Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/654_08IT.html
Cite as: [2009] NIIT 654_08IT, [2009] NIIT 654_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 654/08

CLAIMANT: Barbara Frazer

RESPONDENT: Roy Butler Limited

DECISION

The unanimous decision of the Tribunal is that the claimant was unfairly constructively dismissed and the Tribunal orders the respondent to pay her the sum of £7,080.86 compensation.

Constitution of Tribunal:

Chairman: Ms P Sheils

Members: Mr Hesketh

Mr Martin

Appearances:

The claimant appeared in person and represented herself.

The respondent was represented by Mr B McKee, Barrister-at-Law, instructed by Haugheys, Solicitors.

The claim and the response

The claimant lodged a claim to the industrial Tribunal on 29 April 2008 claiming that her contract to work 38 hours per week had been reduced to 25 hours per week and that as a result of this she had left her employment.

The respondent replied by response lodged on 9 June 2008 denying that the claimant had been dismissed and stating that the claimant’s grievance hearing had been cancelled and that the claimant had left before another date for hearing could be arranged.

Sources of evidence

Witnesses

The Tribunal heard from the claimant and the respondent.

Documents

The Tribunal was given a bundle prepared by the respondent’s solicitors, Haugheys, and agreed by the claimant. The Tribunal also had sight of correspondence brought to its attention during the hearing.

Submissions

The Tribunal received written submissions from the claimant and the respondent’s representative.

Findings of relevant facts

Having considered the oral and documentary evidence before it, the Tribunal found the following facts, either admitted or proved on a balance of probabilities;

The claimant commenced working at the respondent’s supermarket, Centra, on the Ormeau Road, Belfast, in October 1990. She worked there until she left in March 2008.

The claimant commenced as a part-time general assistant and worked her way up to become full-time senior general assistant with responsibility for magazines, newspapers, cards, stationery, seasonal goods and confectionery.

The respondent purchased the business known as ‘Centra’ at 345 – 349 Ormeau Road, Belfast, in December 2006. Soon after this date, the respondent had plans drawn up for a complete refit of the premises. On completion of the refit, between July and August 2007, the respondent sent a letter to all full-time staff advising them that a three month review of job titles and hours worked would be carried out. This letter advised that the review period would run for eight weeks.

At the end of this period of time, in August 2006, changes were made to the hours of some staff members. At that stage the claimant’s hours were unaffected.

However when the shop refit had been completed the facings for the claimant’s work area were reduced by 30% and the total space allocated within the shop for magazines, newspapers, cards, stationery, seasonal goods and confectionery had been reduced by 50%.

The respondent stated that he came to the view that there was no longer sufficient work in the claimant’s department to justify the hours worked by her. Further to satisfy himself of this the respondent carried out an assessment of the claimant’s work. During the claimant’s holiday period the respondent brought another sales assistant from his other similar shop in Antrim who had, in that shop, the same responsibilities and duties as the claimant. The respondent asked this woman to cover her own duties and those of the claimant in Belfast as well.

The respondent stated that this woman, Clare, successfully covered both these jobs for the two week period and during this period of time the respondent was able personally to monitor the way in which the job was done and have Clare report back to him that four hours was enough to complete the work. The respondent accepted however that Clare had not completed all aspects of claimant’s work.

On 18 January 2008, the respondent invited the claimant to speak to him in his office. There was a difference between the claimant and the respondent about what was said at this meeting. It was agreed that the respondent advised the claimant that her working hours were to be cut from 38 hours to 25 hours. It was also accepted that this news came as a shock to the claimant, that she immediately got up to leave the meeting, that she thought better of this and stayed to discuss the matter with the respondent.

The divergence between the parties arose over what took place at the meeting and what was said in relation to the issue of additional hours. The respondent stated that he had gone on to offer the claimant additional working hours in other departments within the business, with less responsibility, and that she had refused to take these. The claimant’s version was that it was she who raised the query if additional working hours would be available and that the respondent had said that some such hours might be available. The claimant also maintained that no extra hours were actually offered to her and that she had not refused any additional hours.

It was however agreed between the parties that the claimant had been advised that any additional hours would be paid at a lower hourly rate. The claimant was also advised by the respondent that on a 25 hour weekly contract she would not be paid for statutory holidays. The claimant was also advised that the new arrangement would commence in two weeks time, 1 February 2008.

The Tribunal accepted the claimant’s version of this meeting. It was apparent to the Tribunal that the respondent had not thought through the issue of additional hours nor had clearly identified any such additional hours. It was clear from the claimant’s agreed state of shock that the question of additional hours had not been put to the claimant as part of the proposed new arrangements for her and that this news had been in any way ameliorated by an offer of additional hours.

Before the commencement of the new working hours the claimant asked her manager what her hours would be. The claimant was advised that she would work from 8.00 am to 1.00 pm. When the claimant indicated that there would thus be no one to do the newspapers for the shop opening at 7.00 am the claimant’s hours were re-arranged to 7.00 am until 12.00 pm.

Subsequent to the meeting the claimant telephoned Citizens Advice Bureau and the Labour Relations Agency for help. Following their advices the claimant lodged a grievance with the respondent dated 31 January 2008. The claimant advised the respondent that she wished to raise a grievance against the reduction in her hours from 38 to 25 and that she was willing, able and available to work 38 hours. The claimant requested the respondent to reply to her within 28 days of the date of the grievance.

The respondent arranged to meet the claimant on 29 February 2008. The claimant realised that she was unable to attend this meeting as she had to collect her son at 2.00 pm from a school trip. She informed her manager of this on Friday 22 February 2008 and subsequently left a letter for the respondent on Tuesday 26 February 2008 advising him that she would be unable to attend the meeting on 29 February 2008.

The claimant was unable to accept such a reduction in her working hours. She began applying for other jobs. She made numerous applications and was given an interview for one of the jobs on Friday 29 February 2008, at 4.00 pm. In view of the fact that the claimant was unable to attend the grievance hearing that day at 2.00 pm the claimant availed of the opportunity to attend the interview.

The following week the claimant asked her manager if a new date for the grievance meeting had been discussed but the manager told her that the respondent had not spoken to her about the matter.

The claimant was ultimately successful in obtaining a job at Tesco. The claimant was required to complete a day’s training with Tesco prior to taking up her new position. The claimant told her manager of this requirement and her manager granted the claimant time off from her own job to complete this.

During the early part of March 2008 the respondent spoke to the claimant briefly when he met her in the shop and said “we must get a date for that meeting”. However the respondent took no further action to set up a second meeting and none took place.

The respondent stated that in his 27 years of business experience he had had no experience whatsoever of conducting the grievance procedure or hearings. He stated that dealings with his staff had always been hands-on, face-to-face and that he had a preference for dealing with staff issues in his own way. He stated that he thought that he could resolve this situation in the same way. The respondent also stated that he had been aware that the claimant had been applying for other jobs.

The respondent accepted that he had not written to the claimant to advise her of the impact the reorganisation would have on her job and that he had not written to her to advise her of the details of the meeting, prior to it.

The claimant ultimately left the respondent’s employment on 22 March 2008 as no progress had been made to resolve her grievance and she believed she had no other option but to accept the other job she had been offered.

Submissions

The claimant’s submissions

23. The claimant submitted that as the respondent had said in his evidence that she had been an excellent worker and could work well without supervision that this contradicted the respondent’s alleged finding that another woman, Clare Hughes, could do the job in 20 hours.

The claimant also accepted that although aspects of her work had reduced this reduction was by three hours and not by 13 and only in relation to the preparation of the magazines. Otherwise the rest of her job was unaffected.

The respondent’s submissions

24. Mr McKee referred the Tribunal to a number of cases including:-

Millbrook Furnishing Industries Ltd v McIntosh [1981] IRLR 309

Logabax Ltd v Titherley [1977] IRLR 97

Weatherfield Ltd v Sargent [1999] IRLR 94

Nottinghamshire County Council v Meikle [2004] IRLR 703

Western Excavating v Sharp [1978] IRLR 27

Marriott v Oxford Co-Operative Society [1970] 1 QB 196

Post Office v Roberts [1980] IRLR 347

Sheet Metal Components Ltd v Plumridge [1974] IRLR 86

W E Cox Toner International Ltd v Crooke [1981] IRLR 443

Eleman v Delabole Slate Ltd [1984] ICR 546

Genower v Ealing, Hammersmith and Hounslow Area Health Authority [1980] IRLR 297

Catamaran Cruisers Ltd v Williams [1994] IRLR 386

Morrison v Amalgamated Transport & General Workers Union [1989] IRLR 361

25. Mr McKee referred the Tribunal to each of the following points; was there a breach of contract; was the breach fundamental; did the claimant resign in response to the breach; did the claimant waive the breach; the reason for the dismissal, reorganisation or some other substantial reason; was the redundancy/reorganisation carried out fairly; consultation/selection for redundancy; did the clamant contribute to or cause her dismissal.

Was there a breach of contract?

26. Mr McKee submitted that there had been a unilateral reduction in the claimant’s contractual hours from 38 hours to 25 hours and in the absence of consent to the new arrangement that the reduction could constitute a fundamental breach of that contract.

Did the claimant resign in response to the breach of contract?

Mr McKee submitted that the claimant had not resigned in response to this breach. Mr McKee relied on the case of Logabax Ltd v Titherley [1977] IRLR 97 where the EAT held that under the common law an employee has to accept and act upon the repudiatory breach, that an employee was not entitled to claim benefit from an alleged repudiation where he did not treat the contract as repudiated and an employee must signify his attitude in a clear and unambiguous fashion and thus indicate that he is exercising his entitlement to claim constructive dismissal.

28. Mr McKee submitted that the claimant had not accepted or worked any additional hours as to do so would have meant that she would have been working with staff to whom she had previously been senior. Mr McKee submitted that the claimant’s failure to do so and her failure to seek an alternative date for the hearing of her grievance demonstrated that the claimant had not resigned in response to the breach of contract.

However Mr McKee accepted that it had not been put to the claimant that she had not been willing to take additional hours for the reason suggested or at all.

Did the claimant waive the breach?

Mr McKee relied on the case of Western Excavating v Sharp [1978] IRLR 27 where Lord Denning MR stated that where an employee claims constructive dismissal, he:-

“Must make up his mind soon after the conduct of which he complains – for if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.”

Mr McKee also submitted that the cases Marriott v Oxford Co-operative Society [1971] QB196, Post Office v Roberts [1980] IRLR 347 and Sheet Metal Components Limited v Plumridge [1974] IRLR 86, D E Cox Toner (International Limited) v Crook [1981] IRLR 443 all discuss how the length of time an employee continues in post can contribute to waiver of the breach of contract. On the basis of these cases, Mr McKee submitted that a number of factors in this case indicated that the claimant had waived the breach of contract.

Mr McKee submitted that the first factor to be taken into account was the fact that the claimant worked for a period of time subsequent to the postponed grievance hearing. He submitted that during this time the claimant took no steps to arrange or suggest an alternative time for a grievance hearing in spite of the respondent’s invitation and the opportunity to do so.

Another factor Mr McKee urged the Tribunal to take into account was the fact that the claimant had attended a number of interviews for alternative employment during February 2008 and that after 22 February 2008 the claimant had no intention of remaining in the respondent’s employment and failed to co-operate with the respondent in progressing the grievance in any respect whatsoever. Mr McKee submitted that this delay was analogous to that of Mr Crook in the W E Cox Toner (International) Limited v Crook case and was fatal to her case.

Reason for the dismissal, redundancy/reorganisation

30. Mr McKee submitted that the reduction in the claimant’s hours of working was as a result of the respondent’s economic and organisational considerations. Mr McKee submitted that the evidence suggested that the claimant’s duties could be performed in fewer hours. Mr McKee submitted the Tribunal should note in particular that the claimant accepted that her duties could be performed in less time than the 38 hours for which she was paid.

In making the reduction the respondent had taken account of the fact that the sales of cards and magazine, for which the claimant was responsible, were not economically viable at their original level and he determined that it was necessary to reduce that area.

Mr McKee submitted that these two factors indicated that there was either a redundancy situation or a reorganisation, either which amounted to (some other substantial reason that could render the claimant’s dismissal fair). However, Mr McKee submitted that the reorganisation was the more appropriate description of what had taken place in the present case on the basis that the number of employees required did not reduce and that a variation of duties was possible within the contract of employment.

Mr McKee went on to submit that a dismissal in the circumstances of a reorganisation can be judged fair where there is a refusal to accept new terms of employment much less favourable than existing ones in circumstances if acceptance of the new terms is vital for the survival of the employer’s business. He submitted that the Tribunal must examine the employer’s motives for the changes and satisfy itself that they are not sought to be imposed for arbitrary reasons.

Mr McKee submitted that the respondent had presented a clear and cogent explanation of his reasons for imposing the changes and therefore the dismissal (albeit constructive) of the claimant was potentially fair.

Was the redundancy/reorganisation carried out fairly

31. In this regard, Mr McKee submitted that as the respondent had identified a specific area of business which was uneconomic and that the required reduction fell to a specific person with responsibility for that area of business, in this case the claimant, the selection of the claimant was reasonable.

32. Mr McKee submitted that it was in the area of proper consultation in which the respondent could be regarded the most vulnerable. Mr McKee noted that the respondent had failed to inform the claimant in writing in advance of the first meeting between them of 18 January 2006 of the substance of that meeting and that neither before nor after that meeting had the respondent put the full details of his proposal to reduce the working hours and why to the claimant.

33. However Mr McKee went on to submit that if the grievance process had continued the dispute between the parties may well have been completely resolved. He submitted that the Tribunal should consider a number of failings of the claimant’s that militated against this. The first of these was that the claimant did not set out any complaint or grievance until nearly two weeks after the first meeting between herself and the respondent. Secondly, Mr McKee’s submitted that the Tribunal should take account of was the fact that the grievance failed to mention the additional hours which might have been available to her.

34. Mr McKee also submitted that the Tribunal should note the fact that although the claimant was not available for the grievance hearing at 2.15 pm on Friday 22 February 2008 she subsequently attended an interview at 4.00 pm that same day. He submitted that the claimant ought to have indicated that advice that she would be available to attend the grievance hearing later that afternoon.

35. Additionally, Mr McKee submitted that the fact that the claimant did not suggest an alternative date for the grievance albeit she was invited to do so by the respondent and that she took no other steps to rearrange the grievance meeting also indicated that the claimant was to a considerable extent responsible for the failure of the grievance process.

The law

36. The Tribunal considered the relevant statutory provisions and case law.

Statutory Provisions

The Employment Rights (Northern Ireland) Order 1996 provides at Article 126(1):-

“An employee has the right not to be unfairly dismissed by his employer.”

The Order goes on to state at Article 127(1)(c):-

“For the purposes of this part an employee is dismissed by his employer if (and subject to Paragraph 2) only if –

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

Article 130 of the Order goes on to state that:-

(1) In determining … whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

A reason falls within this paragraph if it

(b) relates to the misconduct of the employee

Article 130(4) goes on:-

Where the employer has fulfilled the requirements of paragraph (1), the determination of whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantive merits of the case.

Case law

37. The Tribunal applied the relevant case law.

The Tribunal’s conclusions

38. The Tribunal found that there had been a unilateral reduction in the claimant’s hours which amounted to a breach of contract. The Tribunal also concluded that this amounted to a fundamental breach of the claimant’s contract. The Tribunal also concluded that the claimant resigned in response to this fundamental breach of her contract.

39. In this regard the Tribunal did not accept Mr McKee’s submission that there had been any failure by the claimant properly to pursue her grievance sufficiently to indicate that she accepted the new contract terms, or at all. The Tribunal reached this conclusion on the basis that it did not accept that it was the claimant’s responsibility actively to pursue her grievance beyond her having lodged it and to attend any such grievance meetings offered to her whilst she reasonably could.

40. The Tribunal also concluded that the claimant had not waived the breach of her contract. The Tribunal did not accept that the issue of additional hours was sufficiently addressed between the claimant and the respondent for the claimant to amount to a factor to contribute waiver of the breach of contract.

41. The Tribunal also did not accept that the claimant’s continuing to work under the revised contract subsequent to the postponement of the grievance hearing and or any failure by her to rearrange another such grievance hearing amounted to waiver of the breach of contract. The Tribunal did not accept that it was any responsibility of the claimant’s to arrange or re-arrange the grievance meeting. Nor did the Tribunal accept that the respondent’s casual meeting with claimant in the shop and his reference to the need for an alternative date of the grievance hearing amounted to his having invited the claimant to a second grievance hearing or given her an opportunity to arrange such a meeting. Therefore the Tribunal concluded that this delay was not analogous to that of Mr Crooke the sited case.

42. The Tribunal noted that there was no evidence to support the respondent’s contention that the claimant had no intention of remaining in employment after 29 February 2008. The Tribunal did not accept that the fact that the respondent was aware of attempts the claimant was making to obtain alternative employment was sufficient for the respondent to conclude that the claimant had no intention of remaining in his employment. In reaching this conclusion the Tribunal took into account the fact that during this period the claimant continued to ask her manager about dates for the re-arranged grievance meeting.

43. In the light of this, the Tribunal concluded that the claimant had not waived the breach of contract. On the contrary the evidence that the claimant had applied for a number of positions and attended a number of interviews, including the fact that she had attended the training course offered by Tesco, indicated that she continued to object to the breach of contract.

44. Accordingly, the Tribunal concluded that the claimant accepted an alternative position in the absence of any indication that the respondent was either going to address her grievance or improve on the new contract offered to her in January 2008.

45. The Tribunal concluded that the reason for the [constructive] dismissal of the claimant in this case was the fact that her working hours were unilaterally reduced from 38 hours to 25 hours per week and that the respondent failed properly to address the claimant’s objection to this by way of grievance.

46. The Tribunal went on to consider whether the reasons for the claimant’s dismissal were fair.

47. The Tribunal considered the submissions that the reduction in the claimant’s hours was a result of a redundancy situation or, in the alternative, a reorganisation (some other substantial reason). The Tribunal noted that there had been a reduction in space and in the percentage facings in the area of goods in which the claimant worked and that another woman had done parts of the claimant’s job in less time. The Tribunal accepted that there had been a reorganisation of the respondent’s business which had led to there being a reduction in the claimant’s hours.

48. Given that a redundancy/reorganisation situation did exist and that the dismissal of the claimant was thus potentially fair the Tribunal went on to consider whether the respondent had acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and in accordance with equity and the substantial merits of the case.

49. The Tribunal noted that the respondent had not previously used the grievance procedure and that he had a preference for dealing with staff issues in his own way. The Tribunal also noted that the respondent accepted that he had not written to the claimant to advise her of the impact the reorganisation would have on her job and that he had not written to her to advise her of the details of the meeting, prior to it.

50. The Tribunal concluded that the respondent failed to conduct any or any proper consultation with the claimant in respect of the reduction in her hours and subsequent failed properly to conduct the claimant’s grievance.

51. Accordingly, the Tribunal concludes that the claimant was unfairly constructively dismissed.

Compensation

52. Article 152 of the Employment Rights (Northern Ireland) Order 1996 provides that compensation awarded by a Tribunal should consist of a basic award and a compensatory award.

The basic award

Article 153 sets out the formula by which such basic award is to be calculated.

Article 156(2) of the 1996 Order goes on to provide that a Tribunal may, in certain circumstances, reduce a basic award to any extent, in the light of any conduct of a claimant before the dismissal where it would be just and equitable to do so .

The compensatory award

Article 157(1) provides that the amount of the compensatory award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer".

Article 157(6) of the 1996 Order goes on to provide that, where the Tribunal finds that a dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion as it considers to be just and equitable having regard to that finding.

Polkey

The Polkey decision is authority for the proposition that, in deciding on the amount of compensation which is ‘just and equitable’ for the purposes of Article 157(1), full account has to be taken of the chance that the claimant could and would have been dismissed in any event, even if there had been no procedural shortcomings in connection with the dismissal.

Basic Award

In accordance with the statutory formula in Article 153(2)(a) and (b) the claimant’s basic award is as follows:-

1¹/₂ x £233.07 x 1=£349.6 +

1 x £233.07 x 16 £3,729.12

Total basic award £4,078.72

The Tribunal noted that the claimant got a job quite quickly after she left the respondent’s employment. That job was in Tesco. The claimant enjoyed some benefits of working for this organisation. These included, from the end of October 2008, a 10% discount on her weekly shopping and, from February 2010, an entitlement to employee shares although the Tribunal was unable to put any value on these latter. However the claimant earned less per hour and week, namely £5.95 and £173 as opposed to £7.65 and £233.07. The length of time between leaving the respondent’s employment and the hearing was 28 weeks and therefore the claimant’s loss for the differential between her rates of pay = £1,681.96.

The claimant sustained a pay differential of £60.07 per week. There appeared to be no date when this differential would improve. Accordingly the Tribunal awards the claimant the benefit of the ongoing pay differential for a period of six months, at full rate for one month until October 2008 and at the full rate less 10% for a further five months.

Compensatory Award £3,002.14

Total compensation £7,080.86

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

Chairman:

Date and place of hearing: 30 September 2008; and

7 October 2008, Belfast

Date decision recorded in register and issued to parties:

12.