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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Veitch v Red Sky Group Ltd [2010] NIIT 1184_08IT (24 March 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/1184_08IT.html
Cite as: [2010] NIIT 1184_8IT, [2010] NIIT 1184_08IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 01184/08
00381/09
CLAIMANT: Jason Veitch
RESPONDENT: Red Sky Group Ltd
DECISION
It is the unanimous decision of the tribunal that the claimant was constructively dismissed by the respondent and the respondent is ordered to pay the sum of £12,676.68 to the claimant. The tribunal also considered that the claimant had suffered some deductions from his wages in the sum of £154.00 and these were not authorised by his contract of employment. Accordingly the respondent is ordered to repay the sum of £154.00 to the claimant. The tribunal did not find that the claimant was a disabled person and consequently his claims under the Disability Act 1995 are all hereby dismissed.
Constitution of Tribunal:
Chairman: Ms W.A Crooke
Members: Mrs Madden
Mr Boyd
Appearances:
The claimant was represented by Ms Tracey Sayers.
The respondent was principally represented by its Human Resources Advisor, Ms Patricia Grant, but in her absence on one day during the case, the respondent was represented by its other Human Resources advisor, Ms Gillian McCreery.
SOURCES OF EVIDENCE
1. The claimant, his father Mr Derrick Veitch Senior and Ms Tracey Sayers gave evidence on behalf of the claimant.
2. The following gave evidence on behalf of the respondent:–
(1) Gary Phillips, Procurement and Stores Manager for the company;
(2) David Close, Storeperson
(3) Damien Woods (who is now a Supervisor but at the time of the events in this case worked in the same squad as the claimant for part of the claimant’s employment);
(4) Thomas Warnock, Supervisor;
(5) Lawrence Mercer, Contract Manager;
(6) Pauline Gazzard, Departmental Manager;
(7) Samuel Given, Transport Manager;
(8) Richard Todd, Senior Mechanic;
(9) Jack Brown, Supervisor;
(10) Margaret Campbell (who is now Payroll Manager but at the time of the events in question in this case was a member of the payroll department);
(11) Linda Given, Company Secretary, who also held responsibility for the payroll and HR Departments and procurement in the respondent company;
(12) Patricia Grant, Human Resources Advisor.
3. The statement of Sheila Walsh was also before the tribunal, but it was not considered in reaching the decision of the tribunal.
4. The tribunal also had before it two bundles of agreed documents. Additionally, throughout the case both parties produced documentation which had not previously been discovered and the tribunal dealt with this, as and when agreed, by permitting the parties some time to consider the contents of the documents.
THE CLAIM AND THE DEFENCE
5. The claims of the claimant were as follows: –
(1) He claimed that for a reason relating to his disability he had been treated less favourably than others to whom that reason did not apply.
(2) He claimed on the grounds of his disability he had been treated less favourably than others not having that particular disability.
(3) He claimed that he had been subjected to discrimination.
(4) He claimed that the respondents had discriminated against him by failing to comply with the duty to make reasonable adjustments.
(5) He claimed that he had been subjected to harassment where for a reason relating to his disability the respondent engaged in unwanted conduct.
(6) He claimed he had been subjected to unlawful harassment
(7) He claimed that the respondent had made unauthorised deductions from his wages.
(8) He claimed that the respondent had failed to supply him with a written statement of employment particulars.
(9) He claimed that the respondent had failed to provide him with written itemised pay statements.
(10) He claimed that the respondent had breached his contract of employment.
(11) He claimed that he had been victimised in that he was treated less favourably for the reason that he brought proceedings against the respondent.
(12) He claimed he had been constructively unfairly dismissed.
6. The respondent denied all these claims.
THE LEGAL ISSUES
7. The legal issues were agreed by the parties and recorded in the record of proceedings of a case management discussion dated 10 June 2009 and these are as follows:
(1) Is the claimant a disabled person within the meaning of the Disability Discrimination Act 1995?
(2) Was the claimant, for a reason which related to his disability, treated less favourably than others to whom that reason did not apply were treated or would be treated, contrary to S3A (1) (a) of the Disability Discrimination Act 1995 and if so was this treatment justified?
(3) Was the claimant, on the grounds of his disability, treated less favourably than others not having that particular disability were treated or would be treated, contrary to S3A (5) of the Disability Discrimination Act 1995.
(4) Was the claimant subjected to unlawful discrimination contrary to S4 (2) of the Disability Discrimination Act 1995?
(5) Was the respondent under a duty to make reasonable adjustments in relation to the claimant and if so did the respondent discriminate against the claimant by failing to comply with that duty contrary to S3A (2) of the Disability Discrimination Act 1995?
(6) Did the respondent subject the claimant to harassment contrary to S3B of the Disability Discrimination Act 1995 where, for a reason which related to his disability, the respondent engages in unwanted conduct which had the purpose or effect of–
(a) Violating the claimant’s dignity, or
(b) Creating an intimidating, hostile, degrading, humiliating or offensive environment for him?
(7) Did the respondent fail to comply with the statutory dispute resolution procedures?
(8) Did the claimant fail to comply with the statutory dispute resolution procedures?
(9) Did the respondent make unauthorised deductions from the claimant’s wages contrary to the Employment Rights (Northern Ireland) Order 1996?
(10) Did the respondent fail to provide the claimant with a written statement of employment particulars contrary to the Employment Rights (Northern Ireland) Order 1996?
(11) Did the respondent fail to provide the claimant with written itemised pay statements contrary to the Employment Rights (Northern Ireland) Order 1996?
(12) Did the respondent breach the contract of employment?
(13) Was the claimant subjected to discrimination by way of victimisation in that he was treated less favourably for the reason that he has brought proceedings against the respondent, namely case reference 1184/08 and/or alleged that the respondent or any other person has contravened the Act, as per S55(1), S55(2) (a) (i) and S (55) (2) (a) (ii) of the Disability Discrimination Act 1995? If the answer to 13 is yes, was any such victimisation carried out by a person acting as agent of the respondent and with the authority of the respondent?
(14)
Was the claimant constructively
unfairly dismissed?
FACTS FOUND
8.
(1) In or around 2001–2002, the claimant worked for a predecessor in title of the respondent called Spectrum Premiere Services. There was a divergence in the evidence about whether the claimant left of his own accord or was dismissed by the respondent, but as the claimant’s two periods of employment are not subject to any claim for aggregation, and there is a break between the two periods of employment, the tribunal considers that it is unnecessary for it to make any findings of fact on this point.
(2) The claimant’s father, Mr Derrick Veitch Senior also worked for the respondent. Initially he worked as an operative and in or around 2005 was promoted to being a supervisor.
(3) In August 2006, being aware of need on the part of the respondent company to find an employee to work for them in Scotland, Mr Derrick Veitch Senior approached Mr Robert McClintock, a manager in the company and Mr Norman Hayes the “proprietor” of the company. He suggested that the claimant would have the necessary skills to fill this role in Scotland, and proposed that after the contract in Scotland finished, the claimant could return to work for the company in Belfast becoming an operative in Mr Derrrick Veitch’s squad. At this time, the claimant who had indeed been born in Wales, had been living there from in and around 2001–2002. The respondent agreed that the claimant should take up this position in Scotland and the claimant travelled to Scotland, with his expenses later being reimbursed by the respondent, and successfully completed the contract of the respondent in Scotland. The claimant commenced employment with the respondent in October 2006 in Scotland and after approximately one month returned to work in his father’s squad in the respondents operation in Belfast.
(4) The claimant was a handyman–joiner, although he was not initially paid as such by the respondent. The claimant later negotiated with the respondent for an increase in his hourly rate to reflect his status. The claimant was working in his father’s squad in one of the seven districts of the respondent in the department of social housing contracts mainly engaged on contract work for the Northern Ireland Housing Executive. He worked for approximately 8 to 9 months in the squad of his father without any reported incidents.
(5) In or around August 2007, the claimant was transferred with the agreement of everybody to the squad of Mr Jack Brown, another supervisor in the respondent company. The claimant was regarded as a reliable worker and Mr Jack Brown was happy to have him as an operative working in his squad. The claimant was regarded as a pleasant person who was very capable. He was committed to the work of the respondent and regularly did “out of hours call-outs” duties both on his own account and to cover the duties of others who did not wish to carry out this type of work out of hours for the respondent. At one time the claimant was working up to 60 hours per week, whereas his contracted hours were 39 hours per week.
(6) The claimant is a person who has difficulties with his mental health. In his General Practitioner’s report dated 16 September 2009 it was confirmed that “from 2001 Jason has suffered from a post-traumatic stress disorder which again was felt to be exacerbated in 2007 and continues to be an issue, presenting itself with increased anxiety, panic and depression.” The claimant was contemplating a trip to London with his partner at that time, Miss Sayers, for the purposes of an abortion. Being aware of his mental state and wanting to avoid it adversely affecting his work, the claimant went to ask his supervisor Mr Jack Brown for some time off work. He asked that the discussion remain confidential and Mr Brown acknowledged that the claimant had revealed the reason for his trip to London. However, there was a divergence in the evidence between the version of events given by the claimant and the version given by Mr Jack Brown. The claimant claimed that he had given some details about his mental health condition and this was denied by Mr Brown. The claimant also alleged that Mr Brown had told him to take as long as he wanted, whereas Mr Brown stated strongly that he understood that the claimant would only take a week off work. The claimant expected Mr Brown to keep the information he allegedly gave in confidence. Only the claimant and Mr Brown were present at the meeting at which the claimant allegedly gave details of his mental health condition. At this time there was a divergence in the evidence between the versions given by Mr Jack Brown and the claimant. The claimant contended that Mr Brown had told him to take as long as he needed, whereas Mr Brown considered the claimant was going to be absent for a week. At the end of the week when the claimant did not return, Mr Brown became aggrieved as he had not received the courtesy of a phone call to let him know if the claimant needed more time off. He stated strongly to the tribunal that he had work to organise and he needed to know what human resources were available to him. As Mr Brown had such a responsibility the tribunal considers it more likely than not that the claimant was to be permitted to be absent for a week and not for an open-ended period.
(7) In 2006 the respondent installed a finger scanning machine as a mechanism for recording times of entry and egress from its premises. This machine allegedly took the place of the previous swipe card system which had the same function. One fingerprint of each operative was recorded on this system and each operative had to scan in via his or her fingerprints. The claimant contended that he had a history of difficulty with this scanning system. The claimant contended that his fingerprint was so worn that it would not scan or occasionally scan with difficulty. This had the result that the claimant had to go looking for a supervisor who would manually record his arrival on an attendance tick sheet. The claimant alleged that it was hard to find his supervisor and he had to “prance round like a child. “ This had the result of making him feel more stressed.
(8) When the claimant returned after his trip to London he stated that his supervisor’s assistant Damien Woods questioned him, Mr Woods denied any knowledge of this incident. The claimant alleged that this incident caused a major breakdown in his trust and confidence in the respondent. He considered that Mr Jack Brown had broken his confidence. There was no objective evidence that Mr Brown had breached the confidence of the claimant and on this point the tribunal prefers the evidence of Mr Brown and Mr Woods.
(9)
After the claimant’s return from London he was subjected to a disciplinary hearing in front of Grainne McIlwee. This was
about the claimant’s unauthorised absence and about his lateness into work. By
a letter dated
26 October 2007, a copy of which had to be provided to the tribunal by the
claimant because the respondent had not retained a copy on its file, the
claimant was issued with a written warning for major misconduct as a result of
frequent absenteeism and repeated lateness. The claimant was given an opportunity
to appeal this warning. By a letter to Grainne McIlwee dated 30 October 2007
the claimant formally appealed the decision of the warning which had been
issued to him. He also, raised the following grievances:–
“(a) The breach of confidentiality by my supervisor (Jack Brown) in relation to my personal circumstances and in relation to my mental health.
(b) The lack of support shown by HR and my supervisor in relation to my medical condition.
(c) That a full investigation has not been carried out prior to the notice of disciplinary.
(d) The threatening behaviour shown by yourself as shown in the disciplinary.
(e) Statutory procedures not being followed in relation to disciplinary practice.
(f) As discussed my inability to not being able to get my fingerprints read, is causing a great deal of stress and anxiety as well as affecting my pay on a weekly basis, in relation to the information that you gave regarding getting a Pin Number, I wish to raise a grievance regarding why I could not have received a Pin Number sooner to alleviate my anxiety especially given that many people within the company were given one.
(g) My pay rate, as informed that I should be on a higher rate, and given the callouts and my experience, I wish to understand why the company have not corrected my rate of pay.
(h) The numerous mistakes with my pay that are made on a weekly basis (although this is slightly covered by issue 3).
(i) Can you please give me a contract which will show my hours of work and the procedures to follow especially as discussed what to do if “I am sick. Late or wish to raise a grievance”.
There was no evidence to show what the outcome of this grievance had been and there were no minutes of the disciplinary hearing, or appeal.
(10) In the records of the company produced from the finger scanning machine in November and December the claimant continued to be late on a sporadic basis. He went on sick leave in early January 2008, although he returned for a week commencing 14 January 2008. After that week he remained on sick leave until 17 March 2008. The claimant returned on that day and worked in the respondent company for 8–9 days. The 1 April 2008 was the last day that the claimant worked in the company and he remained on sick leave thereafter until his resignation on 12 November 2008.
(11) The claimant contended that he was subject to flashbacks in respect of the event which had caused his post-traumatic stress disorder, panic and anxiety attacks. His anxiety and stress were “off the scale” at this time as a result of the trip to London, the difficulties with Mr Jack Brown and the disciplinary procedures that he was subjected to on his return. The finger scanning situation was an additional source of stress. The claimant contended while he was working with the respondent that he was subject to flashbacks to the event which had triggered his post-traumatic stress disorder, panic and anxiety attacks. The claimant had attended cognitive behavioural therapy as confirmed by his doctor’s report of 16 September 2009, and he had been able to use certain ‘coping mechanisms’ to counteract the panic and anxiety attacks. One of these coping mechanisms was to go off by himself when he anticipated the onset of such an attack to avoid the embarrassment of his fellow workers seeing him in the grip of such an attack. By January 2008, these coping mechanisms were failing to have any effect and this is why the client decided to take sickness leave.
(12) During January and February 2008 Mr Derrick Veitch Senior had at least one discussion with Ms Pauline Gazzard, a Departmental Manager in the company with a view to Jason returning to work in his squad. On
13 February 2008, the van used by the claimant was removed by the respondent’s Senior Mechanic Mr Richard Todd. Mr Todd said that he tried to contact the claimant by knocking on his door three times without success. The claimant considered that the van had been removed without any contact with him and this became an issue of importance which formed part of his grievances.
(13) A course of correspondence ensued between the claimant and the respondent company and we are setting this out in tabular form with the date of the letter and brief details of what it concerned:
|
Date of Letter
|
Claimant to Company or Company to Claimant |
Brief Details of Letter |
|
17 March 2008 |
Company to Claimant |
Request to attend disciplinary meeting
|
|
20 March 2008 |
Company to Claimant |
Confirmation that meeting attended was not a disciplinary meeting. |
|
4 April 2008 |
Claimant to Company |
Grievance letter
|
|
22 May 2008 |
Company to Claimant |
Informing claimant that Company is considering dismissal and invites claimant to attend another disciplinary meeting. |
|
4 June 2008 |
Claimant to Company |
A further statement of grievances
|
|
5 June 2008 |
Company to Claimant |
Investigating issues raised. It appeared from the evidence that the respondent contended it had never received the claimant’s initial letter of 4 April 2008 at the time it was originally posted but the letter of 5 June 2008 confirms that it was received eventually.
|
|
5 June 2008 |
Company to Claimant |
Confirmation of underpayment of sick pay totalling £435.30. |
|
11 June 2008 |
Company to Claimant |
All sick pay has been paid. This appears to countermand the previous entry. |
|
19 June 2008 |
Claimant to Company |
A further grievance letter centering on sickness pay unpaid by the company. |
|
28 July 2008 |
Claimant to Company |
Further pay queries.
|
|
Undated but sent 3 August 2008 |
Claimant to Company |
Dissatisfaction with action of Patricia Grant and failure to properly resolve grievance procedure with question of applicability of Disability Discrimination Act 1995. |
|
6 August 2008 |
Company to Claimant |
Further invitation to the claimant – this time to attend a grievance appeal meeting. |
|
8 August 2008 |
Claimant to Company |
Claimant requests accompaniment by his partner Tracey Sayers. Claimant also requested neutral venue. |
|
11 August 2008 |
Company to Claimant |
Agreeing to the claimant’s requirements for a neutral venue and for Tracey Sayers to be present. |
|
14 August 2008 |
Claimant to Company |
Claimant refuses to attend appeal meeting considering that he had not been afforded a grievance meeting. |
|
September 2008 |
Claimant to Company |
Claimant reiterates that he wants a grievance meeting to take place |
|
9 September 2008 |
Company to Claimant |
Company accedes to claimant’s request. |
|
11 September 2008 |
Claimant to Company |
Requesting information about sickness payments |
|
12 September 2008 |
Company to Claimant |
Responding to claimant’s request concerning payments. |
|
13 September 2008 |
Tracey Sayers to Company |
Confirmation that claimant will attend meeting. Claimant considers this as an initial grievance meeting. |
|
13 September 2008 |
Tracey Sayers to Company |
Additional grievances set out. |
|
13 September 2008 |
Tracey Sayers to Company |
Concerns about the panel. |
|
17 September 2008 |
Company to Tracey Sayers |
Postponing grievance meeting. |
|
22 September 2008 |
Company to Claimant |
Regarding statutory sick pay.
|
|
29 September 2008 |
Tracey Sayers to Company |
Restating request for grievance meeting. |
|
30 September 2008 |
Company to Tracey Sayers |
Company accepts proposed date of grievance hearing. |
|
2 October 2008 |
Company to Tracey Sayers |
Suggesting an alternative day for grievance meeting. |
|
6 October 2008 |
Tracey Sayers to Company |
Agreeing to new date for grievance meeting. |
|
13 October 2008 |
Company to Tracey Sayers |
Tracey Sayers cancelled the grievance meeting. |
|
21 October 2008 |
Tracey Sayers to Company |
Further request to arrange a grievance meeting due to advanced stage of pregnancy of Ms Sayers. Request for other management personnel to sit on the panel. |
|
22 October 2008 |
Company to Tracey Sayers |
Suggesting a date for grievance meeting of Mon 27 October 2008. |
|
23 October 2008 |
Tracey Sayers to Company |
Counter proposal of grievance meeting to take place on 24 October 2008 |
|
28 October 2008 |
Company to Tracey Sayers |
Documents enclosed. |
|
7 November 2008 |
Company to Tracey Sayers |
A letter including respondent’s responses to issues raised a grievance meeting. This letter enclosed documentation setting out action that the Company had taken over the claimant’s grievance. The tribunal did not find that this was in any way a resolution of the claimant’s grievances, but rather a statement of what the Company did and said at the meeting. |
|
12 November 2008 |
Claimant to Company |
The claimant resigns.
|
|
13 November 2008 |
Claimant to Company |
Claimant appeals the decision of the respondent in respect of the grievance. The tribunal did not consider that the claimant could validly appeal the decision of the Company date 7 November 2008 as in many respects it was not a decision but rather a request for further information. The tribunal has noted that on the one hand Ms Grant the author of the letter stated that the claimant had the right of appeal but on the other hand was stating that further information was required before the Company could make its final decision. |
|
18 November 2008 |
Company to Claimant |
Fixing a date for the appeal of the grievance on 25 November 2008. |
|
19 November 2008 |
Company to Claimant |
Confirming letter of resignation, last date of employment and requesting return of Company property. |
|
21 November 2008 |
Tracey Sayers to Company |
Seeking accompaniment at an appeal. |
|
3 December 2008 |
Tracey Sayers to Company |
Listing issues to be dealt with as a result of the appeal meeting on 25 November 2008. |
|
3 December 2008 |
Company to Tracey Sayers |
Indicating that her issues are to be referred back to the original investigation process. |
|
4 December 2008 |
Company to Tracey Sayers |
Setting out issues to be dealt with and particulars. Suggested various dates for meeting. |
|
8 December 2008 |
Tracey Sayers to Company |
To confirm the matters outstanding |
|
12 December 2008 |
Tracey Sayers to Company |
Specifically on the issue of outstanding holiday pay issues. |
|
16 December 2008 |
Company to Tracey Sayers |
A request for further information. This is an unsuccessful attempt by the Company to try to address the grievances of the claimant. |
|
Letter received 6 January 2009 |
Tracey Sayers to Company |
Responding to requests for information and restating the claimant’s position. |
|
5 January 2009 |
Company to Tracey Sayers |
Saying that there has been no response from Ms Sayers in relation to the letter of 16 December 2008. |
|
Undated letter |
Company to Tracey Sayers |
Dealing with outstanding holiday pay issues. |
(14) The tribunal found that a perusal of this correspondence disclosed a definite
pattern of information provided by the claimant to the respondent getting lost by the respondent. In one particular instance, the claimant was asked to provide something on three separate occasions.
(15)
The claimant issued his claim to
the industrial tribunal in or around
21 August 2008. The claimant also issued a further claim to the tribunal in or
around 9 February 2009. The claimant’s complaints of disability
discrimination, failure to pay wages – unauthorised deduction from wages, right
to receive particulars of contract, right to receive an itemised pay statement
were allocated the case reference number 1184/08. The balance of the
claimant’s claims in respect of unfair dismissal and breach of contract were
later allocated the case reference number 381/09.
(16) At the hearing of the claimant’s claims, it was conceded on his behalf that the only outstanding issue in respect of deduction from wages was in respect of the £2 weekly deduction in respect of uniform.
(17) No findings have been made about the alleged visit to the house of the partner of Mr Derrick Veitch Senior of persons purporting to come from the respondent warning Mr Veitch Senior that his sons should withdraw their claims as the tribunal considers that there was no objective evidence that they came from the respondent.
CONCLUSIONS
9. Conclusions on the claim in respect of disability discrimination
(1) The first question the tribunal dealt with was whether or not the claimant was a disabled person for the purposes of the Disability Discrimination Act 1995.
(2) Section 1 of this Act provides that “…a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial or long term adverse effect on his ability to carry out normal day to day activities.”
(3) Did the claimant have a mental impairment? Paragraph 1(1) of Schedule 1 of the Disability Discrimination Act provides that a mental impairment includes an impairment resulting from or consisting of a mental illness. It is no longer a requirement to prove that this illness is clinically well recognised. The claimant’s evidence about his condition was not controverted and he explained to the tribunal that he had a history of self-harm and had previously tried to take his own life. He was currently in receipt of higher level Disability Living Allowance to take account of the fact that he needed to be supervised day and night. The claimant had a rota of carers drawn from his family and including Ms Sayers. The claimant had cognitive behavioural therapy in the past which seemed to give him some relief and he gave evidence that he tried to put what he had learned at this therapy into practice. The claimant’s General Practitioner provided a medical report confirming that in the past the claimant had suffered from post traumatic stress disorder, and the post traumatic stress disorder was considered by the General Practitioner to be exacerbated in 2007, continuing to be “an issue”. The General Practitioner went on to record that the claimant had increased anxiety, panic and depression. He also has had treatment for a flare up of psoriasis in December 2008.
(4) While the tribunal considered it more likely than not on the balance of probabilities that the claimant did have a mental impairment resulting from a mental illness, it had insufficient medical evidence upon which it could make findings as to the long-term effects of the impairment on the claimant’s normal day-to-day activities. Under Schedule 1 of the Disability Discrimination Act paragraph 2, the effect of an impairment is a long-term effect if “(a) it has lasted at least 12 months; (b) the period for which it lasts is likely to be at least 12 months; or (c) it is likely to last for the rest of the life of the person affected. The tribunal considered that there was insufficient detail in the General Practitioner report when measured against the unanimous evidence of the respondent witnesses that they saw nothing unusual about his behaviour that would have led them to conclude before January/February 2008 (the time at which the claimant’s father spoke to Ms Pauline Gazzard). In respect of the medical reports submitted by the claimant to the respondent, the tribunal noted that they referred to “backpain and stress”. The tribunal considers that this is insufficient to put the respondent on notice that the claimant had any deeper problem. While the claimant’s General Practitioner suggested in broad terms that the claimant’s symptoms appeared to have been exacerbated by 2007-2009, the tribunal considers that it has insufficient evidence to make a finding on this point, especially as he does not say how and to what extent they were exacerbated.
(5) The unanimous evidence of the respondent witnesses was that most, if not all, of the respondent’s personnel in day-to-day contact with claimant found him pleasant and able to talk to them. They painted a picture of a very different person to that presented to the claimant’s General Practitioner and that presented in the claimant’s evidence to the tribunal. The tribunal does not consider that it can reach any conclusion about the long-term effects of the claimant’s illness, as it was not presented with objective evidence of any quality about the claimant’s condition.
(6) Similarly the claimant admitted that despite his alleged disability he continued to work for some considerable period of time in the employment of the respondent without anyone being alerted to him having difficulties with normal day-to-day activities. The categories of activities that are considered under Schedule 1 paragraph 4 of the Act are as follows:-
(a) Mobility;
(b) Manual dexterity;
(c) Physical co-ordination;
(d) Continence;
(e) Ability to lift, carry or otherwise move everyday objects
(f) Speech, hearing or eyesight;
(g) Memory or ability to concentrate, learn or understand or
(h) Perception of the risk of physical danger.
(7) The claimant’s job was that of a handyman joiner working largely unsupervised by himself working in areas of North Belfast and, when doing emergency call-out duty, in the Greater Belfast area. The only real supervision appeared to have been when the claimant clocked in and out in the morning and evening at the respondent’s premises – a very small part of the day. While it was submitted on behalf of the claimant that he had difficulty with mobility, manual dexterity, his speech, hearing and eyesight, his memory or ability to concentrate, learn or understand and his perception of the risk of physical danger, the tribunal had no medical evidence to back up the submissions of Ms Sayers and consequently is not able to reach any conclusions on whether or not these issues have had a substantial adverse effect on his day-to-day living. The tribunal is supported in reaching this decision by the fact that there was never any complaint issued by the respondent in respect of the claimant’s work, other than the issue of his lateness. In fact the claimant was able to do his own emergency call-out duty at nights and cover this duty for other persons in addition to himself.
(8) For all of the above reasons we consider that although the claimant displayed
symptoms of stress and anxiety, there was insufficient medical information about how his post-traumatic stress disorder was affecting and manifesting itself via these symptoms. For all these reasons we consider that the claimant has not demonstrated that he has a disability within the meaning of the Disability Discrimination Act 1995. In short, the claimant has not proved on the balance of probability such facts from which the tribunal could conclude in the absence of an adequate explanation that the employer has committed an act of discrimination. For this reason, the tribunal has found it unnecessary to make any findings of fact in relation to the claimant’s discrimination claims as a whole (including without prejudice to the generality of the forgoing, the victimisation and the reasonable adjustments claim).
The Constructive Dismissal Claim
10. For a claimant to successfully establish a claim of constructive dismissal, he must be able to prove the following:-
(1) that there was a fundamental breach of his contract of employment by the respondent;
(2) that he left in response to this breach; and
(3) he did not delay.
11. As the claimant resigned and was not dismissed, the tribunal concludes that this was not a case involving dismissal in breach of the statutory dismissal procedures and hence the dismissal is not automatically unfair.
12. On behalf of the claimant Ms Sayers submitted that a number of types of behaviour constituted a breach of trust and confidence between the claimant and his employer the respondent and these are as follows:-
(a) Grievance, Disciplinary and Medical Information being lost by the
respondent
The tribunal concludes that the claimant has established that these three categories of information were in fact lost by the respondent during the course of the claimant’ employment. The grievance letter which was the claimant’s initial grievance to the respondent of 4 April 2008 did not arrive or in the alternative was lost by the respondent. The claimant had to resubmit this along with an updated statement of his grievance in June 2008. The tribunal also considers that the respondent lost papers relating to the disciplinary proceedings it took against the claimant in October/November 2007. As this correspondence was lost by the respondent, it resulted in the disciplinary procedure being dropped/or not recorded on the file of the claimant. There was a definite pattern of medical information provided by the claimant to the respondent being lost by the respondent. The claimant contended earlier on in his employment with the respondent that he was not able to wear all the respondent uniform due to his psoriasis condition. The claimant provided medical evidence to this effect which the respondent lost. The respondent lost a number of the claimant’s sick lines, which resulted in him having to provide duplicates and a consequent delay in him receiving the statutory sick pay to which he was entitled. All of these matters resulted in the claimant being put under pressure and considerable anxiety. Even if the claimant did not contend that he suffered from anxiety which this behaviour exacerbated, the tribunal would have considered this behaviour sufficient to cause a considerable level of anxiety to any claimant. Grievance and disciplinary procedures are events in an employee’s life which are very fundamental and important, not to say at times, critical. These are stressful enough events without further stress being created by information in defence of the claimant being lost by the respondent, and the procedures being unnecessarily delayed and complicated as a result.
(b) Less Favourable Treatment/Failure to Make Reasonable Adjustments
While
the question of less favourable treatment and a failure to make reasonable
adjustments does not arise in connection with the Disability Discrimination Act
1995, the panel still considers that it has relevance to the constructive
dismissal claim. The claimant claimed that his finger would not scan properly
and this led to difficulties with his pay. The claimant contended that he
should be given an ID number as in fact had been the case with other employees
whose fingers would not scan. Other than to contend that the claimant’s finger
did scan with what was acceptable regularity to the respondent, the respondent
did nothing to alleviate the claimant’s, at the very least, inconvenience with
the scanning machine, whereas they had provided ID numbers to other employees
and this was confirmed by one of the findings attached to the company’s letter
to Tracey Sayers dated 7 November 2008. The respondent’s evidence on this
point was characterised by confusion as to who would take the responsibility
for giving an I.D. Number and an unwillingness to even consider this request.
Additionally, Mr Veitch Senior had requested that the claimant be returned to
his squad. Whilst it seemed to be the case that this request was going to be
granted, suddenly due to a shortage of personnel in another squad, the claimant
was transferred to the squad of Mr Thomas Warnock rather than back to his
father’s squad. Given that the claimant had been able to work in his father’s
squad to an acceptable level, without any apparent stress, and his difficulties
seemed to arise when he was transferred to other squads – most noticeably that
of Mr Jack Brown, the tribunal does not understand why the claimant could not
have been returned to his father’s squad in accordance with the original
agreement to do so.
(c) Pay Regularly Incorrect and Unresolved
Partly as a result of the finger scan machine not working adequately and partly as a result of the loss by the respondent of some sick certificates, the claimant suffered inaccuracies in his pay. An example of this is found in the letters of 5 and 11 June 2008. In the first letter the respondent agrees that there is money outstanding to be paid but this was revoked by the letter of 11 June 2008 in which it was stated that there were no outstanding monies due in respect of sick pay. The tribunal accepts (by and large) the question of deductions from pay of the claimant had been addressed by the respondent, as by the time of the hearing, the position had been reached whereby the only outstanding issue was the deduction weekly of £2.00 in respect of uniform.
(d) Harassment by Linda Given on telephone to the claimant on 1 April 2008
This happened because Ms Given received a note from Patricia Grant setting out Tracey Sayers’ record of pay discrepancies. During an earlier conversation with Ms Patricia Grant and Mr Andrew McCullough on that day, and, the claimant had given Ms Grant a note of his points about his pay and contended that the payroll/personnel staff were incompetent. When Ms Linda Given heard of this, immediately telephoned the claimant to dispute the claim that the staff were incompetent. It seemed that the main thrust of her conversation with the claimant was to accuse him of not providing statutory sick pay certificates. She seemed intent on making the claimant accept responsibility for the delay in him receiving his pay. We consider that the very act of telephoning the claimant for this purpose was harassment. The claimant had already handed this matter to the personnel department to deal with. There did not seem to be any real reason why Ms Linda Given was involving herself in this situation other than to combat the assertion that the staff of the respondent were incompetent, especially as she then went on to pay the outstanding money (on her own admission) without certificates.
(e) Heavy Handedness by the HR Department
In general, the tribunal noted that the Human Resources Department in
this respondent appeared to be sub-divided into two categories – the Human
Resource function and the Payroll function. It appeared from the evidence that
there was little communication between these two functions and the tribunal considered
that it was more likely than not that this could contribute to the amount of
documentation going astray in this case. The Human Resources Department
requested that the claimant provide duplicate documents on a number of
occasions. The onus was put on the claimant to produce duplicate documents
when they were lost through no fault of his. The tribunal can readily
appreciate that this must have been frustrating and stressful for the
claimant.
In addition to this heavy-handed approach, the tribunal had concerns about the
way the Human Resources Department dealt with the grievances of the claimant.
The tribunal noted the singular inability of the respondent to properly deal
with the claimant’s grievances. Documentation was lost, and while occasional
hearings were held, they did not seem to go anywhere and reach any firm
conclusions. The tribunal is supported in reaching this conclusion by the fact
that there were no formal minutes provided for any of these meetings whether
they were grievance meetings or disciplinary meetings. The claimant really had
to fight hard to get an actual grievance meeting. Given the size and
administrative resources of this respondent, the tribunal notes with concern
that the administration of this company was, to put it kindly, inadequate.
This company has somewhere in the region of 500 employees. An example of this
is found in the latter part of the sequence of correspondence between the company
and the claimant in which the respondent described the grievance meeting as having
taken place on 25 October, when it was in fact fixed to take place on 24
October 2008. Aside from the fact that nearly a year after the claimant’s
initial grievance to Grainné McIlwee, it was still being dealt with, it is
unsatisfactory that the correct date of an important meeting could not be
correctly stated. The tribunal noted that the initial process carried out by Ms
Patricia Grant and Mr Andrew McCullough was so unsatisfactory that when it was
appealed to Mr Gary McQuoid, he had to hand it back to them to finish. It was
therefore unsurprising that the claimant felt so frustrated that he had to
resign. The grievance procedure simply went round in circles.
(f) Unlawful Deduction from Wages
The claimant suffered a £2.00 weekly deduction from his wages. This totalled £154.00 and ran from 14 December 2006 to 9 May 2008.
13. The claimant’s contention was that he had been excused from wearing uniform as he had provided medical evidence that this would exacerbate his psoriasis condition. Once again his doctor’s letter had been lost by the respondent and rather than giving the claimant the benefit of the doubt, the respondent yet again required the claimant to provide a duplicate letter. The respondent claimed that a uniform was issued every 6 months, but the uniform that was issued to each operative was not signed for and therefore there was no proof or any objective means of supporting this claim. Whilst the company contract did give the respondent the power to make such a deduction, the claimant contended that he had never received this contract, and disputed that the contract filled in in the documentation before the tribunal, was actually filled in by himself. In the view of the tribunal, despite the handwriting report provided by the respondent, it considers that there is insufficient evidence to support the respondent’s contention that the claimant actually filled in the contract in the documentation and signed it. Therefore, we do not consider that the respondent is entitled to deduct this amount of £2.00 per week and order that it is refunded to the claimant in the sum of £154.00. It could be argued that by continuing to work under the contract the claimant has waived his right to complain about the deduction. We consider that as this complaint dates from a very early time in his employment with the respondent and the claimant continued to pursue a grievance about deductions, he has not waived his complaint.
Failure to provide written itemised pay statements
14. The respondent contended that it had provided pay statements. The claimant argued that he had not received them. The tribunal accepts that pay statements were generated by the respondent but that they may not have always been provided directly by the respondent to the claimant. The tribunal accepted the evidence of Ms Grant that she had found a number of the pay statements in the possession of Mr Derrick Veitch (the claimant’s father) and it seems more likely than not to the tribunal that these were given to him in the absence of the claimant and he forgot to pass them on. Accordingly the tribunal does not consider that the respondent has failed to comply with its obligations in respect of this part of the Employment Rights (NI) Order 1996.
15. Failure to provide a written statement of employment particulars
The respondent contended that it had provided a statement of main terms and conditions of employment and that it had in fact been signed by the claimant. The tribunal considers that it has insufficient evidence upon which it can conclude that the claimant received, filled in and signed his contract of employment. Despite the terms of the handwriting report, the tribunal does not consider that it has sufficient evidence to conclude that it was the claimant who filled in the contract of employment that appeared in the documentation before the tribunal. Although, as a consequence the tribunal considers that the respondent has failed in its duty to provide a statement of written employment particulars, as the claimant has now left the employment of the respondent, it does not consider that there is any utility in providing a statement of what the particulars of the claimant’s contract of employment would have been. Furthermore this is not a claim for which any damages are forthcoming by reason of the Employment (NI) Order 2003.
16. Did the claimant leave in response to the breach and did he delay in so doing?
The claimant did leave in direct response to the breaches of his contract of employment which have been set out above which the tribunal accepts that taken as a whole, given the nature and extent of the individual items in the overall sequence of events, would constitute a fundamental breach of contract. Certainly, no other reason was advanced by the respondent for the claimant’s resignation. As we consider that the individual items in the sequence of events form part and parcel of one large fundamental breach of contract, we consider that the claimant left in response to that breach and did not delay, once he found that he was not going to have a proper resolution of his grievances.
17. Compensation
(a) Basic Award
At the time of his
resignation the claimant was 31 years of age and had two completed years of
service with the respondent. As such the multiplier to be attached to his
computation is one. It was agreed between the parties that his average gross
weekly wage was £433.00. This means that the applicable statutory maximum of
£350.00 applies and his basic award is completed as follows:-
350 x 1 x 2 = £700.00
(b) Compensatory Award
Immediate Loss
Under the Employment Rights (NI) Order 1996 the tribunal has a duty to award what is just and equitable in terms of compensation. Given that the claimant was in receipt of Disability Living Allowance with effect from 22 July 2009, the tribunal considers that this means that the claimant would have been incapable of working in any capacity thereafter. This grant of Disability Living Allowance is to run to 21 July 2014 and will be reviewed at that point. Therefore for the purposes of this calculation, the tribunal considers that the claimant should receive compensation with effect from the date of his resignation up to and including the date upon which Disability Living Allowance was awarded.
The tribunal finds that the period from the claimant’s dismissal (12 November 2008) to the award of Disability Living Allowance is the period of 36 weeks, therefore his immediate loss computation is as follows:
36 x 327.13 (being the agreed minimum weekly wage of the claimant) = £11,776.68
Future Loss
18. As the tribunal has found that the claimant would not have been capable to work with the respondent or indeed with any other employer with effect from 22 July 2009, no question of future loss arises.
Loss of Statutory Rights
19. However, the tribunal does consider that the claimant is entitled to a payment in respect of loss of statutory rights in the sum of £200.00.
Recoupment
20. As the claimant has been in receipt of benefit during the immediate loss period the tribunal considers that the issue of recoupment arises and the attention of the parties is directed to the recoupment notice which accompanies this decision.
21. Summary of Compensation
Basic award £ 700.00
Compensatory Award
(Immediate Loss) £11,776.68
Loss of Statutory rights
£ 200.00
Total in respect of unfair dismissal compensation - £12,676.68
22. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.
Chairman:
Date and place of hearing: 23, 25 November 2009 - 11 December 2009 and
15 -16 December 2009, Belfast
Date decision recorded in register and issued to parties:
Case Ref No: 1184/08 00381/09
CLAIMANT: Jason Veitch
RESPONDENT: Red Sky Group Ltd
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
|
|
£ |
|
(a) Monetary award |
£12,676.08 |
|
(b) Prescribed element |
£11,776.68 |
|
(c) Period to which (b) relates: |
12/11/08-22/07/09 |
|
(d) Excess of (a) over (b) |
£900.00 |
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.