Industrial Tribunals Northern Ireland Decisions

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Cite as: [2009] NIIT 1123_8IT, [2009] NIIT 1123_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1123/08

CLAIMANT: Jane Griffiths

RESPONDENT: Cookstown and Magherafelt Citizens Advice Bureau (CAB)

Limited (in liquidation)

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed. The tribunal makes an award of compensation, consisting of a basic award, to be paid by the respondent to the claimant in the sum of £5,432.63. The tribunal makes no award of compensation, consisting of a compensatory award.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mr J Boyd

Mr A Crawford

Appearances:

The claimant appeared in person and was not represented.

There was no appearance on behalf of the respondent, nor was he represented.

Reasons

The claimant presented a claim to the tribunal of unfair (constructive) dismissal against the respondent on 8 August 2008. The respondent did not enter a response to the said claim; and was therefore not entitled to take any part in the proceedings, except as set out in Rule 9 of the Industrial Tribunals Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules of Procedure’). Notice of Hearing was sent to the respondent; but, as set out above, there was no appearance by the respondent nor was it represented at this hearing. Notice of these proceedings was also given to the Department for Employment and Learning (Redundancy Payments Branch) in accordance with Rule 60(8) of the Rules of Procedure. The Department declined to make any application to be joined as a party to the proceedings.

The claimant, having noted the respondent was in liquidation, stated to the tribunal that, if the tribunal found that she was unfairly dismissed, she sought an award of compensation to the Tribunal; but, in light of the liquidation, she requested that any such award would be limited to a basic award, pursuant to Article 152 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’).

The tribunal made the following findings of fact, insofar as relevant and material, as set out in the following sub-paragraphs:-

The claimant was born on 1 May 1947 and was employed by the respondent as a Senior Adviser from on or about 1 May 1997. Her employment with the respondent terminated with effect from 10 June 2008. At the said date of termination, the claimant, earned, in her position as Senior Adviser, the sum of £329.25 per week, and was aged 61 and had completed 11 years of service with the respondent.

In or about September 2006, Ms R was appointed as manager of the respondent’s offices in Magherafelt and Cookstown. Ms R had no previous experience of advice work or employment in the voluntary sector. As manager, she was responsible for the management of both of the said two offices; although increasingly she came to base herself in the Cookstown Office. In addition, she had major responsibilities in relation to the management of the financial affairs of the respondent, including responsibility for seeking new funding and working with the major funders of the respondent. In her role as manager, she reported to the Management Committee of the respondent. Ms R was the claimant’s line manager.

On or about 15 May 2007, an anonymous letter was sent by staff to the Management Committee raising various concerns about the running of the said offices by Ms R. The claimant was not personally involved in the drafting or sending of this letter; but was aware of its contents and supported the issues raised therein.

On or about 15 June 2007, the Chairman of the Management Committee, Mr M, held a grievance meeting with members of staff in the Magherafelt Office, including the claimant, at which various grievances were raised in relating to the operation of the said offices, but, in particular, in Magherafelt, by Ms R. These grievances included various staffing and funding issues, but also issues of confidentiality and the management style of Ms R. These issues continued to be raised by staff, including the claimant, in subsequent meetings; but without any resolution by the Management Committee.

On or about 7 June 2007, an incident occurred between the claimant and Ms R, after the claimant had raised with Ms R, the appropriateness of the dress she was wearing to a disciplinary hearing involving a member of staff. The claimant, who was accompanying Ms R to the hearing, had done so because the dress code was to be the subject of a staff meeting the next day but also because in the context of previous informal discussions between them the claimant had already criticised the dress code frequently adopted by Ms R. Ms R became visibly upset by the claimant’s criticism of her dress but, when the claimant subsequently sought to apologise for upsetting her, Ms R became very distressed and fainted and an ambulance had to be called. Ms R subsequently complained that the claimant had physically manhandled her, when the claimant had sought to hug Ms R, as she apologised to her, but had also harassed and bullied her. The claimant denied she had manhandled and/or harassed and bullied Ms R and considered there was no justification whatsoever for such complaints.

The Management Committee appointed a Staffing Sub-Committee to investigate the matter and, following interviews with relevant persons and some considerable delay, the claimant was informed on 9 November 2007 by the Chairman of the Staffing Sub-Committee, Ms W:-

“Having fully investigated the complaint by Ms R of harassment, bullying and physically manhandling, we find no corroborative evidence to back-up these claims. We therefore consider the claims to be unfounded. We would, however, point out that some of the language you used on 7 June 2007 was inappropriate and would advise you to choose your words more carefully in the future.”

Despite the delay in concluding the investigation, the claimant felt this was a fair conclusion and readily accepted that some of the language she had used on 7 June 2007 had been inappropriate and that she could have handled the matter better. However, Ms R was not satisfied with the outcome of the investigation by the Staffing Sub-Committee, as set out above, and sought to overturn the said decision. A further investigation was carried out by a different panel on behalf of the Management Committee. Further interviews were carried out by the panel with the claimant and Ms R and others – but at no time was the claimant told what Ms R had said about her, when interviewed, in relation to the allegations. Further, at no time did the panel expressly outline to the claimant Ms R’s case against the claimant; save that the claimant was informed by a member of the panel at the conclusion of her interview, Ms R had threatened “to go to the newspapers”, if the previous decision was not overturned. In the circumstances, the claimant believed that, regardless of what she said in her defence, the previous decision was going to be overturned in favour of Ms R, because of the threat she had made. The claimant’s concerns and fears about the fairness of this investigation by the panel were confirmed when she was sent a report, dated 18 February 2008, by the members of the panel. It referred to the methodology, adopted by the panel in its investigation, including a reference to a number of detailed and lengthy interviews where notes had been taken, although the claimant was at no time provided with copies of these.

The report concluded in its findings and recommendations:-

“The unanimous decision of the panel is that there were irregularities which should have been dealt with in an appropriate manner internally by the Management Committee.

It is the recommendation of the panel that due to lack of evidence to the contrary, Jane Griffiths should be disciplined for inappropriate behaviour towards Ms R with regards to derogatory remarks made.”

The claimant was given no further information and/or documentation in relation to the above decision that she should be so disciplined, nor was she given any details of the inappropriate behaviour and/or derogatory remarks relied upon and which were to be the subject of the said disciplinary procedure.

By reason of the actions of the respondent, as set out above, the claimant was confirmed in her view that the respondent, fearful of the threats from Ms R, was determined to support Ms R and take disciplinary action against the claimant. She further believed that, by reason of the manner in which they had carried out their actions in relation to this matter to date, which had already taken some considerable period of time, the respondent had destroyed any confidence and trust which the claimant had in the respondent to act fairly in determining what had taken place on 7 June 2007. Without providing the claimant with any further detail and/or documentation in relation to the disciplinary charge, the claimant after a disciplinary hearing on 28 March 2008 was given a verbal warning.

This verbal warning was given by the Chairman of the Management Committee, Mr M, but also by the Chairman of the Staffing Sub-Committee, Ms W. By way of contrast to the foregoing, it is to be noted, as set out above, Ms W had made the initial finding that the claims of Ms R were unfounded and had merely advised the claimant, which the claimant accepted, to chose her words more carefully in the future. However, despite her initial finding, she still felt able to give the said verbal warning to the claimant. The claimant was very concerned by the above actions of the respondent but she took no action, at this stage, to terminate her employment with the respondent.

(g) By letter dated 3 April 2008, the claimant appealed against the verbal warning. In doing so, she reiterated matters raised by her at the earlier disciplinary hearing, including :-

“The report is very imprecise and does not indicate what the inappropriate behaviour was so that I had no idea to what behaviour the report refers and for what I am being disciplined. I have always admitted to making an inappropriate remark but it was not derogatory so I cannot accept the verbal warning.”

The claimant also asked for an appeal hearing to be arranged and to provide her with a copy of the detailed notes of the interviews upon which the decision was based, which had been referred to in the panel’s report, dated 18 February 2008, as set out above.

(h) It was not until 25 April 2008, that the claimant received an acknowledgement from the Chairman of the Management Committee. However, no such appeal hearing was arranged, before the claimant left the respondent’s employment on 10 June 2008. The respondent, in subsequent correspondence, sought to justify this failure to arrange the appeal hearing before the claimant left the respondent’s employment, on the fact that the claimant had intended to take some unpaid leave for personal reasons in the period April – July 2008. The claimant had intended to do so, but, due to work commitments, she was in fact in work until in or about mid-May with ample opportunity for the appeal to have been dealt with by the respondent. So, by the date of 10 June 2008, this matter had been ongoing for over one year, without resolution, in circumstances where, at no time, was the claimant provided with copies of relevant documentation, including, in particular, the documentation referred to and relied upon in the report, which had been the subject of the recommendation for disciplinary action to be taken against the claimant and which had led to her receiving the said verbal warning. This continuing failure by the respondent to conclude this matter by holding an appeal and to provide her with the relevant information gave further strength to the claimant’s belief that she could not have any trust and confidence in the respondent to resolve this issue fairly and properly.

In addition, whilst the respondent was dealing with the matters set out above in relation to the incident involving the claimant and Ms R that had occurred on 10 June 2007, by way of contrast, Ms R, who had gone off sick in or about mid-October 2007 had subsequently been suspended by the Management Committee of the respondent on 5 December 2007. This was to enable the Management Committee to carry out a detailed investigation of alleged failures by Ms R, in carrying out her duties as manager, in relation, in particular, to ensuring the necessary funding for the respondent was obtained and maintained, the claimant believed these alleged failures by Ms R had left the respondent, in late 2007, in a very difficult financial state. Despite the serious nature of the alleged failures and the implications for the very survival of the respondent and the employment of the staff, including the claimant, arising from these alleged failures, no such investigation was carried out by the Management Committee of the respondent; and Ms R’s suspension was ended, without any explanation, in or about late May 2008 with her return to her post as manager at or about the end of May/beginning of June 2008.

(j) The claimant felt the said actions taken by the respondent against her in relation to what might be considered a relatively minor matter on 7 June 2007, contrasted most unfavourably with the lack of investigation and/or absence of any action taken against Ms R in relation to her alleged serious failures of management. Ms R was able to be interviewed in relation to the investigation of the events of 7 June 2007 involving the claimant, despite her illness and her subsequent period of suspension; but had been allowed to return, as the claimant’s manager, without any investigation or action, disciplinary or otherwise, having been taken against her in relation to her alleged failures of management, which the claimant believed had led to the serious financial position in which the respondent found itself. At all times, the respondent had focused on Ms R’s complaint against the claimant, in the circumstances set out above, and which had still not been properly concluded; but by way of contrast, was prepared to allow Ms R to return as manager, and line manager of the claimant, without any corresponding action to that taken against the claimant. Further the respondent had still failed to resolve the outstanding grievances of the staff, including the claimant, arising out of the actions of the manager, Ms R.

(k) In these circumstances, when the claimant discovered on 10 June 2008, following a period of leave, that Ms R had been reinstated, as set out above, that this was for her the final straw in relation to a series of actions by the respondent. By reinstating Ms R in such circumstances the respondent had thereby destroyed any remaining relationship of confidence and trust between her and the respondent which had already been placed under considerable strain by their previous actions; and that she could, in all the circumstances, no longer remain in employment with the respondent. By letter dated 10 June 2008 she terminated her employment.

3. The claimant made a complaint of unfair (constructive) dismissal. Under Article 127 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) it is provided:-

For the purpose of this part 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 following propositions of law can be derived from the authorities:-

The test for constructive dismissal is whether the employer’s action or conduct amounted to a repudiatory breach of the contract of employment:-

Western Excavating (ECC) Ltd v Sharpe [1978] I QB 761

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 serious damage the relationship of confidence and trust between employer and employee:-

See : Malik v BCCI [1998] AC 20. This is often referred to as the implied term of trust and confidence.

In the case of Lewis v Motorworld Garages Ltd [1985] IRLR 465, Glidewell LJ said at Paragraph 37:-

“If the employer is in breach of a contract of employment, of such seriousness that the employee will be justified in leaving and claiming constructive dismissal, but the employee does not leave and accepts the altered terms of employment; if subsequently a series of actions by the employer might constitute together a breach of the implied obligation of trust and confidence; is the employee then entitled to treat the original action by the employer which was a breach of the express terms of the contract as part – the start - of the series of actions which, taken together with the employer’s other actions, might culminatively amount to a breach of the implied terms? In my judgment the answer to this question is clearly ‘yes’.”

In the recent decision of the Employment Appeal Tribunal in the case of Gab Robins (UK) Ltd v Triggs [UKEAT/0111/07], which has been approved in the further recent decision of the Employment Appeal Tribunal in the case of Muschett v Parkwood Healthcare [UKEAT/0361/08], the authorities on the ‘last/final straw’ doctrine in constructive dismissal were reviewed:-

“32 We derived the following principles from Omilaju : [2004] AER 129:-

(i) The final straw act need not be of the same quality as the previous acts relied on as culminatively amounting to a breach of the implied term of trust and confidence, but it must, when taken in conjunction with the earlier acts, contribute to that breach and be more than utterly trivial.

Where the employee, following a series of acts which amount to a breach of the term, does not accept the breach but continues in the employment, thus affirming the contract, he cannot subsequently rely on the earlier acts if the final straw is entirely innocuous.

The final straw, viewed alone, need not be unreasonable or blameworthy conduct on the part of the employer. It need not itself amount to a breach of contract. However, it will be an unusual case where the final straw consists of conduct which viewed objectively as reasonable and justifiable satisfies the final straw test.

An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely (and subjectively) or mistakenly interprets the employer’s acts as destructive of the necessary trust and confidence.”

(See further the recent decision of the Employment Appeal Tribunal in the case of Moncrief v Wishaw and District Housing Association [UKEATS/0066/08].)

4.1 The tribunal was satisfied that the respondent was entitled to investigate the actions of the claimant on 7 June 2007. Although there was some considerable delay in carrying out the initial investigation, the tribunal could not find fault with the initial decision of the respondent, as set out in its letter dated 9 November 2007. In that letter, the respondent had found no corroborative evidence to support the claims of Ms R and considered those claims to be unfounded. However, it pointed out that some of the language used by the claimant was inappropriate and advised her to choose her words more carefully in the future. Indeed, the claimant at no time disputed her use of words on 7 June 2007 was inappropriate.

Equally, the tribunal could not fault the respondent’s further investigation, when Ms R disputed this decision. Indeed, the claimant fairly, in the course of the hearing before the Tribunal, acknowledged the right of Ms R to challenge that decision. However, the tribunal found the manner in which this further investigation was carried out most unsatisfactory. The claimant was not given any details of the complaints against her by Ms R; although it is apparent from the report, dated 18 February 2008, that detailed notes had been taken during the course of various interviews and that there had been considerable discussions by the members of the panel in reaching their decision. No details of these matters were set out in the report. Further, the tribunal had serious concern about the basis upon which it had been decided disciplinary action should be taken against the claimant, as set out in the report, namely ‘due to lack of evidence to the contrary’. The lack of detail of the precise inappropriate behaviour relied upon and how any remarks made were derogatory were not set out in the report; and the claimant was given no further information before or during the disciplinary hearing held on 28 March 2008. In these circumstances, the tribunal could well understand the claimant’s concern about the fairness of the investigatory process which had resulted in the recommendations for disciplinary action. This was emphasised, in particular, in circumstances where the claimant had been told, during the course of her interview, not of the precise allegations made against her by Ms R but of the threat that Ms R would ‘go to the papers’. The reference to the threat by Ms R gave credence to the view of the claimant that the members of the panel were more concerned about the threat than establishing the truth or otherwise of Ms R’s complaints against the claimant.

The claimant was then required to attend a disciplinary hearing, without being given any further details, including relevant documentation/interview notes of the disciplinary charge against her. She was then given a verbal warning by a disciplinary body, which included a member who had previously decided, after the initial investigation, it was not appropriate to take any further action.

4.2 Having regard to the above matters, the tribunal accepted that the claimant believed that, in light of such actions by the respondent, the respondent had already breached the said implied term of trust and confidence. But despite same, the claimant, to her credit, did not at that stage terminate her contract of employment; albeit she might have been justified in doing so. Indeed, she sought an appeal and in connection therewith sought the relevant documentation for the conduct of that appeal. This documentation was not provided by the respondent, although she had been told in correspondence it existed. Further, no appeal was arranged; although, in the tribunal’s judgment, there was time for it to have been arranged, due to the fact that the claimant had not, as expected, gone on unpaid leave. In this context, it also has to be recalled the events, the subject-matter of the disciplinary action, had taken place in June 2007 and some nine/ten months later had still not been resolved.

4.3 The final straw for the claimant was when she discovered, following a period of leave that Ms R, the manager, had been reinstated by the respondent, as manager, with line management responsibilities for the claimant, following her period of suspension at the end of May/beginning of June 2008. In these circumstances, and given that the claimant had not prior to that date decided to terminate her employment, it is necessary to consider the context in which these events were occurring.

4.4 The staff, including the claimant, in the Magherafelt Office had previously raised a series of grievances in relation to the actions and conduct of Ms R, as their manager, which the respondent had failed to deal with. Further, the respondent was now in a serious financial position, which would subsequently lead to its liquidation. The claimant believed the respondent’s financial position was due to the failures of Ms R to properly carry out her duties as manager. Ms R had been suspended to enable the respondent to fully investigate the alleged failures of the manager; but no such investigation had been carried out. Despite the foregoing the claimant found, following her return from leave, that Ms R had been reinstated as manager, without any explanation and action taken against her by the respondent. This was despite the fact that the respondent was on the verge of bankruptcy with all the implications for employment of the staff, including the claimant, and the continuation of the business; and which the claimant believed had arisen due to the alleged failures of Ms R, which were to have been the subject of the said investigation. In contrast, the respondent had however felt it necessary to carry out an investigation and, subsequently, give the claimant a verbal warning about a relatively minor matter. In such circumstances, the claimant would again have been expected to report to Ms R as her line manager, upon Ms R’s reinstatement.

4.5 The tribunal does not underestimate the seriousness of the breaches of the implied term of trust and confidence by the respondent in relation to the actions taken against the claimant; but the claimant, despite what had taken place, had been prepared to continue in her employment. However, the tribunal was prepared to accept that, with this background and, in this context, the further actions of the respondent in reinstating the manager, Ms R, without explanation, in the absence of any proper investigation of her alleged failures, despite a period of suspension, was the final straw for the claimant. Further, this reinstatement of the manager, who would again be the claimant’s line manager, arose in circumstances where the claimant believed the respondent’s serious financial position arose from the manager’s alleged failure, which had not been investigated by the respondent. This had to be also contrasted with the previous disciplinary actions taken by the respondent against the claimant, which disciplinary process itself was the subject of a number of serious failures by the respondent. Reinstating the manager, Ms R, in such circumstances, was a serious matter. This action by the respondent, taken with the earlier matters relating to the said disciplinary process against the claimant, breached the implied term of trust and confidence, so that the claimant was justified in terminating her employment and claiming constructive dismissal. In these circumstances, the tribunal was satisfied the claimant had thereby been unfairly (constructively) dismissed.

In light of the tribunal’s decision that the claimant was unfairly dismissed by the respondent, the tribunal therefore assessed the compensation payable to the claimant by the respondent as follows:-

(1) Basic award

16.5 x £329.25 (statutory cap at the relevant date £330)

Total : £5,432.63

As set out in Paragraph 1.2 of this decision, the claimant did not seek any compensatory award for the said unfair dismissal.

This award is not subject to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

The tribunal therefore makes an award of compensation to be paid by the respondent to the claimant in the sum of £5,432.63.

6. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 28 April 2009, Belfast

Date decision recorded in register and issued to parties:

10.