Industrial Tribunals Northern Ireland Decisions

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Cite as: [2007] NIIT 1439_05, [2007] NIIT 1439_5

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1439/05

CLAIMANT: Tracie Anderson

RESPONDENTS: 1. Wesley Housing Association Ltd

2. Mrs Hastings

3. Mr McAdams

DECISION

The decision of the tribunal is that the claimant's claim of breach of contract in relation to the provision of references is dismissed. The majority decision of the tribunal is that the claimant's claim of constructive dismissal is dismissed. The minority would uphold the constructive dismissal claim.

Constitution of Tribunal:

Chairman: Mr I Wimpress

Panel Members: Mr Hall

Mr Grant

Appearances:

The claimant was represented by Mr Barry McKenna, Barrister-at-Law instructed by Murphys, Solicitors.

The respondent was represented by Mr Conor Hamill, Barrister-at-Law instructed by Worthingtons, Solicitors.

The claimant has brought claims for constructive dismissal and breach of contract arising from her employment with the respondent.

The claims against Mrs Hastings and Mr McAdams were dismissed by consent at the outset of the hearing.

Sources of Evidence

The tribunal received an agreed bundle of documents and heard evidence from the claimant, Mrs Hastings, Mr McAdams and Mr Murphy.

The tribunal also received detailed and helpful written submissions from both parties.

The tribunal found the following facts

The claimant was in the respondent's employ for some 25 years. She was based at Palmerston House, Hollywood Road, Belfast. Mrs Hastings was the Head of Home. The senior staff comprised of Mrs Brando (Deputy Head of Home), Sandra Ross (Assistant Head of Home) and Christine Smith (Relief Senior). The organisation was run by a part time committee chaired by Mr Murphy who was a relatively recent appointment. Mr McAdams was its full time Chief Executive.

Mrs Hastings had been the Head of Home for seven to eight years and during that period the claimant secured promotion twice. Having started out as a care assistant the claimant was promoted to the post of Relief Senior and thereafter to the post of Residential Care Worker. Both promotions carried with them pay increases and more responsibility. On being promoted to Residential Care Worker, the claimant became a salaried employee. The claimant was also encouraged to undertake and complete NVQ levels 2 and 3. At the material time the claimant was the third most senior member of staff.

The First Disciplinary Matter

On the 13 December 2004, the District Nurse attended at the home in order to administer influenza vaccinations to two of the residents. A log was maintained at the home for the purpose of keeping a record of vaccinations and ensuring that only those residents who were due vaccinations would receive them. At the material time, the claimant was the senior member of staff on duty and she failed to check the log before the vaccine was administered to the two residents. Had she done so, she would have realised that these particular residents had already had their annual influenza vaccinations. As a result, both residents received a second dose.

When the claimant became aware of what had transpired she did not report the matter to her authorities or seek medical assistance. Rather she kept the matter to herself and kept an eye on the two residents to make sure that they were not suffering any ill effects from the double dosing. She also asked night staff to monitor the two ladies but did not disclose her cause of concern to them.

The double dosing incident came to light as a result of the claimant reporting the matter to Sandra Ross, the Assistant Head of Home. The incident was regarded as sufficiently serious to warrant disciplinary proceedings being taken against the claimant for neglect of duty. The claimant did not contest the charge at the disciplinary hearing before Mr McAdams and Mrs Hastings on 27 January 2005.

The claimant provided the panel with a prepared written statement. In her statement the claimant related how the District Nurse arrived unannounced at approximately 2.45 pm on 13 December 2004 to administer flu jabs to two of the residents, Mrs Milne and Mrs Middleton. The claimant brought the two residents to the District Nurse who signed the MARRS sheet. The claimant then continued with her normal duties. At approximately 3.45 pm the claimant discovered that Mrs Milne had received the flu jab for the second time and immediately went to ask her if she was alright. Mrs Milne reported that she was feeling well. At approximately 5.50 pm, when completing the GP Book, the claimant discovered that Mrs Middleton had also been given a second flu jab. Again, she immediately sought out Mrs Middleton and asked if she was feeling alright. Mrs Middleton also reported that she was feeling well. The claimant continued to monitor both ladies during the course of the evening and asked night staff to do the same. The next morning at approximately 8.00 am the claimant reported the incident to Sandra Ross, the Assistant Head of Home who then contacted the General Practitioner. The claimant accepted that with the benefit of hindsight, she should have contacted the General Practitioner and maintained that she would have done so, had either of the residents shown any ill effects. The claimant sought to explain her failure on pressure of work due to staff shortages.

At the disciplinary hearing on 27 January 2005 the claimant admitted that she had not shown due care and apologised. She also admitted not specifically telling night staff what to look out for when observing the two residents. Mr McAdams and Mrs Hastings decided between them as to the appropriate disciplinary sanction. Mrs Hastings believed that the matter was so serious that the appropriate sanction was dismissal but Mr McAdams drew attention to the claimant's twenty five year unblemished record and proposed that a Final Written Warning would be appropriate in all the circumstances. Mrs Hastings while not wavering in her belief as to the seriousness of the matter was persuaded that this was the correct course and it was therefore determined that the claimant should be the subject of a Final Written Warning.

On 27 January 2005, Mr McAdams wrote to the claimant and informed her of the outcome of the disciplinary hearing. Mr McAdams advised the claimant that the panel had decided to issue her with a Final Written Warning which would remain active on her file for a period of twelve months. Mr McAdams further advised that in the event of a similar or any breach of the respondent's disciplinary code within that period, the claimant would be dismissed. The letter informed the claimant that she had the right to appeal and that if she wished to do she was required to notify the respondent within three working days of receipt of the letter. Finally, Mr McAdams made the following comment:

"The Association very much regrets having to take this action and I trust that we can "move on" from this as soon as possible."

It is common case that the claimant decided not to exercise her right of appeal at this time.

The Second Disciplinary Matter

Nothing untoward occurred over the succeeding months and the claimant went about her duties in her customary manner. Then on 16 May 2005, an incident occurred at handover involving Mrs Mildred Brando, the Assistant Head of Home. Mrs Brando and two co-workers, Christine Smith and Roberta Quayle, complained to Mrs Hastings about the claimant's behaviour.

On 17 May 2005, Mrs Hastings telephoned Mr McAdams and advised him that there had been an incident at Palmerston on the previous day relating to the conduct of the claimant who was the subject of a final written warning earlier in the year. Mrs Hastings informed Mr McAdams that one of the staff asked a legitimate question at handover when the claimant was speaking and that the claimant's response was apparently rude, ignorant and dismissive. Mr McAdams advised Mrs Hastings to speak to the three members of staff concerned and get a written statement about the incident. He further advised Mrs Hastings to set up a meeting between themselves and the claimant on Thursday 19 June 2005 at 2.00 pm at Palmerston. According to Mr McAdams the purpose of the meeting was to obtain a written statement from the claimant and check what further action, if any, that they needed to take.

Mrs Hastings subsequently spoke to the three ladies and enquired whether they wished to make a formal complaint. They replied in the affirmative. Mrs Hastings told them that they would have to make written statements. They did so and passed them to Mrs Hastings. Mrs Smith's statement was dated 16 May 2005. Mrs Brando's statement was dated 17 May 2005. Mrs Quayle's statement was undated.

On 18 May 2005 there was a further incident at handover when Mrs Smith accused the claimant of being sharp with her. The claimant apologised and the matter was resolved amicably.

On 19 May 2005, Mr McAdams attended the home and after a brief discussion with Mrs Hastings, the claimant was summoned to see them in the conservatory. The claimant was not told what was being investigated either prior to the meeting or at its outset. Rather, Mr McAdams asked the claimant if she knew what the meeting was about. The claimant had no idea that they wanted to speak to her about the incident on 16 May 2005 and speculated that they were interested in the incident on 18 May. Mr McAdams swiftly disabused her of this notion and made it clear that their main concern was the incident on 16 May but that the other incident was an important part of the background and that the meeting was being held in the context of that incident. Mr McAdams also informed the claimant that her general attitude was also relevant.

Mr McAdams read one of the statements to the claimant but she was not provided with copies of the statements. Mr McAdams and Mrs Hastings pointed out that they were surprised by her behaviour and asked if there was anything in her personal life that might be the cause of it. In particular, Mrs Hastings asked her whether she had any problems at work, if she still wanted to work at Palmerston, whether she found the position of Senior too much, whether she had any personal or family problems and commented that she used to be kind, caring and considerate with great prospects for the future. Mr McAdams also asked whether she still wanted to be in the position of Senior; that he was shocked that she was in front of him after the last incident in January 2005; that he had "stuck his neck out" to stop her from being sacked and asked her if she knew what another discipline meant. Mr McAdams also commented that the claimant had an attitude problem and took advantage of her position at work. The claimant did not offer any reason or excuse for her behaviour. At the conclusion of the meeting Mr McAdams indicated that the claimant would be the subject of disciplinary proceedings. After the meeting the claimant went on sick leave.

The Grievance

On 10 June 2005, the claimant issued a nine page grievance letter addressed to the Chairman of the Association, Mr L Murphy, complaining that she had been subjected to unfair treatment by Mrs Hastings and Mr McAdams over recent months. A copy of the statement prepared by the claimant for the disciplinary hearing on 27 January 2005 was appended to the grievance. Because the claimant's grievance was against her line manager and the Chief Executive, she suggested that in the first instance her grievance should be dealt with by a member of the committee or a sub-committee with any appeal being to Mr Murphy.

The first matter that was the subject of the grievance was her treatment in relation to the first disciplinary matter. The specific matters complained of were as follows:

(i) The unfair and inconsistent manner in which she was treated by Mrs Hastings and Mr McAdams in relation to the incident on 13 December 2004. The claimant set out the circumstances that lead to the administration of a final written warning and referred Mr Murphy to her personal statement where she set out her interpretation of the incident.

(ii) The claimant stated that with hindsight, she should have exercised her right of appeal. Her reasons for not appealing were that the appeal was to Mr McAdams who could not be expected to be impartial because of his previous involvement. In addition the request in Mr McAdams' letter of 27 January 2005 to "move on" suggested to the claimant that an appeal would not be well received and that the best course would be for her to keep her head down and continue to carry out her work to the highest standards. The claimant also felt that she could not endure the stress and anxiety of a further hearing and feared that the penalty might be increased to dismissal. The claimant now realised that her failure to appeal had left her in an extremely vulnerable position regarding her continued employment with the respondent in that another employee could engineer her dismissal. The claimant stated that it was her belief that Mrs Hastings and Mr McAdams were deploying this strategy and were engaging in a witch hunt with a view to ousting her from her position. The claimant then went on to specify her concerns about how Mrs Hastings and Mr McAdams treated her in relation to this incident.

(iii) The claimant was given insufficient time to prepare for the investigatory meeting on 13 December 2004 and the failure to advise her during the course of the meeting that she might face disciplinary action.

(iv) The claimant was given inadequate warning of a follow up meeting on 7 January 2005 and no invitation to bring representative to meeting. No clear statement at the conclusion of the meeting as to what was going to happen to the claimant.

(v) The lack of confidentiality in holding disciplinary meeting at Palmerston House.

(vi) The failure to identify the procedure that the claimant was alleged to have breached and failure of the disciplinary panel to take account of take account of the rarity of double dosing incidents and the absence of training on this topic.

(vii) While accepting that she should have contacted the general practitioner, the claimant maintained that she had taken all necessary vital steps to protect the health and well being of the two residents including reporting the matter to Ms Ross, a more senior member of staff, the morning after the incident.

(viii) The failure to provide the claimant with statements or evidence gathered in advance of the disciplinary hearing.

(ix) The absence of a full investigation into the matter which would have revealed that the blame for the incident lay with the surgery.

(x) The incident could not have been as serious as Mrs Hastings and Mr McAdams made out as the Registration Inspections Unit was not involved in the investigation or alternatively they wished to avoid the prospect of either the Home or the surgery being held responsible for the incident. The claimant believed that she was being made a scapegoat for the failings of others.

(xi) Inconsistent treatment whereby a colleague, Beverley Perry was not disciplined for giving a resident the wrong medication.

The second matter complained of was the manner in which the incident on 16 May 2005 was dealt with. The specific matters complained of were as follows:

(i) The claimant complained that she was ambushed by Mrs Hastings and Mr McAdams on 19 May 2005 in that she was summoned to a meeting without being given a reason. When asked by Mr McAdams if she knew why she had been summoned she referred to an incident on the previous day when she had been abrupt to Christine. The claimant was taken aback when Mr McAdams informed her that it was in fact to do with an incident on 16 May 2005. The claimant was unable to recall an incident on that date and Mr McAdams advised her that she had allegedly been disrespectful to Mildred Brando during the handover. The claimant strenuously denied the allegation and indicated that she had no idea what aspect of her conduct could have been interpreted as disrespectful.

(ii) The claimant was advised that typed statements had been obtained from Mrs Brando, Roberta Quayle and Christine Smith. The claimant was not provided with copies of the statements though the contents were read out. She was therefore unable to provide a measured response.

(iii) Mrs Hastings advised that she was going to compile a statement in relation to the incident on 18 May 2005 and this lead the claimant to believe that Mr McAdams and Mrs Hastings were trying to obtain as much information as possible in order to bring about her dismissal. The claimant contended that in an extremely pressurised working environment being abrupt or sharp with a colleague was entirely understandable and did not warrant disciplinary action. The claimant therefore felt that she was being consistently singled out by Mrs Hastings and Mr McAdams who had embarked on a witch hunt against her.

(iv) The claimant interpreted certain observations by Mrs Hastings and Mr McAdams as veiled threats. She made reference to Mrs Hastings asking her whether she had any problems at work, if she still wanted to work at Palmerston, whether she found the position of Senior too much, whether she had any personal or family problems. Mrs Hastings also commented that she used to be kind, caring and considerate with great prospects for the future. Mr McAdams asked whether she still wanted to be in the position of Senior, that he was shocked that she was in front of him after the last incident in January 2005, that he had "stuck his neck out" to stop her from being sacked and asked her if she knew what another discipline meant. Mr McAdams finally commented that the claimant had an attitude problem and took advantage of her position at work. The claimant complained that these sweeping statements were unsubstantiated and untrue.

(v) Although the claimant was told that there would be a further meeting in three weeks time, she was not advised as to whether the disciplinary procedure had been activated or whether she could face disciplinary action. Nor was she provided with any documentation in relation to the allegations relating to her behaviour on 16 May 2005.

(vi) The claimant felt unable to return to an oppressive and threatening work after a week's holiday and believed that Mrs Hastings and Mr McAdams had no intention in relenting from their vendetta to oust the claimant from her position.

(vii) The claimant referred to other treatment over recent months which lead her to believe that she was being made a scapegoat for any mistakes. In particular, she complained of an incident when Mrs Brando contacted her on weekend off to query why a resident had not been given medication despite the fact that the claimant had not been on duty at that time.

(viii) The claimant asked to be given the opportunity to appeal against the final written warning on the basis of the reasons given above for not exercising her right of appeal at the appropriate time.

(ix) The claimant asked the Committee to confirm that her employment was secure and that there was no intention to activate the disciplinary procedure in relation to her alleged conduct on 16 May 2006. In the event of failure to comply with this request, the claimant sought immediate clarification of the allegations together with copies of all documentation/information well in advance of any disciplinary hearing.

(x) The claimant requested that the grievance be dealt with in advance of any disciplinary matters and stated that it would be inappropriate and unjust for Mrs Hastings or Mr McAdams to be involved in any disciplinary process.

(xi) In order to facilitate the restoration of the claimant's health and return to work, the claimant sought an assurance that none of her superiors or colleagues including Mrs Hastings and Mr McAdams would be allowed to treat her in an unjust and inexplicable manner in relation to her employment generally and specifically in relation to any allegations made against her.

Mr Murphy replied by letter dated 14 June 2005 and advised that he would raise the matter at the next committee meeting on 27 June 2005.

The claimant replied by letter dated 15 June 2005 and expressed her concerns about her grievance being shared with all the members of the Committee. Firstly, she considered that the matter should be dealt with confidentially and that discussion by the whole Committee would prejudice any appeal. Secondly, she objected to Mr McAdams potential involvement given that he was the subject of the grievance. Thirdly, she complained about delay and pointed out that that the proposed Committee meeting was outside the timetable envisaged by the grievance procedure. The claimant requested that impartial committee members be appointed to deal with her grievance within the prescribed time frame.

Mr Murphy replied by letter dated 20 June 2006 in which he explained that the reason for referring the grievance to the Committee was that the claimant had missed out on Stages 1 and 2 of the Grievance Procedure and as the next and final stage was a reference to The Management Committee, he wanted to ensure that this step was fair to all concerned. Mr Murphy further advised that if the Committee decided to accept the grievance, it would appoint members to deal with it and it would only be at that stage that the grievance and evidence would be disclosed. Mr Murphy assured the claimant that Mr McAdams was never present when any matter pertaining to him was being discussed. Finally, Mr Murphy contended that the nine day period between the grievance letter and the Management Committee meeting was not unreasonable as the Committee had to consider procedures and make a decision on the way forward due to the claimant's failure to follow the prescribed rules and procedures.

The Committee met on 27 June 2005 and Mr Murphy reported the Committee's decision to the claimant by letter dated 28 June 2005. Firstly, he advised that any appeal against the formal written warning should have been made within three working days to the Chief Executive and that the time for appeal was long past. Secondly, he advised that the claimant should follow the grievance procedure as set out in paragraph 23 of the Staff Handbook and in accordance with Stage 1, talk to her line manager, Mrs Hastings about her complaint. If not satisfied, she should progress to Stage 2 and talk to the Chief Executive, Mr McAdams. Then, if the claimant was still not satisfied she could put her case to the Management Committee.

The claimant responded to Mr Murphy by letter dated 29 June 2005. The claimant complained that it would be impossible for Mrs Hastings or Mr McAdams to deal with Stage 1 or Stage 2 in an impartial or objective fashion. The claimant contended that the Committee's decision was contrary to good industrial relations practice and paragraph 43, section 2 of the Labour Relations Agency Code of Practice on Grievance and Disciplinary Procedures. She again suggested that sub-committees be appointed to deal with the first two stages and that external assistance could be used at Stage 3. The claimant also expressed disappointment in the Committee's decision that she could not appeal the final written warning and asked the Committee to look at both matters again. The claimant submitted that by maintaining its position in relation to the appeal, the Committee was effectively rejecting her grievance and that this would fundamentally undermine her ability to retain trust and confidence in the Association as her employer.

Mr Murphy replied by letter dated 1 July 2005 and indicated that he was not in a position to change the Committee's decision.

The claimant replied by letter dated 15 July 2005. The claimant complained that it appeared that Mr Murphy had not put the content of her letter of 29 June 2005 to the Committee so as to enable it to re-assess its initial decision. The claimant viewed this as a rejection of her grievance and went on to state as follows:

"This fact coupled with the manner in which I am being treated by the Committee in relation to my efforts to obtain a fair and impartial grievance hearing have eroded my trust and confidence in the Association as my employer to the point that I can see no way forward for me with the Association. My faith and loyalty to the Association had already been severely damaged by the manner in which I was treated by Mrs Hastings and Mr McAdams in relation to various matters set out in my formal grievance.

I am now at my wits end. I feel that I am being pushed out of a job, which up until recently I had loved. My loyalty and service to the Association would appear to be irrelevant.

I would implore the Committee to be both fair and reasonable in relation to this matter. I would ask that you honour my initial request that this issue be put to the Committee for its consideration.

Should you refuse to do this, or should the Committee refuse to adopt a flexible approach to the Association's grievance procedure in view of the circumstances of my case then I feel that I will be left with no option but to resign, as my fears that the Association, for reasons beyond my comprehension, wishes to force me out of my job, will have been unequivocally confirmed. I do still harbour some hope that this is not the case.

I look forward to hearing from you regarding these important matters by return."

Mr Murphy replied by letter dated 25 July 2005 following a week's holiday. Mr Murphy restated the Committee's position and refuted the suggestion that the Committee was attempting to push the claimant out of a job or belittle her loyalty or service to the Association. Mr Murphy further stated that in view of the claimant's decision not to follow the Committee's advice, he would place her correspondence before the Committee for consideration at its next Committee meeting in September 2005.

Mr McAdams also wrote to the claimant on 25 July 2005 and advised her that a disciplinary hearing was being convened on 29 July 2005 at 10.30 in Palmerston to consider what further action, if any, should be taken in relation to the incident on 16 May 2005. Mr McAdams asked the claimant to let him know if this date, time and venue were not suitable so that alternative arrangements could be made. The claimant was reminded of her right to be accompanied by another employee or Trade Union representative and copies of the statements made by the three members of staff were provided.

On 27 July 2005, the claimant submitted a letter of resignation to Mr Murphy in which she stated as follows:

"In view of the content of your letter, it is clear that the Association is not prepared to deal with my grievance in a fair or rational manner. Your suggestion that these issues be put before the Committee for reconsideration in September is unsatisfactory and untenable.

I wish to reiterate that the nature and gravity of my grievances are such that they clearly cannot be resolved between me and Mrs Hastings and Mr McAdams. It is vital that individual(s) who are impartial and objective deal with my grievances. I have been denied this basic entitlement.

As a result of the Committee's refusal to deal with my formal grievance, my concerns as expressed in my formal grievance have now become a reality. Mr McAdams and Mrs Hastings have decided to pursue their witch-hunt to oust me from my employment by instigating disciplinary action in relation to trumped up charges in relation to my "behaviour/attitude" to other members of staff. It is notable that no enquiry was made by Mr McAdams as to my fitness or otherwise to attend a disciplinary hearing at this time.

Whilst I have every confidence that I can clear my name in relation to these allegations, I have lost my resolve to do this and my desire to continue working for the Association, in view of the manner in which the Association has treated me in relation to my formal grievance.

As indicated in my formal grievance, it is imperative that my grievances be dealt with in advance of any disciplinary hearing in relation to the allegations put to me on 19 May 2005.

I also highlighted that Mr McAdams or Mrs Hastings should not discipline me in view of my concerns about their treatment of me and their attitude towards me.

All of these reasonable requests have been ignored. I am now left to face the inevitable injustice that will result from the fact that Mr McAdams and Mrs Hastings have been allowed to pursue their agenda to terminate my employment without just cause.

It is because of my total loss of trust and confidence in the Association as my employer that I have taken the decision to resign from my employment with immediate effect.

I am devastated that my 25 years of service with the Association has had to be brought to an end, in such distressing and distasteful circumstances.

I would be obliged if you would forward any outstanding monies/holiday pay due to me, along with a copy of my latest pension statement and my P45 as soon as possible."

The claimant contacted Mr McAdams' office on 28 July 2005 and advised that she would not be able to attend the disciplinary hearing on 29 July 2005. Mr McAdams passed this information on to Mr Murphy and the disciplinary hearing did not therefore take place.

By letter dated 2 August 2005, Mr Murphy acknowledged receipt of the claimant's letter of resignation and expressed regret that she found his decision to refer the matter back to the Committee unreasonable.

The claimant responded by letter dated 6 September 2005 in which she pointed out that that it was not Mr Murphy's suggestion that he put her correspondence to the Committee that she found unreasonable but rather the fact that this would not happen until September 2005. The claimant also drew attention to the fact that Mrs Hastings and Mr McAdams had invited her to a hearing on 29 July 2005 to consider whether further action was necessary in respect of the 16 May 2005 incident. The claimant further stated that it was imperative that her grievance be dealt with before any such action and, as this was clearly not going to happen, her ability to retain trust and confidence in the Association as her employer was completely shattered. The claimant went on to rehearse the main components of her grievance commenting on the impossibility of obtaining a fair and impartial assessment of her grievance from Mrs Hastings or Mr McAdams and stating that her ill health was due to their unreasonable and intimidating treatment of her and that she was not prepared to risk further deterioration in her health by discussing her grievance with them. The claimant also contended that the Committee had the resources to accommodate her requests without difficulty. Finally, in order to exhaust her statutory obligations, the claimant invited Mr Murphy to invoke the Modified Grievance Procedure as provided for in Schedule 4 of the Employment (NI) Order 2003.

Further correspondence ensued in relation to the timetable for this procedure. A panel comprised of Reverend Andrew Boucher, Mr Joe McKnight and Miss Doreen Henderson, was set up to address the grievance. The Panel's report was received by Mr Murphy on 9 November 2005 and was communicated to the claimant by letter on the same day. The Panel rejected the claimant's complaints about her treatment.

The claimant sought fresh employment and two prospective employers requested character references from the respondent. Mrs Hastings provided a reference dated 11 October 2005 to First Choice Selection Services Ltd. The reference indicated that the claimant was satisfactory in respect of a number of aptitudes and that she was suitable for the position applied for. The claimant was successful in obtaining agency work with that organisation.

An organisation called Crossroads Caring for Carers (NI) Ltd also offered the claimant a position subject to satisfactory references and the completion of a training course. Mrs Hastings duly supplied a reference dated 12 October 2005. The reference indicated that the claimant did not get on well with others, was not able to work well under pressure, at times was able to work without supervision and was able to use her own initiative and in answer to a specific question about disciplinary warnings stated that in January 2005 the claimant had received a final written warning for failure to comply with home's procedures. In addition a question as to whether the respondent would re-employ the claimant was answered in the negative. As a result of the reference the claimant was called to a meeting with a representative of Crossroads on 17 October 2005 and the offer of employment was subsequently withdrawn.

On 24 October 2005, the claimant's solicitors lodged a claim form on her behalf in which she made complaints of constructive dismissal and breach of contract.

BREACH OF CONTRACT

The claimant claimed of breach of contract arising from two references provided by Mrs Hastings after the claimant had resigned from her position with the respondent.

At the conclusion of the claimant's case Mr Hamill made an application to have the claimant's breach of contract case dismissed on the basis that the claimant had failed to prove that she had been refused employment on the basis of the reference given to Crossroads or that she suffered any loss as a result of the references provided by the respondent.

The tribunal raised an issue with the parties as to whether the tribunal had jurisdiction to entertain the breach of contract claim in view of comments in Harvey to the effect that a complaint in relation to a reference gave rise to potential liability in negligence or negligent mis-statement rather than breach of contract. On further reflection, the tribunal also queried whether the tribunal had jurisdiction in respect of events that occurred after the claimant had resigned.

Mr McKenna for the claimant sought to rely on Wilson's & Clyde Coal Company v English [1938] AC 57 HL which he suggested was authority for the proposition that the duty to provide a fair reference is also an implied term in a contract of employment. He suggested therefore that an unfair reference attracted liability both in contract and tort. He also sought to rely on Hedley Byrne & Co v Heller and Partners Ltd [1964] AC 465. We are not persuaded that the Wilson's case is authority for the proposition advance by Mr McKenna. It seems to us that claims in respect of references are properly formulated in negligence or negligent mis-statement. However, we do not need to finally determine this issue as our prime concern is whether or not an industrial tribunal has jurisdiction to entertain this particular claim.

It must be remembered that industrial tribunals are creatures of statute and only have jurisdiction to determine matters that statute enables them to do. The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 confers a limited jurisdiction on industrial tribunals in Northern Ireland to deal with claims by employers and employees for breach of contract. Article 3(c) provides as follows:

Proceedings may be brought before an industrial tribunal in respect of a claim by an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if -

(c) the claim arises or is outstanding on the termination of the employee's employment.

Therefore an industrial tribunal only has jurisdiction to hear claims for breach of contract where the claim arises or is outstanding on the termination of the claimant's employment (see Capek v Lincolnshire County Council [2000] ICR 878). There is also support for this approach in Chitty on Contracts Volume II page 39.205. We also rely on Miller Bros and Buller Ltd v Johnston [2002] IRLR 386 where the Employment Appeal Tribunal held that that this jurisdiction is limited to claims arising or outstanding at the time of termination of employment and does not extend to claims arising later even though they arise out of the termination of employment, as, in this case, upon a subsequently finalised compromise agreement.

It is clear that the references complained of were neither in existence nor contemplation when the claimant's employment terminated and therefore cannot be described as either arising from or being outstanding on the termination of the claimant's employment. Accordingly we concluded that the tribunal does not have jurisdiction to entertain this aspect of the claimant's claim and we therefore acceded to Mr Hamill's application and dismissed the breach of contract claim.

CONSTRUCTIVE DISMISSAL

We must next turn to consider the surviving claim, that of constructive dismissal. Much of the argument in this case focussed on the respondent's procedures for dealing with disciplinary and grievance matters. These are set out in the Staff Handbook, the relevant provisions of which are as follows:

"23. Grievance Procedure

Your Line Manager is the person to whom you should first refer any grievance relating to your employment. Subsequently you may request a meeting with the Association's Chief Executive. This should be made in writing, outlining the basis of your grievance. If all attempts to secure a satisfactory solution by direct contact with the Line Manager and/or Chief Executive are unsuccessful then you can arrange to see representative members of the Management Committee. In order to have your grievance examined quickly and effectively the Association gives the following undertaking:

1. Failure to obtain a satisfactory reply or to receive a reply within 3 working days from your Line Manager will enable you to raise the matter in writing with the Chief Executive who will arrange to hear your grievance within 3 working days. You may if you so wish, be accompanied by a fellow employee or Trade Union representative. No legal representative is permitted to attend.

2. Failure to obtain a satisfactory reply or to receive a reply within 3 working days from the Chief Executive will enable you to raise the matter in writing with representative members of the Management Committee who will arrange to hear the grievance within 3 working days. You may, if you so wish, be accompanied by a fellow employee or Trade Union representative. No legal representative is normally permitted to attend.

3. The decision of the Management Committee will be given to you in writing as soon as possible and not later than 3 working days from the complaint being heard. The Management Committee will be the final stage of the grievance procedure and their decision is final.

Disciplinary Rules and Procedure

Object

General Principles

No Disciplinary action shall be taken until there has been a full investigation into any alleged incident.

At each stage of this procedure you shall have the right to a fair hearing with the opportunity to state your case and be accompanied by a fellow employee or Trade Union representative if desired. No legal representative is permitted to attend a disciplinary hearing.

Warnings shall lapse after a period of satisfactory conduct.

Any previous acts of misconduct which are still recorded on file will be taken into account when deciding what action should be taken, in the event that further discipline is necessary.

Procedure

In the event of a breach of Association rules you will be interviewed at all stages by your Supervisor/Chief Executive and given the opportunity to state your case.

Appeal

If you wish to appeal against any disciplinary action, you should do in writing within 3 working days. This will be heard by the Chief Executive, Mr Lawrence McAdams and will be arranged as quickly as possible and where possible within 5 working days. If you are still not satisfied with the outcome of this hearing you may then make a further appeal to the Committee of Management."

Before addressing the law, we have found it helpful to set out the parties' respective cases.

Claimant's Submission

The claimant's case was founded on the alleged breach of the implied contractual duty of the employer not, without reasonable and proper cause, to conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.

The case presented on behalf of the claimant's was that Mrs Hastings and Mr McAdams were engaged in a witch hunt against her. The claimant's case was that the witch hunt was rooted in the disciplinary hearing which took place on 27 January 2005 which resulted in the claimant being issued with a final written warning rather than dismissal as advocated by Mrs Hastings. Thus when a minor incident at handover was reported to have occurred on 16 May 2005, Mrs Hastings took the opportunity that this presented to instigate further disciplinary action against the claimant with a view to her dismissal. It was contended that this action was taken on the basis of "trumped up" charges. In support of the contention that the claimant was the victim of a witch hunt, Mr McKenna placed reliance on a reference provided by Mrs Hastings to a prospective employer of the claimant, Crossroads, subsequent to her resignation as evidence as to how she regarded the claimant. In particular, Mr McKenna drew attention to Mrs Hastings' statement that she would not re-employ the claimant as evidence of her ill will towards the claimant.

Mr McKenna made clear that it was not the claimant's case that the witch hunt extended to the committee but rather that it was confined to Mr McAdams and Mrs Hastings. Mr McKenna's case was that Mr Murphy's intransigence and failure to be flexible was a breach of the implied duty not to undermine trust and confidence. Mr Murphy's conduct fell within the mantra of "inconsiderate or thoughtless behaviour". Thus the claimant's case was that there was calculated behaviour by Mr McAdams and Mrs Hastings and thoughtless by Mr Murphy in failing to address the grievance promptly. (see Harvey p436 and 467.01).

In his written submissions, Mr McKenna expressly disavowed grounding the case on breaches of the implied contractual terms to promptly address grievances and to ensure fairness in disciplinary sanctions. Mr McKenna further submitted that Mr Murphy's letter of 25 July 2005 was the "last straw" that caused the claimant to terminate her employment.

The main evidential matters on which Mr McKenna sought to found the breach of the implied duty of trust and confidence were addressed in his written submissions and expanded in his oral submissions and these are summarised in the succeeding paragraphs.

(i) Mr McKenna contended that the claimant had been unfairly treated in relation to the double dosing incident. Other persons were bore responsibility for the double dosing incident but no action was taken against them. The disciplinary process was not dealt with in a fair and reasonable manner although it was accepted that there had been a full investigation. The discipline should have been dealt with by Mrs Hastings in the first instance with an appeal to Mr McAdams. This was in breach of the respondent's own disciplinary code. The excuse proffered that it was a small organisation was not borne out by the facts. Mr McAdams' comment that "we should move on" indicated that an appeal was pointless. The complaint about inconsistent treatment in respect of Beverley Perry was not relied upon by Mr McKenna in his submissions.

(ii) Mr McKenna submitted that the conduct of the meeting on 19 May 2005 was irregular and in particular that the claimant was ambushed. Mr McKenna submitted that the claimant should have been provided with copies of the statements made by the three ladies in advance of the meeting. Mr McKenna submitted that it was not a genuine investigatory meeting as it was clear that a decision had been made to subject the claimant to the disciplinary process prior to the meeting. In support of this contention, he placed reliance on Mr McAdams' assertion that the incident on 18 May 2005 was relevant to the claimant's overall attitude at work and queried how he could say so without any discussion with Mrs Hastings in advance of the meeting. He suggested that in these discussions Mrs Hastings was "sticking the knife in" in advance of the meeting. Furthermore, there was no attempt to examine the facts at the meeting and the claimant was given no opportunity to state her full case. Mr McKenna submitted that as any appeal would be to Mr McAdams, he should not have been involved in the investigatory meeting. Mr McKenna also drew attention to the fragile state of the claimant when she was brought to the meeting which took place without any prior warning before the two most senior persons in the organisation. While accepting that the respondent was not obliged to tailor its procedures in order to cater for the claimant's fragile state it was obliged to apply the procedures properly and fairly.

Mr McKenna contended that the claimant should have had representation at all stages of the process and access to the statements of complaint in advance of the meeting on 19 May. He did not criticise the respondent's disciplinary code but contended that it was not applied properly.

(iii) Mr McKenna contended that there was no valid complaint. In particular, he submitted that the tribunal should not accept the respondent's account as to how the statements came to be made. Mr McKenna suggested that at the very least Mrs Hastings encouraged the complainants to make statements and drew attention to Mrs Hastings' conflicting evidence as to how the statements came to be made and the failure of the respondent to call the three ladies as witnesses in order to substantiate their complaints.

(iv) Mr McKenna relied upon the respondent's management committee's persistent failure to deal with the claimant's grievance properly or in the manner suggested by her. He complained that this stance meant that the claimant was being asked to progress her grievance with Mrs Hastings in the first instance and thereafter with Mr McAdams in circumstances in which neither could be regarded as impartial on either an objective or a subjective basis. He contended that it was bizarre that Mr Murphy felt unable to accommodate the claimant but was prepared to amend the rules and procedure in respect of an appeal by setting up a sub-committee. In addition, the grievance correspondence was not dealt with promptly.

(v) Mr McKenna submitted that the decision of 28 June 2005 to reject the claimant's belated appeal against the final written warning was not given due consideration and was grossly unfair in view of the reasons given by the claimant for the delay and her concerns about the handling of the disciplinary proceedings.

(vi) Mr McKenna contended that the committee's persistent refusal throughout May and June 2005 to adopt a reasonable and flexible approach to the claimant's grievance eroded her trust and confidence as an employer to breaking point. Mr McKenna also drew attention to the dilatory manner in which the committee dealt with the critical issues raised in correspondence with Mr Murphy even in the face of the claimant's letter of 15 July 2005 in which she threatened resignation.

(vii) Mr McKenna submitted that the grievance should have been dealt with in advance of the disciplinary hearing. It made good sense he suggested to deal with the grievance first. He drew attention to the wide scope of the duty not to undermine trust and confidence and the importance of properly addressing grievances. It was clear he submitted that the disciplinary hearing was going to proceed first and this constituted a clear breach of the duty not to undermine trust and confidence. Mr McKenna accepted that there was nothing in either the respondent's discipline or grievance procedure as to which should go first. Mr McKenna contrasted Mr Murphy's insistence that the claimant should raise her grievance with Mr McAdams and Mrs Hastings first with his flexibility in relation to the appeal procedure. Mr McKenna relied on the Employment Appeal Tribunal's decision in the case of W A Gould v McConnell (D1 467.01 Harvey) in relation to the duty to deal with grievances promptly and contended that fairness could not be achieved without the grievance being dealt with first. In addition there was no attempt by the respondent to ascertain whether the claimant was medically fit for a disciplinary hearing.

(viii) Finally, Mr McKenna went on to submit that the aforementioned treatment had reduced the claimant to a fragile and vulnerable state. Thus when the claimant received Mr Murphy's letter of 25 July 2005 indicating that her correspondence would be placed before the next meeting of the management committee in September 2005, this served as final confirmation to the claimant that her grievance would not be addressed in a fair or expeditious manner, the claimant felt that she had no option but to resign.

Respondent's Submission

Witch Hunt

Mr Hamill submitted that as McAdams and Mrs Hastings had no role in relation to how the grievance was handled, the tribunal must look at their actions in isolation. There was no evidence of a witch hunt or anything like it. There were two events that lead to disciplinary hearings and the final written warning. The claimant admits that both incidents happened and apologised in respect of the first incident at the hearing in January 2005. Apart from the double dosing incident and the incident on 16 May there is no evidence of any witch hunt. If there was no evidence of a witch hunt, there was nothing to base the last straw doctrine on. For the last straw doctrine to apply there must be a series of events which added together amount to fundamental breach.

First Disciplinary Matter

In relation to double dosing, Mr Hamill contended that there was no evidence that Mrs Hastings dealt with it inappropriately. He drew attention to the fact that no medical or other evidence was called to undermine the way in which the double dosing incident was investigated or dealt with. It was not right he claimed to imply from the RIU that there was a cover up or that it was characterised as less serious by the respondent. The respondent's evidence was not just that the incident was serious but that there was a failure by the claimant to take appropriate steps afterwards.

An investigatory interview is not part of the formal process. As there were no sanctions being imposed it did not fall within the formal disciplinary procedures and the claimant was therefore not entitled to safeguards. Furthermore, the claimant did not complain of any breach of the disciplinary procedure.

Failure to Appeal

Accepting for the purposes of argument that it was contrary to procedures for Mr McAdams to deal with the appeal, the claimant gave no indication of wanting to appeal. Mr Hamill queried why the claimant failed to raise an appeal for five months if her only reason for not appealing was Mr McAdam's attitude. The claimant said that if he had been involved in the appeal, she would have challenged it. It is also clear that there is a further appeal to the committee and although it might be daunting for an employee to appeal twice, this is not a good ground to place reliance on in a constructive dismissal case.

Second Disciplinary Matter

In relation to the second disciplinary matter, Mrs Hastings' evidence that she asked the three ladies first if they wanted the matter to be dealt with informally was not contradicted. There was no contrary evidence before the tribunal as to the three ladies' actions. There was no evidence adduced either by or on behalf of the claimant which called into question the motives of the three ladies. Mr Hamill did not suggest that the claimant was not upset by what was happening to her but this was due to her behaviour and she was not being treated unfairly. There was no hard evidence to support the claimant's contentions or fears.

If Mrs Hastings was ill motivated towards the claimant she could have made use of the incident on 18 May but instead Mrs Hastings helped to resolve it informally. It was first raised by the claimant at the meeting on 19 May. Therefore there was no attempt to entrap her. Moreover at the meeting on 19 May, Mr McAdams and Mrs Hastings were trying to find out what was wrong with the claimant and if it was anything in her personal life. It was clear that they were not contemplating any disciplinary action in relation to the incident on 18 May. The difference between the two incidents was that whereas Mrs Smith did not wish to pursue a formal complaint, the three ladies did. There was no evidence of inconsistency of treatment. The incident on 18 May was dealt with differently because it was resolved informally.

The respondent accepted that the disciplinary procedure was unclear but not that it was contravened. Mr Hamill accepted that the tribunal had to have regard to the accepted norms where an employee complains about how a disciplinary matter was handled and will look at the legislation and the Labour Relations Agency Code as far as relevant.

Mr Hamill objected to the suggestion that the claimant should be treated as a vulnerable person who did not understand what was happening to her although he did accept that she would not be the most articulate.

Delay in Addressing Grievance

Mr Hamill pointed out that disciplinary action was clearly contemplated before the grievance was raised. The delay was caused in part by the claimant being on holiday. It was not suggested by the claimant that the disciplinary process influenced the grievance and there was no reason to halt or suspend the disciplinary process.

There is no evidence of male fides on the part of the committee. If anything they behaved carelessly or negligently. Therefore their behaviour was not calculated or likely to undermine the implied duty of trust and confidence. Mr Hamill sought to place reliance on the acceptance of Mr Murphy's evidence by the claimant and submitted that as indicated in Harvey mere carelessness or inadvertence was not enough. The delay amounted to five to six weeks. Two weeks delay was caused by the claimant in replying to correspondence for which no explanation has been provided. Several days delay was caused by Mr Murphy being on holiday. He responded to the claimant on the first day of his return and restated the committee's advice. The grievance was very detailed and it was accepted by the claimant that it required the committee to go outside its own stated procedures. It therefore had to go before the committee and the first available committee meeting was at the end of June 2005. Therefore there could be no criticism about delay levelled at the committee up until the first time that it considered the grievance. Mr Hamill disputed the factual basis for the allegation of intransigence laid against Mr Murphy. Mr Hamill drew attention to Mr Murphy's evidence that he did not have power to deal with the claimant's complaints and was only empowered to refer the matter to the committee and that the sub-committee was set up by the committee rather than by Mr Murphy. Mr Murphy explained to the claimant in correspondence what was going on and the claimant would also have been aware of this from her experience of working for the respondent.

The fact that the claimant was unhappy with the committee's decision to follow its own procedures is neither a breach of contract nor a fundamental breach of contract. The committee's first response was made promptly within a day or so. The delay that occurred during the first half of July was neither so serious nor inexplicable as to constitute a breach of contract. The claimant was away and the necessity for the committee to go outside its own procedures meant that this was not a breach of contract. The claimant's complaint against the committee was that it was not doing what she wanted. The claimant enjoyed no statutory right to compel the committee to comply with her request. It was open to her employer to accept or reject her request provided that it behaved reasonably. At first the respondent refused to amend its procedure but after the claimant's threat to resign ultimatum, the matter was promptly reconsidered and Mr Murphy offered to take the matter back to the committee. This met one of the claimant's requests. This completely undermines the basis of the claimant's resignation. The claimant's behaviour was affected by her working relationships' with colleagues and had nothing to do with a breach of contract by her employer.

It was common case that there was no breach of an express term. Mr Hamill

submitted that Mr McAdams and Mrs Hastings did not breach any implied duty and

nor had the committee. It was faced with an unprecedented set of circumstances

and an unprecedented request by the claimant. She chose to resign and had failed

to demonstrate any repudiatory breach of contract on the part of the employer.

THE LAW

Constructive Dismissal

The authors of Harvey at DI [403] describe four conditions that an employee must meet in order to claim constructive dismissal:

(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

(3) He must leave in response to the breach and not for some other, unconnected reason.

(4) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.

The leading case in relation to constructive dismissal is Western Excavating (E.C.C) Ltd v Sharp (C.A.) [1978] ICR 221 in which it was held that an employee's entitlement to terminate his contract of employment by reason of his employer's conduct was to be determined in accordance with the law of contract and not by applying a test of unreasonableness to the employer's conduct. However, the courts have mitigated the impact of this approach by recognising that there is an implied contractual term to the effect that the employer should not behave in a manner that would undermine the relationship of trust and confidence between employer and employee.

The implied term of trust and confidence was first recognised in the case of Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84 where Mr Justice Arnold, giving the judgment of the Employment Appeal Tribunal in the context of the Western Excavating case said at paragraph 11:

"Now it is of course true, applying the Court of Appeal's test, that in order to decide that the conduct is sufficiently repudiatory to justify a conclusion of constructive dismissal one has to consider whether the conduct complained of constitutes either a fundamental breach of contract or a breach of a fundamental term of contract, two somewhat elusive conceptions that feature in our modern contract law. But there is not much room, as we think, for that inquiry in a case in which the test, within the terms of the contractual obligation, is one which involves considering the consequences, or the likely consequences, are to destroy or seriously damage the relationship of confidence or trust between employer and employee, because it does seem to us that any conduct which is likely to destroy or seriously damage that relationship must be something which goes to the root of the contract, which is really fundamental in its effect upon the contractual relationship."

The House of Lords gave consideration to the implied duty in Mahmud v Bank of Credit and Commerce International, SA [1997] ICR 606. Both Mr McKenna and Mr Hamill initially sought to rely on Lord Steyn's formulation of the test in Mahmud which is as follows:

"The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee."

However, Lord Nicholls propounded an alternative formulation as follows:

"The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer."

Lord Goff and Lord Mackay expressed their agreement with the speeches of both Lord Nicholls and Lord Steyn. Lord Mustill agreed with Lord Steyn.

In the majority of cases it might not make a difference but in the present case, Mr McKenna seeks both to rely on 'calculated' behaviour in the form of a witch hunt undertaken by Mrs Hastings and Mr McAdams and the 'inadvertent or negligent' behaviour of Mr Murphy in dealing with the claimant's grievance in support of his contention that the claimant was constructively dismissed.

In BG plc v Mr. P. O'Brien [2001] IRLR 496, Mr Recorder Langstaffe QC in giving the decision of the Employment Appeal Tribunal in a constructive dismissal case reviewed the case law including Mahmud and formulated the test as follows:

"The question is whether, objectively speaking, the employer has conducted itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee."

This neat formulation is entirely consistent with the views expressed by Lord Nicholls in Mahmud and bearing in mind that we are dealing with a constructive dismissal case, unlike Mahmud, we propose to adopt the test set out in BG plc v Mr. P. O'Brien.

Last Straw

The "last straw" doctrine was recently considered by the Court of Appeal in London Borough of Waltham Forest v Omilaju [2004] EWCA (Civ) 1463 where the Court of Appeal noted that a relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents and cited with approval the following passage from Harvey on Industrial Relations and Employment Law:

"[480] Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the 'last straw' which causes the employee to terminate a deteriorating relationship."

The Court of Appeal also endorsed the explanation of the last straw principle in Lewis v Motorworld Garages Ltd [1986] ICR 157 in which Glidewell LJ said at p169F:

"(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (See Woods v W. M. Car Services (Peterborough) Ltd. [1981] ICR 666.) This is the "last straw" situation."

The Court of Appeal went on to state that although the final straw may be relatively insignificant, it must not be utterly trivial. And that it must contribute something to the breach of contract, although what it adds may be relatively insignificant. There was no need to characterise the final straw as "unreasonable" or "blameworthy" conduct. An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee's trust and confidence has been undermined is objective.

CONCLUSIONS

MAJORITY DECISION

Witch Hunt

We do not believe that the claimant was the subject of a witch hunt. There is no evidence that either Mrs Hastings or Mr McAdams were engaged in an attempt to force the claimant out of in relation to the double dosing incident. On the basis of the disciplinary panel's findings, the decision to issue the claimant with a final written warning is unimpeachable. It was clearly a serious incident and the only person at fault within the employment of the respondent was the claimant. While it may well be the case that outside agencies were not without blame, the respondent was duty bound to take the action that it did and on one view the claimant was fortunate to avoid dismissal. The claimant was unable to point to any evidence that would support the witch hunt thesis other than her treatment in relation to the second disciplinary matter which occurred some four months after the first disciplinary hearing. In order to sustain the allegation of a witch hunt we would have expected to see evidence that the claimant was badly treated during the intervening period and it is clear that nothing of significance occurred. The respondent was also fully justified in investigating the allegation that the claimant behaved badly at the handover on 16 May 2005. We consider that Mrs Hastings had no alternative in the face of the written complaints by the three ladies concerned. Mr McKenna candidly conceded that the respondent was bound to investigate the complaints. We do not believe that the inconsistencies in Mrs Hastings' evidence as to how the complaints came to be laid demonstrate that the complaints were made at her behest. The claimant did not call any witnesses in support of this contention which seems to us to be entirely speculative. We also accept Mrs Hastings' evidence that she attempted to have the matter resolved informally. The criticisms made of the investigatory meeting do not, in our view, support the witch hunt thesis.

First Disciplinary Matter

The claimant accepted that the respondent was justified in disciplining her in relation to the double dosing incident. This was an entirely appropriate concession in view of the seriousness of the incident and the claimant's behaviour thereafter in keeping the matter to herself rather than alerting her immediate authorities straight away. The main thrust of the claimant's complaint about her treatment was that she was singled out for disciplinary action notwithstanding that others were at fault as well. It is clear from the evidence however that no-one else employed by the respondent was at fault and that if blame lay elsewhere it was with the General Practitioner or the District Nurse neither of whom were susceptible to the respondent's disciplinary procedure. The allegation contained in the claimant's grievance of inconsistent treatment as compared with another employee was not made out and did not form part of Mr McKenna's closing submissions. We are therefore not satisfied that there is any substance in the claimant's complaint in relation to the first disciplinary matter.

Second Disciplinary Matter

Although Mr McKenna, in his oral submissions, suggested that there was no valid complaint this does not rest easily with his concession that the respondent was fully justified in investigating the complaints made by the three ladies provided that the complaints were bone fide. There was no evidence to suggest that the complaints were not made in good faith and in our view the respondent had no alternative other than to investigate the complaints. The separate question of whether these complaints were made out was a matter for the disciplinary process to determine.

It therefore follows that Mrs Hastings and Mr McAdams were justified in convening an investigatory meeting on 19 May 2005. While there was some debate as to the precise status of this meeting, we are satisfied that it was investigatory rather than disciplinary. As such, the claimant was not entitled to be accompanied by a representative. It would have been preferable if the claimant had been given prior notice of the meeting and the opportunity to read the statements of complaint in advance but we do not regard these measures as essential in the context of an investigatory meeting whereas they would be for a disciplinary hearing. We do not therefore accept the claimant's assertion that she was ambushed in a pejorative sense although we do have considerable sympathy for the plight of claimant in being unexpectedly confronted with fresh complaints and the matter could have been handled better by the respondent. Nor do we accept that there was any basis for treating the claimant who was a senior member of staff differently because she was either vulnerable or fragile.

There is no substantial dispute as to what occurred at the investigatory meeting. The claimant was undoubtedly taken by surprise by the allegations with which she was suddenly faced and Mrs Hastings and Mr McAdams may have been guilty of reading too much into the claimant's failure to provide an explanation for her actions. However, one of the statements of complaint was read to the claimant and she was given ample opportunity to refute the allegations or provide an explanation. In the event, she denied the allegations but it seems to us that face with three detailed statement of complaint disciplinary proceedings were inevitable. We are satisfied however that the claimant would have had a full opportunity to defend herself at the proposed disciplinary hearing.

The claimant's complaint that she was treated unfairly at the investigatory meeting is not without foundation and we have considerable sympathy with the claimant in respect of her treatment. The question for us however is whether the claimant's treatment at this meeting constituted a breach of the respondent's implied duty not to undermine trust and confidence. The Staff Handbook does not provide detailed guidance as to how such meetings should be carried out and nor does the guidance issued by the Labour Relations Agency. The only requirement imposed by either document in relation to investigatory meetings is that it must be made clear that it is not a disciplinary meeting. We are satisfied that Mr McAdams did so. We do not regard the unwarranted references to the incident on 18 May 2005 as negating the reassurance offered by Mr McAdams and overall we are satisfied that the conduct of the investigatory meeting did not, on its own, constitute a repudiatory breach of contract. We are reinforced in this view by the failure of the claimant to treat it as repudiatory. While it is clear from both her evidence and her grievance that she was unhappy with her treatment it would not appear to have prompted any thought of resignation. That is not the end of the matter however as the conduct of the investigatory meeting may nonetheless be capable of being one of a series of incidents which cumulatively amount to a repudiatory breach of contract and we will return to this aspect later in our decision.

Failure to allow late Appeal

The respondent's disciplinary procedure stated that any appeal must be made within three days. The first intimation that the claimant gave of an appeal was some four moths after the imposition of a final written warning. In our view, the respondent cannot be validly be criticised for refusing to allow the claimant to appeal against a disciplinary award after such a significant delay particularly given that the claimant accepted it at the time and apologised for her behaviour.

Grievance

The claimant complained that the grievance should have been dealt with in advance of the second disciplinary proceedings and that the respondent was guilty of delay in dealing with the grievance. She also complained about the general handling of the grievance.

In our view, it would have been preferable for the grievance to have been completed before the disciplinary proceedings given that the grievance covered both the handling of the double dosing incident on 13 December 2004 and the allegation of being disrespectful on 16 May 2005.

We do not however accept the claimant's complaint about the delay in dealing with her grievance. While it is patently correct that the grievance was not addressed within the time frame laid down in the grievance procedure, we are satisfied that it was dealt with as expeditiously as possible in the unusual circumstances that prevailed. We believe that there is force in Mr Hamill's submission that at least some of the delay was occasioned by the claimant. Furthermore, the grievance itself was a detailed document running to nine pages that clearly demanded careful consideration by the respondent. It is also clear that the claimant was seeking to advance her case through detailed and probing correspondence. We do not criticise her for so doing but fairness required that the respondent be afforded sufficient time to consider and respond to the correspondence.

We do not consider that Mr Murphy's criticism of the claimant's failure to follow the prescribed Grievance Procedure is valid as there is substance in the claimant's complaint that the persons who were the subject of her grievance would have been involved in addressing her grievance at both Stages 1 and 2. However, there will be occasions when this occurs particularly in relatively small organisations and the guidance provided by the Labour Relations Agency indicates that in these circumstances, the person dealing with the grievance should try to be impartial. We accept that this may be difficult in practice and we believe that a more imaginative approach by the Committee could have lead to the resolution of this difficulty but this does not mean that this element of the claimant's complaint is sufficient either on its own or in combination with other factors to warrant the claimant resigning and claiming constructive dismissal. Moreover, Mr Murphy was a relatively recent appointment as chairman and we can see nothing wrong in teasing out in correspondence how to deal with a case which fell outside the Grievance Procedure. The Committee's final view on this topic was communicated to the claimant in the letter of 28 June 2006. The claimant continued to challenge this decision by letters dated 29 June 2005 and 15 July 2005. In response to the latter, Mr Murphy finally gave ground and offered to place the claimant's correspondence before the Committee at its next meeting in September 2005. This was not enough for the claimant and she resigned on 27 July 2005.

Last Straw

On the basis of the Court of Appeal's decision in London Borough of Waltham Forest v Omilaju we do not regard Mr Murphy's letter of 25 July 2005 as constituting the "last straw". Far from being blameworthy or unreasonable, it amounted to a reasonable concession in response to the claimant's requests and as Dyson LJ put it, "an entirely innocuous act on the part of the employer cannot be a final straw even if the employee genuinely, but mistakenly, interprets (it) as hurtful and destructive…" The fact that the committee was going to deal with matter at their next meeting in September 2005 rather than either immediately or within a somewhat shorter timeframe does not, in our view, alter its character.

Constructive Dismissal

Overall, we are not satisfied that the matters of which the claimant makes complaint

either individually or collectively amount to a fundamental breach of contract entitling the claimant to resign and claim constructive dismissal. Nor, as indicated above, are we persuaded that Mr Murphy's letter of 25 July 2005 constituted the last straw. Applying the test set out in BG plc v Mr. P. O'Brien, we are satisfied that, objectively speaking, the respondent has not conducted itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee. The claim of constructive dismissal must therefore be dismissed.

MINORITY OPINION

The minority believes that the constructive dismissal claim should be upheld. The

minority believes that the actions of the respondent amount to a fundamental

breach of contract and entitled the claimant to resign and claim constructive

dismissal. In particular, the minority bases its opinion on the following matters:

(i) The manner in which the respondent conducted the meeting on 19 May 2005 was highly unsatisfactory. The claimant was not told what was being investigated either prior to the meeting or at its outset. Rather, Mr McAdams asked the claimant if she knew what the meeting was about and when she mentioned an incident on 18 May 2005, Mr McAdams advised that the meeting was being held in the context of that incident. Mr McAdams also informed the claimant that her general attitude was also relevant. In these circumstances, it was clear that the meeting was not an exclusively investigatory meeting aimed at establishing the events that occurred on 16 May 2005 but rather was at least partly disciplinary in nature.

(ii) The respondent's persistent refusal to deal with the claimant's formal grievance.

(iii) The respondent's persistent refusal throughout June/July 2005 to adopt a reasonable and flexible approach to the claimant's grievance.

(iv) The respondent's decision to proceed with the disciplinary hearing while the grievance was outstanding.

(v) Mr Murphy's insistence that the claimant followed Steps 1 and 2 of the grievance procedure set out in the staff handbook notwithstanding his recognition that the appeal procedure was unfair and his willingness to remedy this unfairness by setting up a sub-committee to deal with the matter. It is also significant that Mr Murphy failed to communicate this proposal to the claimant.

As a result of these matters, the claimant left the workplace initially on an arranged holiday and thereafter on sick leave. The minority believes that in these circumstances, the respondent was in breach of the implied duty of trust and confidence and the claimant was therefore entitled to resign on 27 July 2005 and treat the respondent's conduct as a repudiatory breach of contract.

Chairman:

Date and place of hearing: Belfast on 4, 6-8 September 2006, 25 October 2006, 30-31 October 2006, 22 November 2006 and 25 January 2007