Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2007/388_06.html
Cite as: [2007] NIIT 388_6, [2007] NIIT 388_06

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THE INDUSTRIAL TRIBUNALS

CASE REF: 388/06

CLAIMANT: Sidney Scott

RESPONDENT: Topaz Energy Limited

DECISION

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

Constitution of Tribunal:

Chairman: Mr Davey

Members: Mr Irwin

Mr Edmund

Appearances:

The claimant appeared in person.

The respondent was represented by Ms M Costello.

Reasons

The claimant sought compensation for constructive dismissal. The issue for the tribunal was whether, at the time the claimant had tendered his resignation, he was in such circumstances as entitled him to terminate his contract of employment without notice by reason of the respondent's conduct.

There was little major dispute about the salient facts. The claimant had been a satisfactory employee for some time. He was then off work following a road traffic accident in which he sustained fractures to both his legs for an extended period. He received his pay in full for eight weeks, statutory sick pay for a further period and, thereafter, incapacity benefit. In June 2005, during one of the periodic contacts between the respondent and the claimant, the claimant indicated his wish to return to work. His manager, Mr McKay, suggested he should see his doctor who extended his period of sick leave. In July the claimant again indicated that he wished to come back. Mr McKay indicated that the claimant's GP would have to sign him as fit and that, in addition, the company would have him seen by an occupational health specialist. The claimant's GP did sign him off as fit for work, as did the occupational health specialist. During the course of discussion between the claimant and Mr McKay the possibility of an initial period of rehabilitation with another driver was suggested. This suggestion was taken up by the occupational health specialist who suggested that an initial week of rehabilitation, by way of accompanying another driver in his cab on delivery, would be beneficial for the claimant. In fact the respondent made provision for three weeks of this form of rehabilitation.

The claimant accepted that, when he recommenced work proper, on his own, arrangements were made for him to do a number of bulk deliveries which were less stressful than individual domestic deliveries. The claimant also accepted that there was no difference in practice between the manner he was treated when he returned to work and the manner in which he had been treated prior to his injuries. Worksheets were prepared in the Belfast office and would be available either in the evening for the following day or would be picked up in the morning before starting work. The worksheets would set out the loads to be delivered during that day. The worksheets were based on an estimate of driving time between the depot and the various places to which deliveries had to be made, with a fixed amount of time being allowed for each delivery. For pay purposes the worksheets were accepted unless the driver sought an increase in the amount of driving time. If the driving time exceeded that estimated the drivers could seek additional time. It was not the driver's practice to make any objection if the estimated driving times were not fully used. The fixed times for delivery were not subject to change. The times might, in some cases, be generous but it was accepted that, sometimes, the times might be exceeded. The claimant also accepted that the business in which he was engaged was a cyclical business which was slack in the summer and busy in the winter. He further accepted that the contracts of all the drivers catered for this and he made no suggestion that he was treated any way different to any other driver.

The respondent sought to suggest that the times credited to employees by this system were, in fact, overstated and that employees, in fact, worked shorter hours than those shown. The tribunal accepts that this may have been so on occasions and also accepts that there would also be occasions when employees would become entitled to a full hours pay even though they had not worked a complete hour at the end of their shift. However, without detailed analysis of the driving times and actual periods of delivery in each case there was insufficient evidence to draw a clear conclusion that the timesheets would always be significantly favourable to the employees. No such analysis had taken place and the tribunal considered that, in those circumstances, the hours shown by the worksheets as having been worked had to be taken at their face value.

The claimant, over the years, did a reasonable amount of overtime. After his return to work following his injuries his working hours including, on occasions, overtime, were set out in his daily worksheets as previously described. After the injuries he found this stressful and, in his last week or so of employment asked for copies of the worksheets to verify this. These were not immediately provided and on 24 November 2005, a Thursday, he wrote to the General Manager and his Line Manager, the Operations Manager, to state that he had returned to work after breaking both legs and that he had said that he was still having problems with his legs. He went on to say that since his return he had managed quite well and worked a reasonable amount of overtime but that he now felt he could not work the amount of hours asked as by evening his legs were swollen and extremely painful. The claimant stated that he had pills for the pain which caused him drowsiness. The respondent's evidence, which the tribunal accepts, was that it was unclear whether or not he was taking these pills while at work and that a visit to the doctor for that reason, to determine whether he was really fit for work or not was appropriate. He indicated in that letter that he could only work ten hours per working day and eight hours on a Friday. The following day Mr McKay, the Operations Manager, telephoned the claimant. There was some dispute as to the details of the conversation. The claimant agreed that Mr McKay had suggested that the claimant should see his GP about his medical condition. The claimant did see his GP who recommended that he refrain from work for a period of four weeks due to stress and pain in his lower legs. The claimant was not clear whether he saw his GP on 26 November or 3 December. What is quite clear, however, is that he did not inform the respondent of what his GP had said. The claimant was at work on Monday 28 November when he worked half an hour's overtime. On that day he sent a fax resigning his position.

There was some suggestion that there might have been a further phone call prior to the claimant's resignation. This was not, however, reflected in the respondent's evidence and the claimant conceded, on further consideration that it might have taken place subsequent to his resignation. The tribunal finds that it did.

The claimant's case was that the respondent's overall reaction to his complaint contained in the letter of 24 November was inadequate and unreasonable. The respondent had failed to make allowances for him. His doctor had told him to take more time off work. He did not wish to take another month off work and he resigned.

It is well established that, in order to show a constructive dismissal it is necessary to establish that there has been a significant breach of the employee's contract of employment by the employer and that the employee has terminated the contract in response to that breach. In the tribunal's view the claimant has not established that there was any such breach. There is no suggestion that the respondent was behaving in any way unusually towards the claimant or making any undue demands which they had not been making in the past. There is nothing to prevent an employer seeking overtime from their employees though problems may arise if an employer seeks to compel an employee to do overtime when he does not wish to. There is no suggestion of compulsion here. It is true that the claimant did raise concerns about overtime in the context of his medical condition. That was raised on a Thursday. This provoked an immediate reaction from his line manager who suggested, quite reasonably, that a medical opinion should be sought in the circumstances. The claimant initiated no discussion of the doctor's view with the respondent. Instead, on the next working day following the telephone call suggesting the visit to the doctor, the claimant resigned. It is difficult to see where, in that series of events, any breach of contract occurred.

The claimant might argue that the respondent's reaction was inadequate in terms of health and safety, or that it was inadequate to such an extent as to breach the term of trust and confidence implied in to all contracts of employment, but the tribunal does not see that these arguments could be sustained. The respondent immediately suggested the seeking of a medical opinion and it seems not unreasonable to suppose that, had that medical opinion been made available to them, they would have acted upon it. At all events they were never given the opportunity either to act or not to act since the claimant did not inform them of what had occurred. Nor can it be said that there was a breach of the implied term of trust and confidence since, again, the claimant did not inform the respondent of the results of the medical examination and it was not unreasonable of the respondent to wait until that medical examination had been carried out before taking any action. It is possible that some employers might have acted in advance of the medical report but that is a far cry from saying the respondent had broken the terms of the contract. The tribunal finds no breach and, accordingly, the claim must fail.

Chairman:

Date and place of hearing: 4 January 2007, Limavady

Date decision recorded in register and issued to parties: