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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McConkey v Ministry of Defence [2011] NIIT 01769_10IT (17 June 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01769_10IT.html
Cite as: [2011] NIIT 1769_10IT, [2011] NIIT 01769_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1769/10
CLAIMANT: Jill McConkey
RESPONDENT: Ministry of Defence
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent. The claimant’s claim is therefore dismissed.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr R Schofield
Mr R Hanna
Appearances:
The claimant was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.
The respondent was represented by Mr P Coll, Barrister-at-Law, instructed by Crown Solicitor’s Office.
Reasons
1. The claimant presented a claim of unfair constructive dismissal to the tribunal on 15 July 2010. The respondent presented a response to the tribunal, in which it denied liability for the claimant’s claim, on 24 September 2010.
2.1 The tribunal made the following findings of fact, insofar as relevant and necessary for the determination of the claimant’s claim, as set out in the following paragraphs.
2.2 The claimant commenced work, as a civilian, in the officers mess at Thiepval Mess at Thiepval Barracks, Lisburn, which was then the Headquarters of the Army in Northern Ireland from in or about February 1997. In particular, on 28 February 1977, the claimant accepted an appointment as an unestablished Steward 2, which it was agreed, at all times material to these proceedings, was also a Skill Zone 1 post. The claimant remained in employment with the respondent as a Steward 2 until her resignation from the said post with effect from 9 July 2010. During the period of her said employment, her hours of work varied and at the time of the events, the subject-matter of these proceedings, the claimant was working part-time as a Steward 2. The Lisburn Officers Mess (’LTMO’) was something similar to a small hotel. From the commencement of her employment, as a Steward 2, the claimant primarily worked as a waitress until in or about 1983; after that date she worked in the reception/office area of the LTMO.
2.3 On or about 20 May 2008, the claimant, in connection with a staff review, known as SRO8, which was being carried out in 2008 by the respondent, following the re-organisation of the Army’s operations in Northern Ireland upon completion of Operation Banner, was asked by the respondent to sign two documents in connection with her employment as a Steward 2.
2.4 Firstly, the claimant signed a document on 20 May 2008 which was headed:-
“Lisburn Station Officers Mess
Job Description – Civilian
Appointment : Steward 2
Grade : Skill Zone 1
Responsible to : Mess Manager.”
The document also stated:-
“GENERAL
1 Steward 2 is responsible to the Mess Manager for the day-to-day smooth running of his/her specific area of responsibility as detailed by the Mess Manager.
DETAILED RESPONSIBILITIES
2. Dining Service and Communal Areas –
(a) serving and replenishment of food, wines, spirits and drink;
…
(f) waiting on tables.
3. Bar –
(a) preparing and serving of all types of drinks;
…. .
4. Reception –
(a) reception of officers;
(b) porterage;
(c) preparation of VIT sheets (booking in/out for meals etc);
(d) directions to accommodation/garages;
(e) custody of keys and belongings;
(f) taking and delivery of messages;
(g) security and fire-checks;
(h) emergency procedures/switchboard operation;
(i) custody of cash and small sales;
(j) receipt and sorting of mail.
5. Personnel Accommodation and Service –
(a) cleaning rooms and furnishings;
(b) bedding, linen and laundry;
(c) valetting;
(d) morning tea/meals for sick officers.”
2.5 Secondly, the claimant, on 20 May 2008, signed a document headed ‘Roles and Responsibilities’, which the tribunal was satisfied related to a specific area of responsibility where the claimant was working in May 2008, namely the reception/ office area of the LTMO.
The document stated that the Steward 2s […] are responsible to the Mess Manager for the provision of personal services and cleanliness within the specific areas of responsibility within the officers mess:-
“Steward 2 – Mess Office
(i) Deal with enquiries and bookings for accommodation for visitors and mess members, produce and distribute a daily allocation list having physically checked that rooms are ready for allocation.
(ii) Deal with the reception of visitors and new arrivals.
(iii) Collect and sort incoming mail, receive telephone queries and ensure safe passage of messages. Receive payment for casual mess bills, casual meals and bar snacks.
(iv) Maintain an up-to-date list of local mess information to include theatre, cinemas, entertainment, bus and rail timetables, local places of interest, local garages, functions, meal times and bar timings.
(v) Inform supervisors of any change affecting daily attendance, annual leave or sickness.
(vi) Carry out general office duties as required by the office manager.”
2.6 The claimant accepted, in evidence, that not only did this document reflect accurately the specific duties that she was then carrying out in the reception/office area of the LTMO; but she also accepted that the other document signed by her on 20 May 2008, as set out in Paragraph 2.4, was the generic job description applicable to a Steward 2, such as herself, and set out the various duties which a Steward 2 could be required to carry out when working in the various areas referred to, namely Dining Service and Communal Areas, Bar, Reception, and Personal Accommodation and Service.
2.7 In relation to the area of responsibility in Personal Accommodation and Service, referred to in the above document, the tribunal was satisfied that this was akin to housekeeping duties which would be found in any small hotel; although it noted that the claimant insisted, during the course of her evidence, in referring to these duties, somewhat dismissively, as merely cleaning duties. Indeed, the tribunal concluded, despite her denials, that the claimant, although she accepted that a Steward 2 carrying out the said duties in Personal Accommodation and Service, had the same job title as she had, was at the same grade as she was and was paid the same as she was, the duties of a Steward 2 in Personal Accommodation and Service were in some way beneath her.
2.8 The claimant further accepted, in evidence, that when she had been asked, prior to 1983, to occasionally help out making beds, as referred to above, in the Personal Accommodation and Service area/function, when it was short-staffed, she had no choice but to do it, when asked by her employer, as she was a Steward 2. It was not disputed that as part of her general office duties in the reception/office area of LTMO that the claimant compiled and completed casual mess bills, debtors ledgers, mess bills, processed mess numbers/visitor accounts and dealt with issues arising out of queried mess bills, together with opening of mail and ordering of stationery. The claimant further accepted that, as with any small hotel, it was necessary to have staff carrying out the various duties, as described in the generic job description, in the areas of Dining Service and Communal Areas and/or Bar and/or Reception (which it was agreed included the office) and/or Personal Accommodation and Service. In addition to her duties in the reception/office area, the claimant carried out additional duties, waiting on tables at functions, on occasion; but when she did so, this was, in essence, voluntary overtime, not related to her normal duties, and for which she was paid separately and was not therefore relevant to these proceedings. However, the tribunal had no doubt that the claimant had no difficulty in working in either the Dining Service and Communal Areas and/or the Bar; her difficulty, which was always a personal difficulty, related to the prospect of carrying out work in Personal Accommodation and Service, which work she considered, as set out above, was in some way beneath her, given her work in the reception/office area.
2.9 In or about March 1998, the respondent, in correspondence to the claimant, confirmed to the claimant that her work in the reception/office area of the LTMO was as a Steward 2. It was apparent that, at that time, there had been a proposal to change her job title and to employ her solely on clerical duties. This would have required conversion of her employment from industrial to non-industrial employment within the Civil Service; but this proposal to change her job title and nature of her employment, although supported by serving Army officers in the officers mess at that time, never took place and she continued to be employed as a Steward 2 until her resignation in July 2010. The tribunal was satisfied that, at all material times, those employed as Steward 2 in the LTMO had the same job title, were at the same grade and were paid the same. They were treated the same by the respondent; in that no distinction was made by the respondent between the various duties required to be carried out by each steward in connection with the running of the LTMO, as set out in the generic job description.
2.10 The staff review (SRO8) which took place in or about 2008, following the completion of Operation Banner, considered, inter alia, the number of persons required to be employed by the respondent at the LTMO.
As part of this review the respondent asked the claimant whether she would wish to be considered for voluntary early release on compulsory terms, should this be available. It was not disputed that the financial terms of the voluntary early release (‘VER’) were very generous and attractive; and it was not surprising therefore that the claimant indicated to the respondent that she did wish to be so considered. Unfortunately, as the claimant was informed by letter dated 10 November 2008, insufficient Stewards 2 expressed a preference to stay at the LTMO; and an early release matrix had to be applied to determine the merit order for the placing of staff in available posts before [tribunal’s emphasis] any VER could be agreed, where justified. In the letter the claimant was told that relevant personal information was required to be obtained in order to apply the matrix. She was also told, as the generic job description of Steward 2, which she had signed on 20 May 2008, as set out above, was the same for both the officers mess and the warrant officers/sergeants mess were the same, Steward 2s could be transferred from the officers mess to the warrant officers/sergeants mess. The claimant was asked to set out reasons why she should not be considered for such a transfer. She stated, in response, by letter dated 13 November 2008, she had not worked in the ‘back-of house’ since 1983. This was when the claimant ceased, as set out above, to carrying out waitressing duties in the dining room and went to carry out duties in the reception/office. The claimant also stated, in response, that she would find such duties impossible to do, as she had never really done them. In a later letter dated 26 November 2008, the claimant, although she accepted that her substantive grade was as a Steward 2 Skills Zone 1, contended she was being asked to effectively discard her business suit and put on a cleaners uniform to attend to cleaning duties, which she stated would be a demotion, taking into responsibility and status issues. In the event, the possible transfer into the warrant officers/sergeants mess did not take place.
2.11 By letter dated 28 November 2008, the claimant was informed that she had not been selected for VER, and she was to be assigned to one of the remaining ‘back of house posts’ in the revised structure at the LTMO and that her reception duties would cease upon such transfer. In essence, the claimant was being assigned to work in the Personal Accommodation and Service area. The tribunal has little doubt that, if the assignment had been, for example, not to the Personal Accommodation and Service area but, for example, the Dining Service and Communal Areas and/or Bar, that the claimant would not have raised any objection. Her objection, in the tribunal’s view, was focused on her view that these cleaning duties were something that she should not have to do, as they were in some way beneath her; albeit she at all times recognised that she was employed as a Steward 2, whose duties included carrying out those duties, as set out in the generic job description.
2.12 In the respondent’s letter dated 28 November 2008, informing the claimant that she had not been selected for VER, it was confirmed by the respondent that persons were only selected for VER, who had firstly expressed an interest in taking VER; and then [tribunal’s emphasis], after the respondent had ensured, following the re-organisation, that it had sufficient staff to carry out the necessary roles, following the re-organisation and staff review.
2.13 The respondent was entitled, under the VER Scheme, where necessary, to determine a merit order placing staff in available posts before [tribunal’s emphasis] agreeing early release, where justified. This ensured the necessary staff were retained by the respondent under the revised structure before granting VER, those who had expressed an interest in VER, if offered.. Despite accepting that a housekeeping function is a necessary and important function of any small hotel, which the claimant likened the LTMO to, the tribunal noted that in her letter of grievance (see later) the claimant made clear her attitude to the proposed change of duties by the respondent – ‘having been moved to office administration 25 years ago, where I have an excellent attention and performance record (see PDR reports), I do not expect to be rewarded at the age of 50 with a cleaning post.
2.14 In a letter dated 16 December 2008, the respondent, in essence, set out its position:-
“ … As already mentioned in my letter dated 24th of November 2008, your substantive grade is SZ1 Steward, the responsibilities of which cover dining, service and communal areas, bar, reception and personal accommodation and service, as reflected in the LSOM job description for this grade. The fact that you have been primarily employed on one element of this job description for a prolonged period of time does not, in our view, mean that you cannot be moved to other responsibilities appropriate to your grade – this we consider to be entirely reasonable and within your contracted terms and conditions of service.
You mention in your letter your excellent attendance and your performance record. This is commendable and I would like to hope it resulted in you being appropriately awarded through the Departmental performance pay arrangements. As you may appreciate, however, the early release matrix … applied to determine a merit order for placing staff in available posts before agreeing early release, where justified, also took account of these factors to ensure that the best staff were retained within the Department.
In conclusion, you are still required to take up the post notified to you in my letter dated 28th of November 2008 … .”
2.15 Although the claimant had suggested that it was ‘impossible’ for her to do these duties, the tribunal was not satisfied that it was in fact ‘impossible’ for the claimant to do them, as she stated in her correspondence. The impossibility arose because she did not want to do them, believing it was in some way beneath her, given the duties she had been doing for some time in reception. Undoubtedly she might have required some training/induction; but it was work she clearly would have been able to do if she had wanted to do it. In the judgment of the tribunal, it was the nature of the work, and not her ability to do it, which the claimant did not like.
2.16 The claimant went on sick leave on 28 November 2008. She did not return to work with the respondent.
2.17 The claimant instigated a grievance by letter dated 18 December 2008. A grievance hearing was held on 4 February 2009. In essence, her grievance related to the allocation of the back of house/cleaning duties which had been assigned to her following at LTMO. The claimant, in evidence, accepted that the delay between the making of her grievance and the hearing was not unreasonable given her sickness but also the pressures of work, at that time, on Mr Miller, the deciding officer, arising from the closing down period consequent to the end of Operation Banner. However, the result of the claimant’s grievance was not given to her until 18 May 2009. Whilst accepting Mr Miller, had, at that time, a heavy workload and additional pressures arising out of the end of Operation Banner, the tribunal considered the claimant should have been notified within a much shorter period of time. In view of the tribunal’s decision, as set out below, it was not necessary for the tribunal to consider this delay in any greater detail.
2.18 The grievance was not upheld by the respondent. In particular, in not upholding the grievance, the claimant was informed, inter alia, by Mr Miller, in a letter dated 18 May 2009:-
“ … You state that for the last 25 years you have only carried out Mess Office tasks. This is not in dispute and it is noted that the objectives you signed on 28th of May 2008 (see Paragraphs 2.4 – 2.5 of this decision), all related to your specific area of responsibility in the mess office. However, you did also sign on that same day a copy of the job description for a Skill Zone 1 Steward working in the Lisburn station officers mess. That job description contained a number of duties that can be expected of a Skills Zone 1 Steward and it would not be unreasonable to ask someone employed as a Skills Zone 1 Steward to undertake any of those duties at any time, which may include a need to change an individual’s allocated specific area of responsibility. You acknowledged in your grievance that your substantive grade was a Skill Zone 1 Steward. You also stated that you considered a move from Mess Office duties to other Steward duties a demotion. There is no hierarchical structure within Skill Zone 1 Steward and all posts are equal whether an individual’s specific area of responsibility is doing service, bar duties, mess office duties or personal or accommodation duties and therefore a move out of the mess office cannot be considered a demotion …
[The staff review 08 project team] … were correct to map you to a Skill Zone 1 Steward post in the revised structure and your grievance is therefore not upheld … .”
The claimant appealed the outcome of her grievance on 29 June 2009. The appeal hearing before Colonel Thorpe did not take place until 21 September 2009. The claimant was not informed of the result of the grievance until 2 February 2010. The tribunal was not satisfied that the delay in dealing with the claimant’s appeal of her grievance was reasonable; but in view of the tribunal’s decision in this matter, it was not necessary to consider further the reasons for the said delay, as no issue of uplift of compensation arises in light of the tribunal’s decision.
In the letter dated 2 February 2010, Colonel Thorpe stated, inter alia:-
“ … It is very clear that during Operation Banner your role equated to that of a part-time receptionist/concierge within what was an exceedingly busy ‘hotel’ serving not only Thiepval Barracks but the HQ Northern Ireland community at large. During that time the mess population was predominantly roulement, most individuals assigned to the province for a six month tour. In addition, the role and responsibility of the Headquarter attracted a significant number of visitors at a time when the security situation denied the routine use of commercial hotels. Given this background I am confident that your post was fully justified and made an unique contribution to the maintenance of an efficient and effective mess.
With the end of Operation Banner however the profile of the officers mess has fundamentally changed. The rapid turnover of temporary staff and visitors has been replaced by a far more stable population. Since the arrival of 19 Light Brigade the mess has become the regimental home of 40 Regiment RA. Regimental officers are allocated accommodation for the duration of their assignments, often in excess of two years. I also note that the officers of 40 Regiment RA will deploy on expeditionary operations every two years, leaving the mess largely empty for six of every 30 months.
In addition fewer staff visits are being made to Northern Ireland, and for those who are travelling, a flight in and out of Northern Ireland on the same day is the preferred option. The result is a drastic reduction in the turnover of those living within the mess.
In this respect I accept that it would be impossible to justify the retention of either a full-time or part-time post to fulfill the function you previously provided; I am satisfied that the administrative duties remaining can be covered by the existing complement of staff within the officers mess.
In considering the documentation relating to the post mapping exercise undertaken by the SROA team in relation to you and the others stewards within the officers mess, I reviewed the process and was satisfied that it was carried out in accordance with the procedures agreed with the trade unions at that time. I believe that the duties of your new post to be consistent with our industrial Skill Zone 1 grade, and note that you also agreed these duties in the document you signed on 20th of May 2008.
I am therefore unable to uphold your grievance appeal.”
2.19 Following the rejection of her appeal, the claimant wrote by letter dated 23 March 2010 and claimed that she had been constructively unfairly dismissed. The claimant subsequently resigned with effect from 9 July 2010.
3.1 Under Article 126(2) of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) it is provided:-
(1) An employee has the right not to be unfairly dismissed by his employer.
3.2 Under Article 127 of the 1996 Order, it is provided:-
(1) For the purpose of this Part an employee is dismissed by his employer if … -
…
(c) “The employee terminates the contract under which he was employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.
3.3 As stated in Harvey on Industrial Relations and Employment Law, Volume 1, Section D1, Paragraph 403:-
“ … It has long been held that, in order for an employer to be able to claim constructive dismissal four conditions must be met:-
(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach;
(2) That breach must be sufficiently important to justify the employee resigning or else it must be the last in a series of incidents which justify him 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 unconnected reason.
(4) He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he can be deemed to have waived the breach and agreed to vary the contract.”
3.4 Constructive dismissal is not necessarily an unfair dismissal and it is for a tribunal to find the reason for the dismissal and whether the employer has acted reasonably in all the circumstances (Stevenson & Company (Oxford) Ltd v Austin [1990] ICR 609). However, as was held in Spafax v Harrison [1980] IRLR 442, lawful conduct is not something which is capable of amounting to a repudiation. Therefore conduct cannot be a repudiation unless it involves a breach of contract.
3.5 In Peter Carnie & Son Ltd v Paton [1979] IRLR 260, it was held an employee who was engaged on general duties cannot insist upon only doing those duties he likes most.
In the case of United Bank Ltd v Akhtar [1989] IRLR 507, the Employment Appeal Tribunal made it clear that there is:-
“ … A clear distinction between implying a term which negatives a provision which is expressly stated in the contract and implying a term which controls the exercise of a discretion which is expressly conferred in a contract … .”
Similarly, in the judgment of the tribunal, where an employer does what it is permitted to be done under an express provision of the contract, the implied term of a contract that an employer would not, without reasonable and proper cause, act in a manner that was likely to destroy or seriously damage the relationship of trust and confidence between an employer and employee (the Malik term seen in Mahmud v BCCI [1997] ICR 606) cannot be used to negative such an express provision. This is emphasised by the use of the terms ‘without reasonable and proper cause’.
4.1 In light of the facts, as found by the tribunal, and in light of the above legislative provisions and legal authorities, it was necessary for the tribunal to first determine whether there has been a breach of contract by the respondent, when it required the claimant, who at all times was employed as a Steward 2/Skill Zone 1 Steward to move to new duties within that role. In the judgment of the tribunal, if the claimant did not show the necessary breach of contract, then it was not possible for the claimant to establish a constructive dismissal and it was therefore not necessary for the tribunal to further consider and determine the remaining three conditions as set out in Paragraph 3.3 of this decision.
4.2 The tribunal was not satisfied, on the evidence, the claimant had a contractual right to be given VER merely because she had indicated to accept such VER, if offered to her by the respondent. As set out in the respondent’s letter, dated 28 November 2008, informing the claimant she had not been selected for VER, it was confirmed by the respondent that expression of interest by the claimant was not sufficient in itself; and it then would only be offered by the respondent if it had sufficient staff to carry out the necessary roles, following the staff review. It was a matter of choice for the claimant if she expressed interest; but equally a matter for the respondent whether to offer such early retirement. At all material times it was voluntary early retirement. In the event, it was not so offered by the respondent.
4.3 The claimant at all times was employed as a Steward 2/Skill Zone 1 Steward. There was no change in her job title throughout her period of employment. All such stewards were at the same grade and were paid the same and were treated in the same way by the respondent, whatever their duties in the various areas. In particular, there was no distinction made by the respondent between a Steward 2 who worked in, for example, the Bar area to a Steward 2 who worked in the Dining Service and Communal Areas or a Steward 2 who worked in the Personal Accommodation and Service area. The claimant accepted that the detailed responsibilities of such a steward, in each of the various functions/areas which were required to be carried out at the LTMO, were set out in the detailed job description signed by her on 20 May 2008. Indeed, prior to 1983, she had done waitressing work in the Dining Service and Communal Areas. She had also, without objection, on occasion, when asked to do so due to a shortage of staff, carried out bed-making in the Personal Accommodation and Service area. This was a duty of a Steward 2 in the Personal Accommodation and Service area. Indeed, the tribunal had no doubt that, if the claimant had not been assigned to the Personal Accommodation and Service area but to the Dining Service and Communal Areas she would not have objected and would have accepted that the respondent was entitled to so transfer her. Her objection, in the tribunal’s view, was solely because she did not like the work in the Personal Accommodation and Service area and believed such work was beneath her. The Personal Accommodation and Service area was akin to housekeeping in a small hotel and each of the said functions/areas referred to in the job description were necessary for the smooth running of the LTMO. A person who worked in, for example, the Dining Service and Communal Areas and carried out the specific duties, such as waitressing, was at all times a Steward 2 and was not employed as a waitress. Equally, a person carrying out cleaning duties in the Personal Accommodation and Service area was not employed as a cleaner; but, like the claimant who worked in another function, namely the reception/office area, was at all times a Steward 2. Although there had been a proposal to give the claimant a new specific job title and change the nature of her employment, when she worked in the reception/office area in or about 1998, this did not occur. If it had, the tribunal’s decision on this issue could well have been different.
It was not disputed the claimant from 1983 onwards had worked in the reception/office area, where she had successfully carried out her specific duties in that area. It was apparent that she was very good at her work and equally enjoyed it. However, at all times she remained a Steward 2, as did the other Steward 2 employees, working in any one of the other areas referred to in the generic job description.
4.4 In the circumstances, the tribunal concluded the respondent, in assigning the claimant to a different function/area, namely Personal Accommodation and Service, albeit one she had not done for a very long time and then only occasionally, it was not in breach of contract and was entitled to make the said change under the said contract of employment. The fact that the respondent had not asked her to change her duties to a different area for some time was fortunate for the claimant, given her enjoyment of the work; but as she remained a Steward 2 at all times, whose role covered all the functions/areas set out in the agreed job description, the respondent was, in the tribunal’s judgment, always entitled to ask her, under her contract of employment, to work in one or other of these functions/areas doing the specific duties described. The fact that every Steward 2, whether working in Personal Accommodation and Service or Reception was a Steward 2, a request to move to one of the other functions/areas was not, in the tribunal’s view, a breach of her contract of employment in the circumstances. The fact that the claimant did not like to do cleaning duties or, in some way felt the cleaning duties were beneath her was not relevant in determining whether or not the respondent was entitled to require her to do those duties under her contract of employment. The claimant’s personal preference to do the duties she liked best could not be allowed to negative the respondent’s entitlement under the contract of employment to move its staff, namely a Steward 2, amongst the various functions/areas set out in the agreed job description and to require the Steward 2 to do the various specific duties which required to be done in each of the said functions/areas. (See further Peter Carnie & Son Ltd v Paton [1979] IRLR 260.)
4.5 In the circumstances, since the claimant has not shown the respondent had breached her contract of employment, she was not unfairly constructively dismissed and the claimant’s claim must be dismissed.
Chairman:
Date and place of hearing: 31 January 2011 – 1 February 2011, Belfast
Date decision recorded in register and issued to parties: