Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/531_08IT.html
Cite as: [2009] NIIT 531_8IT, [2009] NIIT 531_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 531/08

CLAIMANT: Fiona Welsh

RESPONDENT: Joanne Davidson T/A Sculptures Hair Studio

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed neither was she constructively dismissed.

Constitution of Tribunal:

Chairman: Ms Crooke

Members: Mr Irwin

Mr Martin

Appearances:

The claimant was represented by Mr P Hopkins Barrister-at-Law instructed by Magennis & Creighton, Solicitors.

The respondent was represented by Mr T Ritchie, Barrister-at-Law, instructed by Edward Dougan & Company, Solicitors.

Sources of evidence

The claimant gave evidence on her own behalf before the tribunal and Lindsay Hamilton also gave evidence on behalf of the claimant to the tribunal.

The respondent, Joanne Davidson, gave evidence to the tribunal on her own behalf and the following persons also gave evidence on her behalf:-

Kelly Stewart;

Kirsty McQuitty; and

Alana Jeanes

The tribunal also had an agreed booklet of documents before it.

The claim and the defence

The claimant claimed that she had been unfairly dismissed by the respondent and also claimed in the alternative, that she had been constructively dismissed. The respondent denied both heads of claim. The respondent contended that the claimant had resigned from employment with her.

The relevant law

The relevant law is found in Article 107(1)(a) and (c) of the Employment Rights (Northern Ireland) Order 1996. This provision states as follows:-

“(1) For the purposes of this Part an employee is dismissed by an employer if (and, subject to Paragraph (2) and Article 128) –

(a) the contract under which he is employed is terminated by the employer (whether with or without notice),

…

(c) the employee terminates the contract under which he is employed (whether with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employee’s conduct.”

Findings of fact

In or around November 2007, the respondent was in negotiations with Julie McKay to take over her business which was known as ‘Salon Hairesistable’ at 12A Doagh Road, Newtownabbey.

The claimant had been employed with Julie McKay for approximately 15 – 16 years and at the time of takeover occupied the position of Senior Stylist at this salon.

Prior to the takeover, the respondent had a brief meeting with the workers at Salon Hairesistible at which she assured them that their jobs were safe. This meeting took place during the last week of November 2007. The respondent did not actually take over the salon until 24 December 2007.

On 31 January 2008, Kelly Stewart who was the manager of Salon Hairesistible at Doagh Road, which for ease of reference we shall now refer to as ‘the Doagh Road Salon’, presented a new rota to the workers at the Doagh Road Salon. There was a divergence in the evidence between the version of events given by the claimant and the version of events described by the respondent herself or by witnesses on her behalf. The claimant’s version of events was that she was told that this new rota was non-negotiable and that if she did not agree to it she was not a team player and not part of it. The respondent’s version of events was that this rota was a draft for discussion. The respondent was trying to keep all her workers in jobs and trying to preserve their hours so she was changing hours and pattern of hours as well as, on occasion, the location at which those hours were worked. There were three changes proposed to the claimant’s patterns of working. Previously, before the transfer of ownership, the claimant had worked 12 hours on Tuesday and Thursday, from 9.00 am to 1.00 pm on Wednesday and from 9.00 am to 4.30 pm on Saturday. She did not work on Friday in each week.

The effect of the changes was that she was to work from 9.00 am to 5.00 pm on Tuesday, Thursday and Friday in each week, from 1.00 pm to 9.00 pm on Wednesday and from 9.00 am to 5.00 pm on Saturday.

The claimant informed Kelly Stewart that she was not available for work on Wednesday and Friday in each week.

The claimant’s version of events was that Kelly Stewart spoke to the respondent and came back to her about 3.00 pm on 31 January 2008 stating that something might have been able to be worked out for the Wednesday but as she was not willing to work on the Friday she was no longer a member of the team.

In the respondent’s version of events, Kelly Stewart came back to the claimant and confirmed to her that the respondent would change the Wednesday and asked her still to work the Friday. The tribunal has noted some inconsistencies between the evidence given by the claimant at the start of the tribunal and her evidence given on recall. In her initial evidence, the claimant painted a picture of a situation in which she was treated aggressively and told that the changes were ‘non-negotiable’. However on her recall, she said that Kelly Stewart had asked her “would she have a problem with [“the changes” – tribunal insertion]. At the same time the claimant added that she had asked Kelly Stewart if she could simply work part-time hours.

The evidence that was agreed by all the respondent’s witnesses was that the claimant repeatedly and adamantly said to Kelly Stewart and to anyone who enquired, be they a client of the salon or co-workers, “I am leaving”, “today is my last day”, “I am not coming back”. She told some clients of the Doagh Road salon that she was leaving and it was her last day and told others that she had been fired. Alana Jeanes, on behalf of the respondent, gave uncontroverted evidence that she found the claimant copying down clients’ data from the Doagh Road salon record books and contended this showed a genuine intention of the claimant to leave.

The major question in this case was whether or not the presentation of this new rota was negotiable or not negotiable? The bulk of the evidence before the tribunal from the respondent’s witnesses was that this had not been presented to other workers as a non-negotiable document and, for example, Alana Jeanes indicated that she had some problems as the changes cut into a recreational activity that she attended each week, and wanted to check to see if this could be moved before she asked the respondent to change her hours. Alana Jeanes’ evidence to the tribunal was that in the presentation of the rota, Kelly Stewart had been friendly and accommodating, saying that if there was a problem it could be looked at and dealt with. Furthermore, Kirsty McQuitty said that when she was shown the changes she was nervous and Kelly Stewart had said that if she did not like it she could speak to the respondent and come back again to the Doagh Road Salon. It was not permanent. Certainly Kelly Stewart’s view was that this was something to be tested out and negotiated. It was not permanent. The consensus in the respondent’s evidence was that far from being abrupt with the claimant, Kelly Stewart was pleasant to her and being shocked by her adamant opposition to working on the Friday suggested that she could see if there was any other way to sort the problem out. Kirsty McQuitty confirmed that she had asked the claimant to speak to the respondent before doing anything and the claimant did not want to.

It was agreed evidence that the claimant refused to lock up and required Kelly Stewart to attend at the Doagh Road Salon to see to the locking up herself.

The claimant said that she had tried to speak to the respondent; but that the respondent did not take her call. She admitted that she had not tried more than once and agreed that there might have been a possibility that when she phoned the respondent was not able to take her call. The respondent, in her evidence, confirmed that on the day in question her child had been unwell. From this the tribunal draws the inference that it might well have been the case that when the claimant called, the respondent was not in a position to take her call, rather than avoiding her for any reason.

Where there is a diversion in the evidence between that given by or on behalf of the claimant and that given by on or behalf of the respondent, the tribunal prefers the evidence given by or on behalf of the respondent as it was consistent amongst a number of witnesses, and to a limited extent on the recall evidence, the claimant described a situation that was more like a negotiation rather than a stand-off.

Conclusions

19. The tribunal has considered all the evidence and is not able to find any evidence to support the suggestion that the claimant was dismissed. The tribunal does not accept the claimant’s evidence that the situation was as hostile as it was initially portrayed to the tribunal by the claimant. The balance of the evidence suggested that this was a suggested rota to be tried out and was not non-negotiable. The tribunal is supported in this finding by the very fact that when the claimant indicated difficulties with Wednesday and Friday, Kelly Stewart came back to her to suggest that something could perhaps be done for the Wednesday if she would still be prepared to work on Friday. Again, on the recall evidence, the claimant contended that she offered to work part-time rather than lose her job. These facts suggest an atmosphere of negotiation. A second major question to be considered in this case was, whether the presentation of this draft rota was a fundamental breach of the claimant’s terms and conditions of employment, either for the purposes of constructive dismissal or for the Transfer of Undertakings Regulations. It was accepted by the respondent that the Transfer of Undertakings Regulations did apply to this case. The tribunal finds that this rota was not being imposed but rather was a suggested way of working and open to change. The tribunal is unable to find that the very presentation of a new rota in itself is a fundamental breach of the claimant’s contract of employment. Had the tribunal found that it was to be imposed and was non-negotiable, this would have led us to a different conclusion. However, the bulk of the evidence in the case suggests that the claimant took instant umbrage at the very request to consider working on Fridays. There was no negotiating with the claimant. The tribunal’s view is that she took the position that the very presentation to her of a new draft rota was sufficient to enable her to treat her contract as having been fundamentally breached. We do not consider that this is a reasonable point of view. Neither do we accept that the claimant made any mention to Kelly Stewart of the position of her clients. It was not contraverted by the respondent that the claimant had a bank of clients who wished to remain at regular appointment times. Given the industry involved in this case, the tribunal considers that if this had been expressed to Kelly Stewart and to the respondent, this might very well have operated in the claimant’s favour as she was a very experienced senior stylist with a ‘following’, which they did not want to lose. Certainly it appeared to the tribunal that the respondent had lost a considerable amount of business as a result of the claimant leaving her employment.

The Transfer of Undertakings (Protection of Employment) Regulations 2006

It was accepted that this transfer was a transfer to which Regulation 4(9) would apply and this states as follows:-

“If a relevant transfer involves or would involve a substantial change in working conditions to the material detriment of a person whose contract of employment transfers, such an employee may treat the contract of employment as having been terminated, and the employee shall be treated for any purpose as having been dismissed by the employer.”

There was no evidence before the tribunal to suggest that the transfer itself was contingent on there being a substantial change in the working conditions to the material detriment of the claimant. The tribunal finds that there was a proposition put to the claimant about a change in pattern of working hours. However, this proposition was negotiable. Had we found that it was not negotiable, we might have reached a different conclusion. Insofar as it is necessary for us to make findings in connection with the various tests set out in Regulation 4(9) we find as follows in answer to the following questions:-

Does the new role involve any change in working conditions?

The new role involved the same working conditions but the pattern of hours worked was to change as a result of the draft rota presented on 31 January 2008. The claimant indicated that she had no difficulty in working hours at the respondent’s existing salon.

Is that change ‘substantial’?

The one part of the proposed changes that the claimant was not prepared to negotiate on was the requirement to work on Friday. The claimant did not always have Friday free. She did not deny in evidence that she used to work on Fridays in Salon Hairesistible. Furthermore, she confirmed that in other jobs after she left the employment of the respondent she worked on Fridays and on occasion worked full-time hours. On the facts before the tribunal, we are unable to find that working a Friday would have been a ‘substantial’ change.

(3) Is the change to the material detriment?

The tribunal accepts that the change was not going to be to the material detriment of the claimant, as her hours of work and remuneration would remain the same, it was only the pattern of hours that was to change.

The tribunal finds that the letter of 8 February 2008 sent by the solicitors for the claimant, on behalf of the claimant, to the respondent was a grievance letter for the purposes of the Employment (Northern Ireland) Order 2003 (Dispute Resolutions) Regulations (Northern Ireland) 2004. However, the respondent did not comply with her obligations to arrange a hearing of the grievance.

23. Having found that the presentation of the new rota was not a fundamental breach of the contract of employment of the claimant, the tribunal considers that it is not necessary for us to proceed to consider the other elements of the definition of constructive dismissal set out in the case of Western Excavating (ECC) Ltd v Sharpe [1978] IRLR 27. If we had found that the claimant had been constructively dismissed, we would have been prepared to consider an argument on the issue of increasing compensation for failure to comply with the statutory grievance procedure. As we have not found in favour of the claimant, this matter does not arise.

Chairman:

Date and place of hearing: 29 September 2008; 14 January 2009, Belfast

Date decision recorded in register and issued to parties: