Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/6654_09IT.html
Cite as: [2010] NIIT 6654_09IT, [2010] NIIT 6654_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 06654/09

CLAIMANT: Gillian Diane Stevenson

RESPONDENT: Sting Publishing Limited

DECISION

The unanimous decision of the tribunal is that the claimant has not been dismissed by the respondent as defined in Article 127 of the Employment Rights (Northern Ireland) 1996 Order and it dismisses the claimant’s claim of unfair dismissal.

Constitution of Tribunal:

Chairman: Ms M Bell

Members: Mr N Jones

Mr D Walls

Appearances:

The claimant was represented by Mr Patrick Kearney, Solicitor of Murphy’s Solicitors.

The respondent was represented by Mr Ciaran McAteer of McAteer and Co Solicitors.

1. The claimant in her claim complained that she had been unfairly constructively dismissed in circumstances where the respondent’s treatment of her had rendered her position untenable as a result of which she resigned on 6 May 2009. The claimant complained that the respondent had engineered her dismissal, had created a situation whereby her character was unnecessarily questioned, that it was the respondent’s intention to ambush her in a meeting by not providing her with essential information in relation to the accusations levelled at her and that her relations with the respondent became fundamentally damaged when she was suspended from work by letter dated 30 April 2009 but unclear whether on full pay or otherwise, that the proposed investigatory panel lacked impartiality and furthermore that her trust and confidence in the respondent as an employer had been irrevocably damaged by the responses given by the respondent when the claimant raised concerns with the respondent in relation to its VAT returns.

2. The respondent in its response denied that the claimant was dismissed and asserted that the claimant had resigned before an investigatory meeting took place in relation to a query about confidential information being divulged.

Issues

3. The issues for the tribunal were as follows:-

(1) Was the claimant dismissed and if so,

(2) Was the claimant unfairly dismissed?

Evidence

4. The tribunal considered the claim, response, agreed bundles of documentation from the claimant and respondent and heard oral evidence from the claimant,

Mrs Ann King and Ms Jennifer King.

Findings of Fact

5. The respondent company was a small family run business operating from the back of the home of Mrs Ann King, Managing Director of the respondent company. The respondent’s employees included Mrs King, her two daughters Ms Jennifer King and Ms Emily King, and the claimant who was employed as the respondent’s book keeper. The claimant commenced her employment with the respondent on 28 January 2008 and worked 16 hours over two days per week.

6. Ms Jennifer King (hereafter referred to as Ms King) independently employed a nanny, Angie, to look after her three young children. On Wednesday 29 April 2009 Ms King’s nanny arrived and an argument took place beginning with Angie asking Ms King was she not happy with her work, mention was made to Ms King of her having discussed matters with the claimant relating to Angie not being paid whilst she was off work sick and Angie then repeatedly shouted to Ms King that there was a “leak in the office”, but when asked what she was saying Angie replied that she did not want to say more save that the respondent was not paying people in the office. Ms King had to leave then for a meeting in Dublin and on her evidence she did not discuss the matter with anyone as she did not have time and on her return from Dublin had to look after her three children along with her brother’s children as her sister-in-law had gone into labour.

7. Ms King did however text her mother on 29 April 2009 about the row that had taken place with her nanny. On Mrs King’s evidence, she received a text message from her daughter that morning telling her that she had had a terrible row with her nanny and that confidential information had been repeated by the nanny about the respondent’s business relating to pay which was information that only Mrs King and the claimant would have known.

8. On the claimant’s own evidence she had a good working relationship with
Mrs King, however on 29 April 2009 the claimant was at work, only she and Mrs King were in the office and the claimant became aware from Mrs King’s behaviour and conversation that there was something wrong as she made comments to the claimant that she was fed up with staff talking about her and her family behind her back and about having a clear out of staff, the claimant was however unsure as to what the precise problem was.

9. Mrs King gave evidence that after receiving her daughter’s text message that she spoke to her on the telephone to clarify the points in her text and that when the claimant came to say goodbye at the end of the day that she told the claimant that she had received an upsetting text message from her daughter Jennifer and asked could the claimant help with it, that she outlined to the claimant what Jennifer had told her, that Jennifer had had a row with Angie and that Angie had shouted “you’ve got a leak” and had repeated information, to which the claimant had responded that she had spoken to Angie but only about Mrs King going on to the internet to check out whether Angie was correct when she had told Jennifer when one of her children had chickenpox that it could affect Angie’s unborn baby. Mrs King gave evidence that she then advised the claimant that she and Jennifer would need to sit down and talk about matters that they were good friends. The claimant however denied that any such conversation took place with Mrs King before she left work that day and that she did not know the reason for Mrs King’s behaviour before she went home. On the evidence before it the tribunal accepts that this conversation took place between the claimant and the respondent but are satisfied on the balance of probabilities that it did not take place on the afternoon of 29 April 2009 before the claimant left work, but most likely occurred subsequently on 7 May 2009 at a meeting between Mrs King and the claimant.

10. At 5.32 pm on Wednesday 29 April 2009 the claimant received a text message from Ms King “Hi u, having a few problems with Angie! Just wanted to ask you have u ever spoken to her [about] me and stuff that u and me discussed.” The claimant replied at 7.36 pm, “just got bed & bathtime over! Now I don’t really get wots going on but I get the feeling I’ve done or said something but honestly I haven’t got a clue wot? The only time I’ve seen Angie outside work woz at M&T[mother & toddlers] last Thurs.” At 8.22 pm Ms King sent a text to the claimant, “It’s just Angie said stuff to me today that I’d talked about with you. I don’t know wots going on but im hurt by it all.” The claimant replied at 8.27 pm, “I really don’t know wot I’ve said 2 Angie that would have hurt u, I don’t recall repeating anything we’ve talked about.”

11. On Thursday 30 April 2009 Mrs King rang the claimant and told her that they needed to talk about the issues brought up between Jennifer and Angie and suggested a meeting with Ms King to discuss matters. A meeting was arranged for that afternoon but when the claimant arrived only Mrs King was there and she then arranged over the phone with Ms King that Ms King would contact the claimant.

12. At 11.17 am on Friday 1 May 2009 the claimant received a text message from
Mrs King, “Can you meet us at Marksie coffie shop for 11.45 noon?” The claimant replied at 11.30 am “sorry Ellas [the claimant’s daughter] gone down 4 her nap now it’d b after lunch b4 I could get over.” The claimant received a response at 11.33 am from Mrs King, “Ok”. At 12.50 pm the claimant received a further text message from Mrs King, “Jill on reflection I think its better if you don’t come back into the office until the three of us can sit down and get this sorted. I know you were thinking of coming in on Tuesday, but just leave it at the moment. There will be a letter in the post tonight”.

13. On Saturday 1 May 2009 the claimant received a letter dated 1 May 2009 stating,

“Dear Jill

Re: Gross Misconduct

Further to our conversation and meeting of 30 April 2009, I am asking you not to return to work until further notice.

As you know it has been reported to us that a number of confidential matters have been discussed outside the office.

We are asking you to meet with us on Wednesday 6 May 2009 at 3.00 pm at Marks and Spencer’s coffee shop, Bloomfield Shopping Centre, when we will address these matters. You are entitled to bring someone of your choice to this meeting.”

14. The claimant prepared a reply on Sunday 2 May 2009 which she sent to Mrs King, as follows:-

“Re Purported Gross Misconduct

I acknowledge receipt of your letter of 1 May 2009. Your correspondence does

not make it clear, however I assume that I am being asked to attend a

Disciplinary meeting on 6 May. If this is the case, as an employer you are no

doubt aware that under Employment Law there are certain procedures clearly

laid down as to the conduct of these hearings.

1. Gross misconduct is an extremely serious accusation and I am at a
loss to know what I am supposed to have done. In order to take

advice and prepare a defence I am entitled to full details in writing of the confidential matters I am supposed to have discussed outside the office along with dates and copies of any evidence you have against me.

2. Once I receive this it is a requirement of Law that I be given ‘adequate’ time to prepare my defence, before attending a disciplinary hearing. Until I have details of what I am supposed to have done it is unreasonable to expect me to attend a meeting to address these matters. For this reason I cannot attend the meeting next Wednesday but will be pleased to attend a subsequent meeting once I have the facts.

3. A hearing should be conducted in an ‘appropriate place’, with minutes taken and agreed. I do not consider the Marks and Spencer coffee shop as an appropriate venue.

4. I am entitled to and will be claiming full pay pending the results of the disciplinary hearing and any subsequent appeal.

In view of the fact that I only received the invitation to this meeting today, 2 May and it is a Bank Holiday weekend I will be posting a copy of this letter to you by recorded mail on Tuesday 5^th.”

15. In response Mrs King sent the claimant a letter entitled

“REQUEST TO ATTEND INVESTIGATORY MEETING

Dear Jill

We are writing to ask you to attend an investigatory meeting on 6 May at 3.00 pm at 15 School Road. This meeting has been arranged because we are in the process of investigating allegations that have been made relating to your conduct in the workplace.

Please note that the purpose of the meeting is entirely a fact-finding exercise and it does not form part of the Company’s formal disciplinary procedure. As such, you do not have a statutory right to be accompanied at this stage. If, once our investigation has been concluded, the Company wishes to institute disciplinary proceedings against you, you will be invited to attend a formal disciplinary hearing at a later date.

The investigatory meeting will be chaired by myself Ann King and Jennie King will also be present to take an attendance note of the meeting.

If you are unable to attend this meeting, you are asked to contact Ann as a matter or urgency so that an alternative date and time can be scheduled. We would advise you that it is in your interests to attend the meeting so that you can give your account of events before a decision is taken by the Company on whether or not to proceed to a disciplinary hearing. If you fail to attend without good reason, a decision on the institution of disciplinary proceedings will be made in your absence.

Once the Company has completed its investigation, you will be informed of the outcome.”

16. Mrs King emailed the claimant on 5 May 2009 “I know you have received and read my email, can you please confirm back to me that you are intending to attend this meeting tomorrow, this is important as we need to sort this out before you return to work.” The claimant replied at 9.00 am on 6 May 2009 that she would be “attending today’s meeting”, Mrs King replied at 9.10 am, “great looking forward to getting this resolved.”

17. The claimant however reconsidered her position and rather than attending the proposed meeting on 6 May 2009 had a letter hand delivered to Mrs King that day tendering her resignation on the basis that she had been constructively dismissed and raising grievances as follows:

“Grievance and Constructive Dismissal

With regard to the above and previous correspondence please consider this to be my formal grievance and confirmation of my Unfair Constructive Dismissal.

While working for you recently I began to feel increasing devalued and felt as if my job was at risk. Your comments last Wednesday 29th April were tantamount to you revealing to me your wish to dismiss me without notice.

I feel as if my position as bookkeeper is now untenable. Your attitude of late has been to make my life difficult and to create a situation where my character has been unnecessarily called into question.

The accusation that I have spoken out of turn in relation to confidential manners is simply untrue. I have never made any comments in relation to work to anyone outside of work.

I strongly feel therefore that you are engineering my exit through the creation of malicious rumours. I would also add that given the structure of the business and family run element it has become easy for you to proliferate these rumours and seek the backing of certain members of staff who are close to you in order to rebut anything I have to say.

Evidence of your engineering is clear for all to see especially given that you tried to discipline me and no doubt dismiss me, without any prior investigation through a sham disciplinary process. It was your intention to ambush me in a meeting by not providing me with essential information in relation to the accusations levelled at me. In fact, you only reconsidered you position in relation to the type of hearing necessary upon receipt of my correspondence of yesterday.

Critically, our relationship has become fundamentally damaged as a result of you confirming that I should not return to work. It is still not clear to me at this point whether I have been suspended on full pay, suspended or placed on garden leave. In accordance with good industrial practice I should be given full pay pending the outcome of any investigation or if I am placed on garden leave. Your treatment of me has not been in line with good industrial practise nor have your intentions in relation to the investigation. Fundamentally I perceive the investigation panel to be critically flawed due to the lack of impartiality; as a result I would appear to be a sitting duck. For this reason and for the above reasons I consider myself constructively dismissed. As a result I no longer consider myself to be an employee and therefore do not need to attend today’s meeting. I look forward to speedy resolution of my grievance through the statutory modified grievance procedure.

As an employer you are duty bound to provide me with terms and conditions of employment within two months of my being employed by you. To date this has not happened.

Finally I feel duty bound to verse my concerns in relation the business’s VAT returns. I have constantly reminded you of your duties in relation to correcting your VAT deficit and I have constantly been met with responses from you such as “I need the money”. Again due this, my trust and confidence in you as an employer has been irrevocably damaged.

On this the 6^th day of May 2009 I tender my resignation on the basis that I have been constructively dismissed as a result of your conduct and the above material facts.”

18. Later on 6 May 2009 after forwarding her letter of resignation the claimant opened an email from Mrs King with an attached letter entitled “Re: Your suspension from duty” which Mrs King alleges was sent to the claimant on Thursday 30 April 2009 which stated as follows:-

“Re your suspension from duty

A number of serious allegations have been brought to our attention regarding your conduct in the workplace. We, as your employers, are under a duty to fully and properly investigate this matter.

We are therefore suspending you with pay pending the results of this investigation.

Please note suspension is standard procedure in matters of this nature and does not indicate guilt in any way. Suspension does not constitute disciplinary action. Disciplinary action will not necessarily result.

Once our investigations have been completed, we will contact you again to inform you of what action, if any, we will be taking. In the meantime, we would request you to refrain from entering upon the Company’s premises and contacting any of your fellow employees (other than for the purpose of exercising the statutory right to be accompanied at any disciplinary hearing).”

The tribunal are satisfied that the claimant did not receive this letter suspending her with pay pending the results of an investigation until after her resignation.

19. The claimant by agreement met with Mrs King on Thursday 7 May 2009 at a coffee shop. Mrs King gave evidence that following this meeting she believed that the claimant was going to return to work on 11 May 2009 and that she had even consulted the claimant on the afternoon of 7 May 2009 about the respondent’s PAYE return, but that the claimant did not however return to work on 11 May 2009. The claimant gave evidence that she was not actually fully aware of the allegations the respondent was making against her until the meeting with Mrs King on 7 May 2009 and at this meeting she had again told Mrs King that her resignation letter stood.

The Law

20. Circumstances in which an employee is dismissed are outlined at Article 127 of the Employment Rights (Northern Ireland) Order 1996 and include that an employee is dismissed by his employer 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.

21. Harvey on Industrial Relations and Employment Law/Division D1 unfair dismissal/3. deals with termination by the employee/constructive dismissal at paras 401-600. Para 401 discusses how the English Court of Appeal made it clear that it is not enough for the employee to leave merely because the employer acted unreasonably; his conduct must amount to a breach of the contract of employment, and at paragraph 403 how in order for an employee to be able to claim constructive dismissal, four conditions must be met:

“(1) There must be a breach of contract by the employer. This may be

either an actual breach or anticipatory breach.

(2) That breach must be sufficiently important to justify the employee

resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

(3) He must leave in response to the breach and not for some other, unconnected reason.

(4) He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.”

22. Many forms of unreasonable conduct will constitute a breach of the implied terms of the employment contract and it is recognised that there is an implied duty such that the employer shall not without reasonable and proper cause conduct itself in a manner calculated and/or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee. Conduct needs to be repudiatory to breach the implied term of trust and confidence.

23. Para 507 of Harvey refers to The English Court of Appeal’s confirmation in Harrison against Norwest Holst Group Administration Limited [1985] IRLR 240 [1985] ICR 668 that the employer has the opportunity at any time before communication of the acceptance of the repudiation to alter his stance and withdraw the threat of breach of contract and as such in accordance with general contractual principles, even where the employer is in anticipatory breach of contract there will be no constructive dismissal if the employee resigns after the employer has withdrawn his threat to breach the contract.

24. The Statutory Dispute Resolution Procedures are set out in Part 4 of the Employment (Northern Ireland) Order 2003. Schedule 1 sets out the detailed provisions of the Statutory Dismissal and Disciplinary Procedures (DDP). The procedures are implied into every contract of employment as a bare minimum. The standard DDP applies where an employer is contemplating dismissing or “taking relevant disciplinary action” against an employee, defined in Regulation 2 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 as “action, short of dismissal, which the employer asserts to be based wholly or mainly on the employee’s conduct or capability, other than suspension on full pay or the issuing of warnings (whether oral or written)”.

25. The standard DDP where it applies requires the following:-

(1) The employer must set out in writing and provide the employee with a statement setting out the nature of the employee’s conduct or capability that has led the employer to contemplate dismissal or the relevant disciplinary action. The employer must also inform the employee of the basis for the inclusion of that particular ground of concern in the statement and invite the employee to attend a meeting to discuss the matter.

(2) The employee must be given a reasonable opportunity to consider his response to that information but unless the relevant disciplinary action is suspension, the meeting must take place before any action is taken.

(3) The employee must take all reasonable steps to attend the meeting.

(4) The employer must inform the employee of his decision and inform him of his right to appeal.

(5) The appeal must take place if the employee requests one. However, this need not be before the dismissal or disciplinary action takes effect.

(6) The employee must be informed of the final decision after an appeal hearing.

Application of the Law of the Facts Found

26. The first issue before the tribunal is whether the claimant was dismissed; that is, whether the claimant terminated her contract of employment in circumstances in which she was entitled to do so by reason of the respondent’s conduct.

27. It is clear for an employee to be able to claim constructive dismissal, four conditions must be met, the first being that there must be an actual or anticipatory breach of the contract by the employer, and secondly, that the breach must be sufficiently important to justify the employee resigning, or else, the last in a series of incidents which justifies her leaving.

28. On consideration of all the evidence before it the tribunal is satisfied that there is no evidence that the claimant’s suspension was an actual breach of her contract of employment, or, in respect of her list of grievances as set out in her letter of resignation that there has been an actual or anticipatory breach of any other express term of her contract of employment.

29. Whilst there was no evidence put before the tribunal to prove when the investigatory meeting request letter from the respondent was in actual fact sent and the tribunal accept that it was not received by the claimant until after she had communicated her resignation, the tribunal do not accept that on receipt of the respondent’s letter entitled “Gross Misconduct” it clearly appeared to the claimant that the respondent intended not to follow the statutory minimum DDP required of it amounting to an anticipatory breach of an implied term of the claimant’s contract of employment. The tribunal find that the claimant considered the respondent’s letter to have been ambiguous as to the type of meeting it was proposing to hold as supported by the claimant’s letter in response in which she stated that “Your correspondence does not make it clear, however I assume that I am being asked to attend a disciplinary meeting.” The tribunal is furthermore satisfied that even if this were accepted to be an anticipatory breach of the claimant’s contract of employment that it together with the other circumstances raised by the claimant in her letter of resignation were not together of sufficient importance nor amounted to a “final straw” such as to justify the employee resigning. Furthermore, the tribunal is satisfied that on an application of general contractual principles that even if this were to have been interpreted as an anticipatory breach by the tribunal, that the respondent effectively withdrew any threat of breach of contract by its subsequent correspondence inviting the claimant clearly to an investigatory meeting and its e-mails thereafter seeking confirmation of her intention to attend, to try to sort matters out, prior to the claimant’s resignation.

30. Whilst the tribunal consider that the respondent has not handled this matter procedurally in the best way in the circumstances in particular with regard to the claimant receiving the correspondence entitled ‘Gross Misconduct’ before the suspension from duty letter, the tribunal are not satisfied on a balance of probabilities on the evidence before it that the respondent has without reasonable and proper cause conducted itself in a manner calculated and or likely to destroy or seriously damage the relationship of confidence and trust between the claimant and respondent. The tribunal is satisfied that the respondent had reasonable cause to make enquiries of the claimant, it is not satisfied that the respondent’s treatment of the claimant had rendered her position untenable and that her trust and confidence in the respondent as an employer had been irrevocably damaged in the circumstances alleged by her.

31. The tribunal does not consider that the respondent’s conduct was of sufficient importance to justify the claimant resigning and does not consider there to have been an anticipatory breach of the implied duty of trust and confidence as a result of Mrs King’s comments in the office on 29 April 2009, in particular taking into account the subsequent text messages from Mrs King and Ms King and “Gross Misconduct” letter, and the respondent’s subsequent letter inviting the claimant to an investigatory meeting and e-mails seeking confirmation of her attendance at this meeting to try to sort matters out.

CONCLUSION

32. The tribunal is not satisfied on a balance of probabilities that the claimant has terminated her contract under which she was employed in circumstances in which she was entitled to terminate it without notice by reason of the respondent’s conduct under Article 3 of the 1996 Order. As the claimant was not dismissed the claimant’s claim for unfair dismissal is accordingly dismissed.

Chairman:

Date and place of hearing: 4 January 2010, Belfast.

Date decision recorded in register and issued to parties: