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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Courtney v John Ross & Son, Solicitors [2009] NIIT 1662_08IT (08 December 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/1662_08IT.html
Cite as: [2009] NIIT 1662_8IT, [2009] NIIT 1662_08IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 01662/08
CLAIMANT: Tracy Courtney
RESPONDENT: John Ross & Son, Solicitors
DECISION
The unanimous decision of the tribunal is that the claimant’s claims of constructive dismissal, breach of contract and failure to provide written terms and conditions of employment are dismissed, and that the claimant is entitled to a sum of £115.36 in respect of the right to an itemised pay statement.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Panel Members: Dr D Mercer
Mr J Kinnear
Appearances:
The claimant was present and represented herself.
The respondent was represented by Mr N Philips, Barrister-at-Law, instructed by Worthingtons, Solicitors.
THE CLAIM
1. The claimant claimed that she had been constructively dismissed. Furthermore, she made certain allegations in relation to health and safety issues and alleged that the respondent had failed to provide an itemised pay statement and terms and conditions of employment as required by the Employment Rights (Northern Ireland) Order 1996 (“the Order”). She also claimed that her contract had been breached. The respondent denied all of the claimant’s allegations in their entirety.
THE ISSUES
2. The issues as agreed by both parties at the outset of the hearing were as follows:-
(i) Was the claimant constructively dismissed by the respondent?
(ii) Was the claimant’s contract of employment breached?
(iii) Did the claimant suffer a health and safety detriment?
(iv) Did the respondent fail to provide the claimant with written terms and conditions of employment?
(v) Did the respondent fail to provide the claimant with an itemised pay statement?
At the outset of the hearing the claimant withdrew her case in relation to health and safety detriment and indicated that health and safety issues would arise in the context of her claim for constructive dismissal.
SOURCES OF EVIDENCE
3. The tribunal heard evidence from the claimant and on her behalf from a previous employee of the respondent, Donna Pullan, and June Wilson, an employee in the respondent’s Dundonald office. It also heard evidence from the partners in the solicitor’s practice namely, Hugh Edgar, Michelle Edgar, and Patricia Gaston, together with Cathy O’Connor, secretary to Gemma Smyth, (a solicitor in the Dundonald office), Simon Thompson, an employee in the respondent’s Newtownards office, Roberta McKeown, receptionist, Stephen Mearns, solicitor, Gemma Smyth, solicitor, Vicky Whiteside previously a secretary/assistant to Patricia Gaston, Denise Browne, Secretary to Stephen Mearns, and the respondent’s book-keeper, Valerie Clegg. The tribunal was also presented with documentation on behalf of both parties and took into account only documentation referred to in the course of evidence.
FINDINGS OF FACT
4. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-
(i) In weighing the evidence before it the tribunal took into account the fact that parts of the evidence provided by or on behalf of the claimant and the respondents lacked credibility.
(ii) The claimant commenced employment as a secretary with the respondent firm (“the practice”) on 19 February 2007. She had previously instructed the practice in relation to a matrimonial matter and was therefore both an employee and a client at the commencement of her employment. The practice has three partners namely Michelle Edgar, Hugh Edgar, and Patricia Gaston. Michelle Edgar, who was based in Newtownards, assumed the
majority of management responsibilities for the practice, which has three branches – in Newtownards, Dundonald, and Belfast.
(iii) In order to contextualise the claimant’s case the tribunal finds it useful to set out the correspondence forwarded to her by the respondent dated 8 September 2008 together with her response of 9 September 2008, as follows:-
“First Class Post
Ms Tracey Courtney
18 Carolhill Drive
Bangor
BT20 5PR
PG
8th September 2008
Dear Tracey
I acknowledge receipt of your email of 4th September and would note it was not our understanding of your telephone call to Michelle Edgar on 3rd September 2008 that you had tendered your resignation verbally to her during that phone call. You had in fact indicated that you would contact her again later that day, yet failed to do so.
I confirm that your resignation without notice has been accepted at 4th September 2008.. I confirm that your P45 and any outstanding monies will be forwarded to you shortly and your effective date of termination is 4th September 2008. I confirm that the disciplinary meeting scheduled for 11th September 2008 shall no longer proceed.
In light of the contents of your email and recent text message, I would advise that your grievances may be dealt with under the Company’s Grievance Procedure (copy enclosed) or the Statutory Modified Grievance Procedure which does not require a meeting between the parties and the outcome of our investigation would be communicated to you in writing. Please confirm in writing within 7 days of this letter which Procedure you wish to use.
In the event that we do not hear from you within this time period, we will proceed to initiate the Company’s Grievance Procedure and you will be notified of a date and time for a meeting in accordance with same.
I look forward to hearing from you.
Yours sincerely
Patricia Gaston
John Ross & Son”
“Mrs. T. Courtney,
18, Carolhill Drive,
Bangor,
Co Down
BT20 5P5
BY EMAIL
John Ross & Son,
Solicitors,
30, Frances Street,
NEWTOWNARDS BT23 7DN 9th September 2008
Dear Sirs,
Re: Employment matters.
I thank you for your letter of the 8th September and the comments therein.
Firstly my words to the receptionist on the morning of the 3rd of September where that I had been with Donna, explained about Donna’s father and that I would not be coming back. I had heard enough from Donna regarding her departure and had witnessed enough not to want to ever go back.
Secondly my words to Mrs. Edgar were that “I was not coming in, I had been with Donna all night as her father had just been found dead, and I was not long home, that I would not be back and talk to you later”.
Thirdly I texted Stephen to explain.
I understand the ‘talk to you later’ may have caused confusion as it is my habitual end of a telephone conversation, however I misunderstand how the ‘I would not be back’ was misinterpreted. All of the above again seem irrelevant due to the slanderous comments contained in your letter of the 3rd of September, of which, as already stated, I shall take advice.
I again refer to my letter of the 4th of September 2008 and to your letter of the 8th of September 2008 and for your reference, most of this letter will detail just some of your failure to your duties to your employees and comment as follows:-
RESIGNATION, EMPLOYMENT RIGHTS & GRIEVANCE
I thank you for your confirmation of my resignation and the confirmation that my P45 will be forwarded shortly together with any monies outstanding (which will never cover any of the extra time I dedicated to your organisation and a Statement that will no doubt just be the normal, i.e. no explanation of monies deducted!
I would like to draw your attention to The Employments Rights (Northern Ireland) Order 1996 (No. 1919 (N.I. 16)) – Statute – 1993c.49 – Itemised pay statement which states in 40.-44 “An Employee has the right to be given by his employer, at or before the time at which any payment of wages is made to him, a written itemised pay statement………………..”
I look forward to your comments with regard to same and a satisfactory explanation of all previous wages slips to myself and other members of John Ross & Son. I would also like an explanation from John Ross & Son as to their failure to abide by their contract in which they state “You will be paid monthly on the last working day of each month’ thereby incurring me and another in Bank Charges.
With regard to your offer of your ‘Grievance Procedure’ which has been read and defined as ‘a one way street’ within the context of previous treatment and your letter of the 3rd of September I will avail of the Statutory Modified Grievance Procedure (COPY OF WHICH WAS NOT INCLUDED IN MY CONTRACT OR IN YOUR LETTER TO ME OF THE 8TH OF SEPTEMBER and look forward to its outcome.
GRIEVANCE ISSUES
HEALTH, SAFETY & HYGIENE
I further refer to your duties with regard to Health and Safety and will further emphasise the seriousness of the issue by responding to Appendix 3 of my contract in the same format as set out therein:-
1. The Partners regard…………………
The Partners are in breach of same as there is/was no promotion of health and safety measure and no management of same.
2. It is therefore Practice policy to ………protect everyone…..
The Partners are in breach of same for:-
● trailing cables on floors in offices or strong room,
● shelving in strong room to cause staff to bank their head,
● unclear or unfixed lighting (a portable light) in strong room,
● unfixed carpets to stairwell,
● inadequate working space,
● inadequate workstations, (which include the surrounding environment),
● mice, the removal of overhead panels by Pest Controllers or members of John Ross & Son to set traps and same not being replaced allowing mouse droppings etc to fall upon the members of staff’s workstations and surrounding area in the downstairs back office and for the same staff having to hoover same and clean their workstations without adequate protection.
● The fear evoked within the working environment to complain about same.
● The fact that members of John Ross and Son have to access an outside building for storage, which is a hazard as the walk-way is a slippery path, blocked by a table and chairs, which means members must then walk on a loose stone walkway, past overgrown hedge-growth to access the door to same.
● The fact that on entering the same outhouse and putting on a light, members then have to negotiate a dangerous stairway to go upstairs to the filing area which has inadequate lighting for each aisle and for which ladders have to be used to access old files. The files are so compact due to the lack of space that fingers are cut during the insertion or retrieval of files. Whether the actual environment is free from pest or rodents etc is unknown at the present moment.
● The fact that I had to escort unsavoury clients of the establish to the toilets for fear of theft or destruction. These client are drug addicts, alcoholics and perpetual offenders of criminal activities.
3. In particular, this Practice has a responsibility to:
a. Provide and maintain ………………..
In breach of same per answer to question 2.
b. Provide training ………………..
No training or instructions ever provided
c. Make available all ………………..
Wiring in all offices appalling and a probable fire hazard as well as extremely dangerous to all members of John Ross & Son
d. Maintain a constant and continuing interest ………...
All health and safety issues sneered at and never taken serious and I have in fact been taken to task over daring to mention same.
e. Provide each employee with an eye test ……………..
Standard procedure for any VD users, however staff to frightened to avail of same or to ask for time to have same carried out. I would be interested in a record of how many times this has been done by John Ross & Son and look forward to receipt of said record and any time deducted to staff in relation to same.
4. Employees have a duty to co-operate in the operation of this policy by:-
a. Working safely and efficiently
Impossible due to the working environment.
b. Reporting incidents that have ………………..
Have raised issues and been sneered at.
c. Adhering to Practice Procedures ………………..
Should not include members of staff having to escort perpetual criminals to the toilet
d. Assisting in the investigation ………………..
Never any investigations or risk management carried out to assist with
e. Using any protective materials / equipment provided …...
In the context of the environment, there are no protective measures to cabling, health and safety or hygiene in relation to any rodents and cleaning up after same.
CONTRACT OF EMPLOYMENT
a. I commenced my employment on the 19th of February 2007. I was handed a contract in September 2007, which is dated the 31st of August and signed by Mrs. Edgar. Although not stated in my contract, it was discussed at my interview that I apparently was employed to work two days in Dundonald, which I agreed to. However this was then not required until some approximately two months or so later when I was asked to take up this duty.
After having worked there I was contact by the bookkeeper as already stated in my letter of the 4th of September with regard to Petrol money. I was also informed by the solicitor in Dundonald that overtime was needed continuously in Dundonald and was different to Newtownards so I worked every lunch-time when I was there after a few weeks and indeed rarely left work on time. This in addition to never being able to take a ‘fifteen minute’ tea break and then having to call at a post office to post mail outside work-hours was never taken into consideration.
As already stated by my last letter and at a meeting were I was taken to task over for claiming any of the above, it was bullying and the attending partners did not want to listen to any explanation and would not bring the said book-keeper to the meeting, therefore leaving an unsatisfactory conclusion to their so-call meeting.
b. The said Firm breached their contract by their failure to pay wages on time.
c. Holiday arrangements were incorrect and illegal on the time of issue of the Contract as the Working Time Regulation (NI) 1998
granted 4.8 wks – 24 days and not 20 days as stipulated in the contract this to be increased to 28 days.
WORK STRESS
The stress of the afore-mentioned matters is not by any means exhaustive and the additions stress added to them by the following have made my constructive dismissal the more painful as:
● Whilst I am, nor have never availed to be perfect, unlike others, I have had the additional stress of being blamed for other’s actions, questioning same and receiving no suitable response from the partners. In fact when I mentioned there was no team in the building nor management, a partner stated no one would want the position. I understand from a previous manager that she had been asked to snoop through other staff member’s drawers in their office to determine if each members of staff had done their work and she refused. I understand why no-one would want to manage John Ross & Son.
● I have had to go through the humiliation of the book-keeper questioning my money and my ability.
● I have had to witnessing another member of the Firm, who borrowed a ladder from another establishments in the area, swinging from the ceiling to change light fittings with no thought to his own Health & Safety or the people working in the immediate office should he fall in full view of a partner.
● I have had to witness the constant putdown and beratement by Partners of colleagues in front of colleagues and indeed being told that a member of staff had been questioned as to why Donna, a previous members of staff, did not do her filing even though most of the filing belonged to a previous member of staff, as witnessed by myself and others. This again should have been a private matter between the partners and Donna.
● Listening to Partners belittling other solicitors in the Firm quite openly.
● Rules for one and not for another with regard to overtime, payment of same or time of in lieu.
● To go to a Christmas Dinner and be berated even at that dinner by a partner in an intoxicated state which was horrific.
RESPONSIBILITY
The responsibility of an employee to attend is important to an organisation and their failure to do so can impact on the organisation as a whole and whilst I understand the predicament John Ross were left in, in having lost two members of staff in as many weeks, the Partners of John Ross & Son need to acknowledge that the failure of the responsibility of an employer has a detrimental impact on the organisation also as a whole. My nervous systems and stress level was so effected by the above that I could not take on the role of adjusting to yet another role in the organisation at the drop of a whim. Whilst there is one other person who is flexible, that person does so
though his own responsibility. I however seem to be the only female member of secretarial staff who has to keep adjusting to the needs of John Ross & Son, to work overtime without payment, to travel without payment and to be treated with contempt for daring to question same.
I look forward to the outcome of your findings from the Statutory Modified Grievance Procedure together with:
● sight of all evidence of previous risk assessments
● sight of all evidence of Health & Safety implementations
● sight of staff procedures
● sight of the staff induction and training policy
● sight of a copy of John Ross & Son’s Staff Hand Book
● sight of John Ross & Son’s Employers’ Liability Compulsory Insurance and evidence of where it has been displayed in any office.”
(iv) The claimant was not provided with a written contract at the outset of her employment. The tribunal is satisfied that Michelle Edgar signed a fulsome contract in August 2007. The claimant signed that contract in January 2008. The original signed copy could not be found. However the tribunal was provided with a copy of the terms and conditions which incorporated, at Appendix 3, a health and safety policy combining obligations on behalf of both the respondent and the claimant. Appendix 3 reads as follows:-
“APPENDIX 3
HEALTH AND SAFETY
HEALTH AND SAFETY AT WORK (NI) ORDER 1978
GENERAL POLICY STATEMENT
1. The Partners regards the promotion of health and safety measures as a mutual objective for Management and employees at all levels.
2. It is therefore Practice policy to do all that is reasonably practicable to prevent personal injury and damage to property, and to protect everyone from foreseeable work hazards, including the public insofar as they come into contact with the Practice, or its services.
3. In particular, this Practice has a responsibility to:
(a) provide and maintain safe and healthy working conditions taking account of any statutory requirements;
(b) provide training and instruction to enable employees to perform their work safely and efficiently;
(c) make available all necessary safety devices and protective equipment and to supervise their use;
(d) maintain a constant and continuing interest in health and safety matters applicable to the activities of the Practice, in particular, by consulting and involving employees, or their representatives, wherever possible.
(e) Provide each employee with an eye test paid for by the employer once in each calendar year, a copy of the results of which shall be made available to the employer if requested.
4. Employees have a duty to co-operative in the operation of this policy by:
(a) working safely and efficiently;
(b) reporting incidents that have led, or may lead, to injury or damages;
(c) adhering to Practice procedures, initiated on their behalf, for securing a safe workplace;
(d) assisting in the investigation of accidents with the objective of introducing measures to prevent a recurrence.
(e) using any protective materials/equipment provided, and by meeting statutory requirements.”
(v) The respondent accepted that the written contractual terms and conditions governed the employment relationship as between the claimant and the respondent from the inception of her employment. The tribunal accepts that there was confusion regarding the precise location of the claimant’s employment at the outset. However, between four and six weeks after commencement of employment it was settled that the claimant would work Mondays and Fridays in the Dundonald office and spend the rest of her time in the Newtownards office. The solicitor in the Dundonald office at that time with whom she worked was Gemma Smyth. Gemma Smyth worked Mondays to Thursdays and generally took Fridays off unless court commitments dictated otherwise. Stephen Mearns commenced employment as an assistant solicitor in the Dundonald office on 7 January 2008. He was employed on Tuesdays, Wednesdays and Thursdays in the Newtownards office and on Mondays and Fridays in the Dundonald office.
(vi) The tribunal was shown a document attached to an invoice from J Finlay & Sons, Electrical Contractors, dated 31 October 2008, which revealed 12 separate items which had to be attended to in the premises. Four of these matters required urgent attention, 7 required improvement, and 1 did not comply with BS7671:2001 (as amended). This in itself did not imply that the electrical installation was unsafe. However, this work was carried out subsequent to the claimant’s resignation. In addition to the foregoing documentation being brought to the tribunal’s attention by the respondent, an Environmental Health Officer from Ards Borough Council visited the premises on 28 January 2009. Although stating in subsequent correspondence dated 6 February 2009 that the premises were found to be satisfactory, she made certain recommendations including a recommendation in relation to risk assessment. The claimant articulated various concerns in relation to health and safety matters within the practice’s Newtownards office in her evidence, including those reflected in her grievance letter referred to previously. The tribunal is however satisfied that these were exaggerated by the claimant. However there was some basis for a level of concern during her employment. In one instance electrical wiring which stretched across an office door to a water cooler, was stuck down on top of a carpet with duct tape. A somewhat similar situation pertained to wiring in the reception area, where gaffer tape was used.
(vii) The tribunal is satisfied that the claimant, who had worked for several years in a solicitor’s practice some time prior to her commencement of employment with the practice, was unhappy from the outset of her employment and was in the habit of comparing the premises in her previous employment with the premises in Newtownards leading her to raise issues with fellow staff members about health and safety. The tribunal does not accept that the claimant was requested to escort clients who were either drunk or on drugs to the toilets within the Newtownards office.
(viii) The claimant was one of 6 secretaries who worked for Michelle Edgar when in the Newtownards office. She made the case that she had been bullied and intimidated by Michelle Edgar. The tribunal is satisfied, on the evidence, that there was a disharmonious relationship between Michelle Edgar and the claimant from almost the commencement of her employment. However, the tribunal finds it significant, that Gemma Smyth, with whom the claimant had formed a close working relationship, had not been made aware of any such bullying or intimidation by Michelle Edgar. The tribunal is, therefore satisfied, that the claimant is exaggerating the situation which she said existed between Michelle Edgar and herself. The tribunal, however, does accept that there was some form of heated discussion between Michelle Edgar and the claimant at a Christmas party in December 2007.
(ix) Issues had arisen regarding travel allowances and in relation to overtime issues from in or about March 2007. The tribunal is satisfied that Michelle Edgar quite appropriately addressed the claimant in relation to a possible fraud on the Legal Aid Department, in the event of the claimant not claiming her allocated overtime payments and banking them until after her legal aid application was processed. The tribunal does not accept the claimant’s explanation that, when claiming overtime, she left a form to be authorised by Gemma Smyth. Gemma Smyth was a credible witness and for perfectly sound reasons refused to authorise the claimant’s overtime payments months after they had been made. The tribunal is also satisfied that Valerie Clegg, the respondent’s book-keeper, approached the issue of overtime payments appropriately and that the claimant was treated reasonably in this regard. It was entirely the claimant’s responsibility to ensure, at the relevant time, that Gemma Smyth, authorised the overtime payments. She however failed to do so and allowed them to accumulate beyond the point where Gemma Smyth could reasonably be expected to authorise them.
(x) A meeting was held with Hugh Edgar and Patricia Gaston on 22 January 2008 essentially to address outstanding issues regarding travel allowance, overtime, and the claimant’s contractual terms and conditions. During the course of the hearing, the claimant accepted that these matters had been sorted out at that meeting, and she subsequently signed her contract of employment.
(xi) It was part of the claimant’s case that there was a witch-hunt against her, carried out mainly by Michelle Edgar, and that she was being blamed for things which she was not responsible for. The tribunal is satisfied on the evidence that there is no substance to these complaints. In January 2008, Stephen Mearns requested the claimant to set up a joint consultation between respective counsel at the High Court in Belfast in a personal injury case. The tribunal accepts Stephen Mearns’ evidence that he was surprised that the claimant was unaware of what a joint consultation was, and that he explained to her at the reception desk that she had to ensure the attendance of the claimant at the joint consultation, as the particular injury had to be viewed. The tribunal is satisfied that the claimant failed to follow these instructions. Furthermore, in relation to a further consultation in March 2008 arranged for the Dundonald office in a probate matter, and despite written instructions from Stephen Mearns, the claimant failed to ensure the attendance of the executors.
(xii) The claimant confirmed during the hearing that her life became easier in the Newtownards office when Donna Pullan, a new member of staff arrived on 3 December 2007. She was further helped by Stephen Mearns’ arrival as she enjoyed working for him in litigation and employment law. The tribunal found Donna Pullan to be an unconvincing witness, parts of whose evidence lacked credibility, and is satisfied, particularly in light of her correspondence to the respondent dated 21 August 2008 that her employment was terminated by the respondent on that date. The tribunal also found Simon Thompson to be an unconvincing witness for the respondent, and parts of his evidence also lacked credibility.
(xiii) During the hearing, the claimant, together with a number of the respondent’s witnesses, referred to her as being a person who could, to use her own words, “stand on her own feet”. The tribunal observed the claimant’s demeanour throughout the hearing and formed the view that she was not the type of individual who could be easily bullied or intimated by anyone.
(xiv) It is clear from the evidence that the claimant was pursuing other jobs, particularly after the meeting held on 22 January 2008.
(xv) Although not specifically mentioned in her claim form to the tribunal, the claimant attached considerable significance to her request, at short notice, for a half day’s holiday in early July 2008 to enable her to visit her grandmother, who was ill, and to complete the packing for her forthcoming holiday. The claimant was making the case that she was not treated fairly in comparison to other members of staff. However, the tribunal is satisfied that there is no substance in her claim in this respect and that Michelle Edgar, quite appropriately, referred her to Stephen Mearns lest there was some urgent matter he required her to attend to during the particular afternoon she wished to take as leave. However, Stephen Mearns, who the tribunal found to be a straightforward witness, raised no obstacle in allowing her to have the afternoon off.
(xvi) The 25 August 2008 was a bank holiday. The claimant’s grandmother died on that day and, in the evening, the claimant telephoned Stephen Mearns to inform him of her death. On that same evening Michelle Edgar telephoned the claimant and left a message expressing her sympathy. On the following morning, 26 August 2008, the tribunal accepts that Michelle Edgar met the claimant and sympathised with her and asked if, in the circumstances, she wished to take her turn at reception duties as the receptionist was off on a half day and there was a position in the rota for her. However, the claimant did not take up Michelle Edgar’s offer on that day but indicated that she would take her turn at reception duties. Moreover, also on 26 August 2008 the claimant used her mobile phone to contact Donna Pullan. The tribunal is satisfied that Stephen Mearns came into the office where the claimant was working, and overheard such a conversation. When Michelle Edgar arrived at the office she discovered that the claimant was still on her mobile phone speaking quite loudly to Donna Pullan and used the words, “Donna, don’t you worry about my nan’s funeral; you just get yourself sorted out”. Michelle Edgar believed that she was referring to Donna Pullan and subsequently requested her not to make personal calls. However, the claimant stated that she had used the mobile because of the need to assist with funeral arrangements whereupon Michelle Edgar stated that she understood this and further stated that there was no difficulty in her making calls with the family regarding funeral arrangements for her grandmother.
(xvii) The claimant was granted leave on 27 and 28 August 2008 due to her grandmother’s death. This was in excess of the period allowed under her contract of employment.
(xviii) The claimant returned to work in the Newtownards office on 29 August 2008. She made the case that when she returned on that date she decided that she would have to leave the respondent’s employment. This was because, in her terms, she would be working in the upstairs office and would have to come face to face with Michelle Edgar every day and her bullying nature towards her. She also claimed that Michelle Edgar did not have confidence in her to cope with the volume of work she would have to do for Patricia Gaston on her own. The claimant claimed that she knew at that point in time that she was not going to be able to cope. However she made it clear to the tribunal that Patricia Gaston did not contribute to her decision to leave and that she left because of Michelle Edgar.
(xix) The claimant came into work on Monday 1 September 2008 and e-mailed the solicitors in the practice together with support staff thanking them for flowers sent in relation to her grandmother’s death. On the evening of 2 September 2008 the claimant received a text message from Donna Pullan stating that she had received a message that her father had been found dead in his flat in London. The claimant then went to Donna Pullan’s house to sympathise with her and remained there until approximately 6.30 am on 3 September 2008. On the following morning, from approximately 8.20 am, the claimant made various telephone calls and sent text messages in relation to her employment which included telephone contact with Roberta McKeown, receptionist, at approximately 8.30am and subsequently with Michelle Edgar. At approximately 8.53am the claimant texted Stephen Mearns with the following message:-
“Stephen, u know I have had difficulties with the way I have been treated at work. I got this text message from Donna at 12.30 last night and am not long home from being with her. Life is 2 short 2 live with bullies like Michelle, I can’t cope.”
Stephen Means also gave evidence of a text forwarded from the claimant’s phone on 3 September 2008 at 8.53 am which read as follows
“T Have just had a call from Manchester police. My father was found dead this afternoon in his flat. He had been dead for 7 days.”
(xx) The respondent’s case is that the partners in the practice did not understand the claimant to have resigned on 3 September. Later that evening Patricia Gaston arrived at the claimant’s home and presented her with correspondence specifying a number of disciplinary charges. She also requested keys from the claimant. At 18.36 pm the claimant texted Stephen Mearns in the following terms:-
“Stephen I don’t have patricia’s number but I don’t think michelle understood me this morning when I said I wouldn’t b back so she really wasted her time driving her 2 deliver her letter. Sorry 2 have 2 ask u 2 again relay the message. Kind regards to you & thanks.”
(xxi) The claimant forwarded a letter to the respondent by e-mail on 4 September 2008 which states as follows:-
“Mrs. T. Courtney,
18, Carolhill Dri ve,
Bangor,
Co. Down
BT20 5P5
BY EMAIL
John Ross & Son,
Solicitors
30, Frances Street,
NEWTOWNARDS BT23 7DN 4th September 2008
Dear Sirs,
Re: Disciplinary Hearing
I thank you for your kind letter of today’s date however I fail to understand the significance of it since I had already left your establishment yesterday morning per telephone conversation with Mrs. Edgar. I will however take advice on same.
I note that you have suggested a Disciplinary Hearing for failing to adhere to the following charges of minor, major and gross misconduct as follows:
● That I have been absent from work without reasonable explanation
● Unsatisfactory attitude to client’s, fellow employees or other persons
● Insubordination
● Attending for or being in an apparent intoxicated state at work, or otherwise unacceptable condition, induced by alcohol or unauthorised substances
● Unauthorised use of property, materials, equipment or systems
● Conduct on or off duty – which may bring the practice in to disrepute.
Given the normal bully tactics practiced by the Partners in the Newtownards Office I have no doubt that had I been guilty of any of the above I would have been reprimanded on the spot, therefore the above points seem irrelevant.
However since this line of communication is now open I would like to remind the partners of their duties:-
1. To their employees
2. Employment Law
3. Health and Safety
4. Data Protections Act
5. The lack of management.
6. The fact that your organisation cannot pay salaries on time subjecting me and others to the humiliation of having to be taken to task for not being able to manage my own/her own money properly by your Book-keeper
7. Having to incur Bank Charges for the above point
8. For the failure of Wage Slips to show the amount of hours worked and the hourly rate being paid to an employee and equally when deductions are made, the failure of same to show what time has been deducted and how the amount paid was arrived at.
9. For being told to claim petrol money by your Bookkeeper then being taken to task and told not to although as proven in the Petty Cash book in Dundonald, every other staff member has done claimed petrol money.
10. To be told to work overtime in Dundonald, to do so, to be told by your Book-keeper that I could save this overtime and petrol money and to claim same at the end of year if I so desired and then be taken to task to the extreme that, even though I had worked over and above any time claimed, and indeed again on Monday not being able to take a lunch break nor being able to have at my contracted leaving time, I would not subject myself to the humiliation of asking for any money of any kind from John Ross & Son as obviously John Ross & Son’s need is greater than mine.
11. The rules for one person and not for another with regard to working overtime and time off in lieu of payment of same.
12. Lack or Procedures
13. Invasion of Privacy in the home place thorough telephone and personal contact.
I will obviously not be at any Disciplinary Hearing as you cannot discipline someone who has left.
Tracy Courtney.”
(xxii) The respondent accepted the claimant’s resignation on 4 September 2008 being the date which, on the respondent’s case, is also her effective date of termination of employment. The claimant agreed to proceed on the basis of the statutory modified grievance procedure but contended that the respondent’s grievance outcome letter dated 30 September 2008, which was drafted pursuant to legal advice, was never received by her. The tribunal is satisfied that this outcome letter was sent by ordinary first class post and by e-mail to the claimant and thus complies with the requirements of the statutory modified grievance procedure. However, the tribunal had no explanation from the respondent in relation to why, when the claimant wrote to the practice on 2 October 2008 stating that she had not received a grievance outcome letter, the respondent did not simply forward a further copy to her for the removal of doubt.
(xxiii) In relation to the claimant’s claim regarding an itemised pay statement, the tribunal was shown various payslips which it carefully examined.
(xxiv) The tribunal was also assisted by an agreed chronology, subject to findings of fact, which is appended to this decision. The claimant did not pursue a claim for unlawful deduction of wages, or for recovery of bank charges.
THE LAW
5. The tribunal is satisfied that the relevant law is adequately and succinctly set out in the respondent’s skeleton arguments which are appended to this decision together with a list of authorities presented to the tribunal.
SUBMISSIONS
6. The tribunal carefully considered the written submissions submitted by the respondent’s representative. The claimant was given considerable time to prepare submissions and the tribunal heard oral submissions from both parties which were also carefully considered.
CONCLUSIONS
7. The tribunal, having considered the evidence together with the submissions and applied the principles of law to the findings of fact, concludes as follows:-
(1) The effective date of termination of the claimant’s employment was 3 September 2008.
(2) Although the respondent did not furnish a written statement of particulars of employment within two months after the beginning of the claimant’s employment, a detailed written contract was signed by the claimant some seven months prior to the effective date of termination of the her employment. Furthermore, the respondent was not in breach of Article 33 of the Order in relation to giving the claimant a written statement of particulars of employment when she presented her reference to the tribunal under Article 43 of the Order. She is therefore not entitled to any compensation pursuant to Article 27 of the Employment (Northern Ireland) Order 2003.
(3) Having examined the claimant’s claim in relation to an itemised pay statement, the tribunal is satisfied that where the pay statements showed a figure of less than £1,250 per month gross salary, the respondent was in breach of Article 40(2)(b) of the Order relating to the requirement that the itemised pay statement should contain particulars of the amount of any variable, and (subject to Article 41) any fixed deductions from that gross amount and the purposes for which they were made. Therefore, by virtue of Article 44 the tribunal makes a declaration to that effect and by virtue of Article 44(4) (relating to unnotified deductions having been made from the pay of the employee during the period of 13 weeks immediately preceding the date of the application for the reference), awards her the amount of £115.36 in respect of the August 2008 pay slip, being the difference between £1,250 and £1,134.64 shown as the gross wage on that pay slip.
(4) Although certain aspects of health and safety had to be addressed by the respondent the tribunal is satisfied that such matters did not amount to a fundamental breach of contract entitling the claimant to leave and claim constructive dismissal.
(5) Having regard also to the matters referred to in the chronology appended to this decision, the tribunal is not satisfied on the evidence before it and on the findings of fact, that the respondent’s conduct was unreasonable or that it was calculated or likely to destroy or seriously damage the relationship of confidence and trust between the respondent and the claimant. The tribunal is satisfied that the meeting held on 22 January 2008 effectively remedied the situation regarding the provision of a contract, and in relation to travel expenses and the overtime issue. Although the claimant was depending on her income from employment with the respondent in what was a difficult time for her domestically, and was actively seeking other employment, it is clear, even on her own evidence, that the situation within the respondent’s employment ameliorated to some extent in the period preceding her further complaints in relation to a half day’s leave in July 2008 and the sequence of events stemming from her grandmother’s death on 25 August 2008 until her effective date of termination of employment on 3 September 2008.
(6) The tribunal is unconvinced by the claimant’s argument that she made her mind up to leave on 29 August 2008 and that effectively this was the “last straw”. She did work on 1 and 2 September 2008 in the Newtownards office and it was as a result of spending the night comforting and supporting Donna Pullan, that she ultimately decided to contact the Newtownards office and tender her resignation. Although the last action of an employer which leads to an employee leaving may not itself be a breach of contract, the question still is:- does the cumulative series of acts taken together amount to a breach of the implied term? The tribunal has carefully considered the authorities and the case law and concludes that, even on the claimant’s case in relation to the “last straw”, the preceding cumulative conduct of the respondent was not unreasonable and therefore could not have been calculated or likely to destroy or seriously damage the relationship of trust and confidence and was not, therefore, a fundamental breach of the implied term.
8. Whilst the tribunal has some sympathy for the claimant in the circumstances in which she found herself, it is unable to uphold her claims, except for the claim in relation to an itemised pay statement in respect of which the tribunal awards her £115.36.
Chairman:
Date and place of hearing: 9–16 November 2009, 18–20 November 2009, Belfast.
Date decision recorded in register and issued to parties:
IN THE INDUSTRIAL TRIBUNAL FOR NORTHERN IRELAND
TRACEY COURTNEY
v
JOHN ROSS & SON
SKELETON ARGUMENT ON BEHALF OF THE RESPONDENT
Failure to provide written statement of employment particulars
This failure does not give rise to a claim for compensation unless:
1 the Claimant is successful in her unfair dismissal claim;
and
2 the Respondent had not provided the particulars at the commencement of these proceedings.
It is common case that the Claimant received her contract during the course of her employment. Therefore, the Respondent was not in breach of this duty when the proceedings were begun. Therefore, the Claimant cannot be awarded compensation for a failure to provide a statement of employment particulars regardless of whether her constructive unfair dismissal claim is successful or unsuccessful.
Employment Rights (NI) Order 1996:
Statement of initial employment particulars
33. - (1) Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment.
(2) The statement may (subject to Article 34(4)) be given in instalments and (whether or not given in instalments) shall be given not later than two months after the beginning of the employment.
Employment (NI) Order 2003:
Failure to give statement of employment particulars, etc.: industrial tribunals [in force 3 April 2005]
27. - (1) This Article applies to proceedings before an industrial tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule 4.
(2) If in the case of proceedings to which this Article applies-
(a) the industrial tribunal finds in favour of the employee, but makes no award to him in respect of the claim to which the proceedings relate, and
(b) when the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) or 36(1) of the Employment Rights Order (duty to give a written statement of initial employment particulars or of particulars of change),
the tribunal shall, subject to paragraph (5), make an award of the minimum amount to be paid by the employer to the employee and may, if it considers it just and equitable in all the circumstances, award the higher amount instead.
Schedule 4 includes unfair dismissal:
SCHEDULE 4
Article 27
TRIBUNAL JURISDICTIONS TO WHICH ARTICLE 27 APPLIES
[in force 3 April 2005]
Article 145 of that Order (unfair dismissal)
The EAT in John v Patel & Anor (t/a Edmonton Exhaust)[1]:
“The third point argued by Mr Horan related to what has been described as the section 1 point. This is the failure by the Respondent to provide a written statement. Since the Tribunal has found a breach of section 1, it cannot of course award compensation for that alone: see my Judgment in Scott-Davies v Redgate Medical Services [2007] ICR 348. But when the Judgment is attached to other valid proceedings, there is an obligation to make an award of between 2 and 4 weeks' pay.”
Harvey[2]:
“(2) Money Compensation
[461]
Aside from the employee's ability to refer the non-provision or inadequacy of statements of initial employment particulars or a statement of changes to an employment tribunal, the EA 2002 (as part of the ill-fated policy of imposing mandatory procedures to enforce internal dispute resolution) provides, compensation to an employee where in connection with proceedings before an employment tribunal in relation to other matters, the employment tribunal finds in favour of the employee and at the time the proceedings were begun, the employer was in breach of s 1(1) or 4(1).:
Right to an itemised pay statement
Employment Rights (NI) Order 1996:
Right to itemised pay statement
Itemised pay statement
40. - (1) An employee has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement.
(2) The statement shall contain particulars of-
(a) the gross amount of the wages or salary,
(b) the amounts of any variable, and (subject to Article (1) any fixed, deductions from that gross amount and the purposes for which they are made,
(c) the net amount of wages or salary payable, and
(d) where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment.
The Claimant by way of discovery has provided guidance from a UK Government website dated 8th October 2008 (see page 215 of the bundle). The current relevant extract from this website is outlined below:[3]
“Every pay statement must contain the following information:
· amount of your wages before any deductions (gross wages)
· individual amount of any fixed deductions (such as trade union subscriptions) or the total amount of these deductions if you are given a 'standing statement of fixed deductions' as detailed below
· individual amount of any variable deductions (for example tax)
· net amount of your wages (this is the total after deductions)
· amount and method for any part-payment of wage (such as separate figures of a cash payment and the balance credited to a bank account)
Your employer might include additional information on your payslip which they are not required to provide, such as:
· National Insurance number
· tax codes
· pay rate (either annual or hourly)
· additional payments like overtime, tips or bonuses, which might be shown separately”
Art 45(3) of the Employment Rights (NI) Order 1996 in the context of unlawful deductions.
“(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.”
Again in the context of unlawful deductions Nicholls LJ in the English Court of Appeal case of Delaney v Staples (t/a Demontfort Recruitment)[4]
“If on his "pay day," when an employee is due to be paid, a worker receives less wages than he should have done, the deficiency is to be regarded as a deduction for the purposes of the Act. Likewise if he receives nothing. If, come his "pay day," a worker is in law entitled to a particular amount as wages and he receives nothing then, whatever be the reason for non-payment (excepting only errors of computation), that amount is to be treated as a deduction made from his wages on that occasion.”
The Respondent submits:
(i) the payslips provided to the Claimant complied with Art 40 of the Employment Rights (NI) Order 1996 as the payslips detail the Claimant’s gross earnings, deductions for tax, national insurance and net pay (see pages 179-187 of the bundle).
(ii) non-payment of wages for days the Claimant did not work where there was no occupational sick pay cannot constitute a deduction.
(iii) the Claimant always received the wages she was entitled to and therefore there was no deduction, therefore, there was no obligation to state on the pay slip the days or portions of days she did not work and was therefore not entitled to wages.
Therefore, the Claimant’s claim for failing to provide an itemised payslip must fail.
Unlawful deduction of wages
The Claimant does not appear to be actively pursuing this claim.
Failure to comply with the Modified Grievance Procedure
Step 2: response
10. The employer must set out his response in writing and send the statement or a copy of it to the employee.
The Respondent submits that the letter was sent and therefore the procedure has been complied with.
Can a failure to comply with a grievance procedure give rise to a finding of automatic unfair dismissal?
A finding of automatic unfair dismissal can only arise where there is a failure to complete the dismissal and disciplinary procedures.
Article 130A of the Employment Rights (NI) Order 1996:
130A. - (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (NI 13) (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.
Harvey:
“(i) Procedural unfairness in unfair dismissal
[2809]
The EA 2002 inserts a new s 98A into the ERtsA 1996. Section 98A(1) provides that a dismissal will be automatically unfair if the non-completion of an applicable statutory dismissal and disciplinary procedure is wholly or mainly attributable to the failure of the employer.”[5]
The EAT in Canary Wharf Management Ltd v Edebi[6] when considering criticism of the EAT judgment in Shergold stated[7]:
“We accept that the EAT does appear to have temporarily confused the sanction which applies to the failure to comply with disciplinary and dismissal procedures on the one hand, where automatic unfair dismissals may arise, with grievance procedures on the other.”
A claim for failure to complete the Modified Grievance Procedure?
Harvey:
“There is no free-standing right to complain of a breach of the statutory procedures in the absence of a valid claim of unfair dismissal (eg where the employee has less than one year's service): Scott-Davies v Redgate Medical Services [2006] UKEAT/0273/06 (HHJ McMullen QC presiding).”[8]
If the Claimant is not successful in her constructive dismissal claim she cannot have a stand alone claim for a failure on the part of the Respondent to complete the Modified Grievance Procedure (which is denied).
Constructive unfair dismissal
Harvey[9]:
“Initially some courts took the view that any sufficiently unreasonable conduct by the employer might justify the employee in resigning and claiming that he had been dismissed. However, as the Court of Appeal made clear in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27, [1978] ICR 221, it is not enough for the employee to leave merely because the employer has acted
unreasonably; his conduct must amount to a breach of the contract of employment.”
And[10]:
“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.”
Implied term of trust and confidence
The test is as follows[11]:
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.
Recently the EAT considered constructive unfair dismissal in Bournemouth University v Buckland[12]. The EAT considered whether the Employment Tribunal when determining whether the employer was in fundamental breach of the implied term of trust and confidence ought to have applied the band of reasonable responses test. The EAT declined to follow two earlier decisions of the EAT namely, Abbey National plc v Fairbrother and Claridge v Daler Rowney Limited.
However, the Buckland decision has been considered by the EAT in July 2009 in the case of Nationwide Building Society v. Niblett[13]. In this case the EAT considered the Buckland, Fairbrother and Claridge cases.
The EAT discussed the judgement in Abbey National plc v Fairbrother[14], which considered the application of the implied term of trust and confidence in the context of the operation of grievance procedures. The EAT in Niblett[15] highlighted that in Fairbrother it was noted that application of the implied term involved asking three questions:
(1) What was the conduct of the employee complained of?
(2) Did the employer have reasonable and proper cause for that conduct? If so, the employer will not be in breach of the term.
(3) Was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?
The EAT in Niblett went on to quote the following from the Fairbrother judgement in the context of grievance procedures[16]:
"Only if it has been conducted in a manner in which no reasonable employer would have conducted it can it be said that he did not have reasonable and proper cause for his conduct."
The EAT in Niblett then considered the case of Claridge v Daler Rowney Ltd[17]. The Niblett judgment then quoted[18] from the judgment in Claridge again in the context of an employee resigning because his employers had not dealt to his satisfaction with grievances he had presented. The following points emerge from this:
(i) It is necessary that the conduct must be calculated to destroy or seriously damage the employment relationship. An employee should not be able to satisfy that test unless the behaviour is outwith the band of reasonable responses.
(ii) Unreasonable conduct alone is not enough to amount to a constructive dismissal. It must be unreasonable conduct amounting to a breach of contract, and in the context of the breach of trust and confidence term that means that it should fundamentally undermine the employment relationship.
(iii) If an employer has acted in a way in which the Tribunal considers a reasonable employer might act, then it cannot be a proper inference that an employee is entitled to say that this was so fundamental a breach of the employer's obligations towards him that he should not be expected to
remain in employment. Once the tribunal concedes to itself that there may be more than one view as to whether the conduct is sufficiently unreasonable, that undermines its conclusion that the employment relationship has been sufficiently damaged.
In Niblett the EAT concluded that on the basis of Fairbrother and Claridge, where it is alleged that an employer has broken the implied term of trust and confidence in the way a grievance has been handled, the position will be as follows[19].
(1) The Tribunal must identify the respects in which the employer's conduct of the grievance procedure is alleged to have broken the implied term.
(2) The Tribunal must consider whether in those respects the employer's conduct of the grievance procedure was reasonable, ie whether it was within the band or range of reasonable responses open to an employer dealing with the grievance. If it was within that band, the employer will not be in breach of the implied term.
(3) Even if the employer's conduct of the grievance procedure in those respects was unreasonable, the Tribunal must still consider whether the employer's conduct was calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.
The EAT continued[20]:
“This third step is distinct from the second step and of essential importance. The implied term of trust and confidence is a reciprocal obligation owed by employer to employee and employee to employer. In employment relationships both employer and employee may from time to time behave unreasonably without being in breach of the implied term. It has never been the law that an employer could summarily terminate the contract of an employee merely because the employee behaved unreasonably in some way. The bar is set much higher: the employee has to be guilty of what is often called gross misconduct. Similar considerations apply the other way. It is not the law that an employee can resign without notice merely because an employer has behaved unreasonably in some respect. In the context of the implied term of trust and confidence, the employer's conduct must be without proper and reasonable cause and must be calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.
Thus, in Malik v BCCI Lord Steyn said –
"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 employers' 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 implied obligation." ([1997] ICR 606 at 628 G-H)
The EAT then went on to consider the decision in Bournemouth University Higher Education Corporation v Buckland. Although the EAT did not considered it necessary or desirable to express any concluded preference for the approach in of Fairbrother and Claridge on the one hand or for the approach in Buckland on the other hand the EAT, however the following points emerge[21]:
(i) Buckland re-inforces the point that a Tribunal must always consider the crucial question whether the conduct of an employer is calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.
(ii) It will be difficult for an employer to be in breach of the implied term of trust and confidence unless the employer's conduct has been unreasonable. And similarly it will be difficult to for conduct which is reasonable to be said to be calculated to destroy or seriously damage the relationship of trust and confidence between employer and employee and even more difficult to be said to be without reasonable and proper cause.
(iii) In determining whether an employer's conduct was reasonable, a Tribunal should always bear in mind that there may be more than one reasonable course to take. The Tribunal can ask itself whether an employer has acted reasonably or unreasonably, so long as it goes on to ask the fundamental question whether the conduct, even if unreasonable, is calculated to destroy or seriously damage the relationship of trust and confidence between employer and employee.
The Respondent submits that these principles are of general application in constructive dismissal cases.
In essence based upon the authorities above:
(i) the employer’s conduct must be unreasonable or conduct for which there was no reasonable or proper cause.
and
(ii) the conduct must be calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.
The Respondent submits this is a high threshold and one that is not satisfied in this case.
Curing the breach of contract
In the EAT case of Buckland it is emphasised[22] that if there was a breach of contract this breach can be remedied before acceptance of the breach by the wronged party.
(a) Failure to pay wages on time by one day
One the Claimant’s own case she stated to the book keeper that the Respondent should be paying the bank charges. She accepted that the Respondent agreed to do so. This was the Claimant giving the Respondent the opportunity to cure or remedy the alleged breach of contract and the Respondent did so. Therefore, this alleged breach cannot later be accepted by the Claimant and then terminate the employment.
(b) Failure to provide a contract of employment
If the Claimant relies upon this as a ground of constructive unfair dismissal, she gave the Respondent the opportunity to provide her with the contract, attended a meeting January to discuss the terms of the contract and then signed the contract. Therefore, if she alleges that failure to provide the contract was in someway a breach of contract in itself, the Respondent submits that any alleged breach will have been cured or remedied once the meeting occurred and the contract was signed by the Claimant.
Health & Safety
Harvey gives guidance in relation to health and safety issues in the context of constructive unfair dismissal[23]:
“[464]
Another specific aspect of the duty to co-operate is the obligation on the employer to provide a satisfactory working environment to enable the employee to carry out his work properly. In Graham Oxley Tool Steels Ltd v Firth [1980] IRLR 135 the employee left after working for up to two months in a temperature of 49°F. It was held that the failure to provide a proper environment was here so grave and of such a duration that it amounted to a fundamental breach of contract entitling the employee to leave and claim for unfair dismissal.”
The judgment of the EAT in Graham Oxley Tool comments[24]:
“It is therefore – and we emphasise this – entirely a matter of degree which it is for the Industrial Tribunal to have regard to in all the circumstances derived from the evidence. In finding as they did, that
an employee had had to endure working in exceptionally cold conditions, with an open doorway, in a temperature found in February to be 49 degrees, then an employee working in those conditions could say that the conditions were intolerable. Where there were such intolerable conditions over a period of time of anything up to two months, in the view of this Employment Appeal Tribunal, it was open to an Industrial Tribunal to find that that was so serious a breach of the obligation which it is admitted lay upon the employer that, as a matter of degree, it could be said to be a fundamental breach of an important term in the contract.”
Conditions in this work place were not such to prevent the Claimant being able to carry out her work properly.
Neither could conditions be described as intolerable.
The judgment of the EAT in Graham Oxley Tool comments further[25]:
“Quite obviously, it would be wrong for any principle to be extracted from this appeal that a breach of the statutory duty, by itself, or a breach of the common law duty, by itself, would result in a fundamental breach of contract by the employer. In every case, what has to be done is to look at the circumstances of the contract, the obligation under the contract, to determine whether there is a breach of contract and whether the breach is of such a quality that it indicates that the employer no longer intends to be bound by his obligation under that contract.”
Therefore, simply because a statutory duty has been breached in insufficient to found a claim of constructive unfair dismissal.
The Relevance of the disciplinary letter
Harvey referring to Mamud v BCCI[26]
“the court held that it was not necessary for the employee necessarily to be aware of the wrongdoing whilst still employed. The breach could be discovered after termination even although the trust and confidence were in fact maintained throughout the employment relationship itself. As Lord Steyn pointed out, however, the question of when the breach is discovered is highly relevant to remedies, since if the breach is not discovered until after the employment ends, the employee could obviously not rely upon this as a ground for terminating the contract (since he is unaware of it) and accordingly it would provide no basis for an unfair dismissal claim.”[27]
If the Claimant is unaware of the issue at the time of deciding to terminate the employment and at the time of communicating the termination in her own mind, anything discovered after this has no relevance to the claim.
Final straw
The Claimant seems to have alluded a potential last straw argument during the hearing.
The English Court of Appeal considered last straw constructive unfair dismissal cases in Waltham Forest v Omilaju[28]. The following extract from the judgment of Glidewell LJ in another case[29] was reaffirmed:
“The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?”
Therefore, in last straw cases the cumulative conduct must still breach of the implied terms of trust and confidence, therefore the cumulative conduct must be calculated or likely to destroy or seriously damage the relationship of trust and confidence.
The following principles emerge from the leading judgment of Dyson LJ in Omilaju:
(i) A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence.
(ii) The quality that the final straw is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.
(iii) It need not be "unreasonable" or "blameworthy" conduct, although it will usually be unreasonable and, perhaps, even blameworthy.
(iv) The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.
(v) If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect.
(vi) If an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment and “soldiers on”
and affirms the contract, cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.
(vii) Moreover, an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee's trust and confidence has been undermined is objective (see the fourth proposition in para 14 above).”[30]
In Gab Robins (UK) Ltd v Triggs[31] the EAT considered the Omilaju judgment and stated as follows:
“We derive the following principles from Omilaju:.
(1) the final straw act need not be of the same quality as the previous acts relied on as cumulatively amounting to a breach of the implied term of trust and confidence, but it must, when taken in conjunction with the earlier acts, contribute something to that breach and be more than utterly trivial.
(2) 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.
(3) 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.
(4) An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely (and subjectively) but mistakenly interprets the employer's act as destructive of the necessary trust and confidence.”[32]
Therefore, if the Claimant alleges a final straw argument it is necessary firstly for the Tribunal to determine what was the final straw? If the final straw is not discernible then the Tribunal cannot make a finding of a last straw dismissal.
If the last straw is discernible but is not capable of contributing to a series of earlier acts cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect (as per Dyson LJ in Omilaju).
Claimant’s loss
The basic award and loss to the date of Hearing have been agreed.
In Stuart Peters Limited v. Bell[33], the EAT determined that in a constructive unfair dismissal case the employee should not have any earnings from alternative employment during what would have been the notice period, taken into account when determining the employees loss. In simple terms, if the employee would have been entitled to 4 weeks notice but secured new employment within 2 weeks of the termination of employment, the employee is still entitled to claim and recover 4 weeks loss of earnings.
In our case the relevant contractual notice period for the Claimant’s length of service was 1 month[34].
According to the Claimant’s Schedule of Loss she did not commence employment until 5 weeks after the termination of her employment. Therefore, the issue discussed in Stuart Peters Limited v. Bell does not arise in this case, as the Claimant did not have any earnings during what would have been her 1 month notice period, and therefore it is not necessary to consider whether any earnings during what would have been the notice period have to be taken into account.
Therefore, the Respondent does not express any view on the correctness or otherwise of the decision in Stuart Peters Limited v. Bell and it is not necessary for the Tribunal to consider whether Stuart Peters Limited v. Bell was correctly decided.
IN THE INDUSTRIAL TRIBUNAL FOR NORTHERN IRELAND
CASE REFERENCE: 1662/08
BETWEEN
TRACY COURTNEY
Claimant
AND
JOHN ROSS & SON
Respondent
CHRONOLOGY
Dec 06/Jan 07 The claimant approached the Respondent’s Dundonald Office in relation to Matrimonial matters. Her Matrimonial solicitor asked her to apply to the Respondents for a position as Legal Secretary as the Solicitor, through the Claimant’s matrimonial interview, gained knowledge that the Claimant had some legal experience some 21 years before. After having been asked to apply for a position at the Respondent’s Firm a few times, the Claimant applied for the position, went to interview, resigned from her current post and started commencement with the Respondents on the 19th of February 2007.
19th February 2007 The Claimant’s employment commenced.
A few weeks later the Claimant alleges in her claim form at page 11 of the bundle that she had voiced concerns over health and safety, when wages were paid, lack of training and lack of procedures. Mrs Edgar has given evidence on the Respondent’s version of these discussions, namely, that payment by cheque was discussed and finding files.
The Claimant was moved to work in Dundonald on Mondays and Fridays and remained working in Newtownards on Tuesdays, Wednesdays and Thursdays. The Claimant alleges this occurred approximately 4 weeks after the commencement of her employment. Mrs Edgar stated in evidence this was 4 to 6 weeks after the Claimant commenced employment.
20
July 2007 The Claimant emailed Valerie Clegg stating that Gemma
told
her to tell Valerie Clegg that she had
not taken a lunch break
since she started working in Dundonald.
This email is
contained
at page 341 of the bundle. Page 341 also shows Valerie Clegg’s reply to this
email stating that Cathy should have an overtime sheet. The email also states
that the Claimant will have to fill in dates and times and get Gemma to sign
it.
Sometime thereafter a conversation occurred between the Claimant and Valerie
Clegg. The Claimant alleges that Valerie Clegg informed her that she could bank
her overtime and wait until the outcome of her legal aid application before
claiming for this overtime. Valerie Clegg denies that version of the
conversation. Valerie Clegg stated that the Claimant mentioned waiting until
the outcome of her legal aid application but Valerie Clegg did not comment on
this. Thereafter Valerie Clegg referred the matter to Mrs Edgar. Sometime
thereafter Mrs Edgar spoke to the Claimant and advised her to submit a claim
for overtime. The Claimant alleges in her claim form at page 12 of the bundle
that this conversation occurred in October 2007.
31st August 2007 Mrs Edgar signed the Claimant’s contract of employment.
23rd November 2007 Valerie Clegg sent an email to all support staff requesting details of their overtime. This is at page 352 of the bundle. The Claimant replied on the 23” November 2007 indicating that Gemma told her yesterday she had to start claiming for overtime so she would fill in a sheet and get Gemma to sign it etc. Page 353 of the bundle contains an email of 23rd November 2007 from Valerie Clegg to the Claimant which confirms that the Claimant’s overtime would be paid and asking did she have any more previous to this. The Claimant replied on 23rd November 2007 stating that she had “millions” etc.
30th November 2007 At page 355 of the bundle is an email from the Claimant to Valerie Clegg indicating that she had 60 hours of overtime and asking did Valerie Clegg need the Claimant to write each individual day out or would a copy of the petty cash book do and should she get Gemma to sign for it.
20” December 2007 An email from the Claimant to Valerie Clegg at page 358 of the bundle in which the Claimant states that she did not get her overtime etc. Valerie Clegg replied on 2l December 2007 stating that she was waiting for the sheet that the Claimant said that she would do and get Gemma to sign etc. Valerie Clegg asked the Claimant can she do that for her. Valerie Clegg then offers to send a cheque with Michelle Edgar.
The Claimant replied to this email on 21st December. One of the things she says in the e-mail is that she will get Gemma to sign it off.
December 2007 The Christmas dinner at the Crawfordsburn Inn.
31st December 2007 The Claimant sent an email to Valerie Clegg and attached the details of her overtime claim. She states in the e-mail that she will get Gemma to sign overtime sheets and bring them to Valerie Clegg. This email is at page 359 of the bundle.
Valerie Clegg replied on 31st December 2007 stating, inter allia, that she would need to get overtime sheets every month. This email is at page 367 of the bundle.
January 2008 Stephen Mearns commenced employment.
January 2008 Staff meeting which covered a number of issues including the organisation of holidays, travel allowance and overtime claims. The Respondent alleges that following this meeting the Claimant requested a follow-up meeting. The Respondent alleges an attempt was made to arrange this meeting but that the Claimant was unable to attend. The Respondent alleges that this meeting was then re-arranged for 22nd January 2008.
22nd January 2008 Meeting between Hugh Edgar, Patricia Gaston and the Claimant when the Claimant’s contract of employment, overtime and travel allowance were discussed.
January 2008 The Claimant signed her contract of employment.
January 2008 The Claimant e-mailed Cathy O’Connor In this e-mail she stated that she would be getting another job a.s.a.p.
January 2008 The joint consultation/viewing of a crush injury at the High Court when Counsel and the other side’s representatives were in attendance but the client was not in attendance.
March 2008 The consultation which occurred at the Dundonald office with Counsel. This consultation related to a probate case and the clients were the executors. Thereafter a meeting occurred between the Claimant, Patricia Gaston and Mrs Edgar. the
issue of the Claimant arranging a meeting with other secretarial/administrative staff was discussed.
July 2008 Conversation between the Claimant and Mrs Edgar during which the Claimant requested a half day’s holiday. This was granted. The Claimant was asked to confirm this was acceptable to Mr Mearns. This was confirmed.
25th August 2008 The Claimant contacted Stephen Mearns to advise him her that her grandmother had died. Mrs Edgar telephoned the Claimant and left a message expressing her sympathy.
26th August 2008 The Claimant was advised by Patricia Gaston that she would be coming to work for Patricia Gaston fill-time.
26th August 2008 Mrs Edgar asked the Claimant whether she wished to take her turn on reception.
26th August 2008 The Claimant used her mobile phone in the office during a conversation with Donna Pullan and Mrs Edgar asked her not to use her mobile phone. A discussion occurred between Mrs Edgar and the Claimant regarding the Claimant using the office telephones to make funeral arrangements.
26th August 2008 Mrs Edgar asked the Claimant about the arrangements for flowers for the funeral of her grandmother.
27th & 28th August 2008 The Claimant was absent from employment due to the death of her grandmother.
29th August 2008 The Claimant was present in her employment.
1st
September 2008 The Claimant was present in her employment. The Claimant
e-mailed “Solicitors, Stephen Means and Support Staff thanking them for flowers
sent in relation to the death of her grandmother.
2nd September 2008 The Claimant was present in her employment.
2nd /3rd September 2008 The Claimant spent the night with Donna Pullan.
3rd September 2008 (a.m.)
The Claimant made various phone calls and sent text messages in relation to her employment and did not attend her employment. This is when the Claimant states she was notifying the Respondent of her resignation.
3rd September 2008 (p.m.)
Patricia Gaston delivered a disciplinary letter to the Claimant. Thereafter the Claimant sent a text to Stephen Means. The detail of this text is contained at page 309 of the bundle. The disciplinary letter is contained at page 310 of the bundle.
4th September 2008 The Claimant sent a letter to the Respondent by email. This letter is contained at page 312 of the bundle.
8th September 2008 Patricia Gaston’s letter to the Claimant offering her either the company’s grievance procedure or the statutory modified grievance procedure.
9th September 2008 The Claimant’s grievance letter, which is contained at page 316 onwards of the bundle.
30th
September 2008 The Respondent contends that an email was sent to the
Claimant with the outcome of her grievance. The email is at page 321 of the
bundle and the letter is at page 322 onwards. The Respondent also contends the
letter was posted.
At a date unknown the late payment of wages and thereafter conversations between the Claimant and Valerie Clegg relating to payment for any bank charges incurred.
[1] Tab 9 of the bundle [2008] UKEAT 0910_06_0402 (04 February 2008) at paragraph 18 as reported on www.bailii.org
[2] Division A4E2
[3] tab 13 of the bundle http://www.direct.gov.uk/en/Employment/Employees/Pay/DG_10027228
[4] Tab 12 of the bundle page 9 [1991] 2 Q.B. 47 at pages 56/57
[5] Division D1(20)B(i) paragraph 2809
[6] Tab 6 of the bundle [2006] UKEAT 0708_05_0303 (3 March 2006) as reported on www.bailii.org
[7] Paragraph 27. See also paragraphs 23,24 and 26.
[8] Division D1(20)B(h) paragraph 2808
[9] Division DI(3) paragraph 401
[10] paragraph 401
[11] Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606, [1997] IRLR 462 and Baldwin v Brighton and Hove City Council [2007] ICR 680, [2007] IRLR 232 tab 10 paragraphs 19 and 40 as reported on www.bailii.org.
[12] Tab 3 [2009] UKEAT 0492_08_0805 (8 May 2009) as reported on www.bailii.org
[13] Tab 4 [2009] UKEAT 0524_08_0207 (2 July 2009) as reported on www.bailii.org
[15] Paragraph 34
[16] Paragraph 35
[18] Paragraph 36
[19] see paragraph 37
[20] at paragraph 38
[21] See paragraph 42 onwards.
[22] Tab 3 at paragraphs 52 to 62 of the judgment as reported on www.bailii.org
[23] Division DI(3)
[24] Tab 11 of the bundle page 5 at paragraph 13
[25] at paragraph 17
[27] Division DI(3)B at paragraph 432
[28] Tab 5 of the bundle [2004] EWCA Civ 1493 (11 November 2004) as reported on www.bailii.org
[29] Lewis v Motorworld Garages Ltd [1986] ICR 157 at paragraph 15 of the bailii judgment.
[30] at paragraphs 19-22 of the bailii judgment.
[31] Tab 7 of the bundle [2007] UKEAT 0111_07_1306 (13 June 2007) at paragraph 32 as reported on www.bailii.org
32 This dicta has been subsequently approved by the EAT in the case of Gill v. Humanware Europe Ltd [2009]UKEAT 0312_08_2702 (27 February 2009) and the EAT confirmed that although the Gab Robins case was the subject of attention by the Court of Appeal constructive dismissal was not considered and the above quote remains good law.
[33] [2008] UKEAT 0272_08_2210 (22 October 2008)
[34] see page 285 of the main trial bundle