Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2693/04

CLAIMANT: Zoe Robson

RESPONDENT: Happy Days (1999) Ltd

DECISION

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

Constitution of Tribunal:

Chairman: Mr Palmer

Panel Members: Mr Carroll

Mr Kearns

Appearances:

The claimant was represented by Mr Heaney, Barrister-at-Law, instructed by McFadden Perry, Solicitors.

The respondent was represented by Mr Moore of Peninsula Business Services Ltd.

The Claim	The Claim
1.	The claimant's claim is in respect of unfair constructive dismissal.
Background	Background
2.	The respondent is the proprietor of a children's nursery in Newtownards. The claimant commenced work with the respondent in August 1998 as a nursery nurse. She is qualified in this field. She was promoted to deputy officer-in-charge of the nursery about 1 year and 4 months after she commenced employment and then to officer-in-charge in December 2000. She resigned her employment in August 2004 and claims that she was entitled to do so, on account of the respondent's conduct towards her.

THE LAW RELATING TO CONSTRUCTIVE DISMISSAL (INSOFAR AS RELEVANT TO THESE PROCEEDINGS)	THE LAW RELATING TO CONSTRUCTIVE DISMISSAL (INSOFAR AS RELEVANT TO THESE PROCEEDINGS)	THE LAW RELATING TO CONSTRUCTIVE DISMISSAL (INSOFAR AS RELEVANT TO THESE PROCEEDINGS)	THE LAW RELATING TO CONSTRUCTIVE DISMISSAL (INSOFAR AS RELEVANT TO THESE PROCEEDINGS)
The Statutory Provisions	The Statutory Provisions	The Statutory Provisions	The Statutory Provisions
3.	Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 ("the Order") provides that an employee has the right not to be unfairly dismissed by his/her employer.	Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 ("the Order") provides that an employee has the right not to be unfairly dismissed by his/her employer.	Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 ("the Order") provides that an employee has the right not to be unfairly dismissed by his/her employer.
4.	Article 140(1) of the Order provides that Article 126 does not apply to the dismissal of an employee unless the employee has been employed for a period of not less than one year, ending with the effective date of termination of the contract of employment.	Article 140(1) of the Order provides that Article 126 does not apply to the dismissal of an employee unless the employee has been employed for a period of not less than one year, ending with the effective date of termination of the contract of employment.	Article 140(1) of the Order provides that Article 126 does not apply to the dismissal of an employee unless the employee has been employed for a period of not less than one year, ending with the effective date of termination of the contract of employment.
5.	Constructive dismissal occurs where an employee terminates his or her contract with the employer in the circumstances set out in Article 127(1)(c) of the Order. Where the circumstances set out in that provision occur the employee is regarded as dismissed by his/her employer.	Constructive dismissal occurs where an employee terminates his or her contract with the employer in the circumstances set out in Article 127(1)(c) of the Order. Where the circumstances set out in that provision occur the employee is regarded as dismissed by his/her employer.	Constructive dismissal occurs where an employee terminates his or her contract with the employer in the circumstances set out in Article 127(1)(c) of the Order. Where the circumstances set out in that provision occur the employee is regarded as dismissed by his/her employer.
6.	Article 127(1)(c) of the Order provides as follows:	Article 127(1)(c) of the Order provides as follows:	Article 127(1)(c) of the Order provides as follows:
		"127. — (1)   For the purposes of this Part [which includes the provisions referred to at paragraph numbered 3 and 4 above] an employee is dismissed by his employer if……..— (c)   The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."
The Case Law	The Case Law	The Case Law	The Case Law
7.	The first matter for the tribunal to determine is whether the claimant was constructively dismissed. The tribunal does not reach consideration of the "fairness" provisions contained in Article 130 of the Order unless constructive dismissal is established. This was put in the following way by the EAT in Barratt v Accrington & Rossendale UKEAT/ 0099/06/RN, at paragraph numbered 14:	The first matter for the tribunal to determine is whether the claimant was constructively dismissed. The tribunal does not reach consideration of the "fairness" provisions contained in Article 130 of the Order unless constructive dismissal is established. This was put in the following way by the EAT in Barratt v Accrington & Rossendale UKEAT/ 0099/06/RN, at paragraph numbered 14:	The first matter for the tribunal to determine is whether the claimant was constructively dismissed. The tribunal does not reach consideration of the "fairness" provisions contained in Article 130 of the Order unless constructive dismissal is established. This was put in the following way by the EAT in Barratt v Accrington & Rossendale UKEAT/ 0099/06/RN, at paragraph numbered 14:
		"14. Thus, where an employee resigns, only if he can be treated as having been dismissed under [Article 127(1)(c) of the Order] does consideration then pass to the well known provisions of [Article 130 of the Order] regarding the determination of the question of whether or not the dismissal is fair or unfair."

Implied Terms In Contracts Of Employment	Implied Terms In Contracts Of Employment	Implied Terms In Contracts Of Employment	Implied Terms In Contracts Of Employment
8.	As will be seen later in this decision, the test in relation to constructive dismissal is whether the employer significantly breached the contract of employment. Here, under this heading, we refer to an important implied term in contracts of employment.	As will be seen later in this decision, the test in relation to constructive dismissal is whether the employer significantly breached the contract of employment. Here, under this heading, we refer to an important implied term in contracts of employment.	As will be seen later in this decision, the test in relation to constructive dismissal is whether the employer significantly breached the contract of employment. Here, under this heading, we refer to an important implied term in contracts of employment.
9.	In deciding the issue of constructive dismissal consideration is given not only to written terms of the contract of employment, but also to its implied terms. At paragraph 15 of the Barratt case (referred to above) it is stated:	In deciding the issue of constructive dismissal consideration is given not only to written terms of the contract of employment, but also to its implied terms. At paragraph 15 of the Barratt case (referred to above) it is stated:	In deciding the issue of constructive dismissal consideration is given not only to written terms of the contract of employment, but also to its implied terms. At paragraph 15 of the Barratt case (referred to above) it is stated:
		"……., the question of whether or not an employee is entitled to terminate his contract without notice falls to be determined according to the law of contract, in particular, according to what the law says regarding what terms are implied in a contract of employment."
10.	There is an implied term in contracts of employment that the employer will not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. (See Malik v Bank of Credit and Commerce International SA [1997] IRLR 462 and the reference to that case immediately hereafter and in Omilaju at Paragraph 12). In Malik Lord Steyn stated at paragraph numbered 50.	There is an implied term in contracts of employment that the employer will not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. (See Malik v Bank of Credit and Commerce International SA [1997] IRLR 462 and the reference to that case immediately hereafter and in Omilaju at Paragraph 12). In Malik Lord Steyn stated at paragraph numbered 50.	There is an implied term in contracts of employment that the employer will not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. (See Malik v Bank of Credit and Commerce International SA [1997] IRLR 462 and the reference to that case immediately hereafter and in Omilaju at Paragraph 12). In Malik Lord Steyn stated at paragraph numbered 50.
		"Earlier, I drew attention to the fact that the implied mutual obligation of trust and confidence applies only where there is 'no reasonable and proper cause' for the employer's conduct and then only if the conduct is calculated to destroy or seriously damage the relationship of trust and confidence. That circumscribes the potential reach and scope of the obligation."
Constructive Dismissal	Constructive Dismissal	Constructive Dismissal	Constructive Dismissal
11.	It was established in Western Excavating v Sharp [1978] IRLR 27 that the proper test to be applied in establishing whether constructive dismissal occurred is the "contract test". In that case Lord Denning stated at paragraph 15:	It was established in Western Excavating v Sharp [1978] IRLR 27 that the proper test to be applied in establishing whether constructive dismissal occurred is the "contract test". In that case Lord Denning stated at paragraph 15:	It was established in Western Excavating v Sharp [1978] IRLR 27 that the proper test to be applied in establishing whether constructive dismissal occurred is the "contract test". In that case Lord Denning stated at paragraph 15:
		"If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract."
12.	In London Borough of Waltham Forest v Omilaju [2005] IRLR 35 (a decision of the Court of Appeal for England and Wales) Dyson LJ stated at Paragraph 14, in relation to constructive dismissal:	In London Borough of Waltham Forest v Omilaju [2005] IRLR 35 (a decision of the Court of Appeal for England and Wales) Dyson LJ stated at Paragraph 14, in relation to constructive dismissal:	In London Borough of Waltham Forest v Omilaju [2005] IRLR 35 (a decision of the Court of Appeal for England and Wales) Dyson LJ stated at Paragraph 14, in relation to constructive dismissal:
		"The following basic propositions of law can be derived from the authorities:   1. The test for constructive dismissal is whether the employer's actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27.   2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA [1997] IRLR 462, 464 (Lord Nicholls) and 468 (Lord Steyn). I shall refer to this as 'the implied term of trust and confidence'.   3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347, 350. The very essence of the breach of the implied term is that it is 'calculated or likely to destroy or seriously damage the relationship' (emphasis added).   4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at p.464, the conduct relied on as constituting the breach must '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' (emphasis added).   5. 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. It is well put at para. [480] in 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 Tribunals Approach	The Tribunals Approach	The Tribunals Approach	The Tribunals Approach
13.	The tribunal approaches this case on the basis of the statutory provisions and the authorities set out above. Put briefly (but not comprehensively) the authorities are stating:	The tribunal approaches this case on the basis of the statutory provisions and the authorities set out above. Put briefly (but not comprehensively) the authorities are stating:	The tribunal approaches this case on the basis of the statutory provisions and the authorities set out above. Put briefly (but not comprehensively) the authorities are stating:
	(a)	constructive dismissal arises where the employee resigns as a result of the repudiatory conduct of the employer;	constructive dismissal arises where the employee resigns as a result of the repudiatory conduct of the employer;
	(b)	there is an implied term in contracts of employment that the employer will not engage in conduct calculated or likely to destroy or seriously damage the relationship of trust and confidence that should exist between employee and employer;	there is an implied term in contracts of employment that the employer will not engage in conduct calculated or likely to destroy or seriously damage the relationship of trust and confidence that should exist between employee and employer;
	(c)	when considering whether this implied term has been breached the conduct is looked at objectively;	when considering whether this implied term has been breached the conduct is looked at objectively;
	(d)	a series of acts conducted by the employer may cumulatively amount to repudiatory conduct.	a series of acts conducted by the employer may cumulatively amount to repudiatory conduct.
THE PROCEEDINGS BEFORE THE TRIBUNAL	THE PROCEEDINGS BEFORE THE TRIBUNAL	THE PROCEEDINGS BEFORE THE TRIBUNAL	THE PROCEEDINGS BEFORE THE TRIBUNAL
Evidence	Evidence	Evidence	Evidence
14.	An agreed bundle of documents was provided to us. Agreed documents were added to the bundle during the course of the hearing. Evidence was given by the claimant and, on her behalf, by Mrs Donna McCullough. Witnesses called on behalf of the respondent were, Ms Christine Beckett (Ms Beckett), who is a 'hands on' Director of the respondent, Miss Laura Gregg, Mrs Amanda Rutherford, Miss Karen Parker, Miss Leanne Herbert, Miss Courtney Reid, and Miss Nicole Beckett, who is officer-in-charge of the Conlig nursery, the daughter of Ms Beckett, a Director of the respondent and also its Company Secretary.	An agreed bundle of documents was provided to us. Agreed documents were added to the bundle during the course of the hearing. Evidence was given by the claimant and, on her behalf, by Mrs Donna McCullough. Witnesses called on behalf of the respondent were, Ms Christine Beckett (Ms Beckett), who is a 'hands on' Director of the respondent, Miss Laura Gregg, Mrs Amanda Rutherford, Miss Karen Parker, Miss Leanne Herbert, Miss Courtney Reid, and Miss Nicole Beckett, who is officer-in-charge of the Conlig nursery, the daughter of Ms Beckett, a Director of the respondent and also its Company Secretary.	An agreed bundle of documents was provided to us. Agreed documents were added to the bundle during the course of the hearing. Evidence was given by the claimant and, on her behalf, by Mrs Donna McCullough. Witnesses called on behalf of the respondent were, Ms Christine Beckett (Ms Beckett), who is a 'hands on' Director of the respondent, Miss Laura Gregg, Mrs Amanda Rutherford, Miss Karen Parker, Miss Leanne Herbert, Miss Courtney Reid, and Miss Nicole Beckett, who is officer-in-charge of the Conlig nursery, the daughter of Ms Beckett, a Director of the respondent and also its Company Secretary.

Extent of Claimant's Claim	Extent of Claimant's Claim
15.	In the claimant's Originating Application, which was received at the Office of the Industrial Tribunals in September 2004 (the IT1), she states at paragraph numbered 12 that the matters about which she complains happened from May to August 2004. Also, at paragraph numbered 13 of the IT1 she refers to having been subject to humiliation and harassment in a number of ways, "Over the last few months". During the course of the hearing Mr Moore raised objection to matters which the claimant referred to and which occurred prior to May 2004. Mr Heaney told us that, notwithstanding what is stated at paragraph numbered 12 of the IT1, all matters, beginning with the storage of the drug Ritalin on the nursery premises in or about February 2004, are relevant to the issue of constructive dismissal: they are part of a course of conduct. He said that he would provide us with authorities in support of their relevance. Mr Moore told us that he would argue in the alternative as regards relevance, but he was content and had no objection to evidence being led regarding matters that occurred prior to the dates in the IT1.
16.	In the event Mr Heaney did not make an application to amend the IT1 nor did he provide the authorities promised either orally or in his submissions. We have considered the matter carefully, in the circumstances, and concluded that we will decide this case taking account only of events that occurred between May and August 2004, which are the dates referred to in the IT1.
17.	An incident occurred in February 2004. One of the children who attended the nursery was on the drug Ritalin for a time. The claimant claimed that this drug had remained on a shelf in the nursery for some time where it would have been accessible to the children. One of the nursery nurses placed this drug in the child's bag in order that the child could bring it home to his carers. This was a dangerous thing to do. When Ms Beckett learned of this incident she called in the Social Services and arrangements were put in place to ensure that drugs were kept safely and to avoid the kind of event that had occurred happening again. The situation was resolved. No disciplinary action was taken against the claimant. She was not on duty when the Ritalin was placed in the child's bag. The claimant claimed that this incident had caused her concern and she was unhappy with the arrangements made with the Social Services for the keeping of medicines. She raised these matters with Ms Beckett who did nothing. Looked at objectively, we consider that any concerns she claims to have had were totally unwarranted. Arrangements agreed with the Social Services had been put in place.
18.	There was another instance, prior to May 2004, when the claimant did not have a deputy. She was without one for approximately 5 weeks, from the end of February 2004. She complained to us that as a result she had to work excessive hours. This is not borne out by the records provided. These show that extra hours were minimal. The claimant also complained that, during this period, Ms Beckett did not make herself available to deal with queries and this, and the extra hours, caused the claimant stress. We are satisfied that this was not so. The claimant alleged that Ms Beckett was difficult to contact during this period, which we do not accept. The claimant alleged that when contacted, Ms Beckett's answer was always "tomorrow". The only example the claimant provided us with of this attitude was where a mother of one of the children asked to have a form completed and when the claimant told Ms Beckett, Ms Beckett said that she would see to the matter the next day. We are satisfied that Ms Beckett was available to deal with queries. When she was not on the Newtownards premises, she was at the Conlig premises or available to be contacted on her mobile telephone.
19.	In relation to matters pre-dating May 2004, we are satisfied that they did not lead to stress to the claimant: nor did they lead to the claimant's moodiness which will be referred to briefly later when the meeting in the 'Blue Room' is dealt with.
The Facts and Conclusions	The Facts and Conclusions
Training	Training
20.	This was a general allegation that covered most of the employment period and not only May to August 2004. We find that very little, if any, 'off the job' training was provided. The claimant had worked her way up through the ranks and was experienced. We accept the respondent's contention that further training beyond the qualification held by the claimant and her experience was not required. We do not think that the respondent's view was unreasonable and also we are satisfied that the claimant was not treated any differently in this regard from other staff.
Complaints By Staff And The Meeting In The 'Blue Room'	Complaints By Staff And The Meeting In The 'Blue Room'
21.	Ms Beckett held a barbeque for her staff on a Saturday afternoon prior to the meeting in the 'Blue Room', which meeting will be referred to later. At the barbeque she learned from some staff that there was unhappiness among her nursery staff working at the Newtownards premises and some of them were considering resigning. Ms Beckett told those staff who had spoken to her at the barbeque that they should come to her during working hours and put their concerns to her "officially". Her reason was that alcohol had been available at the barbeque and she wished to ensure that it played no part in what she was hearing. When staff put their complaints "officially", Ms Beckett learned that the majority of her staff in Newtownards were unhappy at work, that the general atmosphere at Newtownards was far from harmonious and that they were being bullied. They put all this down to the claimant, who was their officer-in-charge. Some staff were actively seeking positions elsewhere and others were considering resigning.
22.	A staff meeting was due to take place about this time. These meetings are open-floor meetings-if anyone has anything to say they say it. The air is cleared.

23.	Ms Beckett spoke to the claimant and told her that complaints about her had been raised by staff. It was agreed by Ms Beckett and the claimant that a staff meeting (an open-floor and no-holds-barred one) should be held where grievances against the claimant could be aired. The claimant denied that she had agreed to an open-floor and no-holds-barred meeting. We are satisfied that she did agree to this type of meeting, but we are not satisfied that Ms Beckett had informed her of the details of the staff's complaints before the claimant agreed to the meeting. The claimant did not know all that was going to be said at the meeting, but she knew that complaints had been made against her. However, she admitted to us that she had been moody at work. It is clear to us that this moodiness affected her approach to staff and it is clear to us that she must have been aware of the general nature of the complaints that would be made at the meeting. We are satisfied from Miss Parker's evidence that there was a change in the claimant's attitude in the months prior to Miss Parker going on maternity leave at the end of February 2004. We are satisfied that, at the latest from the New Year of 2004, the position was as Miss Parker put it, "Zoe [the claimant] was getting very cheeky and abrupt in her manner with other members of staff. Sometimes it got to the point where I felt she was bullying them." We are further satisfied that the cause of the claimant's change of attitude was not work related.
24.	The staff meeting was held in May 2004 in the 'Blue Room' of the Newtownards nursery. Staff made criticisms of the claimant and she took these badly. We consider, having heard evidence from a number of staff, including Miss Parker, that the claimant was open to grave criticism in respect of the way she dealt with her staff. During the meeting the criticisms got too much for the claimant and she left the room and went outside to smoke a cigarette. However, she returned to the room and the meeting continued. We are satisfied that the claimant was upset by the allegations made against her. It was an uncomfortable meeting for the claimant, but we do not think that she was as upset as she portrayed to us. Agreement was reached at the meeting with the claimant on a way forward. We think that the meeting could have been better conducted by Ms Beckett. Some criticism must fall, therefore, on the respondent on how the meeting was conducted. However, we are satisfied any faults in the way that the meeting was conducted was not sufficient to breach the implied term of trust and confidence.
Mrs Rutherford's Appointment	Mrs Rutherford's Appointment
25.	Mrs Amanda Rutherford was the officer-in-charge of the Newtownards nursery immediately prior to the claimant being appointed to that position. Because of a domestic matter Mrs Rutherford was unable to continue in her position and resigned her employment in December 2000. In May 2004 Ms Beckett appointed Mrs Rutherford to a part-time position, working about 5 hours per day. The purpose of the appointment was to assist Ms Beckett, as her work was becoming too onerous because of other commercial commitments. The salary paid to Mrs Rutherford was on a pro rata basis to that of the salary of an officer-in-charge.

26.	The claimant claimed that she had not been told what Mrs Rutherford's duties were to be. We are satisfied that the claimant attended a meeting in May 2004 (which the claimant denies took place) when the duties to be allocated to Mrs Rutherford were explained. It was made clear at the meeting that, with the appointment of Mrs Rutherford, there would be no change in the claimant's duties, or those of her deputy. Mrs Rutherford's duties were of an administrative nature and she was to fill in when Ms Beckett was not present at the nursery.	The claimant claimed that she had not been told what Mrs Rutherford's duties were to be. We are satisfied that the claimant attended a meeting in May 2004 (which the claimant denies took place) when the duties to be allocated to Mrs Rutherford were explained. It was made clear at the meeting that, with the appointment of Mrs Rutherford, there would be no change in the claimant's duties, or those of her deputy. Mrs Rutherford's duties were of an administrative nature and she was to fill in when Ms Beckett was not present at the nursery.	The claimant claimed that she had not been told what Mrs Rutherford's duties were to be. We are satisfied that the claimant attended a meeting in May 2004 (which the claimant denies took place) when the duties to be allocated to Mrs Rutherford were explained. It was made clear at the meeting that, with the appointment of Mrs Rutherford, there would be no change in the claimant's duties, or those of her deputy. Mrs Rutherford's duties were of an administrative nature and she was to fill in when Ms Beckett was not present at the nursery.
27.	The claimant claimed that she should have had the opportunity of being considered for the part-time post filled by Mrs Rutherford. The claimant claimed that by not giving her that opportunity the respondent was in breach of its Equal Opportunity Policy. She relied on Paragraph B2 of that policy, which states:	The claimant claimed that she should have had the opportunity of being considered for the part-time post filled by Mrs Rutherford. The claimant claimed that by not giving her that opportunity the respondent was in breach of its Equal Opportunity Policy. She relied on Paragraph B2 of that policy, which states:	The claimant claimed that she should have had the opportunity of being considered for the part-time post filled by Mrs Rutherford. The claimant claimed that by not giving her that opportunity the respondent was in breach of its Equal Opportunity Policy. She relied on Paragraph B2 of that policy, which states:
		"Promotion and advancement will be made on merit and all decisions relating to this will be made within the overall framework and principles of this policy."
28.	The aim of the policy is set out in paragraph A 2 as follows:	The aim of the policy is set out in paragraph A 2 as follows:	The aim of the policy is set out in paragraph A 2 as follows:
		"The aim of the policy is to ensure no job applicant, employee or worker is discriminated against either directly or indirectly on the grounds of race, colour, ethnic or national origin, religious belief, political opinion or affiliation, sex, marital status, sexual orientation, gender reassignment, age or disability."
29.	The claimant did not make any claim of discrimination in respect of any of the grounds set out. We find that the respondent, in relation to the claimant, was not in breach of its Equal Opportunities Policy in the appointment of Mrs Rutherford. We also find that the claimant was not treated any differently from other staff in relation to the appointment of Mrs Rutherford.	The claimant did not make any claim of discrimination in respect of any of the grounds set out. We find that the respondent, in relation to the claimant, was not in breach of its Equal Opportunities Policy in the appointment of Mrs Rutherford. We also find that the claimant was not treated any differently from other staff in relation to the appointment of Mrs Rutherford.	The claimant did not make any claim of discrimination in respect of any of the grounds set out. We find that the respondent, in relation to the claimant, was not in breach of its Equal Opportunities Policy in the appointment of Mrs Rutherford. We also find that the claimant was not treated any differently from other staff in relation to the appointment of Mrs Rutherford.
The Disciplinary Proceedings	The Disciplinary Proceedings	The Disciplinary Proceedings	The Disciplinary Proceedings
30.	On 7 July 2004 a new member of the nursing staff took 4 children (who were attending the nursery) to the park. She was not accompanied by another member of staff. There was a strict rule, of which the claimant was aware, that in such situations two members of staff must accompany the children. The rule was breached. The breach was a very serious matter.	On 7 July 2004 a new member of the nursing staff took 4 children (who were attending the nursery) to the park. She was not accompanied by another member of staff. There was a strict rule, of which the claimant was aware, that in such situations two members of staff must accompany the children. The rule was breached. The breach was a very serious matter.	On 7 July 2004 a new member of the nursing staff took 4 children (who were attending the nursery) to the park. She was not accompanied by another member of staff. There was a strict rule, of which the claimant was aware, that in such situations two members of staff must accompany the children. The rule was breached. The breach was a very serious matter.
31.	There was a dispute aired during the hearing as to who authorised the member of staff to take the children out to the park accompanied by only one nurse. The claimant said during the hearing that it was Mrs Rutherford and Mrs Rutherford denied that this was so. We do not consider that we need decide that dispute because the claimant did not inform the respondent that it was Mrs Rutherford who authorised the trip. We consider that we have to look at the respondent's knowledge at the time it took action and afterwards. We accept the evidence given that, at the relevant time, it was part of the claimant's and her deputy's duty to arrange outings, such as the visit to the park. Arranging outings was not one of Mrs Rutherford's duties.	There was a dispute aired during the hearing as to who authorised the member of staff to take the children out to the park accompanied by only one nurse. The claimant said during the hearing that it was Mrs Rutherford and Mrs Rutherford denied that this was so. We do not consider that we need decide that dispute because the claimant did not inform the respondent that it was Mrs Rutherford who authorised the trip. We consider that we have to look at the respondent's knowledge at the time it took action and afterwards. We accept the evidence given that, at the relevant time, it was part of the claimant's and her deputy's duty to arrange outings, such as the visit to the park. Arranging outings was not one of Mrs Rutherford's duties.	There was a dispute aired during the hearing as to who authorised the member of staff to take the children out to the park accompanied by only one nurse. The claimant said during the hearing that it was Mrs Rutherford and Mrs Rutherford denied that this was so. We do not consider that we need decide that dispute because the claimant did not inform the respondent that it was Mrs Rutherford who authorised the trip. We consider that we have to look at the respondent's knowledge at the time it took action and afterwards. We accept the evidence given that, at the relevant time, it was part of the claimant's and her deputy's duty to arrange outings, such as the visit to the park. Arranging outings was not one of Mrs Rutherford's duties.
32.	There is no dispute that on 7 July 2004 a member of staff took 4 children to the park unaccompanied.	There is no dispute that on 7 July 2004 a member of staff took 4 children to the park unaccompanied.	There is no dispute that on 7 July 2004 a member of staff took 4 children to the park unaccompanied.
33.	Miss Karen Parker was deputy officer-in-charge of the Newtownards nursery under the claimant. When the nurse took the children out to the park the claimant was on duty: Miss Parker was not. When Miss Parker began duty that morning she was given a report by the claimant as to what had occurred so far in the nursery. As part of the report she was informed by the claimant about the unaccompanied visit to the park. Miss Parker, aware that a visit to the park in such circumstances was a serious breach of the rules, reported the matter to Ms Beckett. Ms Beckett appointed Miss Nicole Beckett to investigate the matter. Miss Beckett, accompanied by Mrs Rutherford, as note-taker, interviewed the claimant on the morning of 7 July 2004. In the note, a copy of which was provided to the claimant, it is stated as follows:	Miss Karen Parker was deputy officer-in-charge of the Newtownards nursery under the claimant. When the nurse took the children out to the park the claimant was on duty: Miss Parker was not. When Miss Parker began duty that morning she was given a report by the claimant as to what had occurred so far in the nursery. As part of the report she was informed by the claimant about the unaccompanied visit to the park. Miss Parker, aware that a visit to the park in such circumstances was a serious breach of the rules, reported the matter to Ms Beckett. Ms Beckett appointed Miss Nicole Beckett to investigate the matter. Miss Beckett, accompanied by Mrs Rutherford, as note-taker, interviewed the claimant on the morning of 7 July 2004. In the note, a copy of which was provided to the claimant, it is stated as follows:	Miss Karen Parker was deputy officer-in-charge of the Newtownards nursery under the claimant. When the nurse took the children out to the park the claimant was on duty: Miss Parker was not. When Miss Parker began duty that morning she was given a report by the claimant as to what had occurred so far in the nursery. As part of the report she was informed by the claimant about the unaccompanied visit to the park. Miss Parker, aware that a visit to the park in such circumstances was a serious breach of the rules, reported the matter to Ms Beckett. Ms Beckett appointed Miss Nicole Beckett to investigate the matter. Miss Beckett, accompanied by Mrs Rutherford, as note-taker, interviewed the claimant on the morning of 7 July 2004. In the note, a copy of which was provided to the claimant, it is stated as follows:
		"Dawn went to Londonderry Park with 4 after-schoolers. Zoe, officer in charge confirmed Dawn had her mobile. Zoe felt this was ok to do so as she thought it had been done before last summer. Zoe is not sure when the outing was [the summer outing] or which member of staff but almost 100% sure it happened before which is why she felt confident to send Dawn out, with a mobile. Staff and children returned from trip fine."
	("After-schoolers" are children who attend the nursery during the school holidays).	("After-schoolers" are children who attend the nursery during the school holidays).	("After-schoolers" are children who attend the nursery during the school holidays).
34.	The claimant did not mention at the meeting with Miss Beckett that it was Mrs Rutherford who permitted the trip and not her; nor did she inform the respondent at any time afterwards that it was Mrs Rutherford who permitted the trip to the park. So the respondent was unaware that the blame might lie elsewhere, other than on the claimant.	The claimant did not mention at the meeting with Miss Beckett that it was Mrs Rutherford who permitted the trip and not her; nor did she inform the respondent at any time afterwards that it was Mrs Rutherford who permitted the trip to the park. So the respondent was unaware that the blame might lie elsewhere, other than on the claimant.	The claimant did not mention at the meeting with Miss Beckett that it was Mrs Rutherford who permitted the trip and not her; nor did she inform the respondent at any time afterwards that it was Mrs Rutherford who permitted the trip to the park. So the respondent was unaware that the blame might lie elsewhere, other than on the claimant.
35.	On 7 July 2004, the respondent's Board decided to suspend the claimant. That day Miss Beckett suspended the claimant on full pay and accompanied her off the premises. The claimant made allegations concerning the way that she was escorted from the premises by Miss Beckett, which we do not accept.	On 7 July 2004, the respondent's Board decided to suspend the claimant. That day Miss Beckett suspended the claimant on full pay and accompanied her off the premises. The claimant made allegations concerning the way that she was escorted from the premises by Miss Beckett, which we do not accept.	On 7 July 2004, the respondent's Board decided to suspend the claimant. That day Miss Beckett suspended the claimant on full pay and accompanied her off the premises. The claimant made allegations concerning the way that she was escorted from the premises by Miss Beckett, which we do not accept.

36.	On 8 July 2004, Miss Beckett wrote to the claimant stating, inter alia, that the claimant was required to attend a disciplinary hearing on 16 July 2004 at the Conlig nursery, that the matters of concern were that the claimant had permitted a new member of staff to go unaccompanied to the park with four of the children in the care of the respondent, and that the claimant had the right to be accompanied on 16 July by a fellow employee or trade union official. At the claimant's request the hearing was postponed. It was re-scheduled for 6 August 2004. The letter, which was dated 3 August 2004, informing the claimant of the re-scheduled hearing was delivered to the claimant while the claimant was attending the premises of a potential employer for interview. On 3 August 2004 the claimant wrote to Miss Beckett to say that she would be attending on 6 August 2004 and that she "may" be accompanied by a trade union representative. On 5 August 2004, the claimant wrote to Miss Beckett to say that she had sought legal advice and that advice was that, as she did not have a trade union representative, she could be accompanied by a friend who could take notes. The claimant stated in the letter that, on the basis of the legal advice, she was informing Miss Beckett that she would be accompanied to the hearing by a friend.
37.	The claimant attended on 6 August 2004 with her friend, Mrs Donna McCullough. When Ms Beckett refused Mrs McCullough permission to remain the claimant handed in her resignation.
38.	On 6 August 2004 Miss Beckett wrote to the claimant to inform her that if she did not wish to resign she should contact Miss Beckett by the 10 August 2004 so that the hearing could be re-arranged. The claimant replied by letter, dated, 9 August 2004 stating that she wished her resignation to stand.
39.	The claimant, during the course of the hearing before us, stated that she could not bring along a friend to the disciplinary hearing because of what occurred during the meeting in the 'Blue Room'. However, she did not raise this point in her correspondence with Miss Beckett. She did not tell us of any efforts she had made to establish whether any of her colleagues at the Newtownards nursery would agree to accompany her to the hearing. There was an associated nursery in Conlig and she did not tell us of any efforts made to seek someone from there to accompany her. Ms Beckett told us that at the time she had a total staff of approximately 40. The claimant had responsibility for approximately 10. The claimant did not tell us of any efforts made by her to seek an employee, who was not associated with the Newtownards nursery, to accompany her.
40.	In her evidence the claimant told us that the letter of resignation, although dated 6 August 2004, was composed and typed the day before, that is, on 5 August 2004. Among the papers provided to us is a letter, dated 5 October 2004, from the Social Security Agency to the claimant, which states that the claimant was entitled to income support from 5 August 2004. The letter sets out the rate of support. When asked when she applied for benefits the claimant was evasive. She said at one stage, in answer to Mr Moore, that he would have to ask the Social Security Agency. This was early in the hearing and nothing (for example a letter) was obtained and provided to the tribunal from the Social Security Agency stating when the claimant had submitted a claim for benefits.
41.	We are satisfied that the claimant signed on for benefits on the day before she handed in her letter of resignation on 6 August 2004. We are satisfied that she had made up her mind to resign no matter what occurred when she attended the premises where the disciplinary hearing was to take place.
42.	The claimant claimed that she had been inconsistently treated in comparison to the nurse who had placed the Ritalin in the child's satchel. That nurse, who had been temporarily acting up as deputy officer-in-charge at the time, lost that temporary position as a result. The claimant, in respect of the matter she had to answer, did not receive a penalty. She resigned before the matter was determined. We do not see, in the circumstances, inconsistency of treatment.
43.	We are satisfied that the respondent was justified in taking the disciplinary proceedings against the claimant. Whilst we think that the respondent should have been alert that the claimant might not have wished anyone from the Newtownards nursery to accompany her to the hearing, we consider that overall the procedure was fair. There was no breach of the implied contractual term of trust and confidence.
The Trade Union Leaflets	The Trade Union Leaflets
44.	The claimant told us that on one occasion she brought trade union leaflet information to work. She also told us that when Ms Beckett saw these she informed the claimant that there was no need for a trade union in the firm and to get rid of the material. We are satisfied that the claimant did bring the trade union material to work, but not that Ms Beckett told her that there was no need for a trade union and to dispose of the material. Furthermore, the claimant does not know when she brought the material to work and, therefore, whether the alleged incident with Ms Beckett occurred within the time frame May to August 2004. Also, there is nothing in the claimant's reply to particulars relating to this alleged incident.
Pay Rises	Pay Rises
45.	The claimant alleged that she did not receive a pay rise for some time. We were not referred to any contractual provision that dealt with pay increases. There is nothing specifically in the contract, that we can find, dealing with increases in salary.
46.	In lieu of a pay rise, all got the offer of joining a pension scheme to which both the respondent and employees contributed. The claimant said that she could not afford a 3% pension contribution. Some received pay rises and others did not, but there was no evidence that the claimant was singled out for unfair treatment.

Decision	Decision	Decision	Decision
47.	We find that the respondent did not breach the contract of employment and, therefore, the claimant was not constructively dismissed.	We find that the respondent did not breach the contract of employment and, therefore, the claimant was not constructively dismissed.	We find that the respondent did not breach the contract of employment and, therefore, the claimant was not constructively dismissed.
Wasted Costs	Wasted Costs	Wasted Costs	Wasted Costs
48.	In his submissions on behalf of the respondent, Mr Moore submitted as follows:	In his submissions on behalf of the respondent, Mr Moore submitted as follows:	In his submissions on behalf of the respondent, Mr Moore submitted as follows:
		"The learned panel are also reminded that three half days of hearing were lost as a result of vexatious claims made by the claimant's representative in the course of the hearing, which were all subsequently withdrawn or rejected by the panel and that consideration should be given to an application for wasted costs on behalf of the respondent who had to make further costly arrangements with regard to the attendance of staff, purely as a direct consequence of the adjournments requested on behalf of the Claimant's representative."
49.	We did not consider the matter of wasted costs as no actual application was made in respect of these.	We did not consider the matter of wasted costs as no actual application was made in respect of these.	We did not consider the matter of wasted costs as no actual application was made in respect of these.

Chairman:

Date and place of hearing: 15-17 August 2006, 26 September 2006, 3 October 2006, 12 October 2006, 1-2 November 2006, 30 November 2006, 1 December 2006 and 9 February 2007 (a Case Management Discussion), at Belfast.

Date decision recorded in register and issued to parties: