Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 00119/07

CLAIMANT: Sean Brown

RESPONDENT: Rockport School

DECISION

The unanimous finding of the tribunal is that the claimant was not unfairly dismissed by the respondent and his claim is dismissed.

Constitution of Tribunal:

Chairman: Mr B Greene

Members: Mr McAuley

Mr Hunter

Appearances:

The claimant appeared in person.

The respondent was represented by Mr C Hamill, of counsel, instructed by Worthingtons solicitors.

SOURCES OF EVIDENCE

1. The tribunal heard evidence from the claimant and from the following witnesses on his behalf, Margaret Olga Price, Diane Elizabeth Creighton, Rosa Matthews and Claire Leathem and for the respondent from Clare Osborne. The tribunal also received seven bundles of agreed documents and a number of loose documents amounting to some 597 pages.

THE CLAIM AND DEFENCE

2. The claimant claims unfair constructive dismissal. The respondent denies the claimant's claim that he was unfairly constructively dismissed.

THE ISSUES

3. (1) Was the claimant unfairly dismissed by reason of a constructive dismissal?

(2) If yes, what is the appropriate remedy?

FINDINGS OF FACT

4. (1) The claimant is a qualified music teacher, having completed his studies in June 2005.

(2) The claimant successfully applied for a temporary post as a music teacher with the respondent for one term starting on 31 August 2005. That temporary post was renewed until the end of June 2006.

(3) When the respondent employed the claimant Claire Leathem was in post, as a temporary music teacher, two days per week. She previously had filled the claimant's post.

(4) The respondent school is an independent school. It is outside the state sector and is dependent on fees from pupils for its finances. The pupils range in age from 3 until 16 years.

(5) The respondent school has a music department which teaches music to all year groups within the school and engages in extensive musical activities and commitments outside of the school. The school greatly values these extra curricula activities and uses them as a means of promoting interest in the school.

(6) From September 2005 until June 2006 the claimant was involved in teaching music to all years except the prep year. He was extensively involved in extra curricula activities which included music festivals, carol services and musical events to commemorate the centenary of the school. The respondent's Board of Governors lauded the efforts of the claimant on behalf of the school.

(7) In June 2006 a problem arose between the claimant and a sports teacher removing pupils from the music class without consulting with the claimant or seeking his permission. By the end of June 2006 the claimant was exhausted and was looking forward to the summer break.

(8) From May 2006 the claimant knew he was returning to work in the respondent school from September 2006 and that the two days per week, previously done by Claire Leathem, would be reduced to two to three hours per week.

(9) A temporary teacher is paid a daily rate, higher than a full-time teacher, because it is calculated only on the number of days worked. A temporary teacher does not get paid holidays.

(10) While the claimant did some work over the summer vacation, eg attending music courses in Birmingham and Armagh, he did not do other work as he did not feel obliged to do so as he was a temporary teacher and was not being paid to work over the summer nor did he enjoy the security of a permanent position.

(11) The claimant had been a mature student and had a wide experience in administrative jobs.

As a beginning teacher, under the supervision of the respondent, he was required to complete his induction programme over the first four terms. The respondent followed the induction programme developed by the Belfast Education and Library Board although it was outside of the state sector. Rosa Matthews was the tutor supervisor and Mrs Gordon dealt with the tradition and ethos of the school, by way of induction, to the claimant.

(12) When the claimant returned to the school for the autumn term he did not have schemes of work for any year although he had a skeleton document for year 11.

Schemes of work are the responsibility of the head of department or co-ordinator. No schemes of work had been previously done for the music department. The claimant was not specifically asked to prepare a scheme of work except when Mrs Gordon asked for a scheme of work for year 11.

(13) The claimant returned to work for the new term on 31 August 2006. He had decided to change the GCSE Examination Board to the AQA Examination Board.

(14) On 4 September 2006 the claimant sent an e-mail to Mrs Gordon, the head of study, in relation to orchestra rehearsals. He suggested a number of options to deal with orchestra rehearsals as it affected pupils who were also doing games. He was seeking a small compromise.

Mrs Gordon replied and suggested that he talk to the Principal, Clare Osborne, about the matter.

(15) The respondent believed that the issue between the claimant and the sports teacher Gail Holland which had arisen in June 2006 had been sorted out by September 2006.

(16) On 7 September 2006 the claimant sent an e-mail to Mrs Gordon thanking her for her support.

(17) The claimant sent an e-mail to Clare Osborne on 15 September 2006. The subject title of the e-mail was HELP! In the e-mail the claimant stated that he was stressed and was having to come into work early and stay late. He further stated that he was not achieving his objectives.

Clare Osborne e-mailed the claimant back the same day and asked him to meet with her after lunch of the same day.

The tribunal accepted the account of this meeting as contained in the claimant's witness statement at paragraph 13. Clare Osborne could not be specific about the meeting. She advised the tribunal that her handwritten notes were not intended to be an accurate account but were merely an aide memoire.

(18) Arising from the claimant's meeting with Clare Osborne on 15 September 2006 the claimant embarked on the preparation of an activity-log detailing every activity, connected with the school, on which he was engaged from Monday 18 until Thursday 21 September 2006 inclusive.

(19) The claimant met with Clare Osborne on 22 September 2006. He produced to her his activity-log and he asked for cover to allow him to address the severe difficulties in the music department. Clare Osborne said she would speak to Mrs Gordon.

(20) On 25 September 2006 the claimant e-mailed two members of the senior management team, Mrs Gordon and Rosa Matthews and asked them to have a look at the duty rota and specifically the overlapping duties which the claimant discharged.

Rosa Matthews, in an e-mail of 25 September 2006 to the claimant about the timetable, stated that his timetable was lighter than other teachers; that he had no form class; that he had 23 free periods per week, more than other staff members; and that the rotas were worked out on a point system. Mrs Gordon replied by e-mail of 25 September also. Her e-mail was similar in content to that of Rosa Matthews but was softer in tone.

(21) Diane Creighton is an assistant adviser for music in all schools throughout Northern Ireland. The claimant contacted her on 25 September 2006, by e-mail, to seek her assistance in relation to the schemes of work and how he would prepare the same and his timetable. The claimant sent an e-mail of the same date to Dr Jenkinson, the school medical adviser, in which he outlined the problems he was facing in work, which included feeling very tired, lacking in motivation, anxiety, headaches and stress arising from pressure of work.

Diane Creighton replied to the claimant on 25 September and indicated her willingness to meet with him. She suggested a number of dates to him from 9 until 17 October 2006.

(22) By e-mail of 25 September 2006 the claimant sought the assistance of Mrs Gordon in relation to the duties rota. Mrs Gordon replied and explained the system of allocating duties. The claimant was thankful for her response and he sent a further e-mail to her expressing his thanks and acknowledging her support.

The claimant also sent an e-mail to Rosa Matthews on 25 September 2006 in relation to her suggestion that time-management was the issue to be addressed. In the e-mail the claimant asked Rosa Matthews to suggest how he could time-manage tasks more effectively.

The claimant sent a further e-mail to Mrs Gordon on 25 September 2006 seeking cover for the attendance of Diane Creighton, SEELB music adviser, on Wednesday 11 October 2006. Mrs Gordon responded positively saying that the school would fit around Diane Creighton's timetable.

On the afternoon of 25 September 2006 a staff meeting was held. As Clare Osborne was at a conference in England the staff meeting was chaired by Rosa Matthews. The claimant arrived 15 minutes late for the meeting because he was doing his e-mails but made no excuse or apology.

(23) On 26 September 2006 the claimant sent an e-mail to Mrs Gordon in which he indicated he would prefer to meet Diane Creighton on Wednesday 11 October 2006 as that date was more suitable to him. Mrs Gordon replied the same day indicating that there would not be a problem and that it would be sorted out.

On the same date the claimant sent a copy of his activity-log to Clare Osborne for her information.

The claimant sent two further e-mails on 26 September 2006 to Diane Creighton and to Clare Osborne to confirm the arrangement for Wednesday 11 October 2006.

(24) Rosa Matthews invited the claimant to a meeting on 26 September 2006. At that meeting she reprimanded him for being late for the staff meeting on the previous afternoon. He apologised. Rosa Matthews then raised the issue of time-management with him.

(25) The claimant sent and received a number of e-mails on 27 September 2006 to Rosa Matthews, Clare Osborne, Diane Creighton and Evelyn Gordon in which the meeting with Diane Creighton for 11 October 2006 was confirmed and the claimant raised the issue of clash of duties again.

(26) On 28 September 2006 there was an exchange of e-mails between the claimant and Clare Osborne and Evelyn Gordon about Diane Creighton's pending visit and the arrangements for cover for the claimant, to enable that to take place.

The claimant also wrote to Dr Jenkinson again seeking a response to his first e-mail of 25 September 2006.

(27) On 29 September 2006 the claimant sent an e-mail to Rosa Matthews seeking some practical support in addressing the time-management issue which she had raised with him on two occasions during their recent communications.

On the same day he sent a further e-mail to Dr Jenkinson updating him on his condition and seeking his advice.

(28) The claimant met with Clare Osborne on 29 September 2006. He raised with her the absence of a response from Dr Jenkinson. He also mentioned his e-mail of 28 September 2006 requesting cover to address the departmental difficulties as he saw them. Clare Osborne then presented the difficulties posed by arranging cover.

The claimant advised the tribunal that he believed that Clare Osborne's attitude to the issue of cover indicated that there was some doubt being raised as to whether cover would be provided for Diane Creighton's visit on 11 October 2006. The tribunal does not accept that the provision of cover for Diane Creighton's visit was at risk. In so concluding the tribunal took into account the following matters:-

(a) The previous correspondence demonstrated that agreement had been reached to provide cover for Diane Creighton's visit.

(b) The explanation by Clare Osborne to the claimant of the difficulties posed by cover does not imply that the cover promised for Diane Creighton's visit was being put at risk.

(c) Whilst the tribunal cannot say that the claimant did not believe the cover for Diane Creighton's visit to be at risk, it seems strange to the tribunal that were that the case that he did not raise the subject with Clare Osborne at the time.

(d) In his subsequent e-mail to Diane Creighton the claimant did not make any comment or suggestion that her forth-coming visit would be jeopardized by lack of cover.

(29) On 2 October 2006 there was an exchange of e-mails between the claimant and Clare Osborne about the Christmas carol service. Clare Osborne asked the claimant to meet with her on 2 October 2006.

On the same day the claimant prepared a detailed memorandum which he addressed to the senior management team. In that memo he set out the difficulties that he had been experiencing over the previous weeks. He also recorded his most important short-term objectives. He advised of a course of action which he intended to implement with immediate effect in the absence of the level of support requested by him to help keep the school's active music department functioning fully at current levels of activity and in keeping with his stated objectives.

The proposed action set out six particular types of activity upon which he would be engaged during that time and it also set out a number of activities in which he would not be involved. These included that;-

(a) he would not be attending the morning assembly;

(b) he would not be performing the supervision rota duties;

(c) he would not be present at any of the activities that he had done voluntarily in the previous year.

He stated that he would use the time afforded by these cut-backs in his activities to address the objectives that he had set out in the memo.

(30) At 3.30pm on 2 October 2006 the claimant met with Clare Osborne. Rosa Matthews was in attendance. The claimant was annoyed by her attendance because of the recent exchanges between them.

The meeting failed to reach any accommodation. Clare Osborne regarded the claimant's proposed actions as an ultimatum. She advised him that if he could not do those tasks that he could not do his job. She also made it clear to him that she expected him to discharge those duties. Before the meeting ended Clare Osborne asked the claimant if he would indicate to her the exact support he was seeking.

A staff meeting was scheduled for 4.30pm the same day. The claimant attended but was feeling unwell and left early.

(31) The claimant then decided to resign from Rockport School because the respondent was not prepared to consider either reducing his workload nor to allow him to pursue his own plans in the way that he proposed to deal with his workload as it currently stood.

(32) On 3 October 2006 the claimant spent most of the day, in relation to his existing duties, tidying up any loose ends as he had decided to resign.

(33) At around 5.00 pm Clare Osborne came to his room where he informed her that he would not be returning to the school because the working conditions being enforced by the school were damaging him. He confirmed that he was writing a memo confirming his resignation. He also informed her that he was disturbed that Rosa Matthews had been invited to the previous day's meeting when there was an unresolved conflict between them.

(34) The claimant sent a memo to Clare Osborne dated 3 October 2006, in which he put in writing his resignation and the reasons for his resignation. Essentially the claimant complained that he had not received the support from the respondent that he expected or to which he felt entitled. The consequence of that was that his health had suffered. He regarded his own health and well-being as one of his primary objectives and he found that the recent meetings had not assisted him but had made the situation worse.

THE LAW

5. (1) A breach of contract arises when the employer breaches any term of the employee's contract of employment whether that term is an express term or an implied term or arises by operation of law.

(2) To establish a constructive dismissal that is unfair the claimant must prove that;

(a) there was a breach of his contract of employment, and

(b) the breach went to the core of the contract, and

(c) the breach was the reason or principle reason for his resignation; and

(d) he did not delay in resigning after the breach occurred, and

(e) in all the circumstances the respondent acted unreasonably.

(3) The breach of contract can be the breach of an express term of the contract or a breach of the implied term of trust and confidence or both.

(4) A breach of the implied term of trust and confidence can be by a single act of the employer or a course of conduct by the employer over a period of time.

(5) Where a course of conduct is relied upon it is not necessary that any single act itself amounts to a breach of the implied term of trust and confidence but the course of conduct, cumulatively, must amount to the breach of the implied term.

APPLICATION OF THE LAW AND FINDINGS OF FACTS TO THE ISSUES

6. (1) The tribunal is not persuaded that the claimant had too many duties to do. In so concluding the tribunal was influenced by the following matters;-

(a) The claimant's timetable was much lighter than his colleagues.

(b) An allowance had been built into his timetable, in relation to the number of free periods he had, to take account of the extra curricula activities.

(c) The difficulties that arose between the claimant and the respondent were those difficulties raised by the claimant. They had not been identified or raised by the school to suggest that they were dissatisfied with his performance.

(d) Whilst some teachers, notably Claire Leathem, agreed with the claimant's criticisms of the workload and lack of support other teachers who had held the claimant's position coped well and did not complain about the workload.

(e) Caution needs to be exercised in considering the criticisms made by Claire Leathem because she was not a secondary school trained teacher. She identified that herself as a difficulty she had and it was also identified by Rosa Matthews. More importantly Diane Creighton, who is not a member of the school staff, but who knows Claire Leathem, endorsed that explanation.

(2) Similarly the tribunal is not persuaded that the claimant was not provided with the support that he needed to discharge his duties and responsibilities. In so concluding the tribunal was influenced by the following matters:-

(a) The lines of communications between the claimant and the Principal and the senior management team were open at all times.

(b) Any criticisms or concerns or complaints that the claimant raised were all considered.

(c) When the claimant sought meetings with the Principal or the senior management team those meetings were agreed to and arranged quickly.

(d) The arrangement of the visit by Diane Creighton to the school, to assist the claimant, demonstrates support that the respondent was willing to give.

(e) The school further demonstrated its support for the claimant by willingly arranging cover for the claimant's classes during Diane Creighton's visit.

(f) The Principal and a number of the senior management team drew to the attention of the claimant that there was an issue in relation to his time-management, in their view.

(g) The specific events of which the claimant complains happened during a short period of time that is from 15 September 2006 until his decision to resign on 3 October 2006.

(h) The respondent hoped that the visit of Diane Creighton, which the claimant had sought would help to resolve any problems but the claimant did not wait to explore that option for resolution.

(3) The claimant also complained to the tribunal that whilst time-management was raised by the Principal and senior management team as an issue for his consideration no practical help was given to him to deal with that matter. The tribunal considers that the suggestion that there was a time-management issue was itself a positive suggestion and an attempt to assist the claimant to discharge his duties and responsibilities. Furthermore, the respondent was keen and hoped that Diane Creighton would also consider time-management issue at her meeting with the claimant. The respondent's view was that should Diane Creighton make some recommendations that the workload discharged by the claimant was excessively heavy or needed to be looked at again it would be willing to do so, although that was not its view.

(4) The claimant also criticised, in relation to him as a beginning teacher, the failure by the respondent to implement the induction programme, which obtained in the state sector. The tribunal accepts that there may have been some shortcomings in the respondent school's induction programme for him. Those shortcomings do not, in the tribunal's view, amount to a breach of an express term of the contract or a breach of the implied term of trust and confidence.

(5) The tribunal therefore is not satisfied that the respondent breached an express term of the claimant's contract of employment or breached the implied term of trust and confidence.

(6) As the claimant has failed to persuade the tribunal that there was a breach of contract it is unnecessary to consider the other ingredients necessary to establish a constructive dismissal as without the breach of contract the claimant cannot succeed.

(7) Accordingly the claimant's claim for unfair constructive dismissal is dismissed.

Chairman:

Date and place of hearing: 3, 5, 6 & 7 March 2008; 17-18 April 2008; 6 May 2008; 14 May 2008; and 24, 25, 26 & 27 June 2008.

Date decision recorded in register and issued to parties: