Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McHugh v Royal Mail Group Ltd [2008] NIIT 206_08IT ( 05/12/2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/00206.html
Cite as: [2008] NIIT 206_08IT ( 05/12/2008), [2008] NIIT 206_8IT ( 5/12/2008)
[New search] [Printable RTF version] [Help]
THE INDUSTRIAL TRIBUNALS
CASE REFS: 00206/08, 00522/08 &
01039/08
CLAIMANT: James McHugh
RESPONDENT: Royal Mail Group Ltd
DECISION
The unanimous decision of the tribunal is that the claimant’s claims relating to Health and Safety detriment, breach of contract, unauthorised deductions from wages, and constructive dismissal are dismissed.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mr Robert Hanna
Mr John Kinnear
Appearances:
The claimant was present and represented himself.
The respondent was represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.
THE CLAIM
1. The claimant claimed that he had been bullied and harassed by the respondent and had been constructively dismissed. He also alleged that the respondent breached his contract of employment in stopping sick pay and in respect of the implied term of trust and confidence. The claimant also claimed that he had been the subject of a Health and Safety detriment. The respondent denied all of these allegations.
THE ISSUES
The issues before the tribunal, as agreed by the parties, were as follows:-
Was the claimant subjected to a Health and Safety detriment?
Was the claimant’s contract breached?
Was the claimant constructively dismissed by the respondent?
SOURCES OF EVIDENCE
3. The tribunal heard evidence from the claimant and from Mr T O’Kane the respondent’s Delivery Sector Manager. The tribunal was also presented with bundles of documentation and took into account only those documents specifically referred to in the course of evidence.
FINDINGS OF FACT
4. Having carefully considered the evidence insofar as same was relevant to the issues before it, the tribunal found the following facts proven on the balance of probabilities:-
(i) The claimant commenced employment with the respondent in October/November 2004 as a postman on a reserve basis. This meant that his duties were to some extent unpredictable in that he could be requested to cover periods of sickness taken by other members of staff employed as postmen. Prior to February 2007 he had had a stable route for a period of three months. However, this changed later in February 2007 and the claimant made representations to his line manager Mr Emerson that he was being constantly moved from one duty to another without necessary training or instruction thus causing him considerable stress. He visited his general practitioner in early February and again on 22 February 2007 and went off sick from Friday 23 February until 20 March 2007. During this time he met with Mr O’Kane, Divisional Sector Manager and subsequently forwarded a grievance letter to Mr David Mack, Delivery Office Manager who was Mr Emerson’s line manager. Mr Emerson took leave on or about the beginning of August 2007 and, upon his return, an informal meeting took place on 20 August 07 involving the claimant, Derek Emerson and Mr Mack in an attempt to resolve the difficulties. The notes of that meeting, recorded by Mr Mack, conclude as follows:-
“In conclusion, I stated to James that I was aware he still felt aggrieved regarding the issue concerning his paternity leave however I believe that this was down to communication error’s and I hope he would acknowledge this. Both Derek Emerson and myself stated that if James was finding his prep difficult we would give him additional support. I asked him if he was happy with the outcome of the issues concerned? James stated that ‘I think so’.”
(ii) It is apparent from the evidence and the documentation referred to, that the claimant had at least 8 meetings with managers. Mr O’Kane, who had already met the applicant on a number of occasions previously, wrote to him on 6 September 2007 inviting him to a meeting at 7.15 am on Monday 10 September 2007 in the Lisburn delivery office to discuss his ongoing absence and return to work. There was no evidence before the tribunal that such a meeting took place. However, on 25 September 2007 the claimant lodged a Bullying and Harassment Complaint Form (H1) which states:-
“Having been off work from 23-02-07 until 17-03-07 with work related stress. I am again finding work very stressful because of the way I am being treated by Derek Emerson, which I find very degrading, offensive and I believe … is harassment”.
(iii) Upon receipt of this complaint Mr McAleer, the Head of the Respondent’s National Return Centre, commenced an investigation into the claimant’s complaints. The document entitled “Bullying and Harassment Complaints Procedure Summary Case Report” dated 23 October 08 prepared by Mr McAleer as investigating manager, tabulates the various complaints made by the claimant as follows:-
• October 06 Mr McHugh was treated differently by Mr Emerson when he was prevented from getting an Early allowance.
• Mr McHugh was moved from Town duty to Town duty at any time within the office by Mr Emerson without adequate training.
• On 22nd Feb 07 Mr Emerson rang Mr McHugh at home which he found intimidating and offensive.
• On 20th March Mr Emerson challenged Mr McHugh about D2D prep.
• On 30th June Mr Emerson insisted Mr McHugh was on Paternity Leave from the following Monday 2nd July.
• On 6th July Mr Emerson laughed at Mr Mc Hugh when asked what was involved in a Prep / Prep duty.
• During the week commencing 24th July a number of instances illustrated Mr Emerson was going out of his way to make life difficult for Mr McHugh.
• There was a complete failure by Lisburn Management to take action to resolve previous complaints from Mr McHugh.
The claimant, during his evidence, also referred to an additional episode regarding paternity leave on 4 July 2007 involving Mr Emerson. Mr McAleer did not uphold any of the claimant’s complaints which he had investigated. The claimant remained off work on sick leave from 8 August 2007 until the effective date of termination of his employment by way of resignation letter on 13 March 2008.
(iv) Mr O’Kane again wrote to the claimant on 25th October 2007. This correspondence contains the following paragraph:-
“Part of the recommendations made by Mr McAleer are that I meet with you and Derek to agree a way forward to facilitate your early return to work. I would hope by the end of this meeting to have cleared the air and agreed a clear way forward in line with Royal Mail’s policies and procedures which will ensure that:-
You are treated throughout with dignity and respect;
Understand how operational needs and requirements will be met by managers in relation to yourself.”
(v) The meeting with Mr O’Kane was to be held in the Delivery Office Manager’s Office in Lisburn Delivery Office on 29 October 2007 at 2.30 pm. Mr Emerson was to join that meeting. The claimant was advised that he may be accompanied at the meeting by a trade union representative or work colleague from within Royal Mail Group plc. The claimant did not attend this meeting and appealed against the findings of Mr McAleer in relation to the bullying and harassment complaint. The appeal was conducted by Mr David Peden, Area Programme Manager. The tribunal is satisfied that the original investigation and the appeal hearing were conducted thoroughly and fairly. The Appeal Summary Report dated 29 November 2007 reveals that none of the claimant’s complaints was upheld and, Mr Peden, referring to Mr McAleer’s recommended actions states at page 7 of the Report that:-
“(1) It is essential that the facilitated meeting between Mr McHugh and Mr Emerson takes place. I believe it is important that both individuals commit to moving on and I do believe that it would be helpful to the process for Mr Emerson to acknowledge that his actions in relation to the sickness absence, telephone call, the paternity leave issue, and his comment about people laughing at Mr McHugh could have been handled differently and that they may have caused distress to Mr McHugh – although this was clearly not his intention and none of these issues, individually or collectively are incidents of Bullying or Harassment. It is very important that Mr McHugh accepts the findings of this appeal review and puts the issue behind him in order to “move on” mentally.
(2) The managers in Lisburn DO should take advice from P&ODS on good practice regarding dealing with the warning signs of workplace stress so that any initial signs are highlighted and appropriate remedial actions taken.
(3) The full deployment of a workplace coach or coaches in the office to assist managers with getting proper instruction to employees in any doubt of the detail of particular deliveries must be urgently pursued and deployed.
(4) Any work aid that can be deployed to facilitate better clear down of prep frames should be sought and actioned.
(5) The office Manpower plan should be used fully to anticipate and clarify the start and finish dates of Paternity leave and any uncertainties should be cleared up well in advance.
(6) The ongoing work on updating of Walk Logs and Risk Assessments should be concluded as soon as possible and all new starts and reserves should be consulted by the workplace coach to ensure their awareness of any particular hazards or known difficulties”.
(vi) The tribunal accepts that the claimant did request a risk assessment in relation to the duties which were placing him under stress. The claimant, in the course of his evidence, however distinguished between the stress caused by the nature of his duties and the alleged bullying and harassment by Mr Emerson which, he claimed, led to his resignation. In his evidence the claimant also concentrated on the bullying aspect of his allegations rather than the alleged harassment. The claimant was then invited by Mr O’Kane in correspondence to a further meeting with Mr Emerson and himself on 10 December 2007. Following Mr O’Kane’s meeting with the claimant on 10 December 2007, a workplace counsellor, Ms Connell became involved. Ms Connell states in her report of 11 December 2007 that:-
“In my opinion Mr McHugh is not fit to return to work at present due to his lack of concentration and what appears heavy sedation. I have made an appointment request to Occupational Physician for further assessment”.
In a further report dated 8 January 2008 Ms Connell states that:-
“He feels he has little choice but to leave work as they have caused his symptoms and he has lost all trust in the business”.
In a second report also dated 8 January 2008 she states that she has suggested to the claimant a gradual return to work commencing the end of January 2008 and further states that the position will become clearer when he has attended the Occupational Physician. The tribunal considered relevant portions from the various reports compiled by Ms Connell and the Consultant Occupational Physician, Dr Colvin. On 11th February 2008, a meeting was held involving the claimant, Derek Emerson and Mr O’Kane. In his report of 28 January 2008 Dr Colvin had stated that:-
“There is no medical reason why Mr McHugh would not be capable of the described duties and therefore in my opinion is fit for work, if the perceived management and personal issues can be resolved by mutual agreement”.
(vii) Ms Connell had already suggested a return to work programme in her report of 22 January 2008. The programme was as follows:-
“Return to work programme at Lisburn Delivery Office, I would suggest as follows:
-Returning to walking duty. Only the actually walking duty would be undertaken initially.
Walk prepared for him so as to minimise the time he is in the delivery office for the first few weeks.
Week 1: walking duty – Wednesday and Friday only.
Week 2: walking duty – Monday, Wednesday and Friday.
Week 3: walking duty – Monday, Tuesday, Wednesday and Friday.
Week 4: walking duty – Monday, Tuesday, Wednesday, Thursday and Friday.
Week 5: Preparation of walk and walking duty – Monday, Tuesday, Wednesday, Thursday and Friday.
I feel, if possible, when Mr. McHugh commences his own walk preparation he should have the same walk for a period of two weeks until he becomes accustomed to the work again”.
The meeting involving the claimant Mr Emerson and Mr O’Kane on 11 February 2008 was therefore an attempt to facilitate a return to work for the claimant as soon as possible. An updated note of that meeting prepared by Mr O’Kane, and which the tribunal accepts as an accurate record, states as follows:-
“An open and frank discussion took place between Mr McHugh and Mr Emerson where Mr McHugh expressed his concerns over how he had been treated and was given assurances by Mr Emerson that there had been no hurt or offence meant in his actions in the day to day management of the office and in particular his management of Mr McHugh. Mr Emerson recognised that his actions had an impact on Mr McHugh but gave him assurances that he had not set out to or intended to cause him an offence. Mr McHugh acknowledged this recognition of his position by Mr Emerson. I suggested that the detail of the specific incidents were best left in the past and as both had recognised the others position and we could move on.
Mr McHugh’s position upon his return was discussed and it was agreed
1. when he returned he would be returning on the rehab as previously outlined by Atos Healthcare.
2. Mr McHugh would be on fixed duty (to be agreed with the DOM) for the first six weeks after his return to work.
Mr McHugh would assist with the preparation of a skills register identifying the duties that he was comfortable in the full knowledge of them.
It was accepted that if being asked to perform some other duties he would given adequate time or training in prep of the duty.
As the meeting drew to a close I confirmed with Mr McHugh that the discussion and outputs of the meeting now removed any barrier to his return to work and he acknowledged this”.
(viii) On 13 February 2008 Mr Mack, Delivery Office Manager, wrote to the claimant outlining the return to work programme as proposed by Ms Connell. He then states:-
“I would be obliged if you could speak to your GP regarding the above programme during your next appointment in order to make him/her aware of the programme we now have in place for you”.
Another letter was forwarded to the claimant on 28 February by Mr Mack again rehearsing the rehabilitation programme for a return to work and inviting the claimant to confirm his intention to return to work as outlined by signing a copy of the rehabilitation programme and returning it in the envelope provided.
(ix) Ms Connell records in her report of 26 February 2008 that the claimant’s mood has much improved and in her final report dated 26 February 2008 states as follows:-
“Following today’s session I feel Mr McHugh should be able to commence his rehabilitation programme week beginning 3/3/08 … I have discussed and agreed the content of this report with James McHugh”.
(x) The claimant had made it clear that redeployment was not an option for him.
(xi) The claimant’s general practitioner forwarded to the respondent a certificate dated 4 March 2008 giving the claimant a further four weeks off work on the basis of “stress at work”. Mr Mack then wrote to the claimant on 7 March 2008 stating as follows:-
“On the basis of advice from Atos Healthcare, our health care advisors, you had met with Tom O’Kane and Derek Emerson to resolve the outstanding work issues to clear the way for a return to work. At the end of this meeting you indicated that you were satisfied that the work issues preventing you from returning to work had now been discussed and finally resolved to allow you to return to work.
The advice from Dr Colvin and Ms Connell was that following this resolution you would be able to return to work. I had previously spoken with you regarding the rehab plan outlined by Ms Connell and consequently I wrote to you inviting you to return Week Commencing Monday 3 March, with an start date of Wednesday 5 March, on the rehab plan we had discussed. You subsequently failed to attend for duty.
When we did speak on Monday you advised me that you have an appointment on Tuesday with your GP at which you would discuss the return to work and rehab proposals and would be contacting me after the appointment. I have had no further contact with you on the matter but have received a further sick line from your GP for a further four weeks.
The advice from our Health Care professionals remains unchanged and they are of the view that now the matter has been resolved there is nothing to prevent you from returning to work. In the absence of any further medical evidence to the contrary I am of the opinion that you are fit to resume to duty as per the rehab plan from Ms Connell and am once again offering you the opportunity to return to work on Monday 10 March on the rehab plan.
If there had been any change to your medical condition that is preventing you from returning to work on this occasion would you please provide evidence from your GP to support this.
If you fail to return to work on this occasion without adequate explanation then consideration will be given to stoppage of the Royal Mail element of sick pay.
We may also consider treating the continued absence as unnecessary under the attendance procedure”.
This correspondence, which had been drafted by Mr O’Kane and signed by Mr Mack, was hand delivered to the claimant in or around 2.00 pm on Friday 7 March 2008.
(xii) The tribunal accepts that the claimant contacted Mr Mack on Friday afternoon 7 March 2008 and referred to certain difficulties in contacting his general practitioner of which Mr O’Kane was made aware. The tribunal considered Mr O’Kane’s evidence very closely in relation to what transpired between 7 March 2008 and the claimant’s resignation letter dated 13 March 2008. As no response had been received by Monday 10 March 2008 Mr O’Kane authorised the cessation of sick pay for the claimant at 11.20 am on 11 March. At 2.40 pm on the same date he received an e-mail from Mr Emerson stating that the claimant had spoken to “Marcus” advising that a letter was on its way from his GP. However, correspondence signed by Mr Mack dated 11/3/08 was hand delivered to the claimant also on 11 March 2008 stating:-
“Further to my letter of 07/03/08 you did not return to work on Rehab duties as invited. As detailed in my letter our Healthcare Professionals advised that there is nothing preventing you returning to work on the rehab outlined. You have now failed to resume to work on two separate occasions 03/03/2008 and 10/03/2008. On this basis of this and the reports from Atos healthcare I have given consideration to your entitlement to the Royal Mail element of sick pay and concluded that, as there is no justification for your continued absence I have decided that from Monday 10/03/2008 your entitlement to Royal Mail sick absence pay has been stopped.
If there has been any change to your medical condition that is preventing you returning to work can you please provide evidence from your GP to support this”.
A medical report was in fact furnished by the claimant’s GP dated 11 March 2008 stating inter alia:-
“I have a dilemma here. Mr McHugh is indeed physically able to return to work but emotionally is having a lot of anxieties, which are manifesting themselves in physical symptoms – shortness of breath, palpitations etc. He feels there will be continuing interpersonal difficulties with some other members he has to work with. He feels he has a lot of unpleasant memories and presently he could not face going back to work.
I feel he is suffering from an anxiety state and therefore I have been quite happy to issue him with a sick line from the 25th February 2008”.
The tribunal also carefully examined the claimant’s evidence in relation to this time period and all relevant associated correspondence. The tribunal accepts that Mr O’Kane was in the process of referring the general practitioner’s report to Atos Healthcare when a letter of resignation was received from the claimant effective from 13 March 2008. The letter reads as follows:-
“Dear sir,
Due to what I see as continued bullying and harassment the latest being the letter I received from Davy Mack on Friday 7th march. Copy enclosed. This letter is a serious breach of the implied term in my contract to be treated with trust and respect. I enclose letter from Davy dated 11 03 2008 stating my wages have been stopped. This is an unauthorised deduction and unlawful.
This is the latest in a long line of Royal Mails failure in their duty of care for me and to treat me with respect.
I am of the view that Royal Mail are repudiating their contract with myself. I am accepting this repudiation by resigning with effect from today 13 March 2008”.
The claimant was entitled to 5 months full pay during his period of absence before going on to half pay.
(xiii) Paragraph 4.4 of the relevant Sick Pay and Sick Leave Rates and Conditions operated by the respondent states:-
“4.4 Conditions on which sick pay is paid
Entitlement to sick pay is always subject to strict observations of the following conditions;-
(a) Certificates of incapacity must be received by the business for all sick absences.
(b) The business must be satisfied that an employee’s absence is necessary and due to genuine illness. …”
The claimant continued with his grievance process after his resignation, but without success. He commenced employment with “Four Seasons” on 15 April 2008 and was in that employment up to the date of the tribunal hearing.
SUBMISSIONS
5. The tribunal heard oral submissions from the respondent’s counsel and from the claimant. These were carefully considered.
RELEVANT LEGISLATION AND CASE LAW
6. (i) The tribunal considered Articles 68 and 132 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) in relation to Health and Safety cases. It also considered Articles 126 – 130 of the Order in relation to unfair dismissal together with the provisions relating to unauthorised deductions and the relevant provisions in the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 in relation to breach of contract. Article 127(1) (c) of the Order refers to an employee who “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”. Harvey on Industrial Relations and Employment Law states at D1 paragraph 403 that;
“In order for the employee to be able to claim constructive dismissal, four conditions must be met:
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”.
Harvey continues at paragraph 480 to state:-
“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 tribunal was mindful that the last act need not necessarily constitute a breach of contract.
(ii) The tribunal had regard to the Employment Appeal Tribunal decision in Claridge v Daler Rowney Ltd [2008] IRLR 672 where Mr Justice Elias states in paragraph 30 of his judgement as follows:-
“Where the repudiatory conduct relied upon is the breach of the term not to undermine or seriously damage the duty of trust and confidence – as in this case, … – then the finding of the tribunal that there has been a constructive dismissal must mean that they have taken the view that the conduct of the employer falls so far below that which they consider reasonable, that it entitles the employee to say that he should not be required to remain in employment. To reach that finding requires a very significant breach”.
The tribunal in determining whether the respondent had acted reasonably in all the circumstances had to consider whether the course of conduct fell within the range of responses which a reasonable employer might consider to be appropriate.
CONCLUSIONS
7. (i) The tribunal, having considered the facts as found, together with the relevant legislation and case law and the submissions made by both parties concludes as follows:-
(a) There is no evidence before the tribunal to substantiate the claimant’s claim of health and safety detriment under Article 68 of the Order, or, alternatively, a claim under Article 132 of the Order.
(b) The tribunal is not satisfied that there was a repudiatory breach of contract by the respondent entitling the claimant to terminate his contract of employment without notice by reason of the respondent’s conduct. The course of conduct fell within the range of responses which a reasonable employer might consider to be appropriate. The respondent also made considerable efforts to rehabilitate the claimant on a planned programme following appropriate advice from Atos Healthcare.
(c) The tribunal is further satisfied that stopping the claimant’s sick pay on 11 March 2008 was not a breach of the claimant’s contract and in addition that the claimant does not have a remedy under the provisions of the Order dealing with unauthorised deduction of wages.
8. The tribunal has sympathy with the claimant in the circumstances in which he found himself but is unable to uphold his claims which are therefore dismissed.
Chairman:
Date and place of hearing: 13 & 14 November 2008, Belfast.
Date decision recorded in register and issued to parties: