence, probably irretrievably. The claimant must have been aware that this would be the effect if the facts surrounding his conviction were subsequently discovered and accordingly the tribunal can see that it could amount to a breach for which dismissal could be justified. However, no indication was given at the time that that was the reason for the dismissal. The respondent's management was informed that the claimant could not undertake his work and that was the basis on which the decision to dismiss was taken.
20. .4 The claimant raised the matter of breach of the statutory dismissal procedures. While failure to observe the procedures renders a dismissal automatically unfair the statutory rights attaching to unfair dismissal are not brought into play until a qualifying period of employment of one year has been served. That was not the situation in this case. Breach of the provisions also attracts penalties in relation to compensation. The provisions do extend to other jurisdictions of the tribunal apart from unfair dismissal and including breach of contract. However, there has to be an award on which they can bite. In this case, as the tribunal has found no breach of contract, and consequently no award, these provisions are not involved.
21. 5 In the light of all the above the claim falls to be dismissed.

Chairman:

Date and place of hearing: 12 June 2006, Belfast.

Date decision recorded in register and issued to parties: