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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Grant v Southern Cross Healthcare Ltd [2011] NIIT 02142_10IT (10 June 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/02142_10IT.html
Cite as: [2011] NIIT 2142_10IT, [2011] NIIT 02142_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2142/10
CLAIMANT: Elizabeth Grant
RESPONDENT: Southern Cross Healthcare Ltd
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and the respondent is ordered to the claimant the sum of £5,054.37.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr E Hesketh
Mr J Pollock
Appearances:
The claimant appeared in person and was unrepresented.
The respondent was represented by Mr J Mercer, Barrister-at-Law, instructed by Ms C Garrett, of Abbey Legal Protection.
Reasons
1.1 The claimant presented a claim of unfair constructive dismissal to the tribunal on 3 September 2010. The respondent presented a response to the tribunal on 7 October 2010, in which it denied liability for the claimant’s claim. In the said response, the respondent raised a jurisdictional issue in relation to time; but, during the course of the hearing, the respondent’s representative accepted the claimant’s claim was in time.
1.2 It was not disputed by the parties the claimant was employed by the respondent from on or about 8 November 2008 at Geannan Care Centre (‘the Care Centre’), which is owned and operated by the respondent; and that her employment with the respondent terminated on or about 20 August 2010.
It was further agreed for the purposes of the claimant’s claim for compensation that at the date of the termination of her employment with the respondent, the claimant was aged 55 years and it was agreed she was earning, for a 22.5 hour week with the respondent, £136.57 gross and £132.00 net per week.
1.3 The tribunal heard oral evidence from the claimant herself. It also heard evidence, on behalf of the claimant, Mrs Annette Scullion; but it did not find her evidence of any relevance to the issues the tribunal had to determine. In addition, the tribunal heard oral evidence on behalf of the respondent from Mrs Debbie McKearnan, the housekeeper at the Care Centre, Mrs Hazel Black, the manager at the Care Centre and Ms Myrtle Maguire, who is an administrator employed at another Care Centre owned and operated by the respondent. Having considered the evidence given to the tribunal by the parties and their witnesses and the documents referred to by them during the course of the hearing, together with the submissions of the claimant and the respondent’s representative, 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 Paragraph 2 of this decision.
2.1 The claimant was employed as a Care Assistant at the Care Centre, near Dungannon, which has a Residential Unit but also a separate Nursing Care Unit. From the commencement of her employment in November 2008 until in or about December 2009, the claimant, on a number of occasions, reported a number of incidents to the then managers of the Care Centre in relation to the care provided to residents at the home. In addition, she reported some of these matters to the RQIA, the relevant Regulatory Body for the Care Centre. As she acknowledged in evidence, but also in her claim form, these incidents were dealt with satisfactorily and resolved by the then managers of the Care Centre. In the circumstances, the tribunal was satisfied that it was not necessary to further consider these incidents for the purposes of the determination of the claimant’s claim.
2.2 The claimant’s difficulties, which resulted in the matters, the subject-matter of her claim, began in or about September 2009, when there was an accident at work and she injured the ligaments in both shoulders. The tribunal is further satisfied that these difficulties, which arose during the course of the employment of the claimant at the Care Centre, were no way related to any of the complaints that she had previously made either to the RQIA or the then managers of the Care Centre, as set out above.
As a result of her injuries, the claimant was unable to continue for a period as a Care Assistant and her doctor recommended that she was only fit for light duties. Following the recommendation, the claimant agreed with the then Home Manager of the Care Centre, Mrs Hazel Black, to work in the laundry, which was at that time short staffed from in or about November 2009. Whilst working in the laundry of the Care Centre, she was under the supervision of the Housekeeper, Mrs Debbie McKearnan.
2.3 Mrs McKearnan is an experienced housekeeper, having been employed as a housekeeper at the Care Centre since it opened in 2008; and she was at all times fully aware, given the elderly residents of the Care Centre, of the necessity to take appropriate hygiene precautions in the laundry in order to avoid the risk of cross-infection and, in light of same, to ensure there was proper separation of contaminated clothing/soiled clothing/bed linen from, for example, tableware, but also for the separated items to be washed in different cycles, as appropriate.
2.4 The laundry was equipped with two industrial type washing machines and two industrial type tumbler dryers, a roller iron, and a normal iron and at all times it also had a proper supply of chemicals and detergents, for use in a laundry of such a Care Centre with elderly residents.
The claimant had no previous experience of working in such a laundry and, although the tribunal is satisfied that Mrs McKearnan gave the claimant a full day’s induction, and not 20 minutes as the claimant suggested, the tribunal does accept that Mrs McKearnan took the view that, with just one day’s induction, the claimant should be able to easily pick up and grasp the proper procedures she was to follow in the laundry, as the machinery itself, albeit on the larger scale, was little different, in her opinion, to that used in a domestic home. However, the tribunal considered that it was unfortunate that Mrs McKearnan had not filled in the appropriate entries in the relevant laundry book to show the claimant had not only been inducted properly in each of the procedures of the laundry; but also there had been a failure to provide written instructions to the claimant of the procedures she was expected to operate at all times and/or to permanently display such instructions on the walls of the laundry. If there had been, the tribunal believes much of the subsequent difficulty which arose between Mrs McKearnan and the claimant, as set out elsewhere in this decision, might have been avoided.
The claimant, despite repeated instructions and advice from Mrs McKearnan, did the laundry very much in her own way and, in particular, failed not only to separate the clothes properly but also to ensure they were properly dried. She also failed to properly prioritise her work and the completed items of laundry were not folded properly so that each type could be easily identified by Care Assistants in the Care Centre. Frequently, the claimant’s work was not completed at the end of her shift. In essence, the tribunal concluded that the claimant persisted in doing her work in the laundry in the way she wanted to do it and not in the way her employer wanted. In addition, the tribunal had no doubt the claimant resented Mrs McKearnan giving her instructions and speaking to her about the way she was doing her work in the laundry and was not prepared to accept, at any time, that complaints had been made by other Care Assistants about her work in the laundry. It was apparent to the tribunal the claimant was not prepared to respect Mrs McKearnan’s authority over her as her supervisor and made this clear to Mrs McKearnan. Indeed, by early January 2010, personal relations between the claimant and Mrs McKearnan had become increasingly strained and unsatisfactory.
2.5 These personal relations became even less satisfactory following the outbreak of a virus in the Residential Unit. As a result increased hygiene measures/instructions had to be introduced to prevent the spread of the virus to the Nursing Care Unit, which, if it had done so, would have had even greater consequences for the residents of that Unit. This involved, for example, ensuring laundry for the Nursing Care Unit was washed before the laundry for the Residential Unit. There was a requirement for increased sanitising of machinery, including the handles of the machinery. Fortunately, the virus did not spread, which emphasised the satisfactory nature of the precautions that were taken. However, the tribunal is satisfied, as a result of the outbreak of the virus and the increased measures introduced to prevent the spread of the virus, the claimant and Mrs McKearnan were put under increased pressure and strain in their work. This was compounded by the fact that some of the laundry equipment was not working at the height of the outbreak of the virus and there were delays in getting the equipment repaired. However, the tribunal does not accept that Mrs McKearnan, who was only too aware of the risk of cross-infection in such a situation, either herself or allowed any of the staff, including the claimant, at any time, to overload the machines or to wash soiled clothing at too low a temperature or to mix washes inappropriately. In addition, although the tribunal accepts that the personal relationship between Mrs McKearnan and the claimant was very poor at this time, the tribunal does not accept that Mrs McKearnan at any time shouted at the claimant or slammed doors or in any way bullied or harassed her. But equally, the tribunal has no doubt that, on occasion, Mrs McKearnan had to speak firmly to the claimant as the claimant was not following her instructions, which the claimant resented. Given Mrs McKearnan had numerous other duties throughout the Care Centre and was not just based in the laundry, the tribunal could see no grounds for criticism when the claimant protested that, on occasion, Mrs McKearnan had left further written notes/instructions about the work to be carried out in that shift and the way in which it was to be done. Mrs Black, the Manager of the Care Centre, became increasingly aware herself, from what she was told by Mrs McKearnan, of problems in the way the claimant was doing her work in the laundry; but also from her own unannounced inspections in the laundry, where she frequently found that work had not been completed by the claimant at the end of her shift.
2.6 Mrs Black, in an informal discussion with the claimant on 14 January 2010, to discuss with the claimant the necessity, as recommended by her doctor, for her to continue on light duties for a further period, offered the claimant the opportunity of a transfer to a different non-dementia Care Centre, operated by the respondent, as a Care Assistant or to continue her employment in the laundry at the Care Centre until her doctor stated she was fit to return to normal duties as a Care Assistant in the Care Centre. Her duties as a Care assistant at such a non-dementia unit, unlike the Care Centre , would have been lighter. Significantly, the claimant decided to continue to work in the laundry, rather than to transfer to a different non-dementia unit Care Centre. The claimant said she always wished to return to her job as a Care Assistant at the Care Centre, which she believed would be physically possible in a further short period of time; and she also did not wish to leave the Care Centre, which was situated close to where she lived. However, if the difficulty with Mrs McKearnan at this time, was as bad as she suggested, in evidence, the tribunal might have expected her to have taken up the opportunity to leave the laundry. This she did not do at any time prior to her resuming her normal duties as a Care Assistant in or about the last week of March 2010.
2.7 Mrs Black decided, given the claimant’s decision to remain in the laundry, she would have to be re-inducted by Mrs McKearnan. She gave the necessary instructions to Mrs McKearnan and, on 20 January 2010, Mrs McKearnan attempted to carry out those instructions. However, the claimant refused to be re-inducted and walked out of her work. She initially sought to speak to the manager, who was unavailable at the time but she subsequently spoke to Mrs Black, the manager, who made it clear to the claimant that Mrs McKearnan was acting on her instructions. The tribunal does not accept that Mrs McKearnan in any way bullied, threatened or intimidated the claimant, as alleged by the claimant, when she sought to re-induct her. The claimant returned to work the next day. As a consequence of the above incident, an investigatory meeting with the claimant, under the respondent’s disciplinary procedures, as set out in the respondent’s Handbook, was held by Ms Dawn Rhodie, the Home Manager of another the respondent’s Care Centres. Notes of that meeting, together with statements obtained from Mrs Black and Mrs McKearnan were sent to the claimant by letter dated 4 March 2010, when she was invited to a disciplinary hearing to consider the allegation that she had walked out of her job on 20 January 2010. It is of some significance, in the context of this claim, that in the course of the investigatory meeting, the claimant was asked, inter alia, about the housekeeper and replied:-
“The housekeeper does a good job.”
If the housekeeper was harassing and bullying or intimidating the claimant, as she suggested in evidence, the tribunal does not accept that she would have replied in this way. The tribunal has no doubt that, the walking out of the job on 20 January 2010 by the claimant, was a further example of the claimant not wishing to accept Mrs McKearnan’s supervisory authority over her or to take instruction from Mrs McKearnan, as her supervisor.
2.8 Following the disciplinary hearing, which was conducted by another Home Manager, Ms Deborah Campbell, the claimant was notified by letter dated 15 March 2010 that she was to receive a Final Written Warning for walking off shift and her unauthorised absence on 20 January 2010. Under the respondent’s procedures, the claimant was informed of her right to appeal against this decision. The claimant did appeal by letter dated 15 March 2010. However, contrary to the respondent’s disciplinary procedures, at no time was the appeal arranged before the termination of the claimant’s employment; or indeed was any appeal of this warning ever arranged by the respondent.
2.9 On Friday 12 February 2010, there was an unannounced visit by the RQIA, the relevant regulatory body for the Care Centre. During the course of the inspection, a number of issues were flagged up by the inspector. During the course of the inspection of the laundry, the inspector found a mixed laundry bag on the floor, which was an infection-control issue. At the relevant time, the claimant was working in the laundry and it was therefore her responsibility to have dealt with this bag. As a result, the inspector reported this failure by the claimant to Mrs Black, and it was further noted that the claimant’s infection control training was out of date and required to be carried out as a matter of urgency. There was a meeting between Mrs Black and the claimant on the first available opportunity, following the inspection, namely Monday 15 February 2010. There was considerable dispute between the claimant and Mrs Black about what happened exactly at this meeting. However the tribunal preferred the evidence of Mrs Black about the course of that meeting; and, in particular, that the claimant and Mrs Black orally agreed during the course of the meeting, as recorded by Mrs Black on the staff counselling record, that she would attend training in infection control at another Care Centre of the respondent, namely Dunlarg, at 2.00 pm on 16 February 2010. The tribunal is also satisfied there were detailed discussions during the course of this meeting, as again recorded on the form, about problems relating to the claimant’s areas of work in the laundry and the complaints from other workers; and that, as set out in the form, the claimant orally agreed to try to get through her work much quicker and to ensure that the right clothing was sent to the correct rooms and that laundry would be properly dried. However, despite her oral agreement the claimant once again was unable to accept that she was not doing her work properly in these areas; and she was only prepared, when signing the form, to accept her responsibility for the issue in relation to infection control during the course of the inspection, albeit she made it clear she had not herself put the bag on the floor. She put her signature against this admitted issue on the form but refused to put her signature against the other matters discussed and orally agreed, as set out above.
2.10 On 16 February 2010 the claimant, despite her agreement to do so at the meeting on 15 February 2010, did not go to the training at Dunlarg. However, the tribunal does accept that, during the course of her meeting on 15 February 2010, the claimant had raised with Mrs Black the possibility there might be a difficulty for her to do so, as her car was due to go in for service; but she had agreed she would to try to re-arrange it. In addition, it had also been agreed with Mrs Black at the meeting that the claimant would attend infection training on the morning of 16 February 2010 at the Nightingale Care Centre. Although the claimant went there, it seems it was not in fact due to take place until 17 February 2010. After going to the Nightingale Care Centre, the claimant contacted Mrs Black late on the morning of 16 February 2010 to say her car was booked in for service and could not be changed. Mrs Black told her that she would need to take a taxi, as she had to attend the infection training as it was a requirement of the RQIA inspection. The claimant then told Mrs Black she could not attend due to her child’s midterm break. The tribunal was surprised that, if this had been a real problem, preventing the claimant’s attendance, such an issue had not been raised much earlier by the claimant and, in particular, during the meeting on 15 February 2010, when only the possibility of the car service was raised as a difficulty. Such a midterm break would have been notified by the school for some time and the tribunal does not accept it was a last minute exceptional closure, as the claimant tried to suggest, in evidence, which had only recently came to her attention in a note from the school, which her child had failed to give her. For such a midterm break, the claimant would always have been aware of the need to make arrangements at an earlier stage, if she needed to do so, including taking annual leave to cover that midterm break. This she had not done until she was required to attend this training on the afternoon of 16 February 2010. The tribunal was of the opinion that the claimant could not accept the necessity for her to have such infection training, and, as a consequence, raised every excuse she could think of to avoid having to do it. This was similar to her objection to the re-induction which had been due to take place on 20 January 2010, as referred to above. Further, the tribunal does not accept the claimant raised, at this time, any issues of flexible working and concluded that the claimant did not raise this until in or about mid-March immediately prior to her resumption as a Care Assistant. This was followed by a written application by her in accordance with the respondent’s procedures dated 23 March 2010. Following this application, arrangements were made for her to attend a meeting to discuss her application; but the claimant then went on sick leave and never resumed employment at the Care Centre.
2.11 The tribunal accepts Mrs Black had to speak firmly to the claimant, as referred to above, in her capacity as the Home Manager of the Care Centre, about the claimant’s work. However, the tribunal does not accept that Mrs Black shouted at the claimant or in any way harassed or bullied her or treated her like a child; albeit the tribunal has no doubt that the personal relationship between Mrs Black and the claimant also began to deteriorate, as the claimant had increasing difficulty in accepting any criticism of her work from either Mrs McKearnan or Mrs Black.
2.12 On 3 March 2010, the claimant, through her solicitors, raised a grievance. It stated:-
“We refer to our above client who wishes to initiate the statutory grievance procedure about the following:-
1. Our client feels she has been subjected to harassment by the housekeeper at her employment.
We look forward to hearing from you within 28 days.”
2.13 On 10 February 2010, Mrs McKearnan also wrote to Mrs Black raising a grievance in relation to the claimant’s work in the laundry and the claimant’s lack of respect for the housekeeper’s authority. She also obtained the signatures of a number of members of staff supporting her grievance. She did not send the grievance letter to Mrs Black until 3 March 2010.
2.14 In the event, Mrs McKearnan’s grievance was never concluded by Mrs Black, following a hearing Mrs Black held with Mrs McKearnan on 16 March 2010. The claimant returned to work as a Care Assistant in or about the last week in March 2010. Since this meant the claimant was no longer working in the laundry under Mrs McKearnan’s direct control, the failure of Mrs Black to conclude Mrs McKearnan’s grievance was not an issue pursued by Mrs McKearnan. This letter of grievance by Mrs McKearnan, although it was also clearly relevant to the claimant’s grievance, given the subject-matter, was at no time shown to the claimant, prior to the discovery provided by the respondent in connection with these proceedings.
2.15 Grievances are provided for in the Staff Handbook of the respondent. Under Paragraph 6.1, a Stage 2 grievance, as the grievance of the claimant was, is required to be heard by a Home Manager or Operation Manager, as applicable, for a grievance made by a Care Centre-based staff member, such as the claimant. Given the involvement of Mrs Black with the grievance of the claimant, Mrs Black properly decided that it was not appropriate for her to deal with the grievance by the claimant and asked for it to be dealt with by Mrs Casey, another Home Manager of a Care Centre operated by the respondent. Under the procedure, it is provided that a meeting has to be arranged by the relevant manager hearing the grievance to discuss the grievance. It also further provides that the outcome of the grievance must be given in writing. However, no specific/express time is set out in the procedures for the provision of the outcome in writing to the person making the grievance. The procedure further provides that:-
“If you are unhappy with the outcome, you may progress to Stage 3 – the appeal. Under Stage 3 – the appeal, the letter of appeal must be posted within five working days of the date of the letter confirming the Stage 2 decision.”
2.16 A formal grievance hearing was heard on 31 March 2010, which the claimant attended, and was chaired by Mrs Casey. Later, on the same date, Mrs Casey also held an investigatory meeting to determine whether a disciplinary hearing was required to be arranged about the claimant’s failure to attend the training at Dunlarg on 16 February 2010. At the conclusion of the grievance hearing, the tribunal accepts the claimant understood from what she was told by Mrs Casey, who did not give evidence to the tribunal, she would be shortly informed, in writing, of the result of her grievance; although it does not believe any specific time such as 28 days was given by Mrs Casey, as suggested by the claimant.
Before the conclusion of the subsequent investigatory meeting on 31 March 2010, the claimant became tearful and asked for that meeting to stop and she then went home. She felt it had all become too much and she was suffering a panic attack. With hindsight, the tribunal has considerable concern about the wisdom of the respondent holding both the grievance and the investigatory meeting on the same day, albeit it acknowledges there were clearly some links between the events, the subject-matter of both hearings, which were both to be conducted by Mrs Casey. Significantly, no further action was taken by the respondent under the disciplinary procedures of the respondent following the investigatory meeting. Before any further action could have been taken, the claimant would have had to be invited, under the procedures, to a disciplinary hearing if it was considered appropriate, in light of the conclusions reached after the investigatory meeting. This was never done.
The claimant then went on sick absence from 1 April 2010. She produced relevant sick absence certificates from her doctor stating she was unfit for work due to stress. The respondent, as it was entitled to do, due to her lengthy absence from work, invoked the respondent’s sick absence policy and procedures.
It is correct to note that the claimant did hold an art exhibition in April 2010, when she was on sick leave; but the tribunal was satisfied she depended on friends and family to arrange and organise the exhibition for her, due to her sickness.
The claimant subsequently made it clear to the respondent that she was not prepared to attend any meeting relating to her sickness at the Care Centre itself or indeed with Mrs Black, who together with Mrs McKearnan, had been the subject of her grievance hearing on 31 March 2010. By letter dated 24 June 2010, she was asked by the respondent, in accordance with its sick absence policy and procedures for her consent for the respondent to obtain a report on the claimant’s medical condition from the claimant’s General Practitioner. The claimant signed this consent on 28 June 2010 and by letter dated 14 July 2010, Mrs Black sought a report from the claimant’s General Practitioner. Subsequently, following the termination of the claimant’s employment, the claimant withdrew her consent for such a report to be given by her General Practitioner as she felt there was no point, given that she had had to terminate her employment in these circumstances, to which further reference shall be made later in this decision.
2.17 From 31 March 2010, until the date of the termination of her employment on 20 August 2010, other than in relation to the claimant’s sick absence, as set out above, the respondent did not contact the claimant. The tribunal accepts the claimant was expecting to hear from the respondent in relation to the matters with which she was involved and which were ongoing and unresolved at the time of the meetings on 31 March 2010; and which continued to be unresolved during the period of her sick absence, from 1 April 2010. In particular, she was not informed of the date of her appeal of the Final Written Warning, which the tribunal accepts was a serious disciplinary sanction to be imposed upon her. Secondly, she was not given any further information in relation to the investigatory meeting about the failure to attend the training at Dunlarg on 16 February 2010 and/or any further steps to be taken, if any, under the disciplinary procedures which had ended in the circumstances seen above. Of even greater importance and significance, in the context of this claim, the claimant was not written to in relation to her outstanding grievance, following the grievance hearing on 31 March 2010. The claimant did not write further to the respondent until she wrote to Mrs Black by letter dated 21 July 2010. During the intervening period between 31 March 2010 and the claimant’s letter, the claimant made no attempt to contact either Mrs Casey or Mrs Black or anyone in the Human Resources Department of the respondent to find out what was happening either by letter or by telephone.
In that letter she stated:-
“Due to ongoing unresolved issues I wish to offer my resignation to Southern Cross Geannan Care Centre. I hereby give four weeks notice as from Friday 23rd of July 2010.
A doctor’s note will be forwarded to cover this period of time.
Please forward P45 and any monies owed, ie holiday pay etc, to the above address.”
The tribunal is satisfied the unresolved issues, which were referred to by the claimant, in her letter, were the matters referred to above, but, in particular, the claimant’s outstanding grievance against Mrs McKearnan and Mrs Black. The tribunal is also satisfied that her decision to resign, in the circumstances set out above, was due to the fact that these issues had not been resolved and that to have an outcome to these issues was clearly very important to the claimant. She wanted a decision, in particular, in relation to her outstanding grievance. The tribunal accepts she believed that, given the continuing ongoing failure by the respondent to provide same, she had no option but to resign. Indeed, the tribunal is prepared to accept she hoped that, by giving four weeks notice, these issues would be able to be resolved by the respondent in the intervening period and thereby avoid the termination of her employment. The tribunal found surprising the claimant’s failure to contact Mrs Casey, Mrs Black or the Area Manager or the Human Resources Manager at any time, after the final meeting on 31 March 2010 and before she wrote on 21 July 2010, if she was anxious, as she stated, to obtain an outcome of the issues. Of course, the claimant confidently believed, at all times, that these outstanding issues would be resolved in her favour and she would therefore be able to return to work and the termination of her employment would not take effect. Unfortunately, this issue was never able to be tested, as no action was taken by the respondent to deal with these outstanding issues, one way or the other, either before the letter of resignation or in the subsequent period of four weeks notice. Since there was no action taken by the respondent, during the period of notice, the claimant’s employment was therefore terminated with effect from on or about 20 August 2010.
2.18 Although the respondent was given the opportunity to deal with the outstanding issues during the four week notice period, but failed to do so, it is of some significance that, subsequent to the termination of the claimant’s employment, the respondent did take steps to deal with the outstanding grievance, following the presentation of the claimant’s claim to the tribunal; albeit not until 3 September 2010. A statement was obtained by the respondent from Mrs McKearnan, dated 17 September 2010. It was not clear for what purpose this statement was obtained but it seems likely that it was obtained for the purposes of preparing a response to the claimant’s claim, which had been lodged with the tribunal by this date. However, it was not until, by letter dated 24 November 2010, Mrs Casey belatedly wrote to the claimant inviting her to a further grievance meeting, following the previous meeting held on 31 March 2010. In the letter, Mrs Casey stated that she would be continuing to investigate the grievance. No explanation was given in the letter for the delay between March 2010 and November 2010. Indeed, the claimant was clearly surprised by this development as she believed she had given all relevant information to Mrs Casey at the previous meeting. The explanation for Mrs Casey suddenly writing this letter was not immediately apparent, as Mrs Casey herself did not give evidence to the tribunal. However, the tribunal was referred, in the course of the hearing, to a letter the Regional Human Resources Manager of the respondent wrote to Mrs Casey by e-mail on 8 November 2010, by which time the respondent’s response to the claimant’s claim had been presented to the tribunal, stating:-
“As part of our defence in the Elizabeth Grant case we need to finish the grievance process as a matter of priority. Please can you review all the information you have, contacting Elizabeth Grant if required and bring to a conclusion.”
As a result of the above correspondence, Mrs Casey had a further meeting with the claimant on 31 December 2010. Subsequently, Mrs Casey interviewed Mrs Black and Mrs McKearnan on 11 January 2011. A detailed letter was sent by Mrs Casey to the claimant on 9 February 2011 not upholding her grievance of harassment against Mrs McKearnan, the Housekeeper. Further, Mrs Casey did not uphold the grievance of harassment against Mrs Black though she did uphold, in part, some of the more generalised complaints, but not of harassment, which the claimant raised in her grievance. Mrs Casey in her letter referred to the earlier grievance meeting on 31 March 2010. She also stated:-
“ … Following this meeting I conducted an investigation into complaints you had raised. I then felt I needed further information from you … .”
It was not clear to the tribunal when Mrs Casey conducted this further investigation or when she decided that she needed a further meeting, save, it seems in the absence of any other evidence, it followed the e-mail from the Human Resources Manager on 8 November 2010, referred to above. If this investigation and/or further meeting with the claimant and/or meetings with Mrs Black and Mrs McKearnan were required at that time, then they were required in the immediate period following the grievance meeting on 31 March 2010 and certainly in the four week period following the claimant’s letter of 21 July 2010, before the period of notice had expired. Yet this was not done and the claimant’s employment was thereby terminated. No good reason, was shown by the respondent, why the steps that were taken subsequently by Mrs Casey could not have been taken at that earlier time, if they were required before she could reach a decision. At the very least, Mrs Casey could have written to the claimant, following receipt by Mrs Black of her letter of 21 July 2010, explaining the necessity for this further action to be taken by her before she was in a position to give a decision; and to have sought to take all such necessary action before the notice period expired.. This was not done and there was no communication with the claimant to explain the position before the notice period expired.
2.19 The claimant appealed the outcome of the grievance. The appeal hearing was held on 2 March 2011. It was conducted by Shirley Harbinson, another Home Manager employed by the respondent. It has to be pointed out that this was contrary to the respondent’s appeal procedure, as set out above, and should have been conducted by a higher level of management to Mrs Casey who was also a Home Manager. No good reason was given by the respondent for this failure to properly follow the respondent’s appeal procedure. The tribunal is satisfied a higher level of management, such as the Area Manager in Northern Ireland, was available to conduct such an appeal hearing but yet does not appear to have been asked to conduct the appeal. In any event, the appeal, in essence, was not upheld by Miss Harbinson.
2.20 The claimant obtained an offer of employment as a Home-help Band 2 in December 2009 with Southern Health & Social Care Trust, subject, inter alia, to her obtaining satisfactory references. The claimant was clearly interested in taking up this post but at no time was she able to satisfy the above condition and therefore was unable to take up the position. In this context, the tribunal noted that Mrs Black was required to provide such a reference to the Southern Health & Social Care Trust, which she did on 22 July 2010, a day after the claimant’s letter of resignation.
In that reference, she stated, inter alia, the claimant had current/outstanding disciplinary matters/investigation and an unspent disciplinary sanction. This was correct at that time; but ignored the fact that the claimant’s appeal against her Final Written Warning had not been progressed and no further action had been taken on the investigatory meeting relating to the claimant’s conduct in relation to missing the training required following the RQIA visit. In addition, in the reference, Mrs Black had found as unacceptable, the claimant’s work under various headings, such as volume of work completed/quality of work completed/performance/ability to work unsupervised. Again, this was written at a time when these matters were closely related to not only the above outstanding issues but, in particular, the subject-matter of the claimant’s outstanding grievance. The claimant therefore failed to obtain the post with the Southern Health & Social Care Trust.
2.21 The claimant, following her resignation, was unable to obtain further employment. The claimant is satisfied that by on or about 20 August 2010 she was fit to obtain other employment. She tried to do so but was unsuccessful. In November 2010, the claimant started her own fancy dress business, with the help of a bank loan. However, it was apparent from the very limited documents produced in evidence that this business, to date, has made little or no money and is unlikely to do so in the near future.
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 purposes of this Part an employee is dismissed by his employer if …
…
(c) 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.
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 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 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 a 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.”
3.4 It should also be noted, in the above context, that a constructive dismissal is not necessarily unfair and it is normally necessary for a tribunal to find the reason for the dismissal and whether the employer has acted reasonably in all the circumstances (Stevenson & Co (Oxford) Ltd v Austin [1990] ICR 609).
3.5 Even if an employee cannot establish a breach of an express term of a contract, it has also long been recognised that a contract of employment includes an implied obligation 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 (see Mahmud v Bank of Credit & Commerce International SA [1997] ICR 606 – often referred to as the ‘Malik term’).
As seen in Amnesty International v Ahmed [2009] ICR 1450 and Ministry of Justice v Sarfraz [UKEAT/0578/10] the phrases ‘without reasonable and proper cause’ and ‘destroy or seriously damage’ must be given their full weight.
The above authorities establish it is an implied term, which is descriptive of conduct, viewed objectively, that is repudiatory in nature. In assessing whether or not there has been a breach, what is significant is the impact of the employer’s conduct on the employee, objectively tested, rather than what, if anything the employer intended (see further Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347 and the Mahmud decision).
3.6 In the context of this case, and the findings of fact made by the tribunal, it is significant that it has long been established (see further the case of W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516) that there is an implied term in a contract of employment that:-
“Employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have.”
Arguably, it is not a separate implied term but merely an example of the duty of trust and confidence contained in the Malik term. The importance of such a term was emphasised when confirmed in the recent decision of the Employment Appeal Tribunal in the case of Watson v University of Strathclyde [UKEATS/0021/10]. This was a case of unfair constructive dismissal where a grievance had been rejected by a panel which included a person whose presence on the panel tainted it with apparent bias. Lady Smith referred, in the course of her judgment, to the following:-
“ … it follows from the employee’s right to be afforded a reasonable opportunity to achieve redress of their grievances (W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516) that any hearing that forms part of a grievance procedure should be conducted in accordance with the principles of natural justice. Those principles, in turn, require the hearing afforded to the employee is, in all the circumstances, a fair one.”
3.7 Substantial changes to the law of unfair dismissal were introduced following the commencement in April 2005 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (’the 2004 Regulations’). The 2003 Order and the 2004 Regulations introduced, inter alia, statutory procedures to be complied with when dealing with matters of grievance and dismissal and/or discipline.
3.8 Under the statutory procedures introduced under the said legislation, employers, subject to certain exemptions, which were not applicable in this case, are required to follow a specific procedure when dealing with grievances and also matters of discipline and/or dismissal. It was not disputed that constructive dismissal requires to be the subject of a statutory grievance under the 2003 Order and the 2004 Regulations.
3.9 Under the standard grievance procedure, which is relevant to this matter, it is provided at Paragraphs 6 – 8 of Schedule 1 of the 2003 Order as follows:-
“Step 1 : Statement of Grievance
(2) The meeting must not take place unless –
(a) the employee has informed the employer what the basis of the grievance was when he made the statement under Paragraph 6, and
(b) the employer has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting the employer must inform the employee of his decision as to his response to the grievance and notify him of the right to appeal hence the decision if he is not satisfied with it.
Step 3 : Appeal
(8)(1) If the employee does wish to appeal he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the appeal meeting the employer must inform the employee of his final decision.”
A grievance, as defined in the 2004 Regulations under Regulation 2(1), is a complaint by an employee about a certain action which his employer has taken or is contemplating taking in relation to him. Action is defined as including any act or omission (see further the cases of Galaxy Showers Ltd v Wilson [2006] IRLR 83 and Canary Wharf Management Ltd v Edebi [2006] IRLR 416).
3.10 The dismissal and disciplinary procedures are set out in Paragraphs 1 – 3 of Schedule 1 of the 2003 Order. They are not dissimilar to the grievance procedures and provide for Step 1 : Statement of grounds for action and invitation to meeting, Step 2 : The meeting itself, Step 3 : Appeal. Under Step 3, an appeal must be held and a decision made and notified to the employee who had appealed.
In this case, as set out above, the respondent did not dismiss the claimant but rather it was a case of constructive dismissal pursuant to Article 127 of the 1996 Order. The claimant was the subject of a Final Written Warning, dated 15 March 2010, for walking off shift and her unauthorised absence on 20 January 2010, which she sought to appeal; but this appeal was never arranged or took place. Such a Final Written Warning was disciplinary action within the terms of the statutory disciplinary and dismissal procedures. Those procedures were never completed by reason of the failure to hold the appeal sought by the claimant. However, if an employer fails to comply with the applicable disciplinary and dismissal procedures, surprisingly, there is no specific sanction as such. (See further the case of A & B Travel Ltd v Kennedy [UKEAT/0341/06] Underhill J, at Paragraph 7.)
As seen previously, this dismissal, being a constructive dismissal, the statutory disciplinary and dismissal procedures did not apply and therefore no issue arises from the above failure under the 2003 Order and the 2004 Regulations. Similarly, since the investigatory meeting about the claimant’s failure to attend the training at Dunlarg on 16 February 2010 did not result in a disciplinary hearing under the respondent’s disciplinary hearing, the 2003 Order and 2004 Regulations have no relevance to same.
3.11 In Part III, Schedule 1 of the 2003 Order, there are a number of general requirements applicable to both statutory procedures:-
“(12) Each step and action under the procedure must be taken without unreasonable delay.
(13)(1) Timing and location of meetings must be reasonable.
(2) Meetings must be conducted in a manner that enables both employer and employee to explain their cases.
(3) In the case of appeal meetings, which are not the first meeting, the employer should, as far as reasonably practicable, be presented by a more senior manager than attended the first meeting (unless the most senior manager attended that meeting).
As stated previously, the respondent’s own grievance procedures did not provide any specific/express time for the outcome of the grievance to be given in writing. In the absence of same, the general requirement, referred to above, governed the said procedures, in the judgment of the tribunal.
There has been considerable judicial authority in relation to the general requirement that each step and action of the proceedings is to be taken without unreasonable delay. In Patel v Leicester City Council [EAT/0368/06], the importance of the requirement was emphasised. In Khan & King v Home Office [UKEAT/0250/06] where there was an unexplained three month delay between the Step 2 and an Appeal Meeting – comparison was made with the ideal 28 day period for resolving a statutory grievance and the three month primary limitation period. Issues arose in the case of Selvarajan v Wilmot [2008] IRLR 824, where there was a four month delay between the date of lodgement of an appeal and the appeal hearing. The Court of Appeal held that the delay did not make the dismissal automatically unfair because, notwithstanding that failure, the procedure had been completed. However, regardless of the issues arising out of whether or not there has been an automatic unfair dismissal in any particular case (which was not relevant in this case in any event as there was not a breach of the statutory dismissal procedures) the importance of the general requirements cannot be underestimated and, in particular, the importance, for a grievance procedure, that a decision is taken without unreasonable delay.
3.12 Article 17 of the 2003 Order provides:-
(1) This Article applies to proceedings before an industrial tribunal relating to a claim [of unfair dismissal] by an employee.
…
(3) If, in the case of proceedings to which this Article applies, it appears to the tribunal that –
(a) the claim to which the proceedings relates concerns a matter to which one of the statutory procedures relates,
(b) the statutory procedure was not completed before the proceedings were begun, and
(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,
it shall, subject to Paragraph 4, increase any award, which it makes to the employee by 10% and may, if it considers it just and equitable, in all the circumstances to do so, increase it by a further amount, but not so as to make it a total increase of more than 50%.
Under Article 17(4) of the 2003 Order, a tribunal can apply no adjustment (or an adjustment of less than 10%) if there are exceptional circumstances making a 10% adjustment unjust or inequitable. Any potential uplift or reduction is limited to the compensatory award only; and there is no provision in an unfair dismissal claim to uplift the compensatory award beyond the statutory maximum (see Article 158A of the 1996 Order).
3.13 Although the decisions of the Employment Appeal Tribunal are not binding on this tribunal; however, the tribunal in the absence of any relevant decisions of the Court of Appeal in Northern Ireland in relation to the said statutory procedures, has found in the decisions of the Employment Appeal Tribunal, in relation to such matters, are persuasive and appropriate to follow – in particular, in circumstances where the decisions of the Employment Appeal Tribunal relate to provisions, which were then applicable in Great Britain, and which were in similar terms to the relevant statutory provisions in Northern Ireland, to which reference has been made above.
The Employment Appeal Tribunal has been reluctant to set down principles that fetter the discretion of a tribunal in relation to this issue for the uplift and reduction of the compensatory award (see further Cex v Lewis [UKEAT/0031/07].
In the case of Virgin Media Ltd v Seddington & Another [UKEAT/0539/08]) Underhill J applied the case of McKindless Group v McLaughlin [2008] IRLR 678 and confirmed that a (if not the) primary factor required to be taken into account, in exercising the discretion in relation to whether an uplift was applicable, related to how culpable was the failure to employ the statutory procedures. Underhill J accepted that, in some circumstances, a failure to employ the statutory procedures might speak for itself. In addition, he said that the issue of uplift should not be approached too mechanistically, as had occurred in the particular facts of that case.
3.14 The statutory provisions provide, in relation to an award of compensation for unfair dismissal that the compensatory award will be made only where it is just and equitable to do so (see further Article 157(1) of the 1996 Order). In the well-known case of Polkey v AE Dayton Services Ltd [1987] IRLR 503, the House of Lords held that the so-called ‘any difference’ rule did not apply in determining liability for unfair dismissal, the degree of injustice suffered by a claimant was relevant to the issue of compensation. As was recognised by Elias J, as he then was, in the case of Software 2000 Ltd v Andrews [2000] ICR 825, when considering a Polkey reduction in relation to how long an employee would have been employed, but for the dismissal, it is for the tribunal to assess the loss flowing from the dismissal using its common sense, experience and sense of justice. He recognised that where an employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedure been followed, or alternatively, would not have continued in employment indefinitely, it is for the employer to adduce any relevant evidence on which he wishes to rely; although the tribunal must have regard to all the evidence, including that of the claimant. Elias J recognised that in reaching any conclusion in relation to such matters may involve a degree of uncertainty/speculation; but emphasised that, although an element of speculation was involved, this was not a reason for refusing to have regard to the evidence of the parties on the issue.
3.15 In the case of Morrison v Amalgamated Transport & General Workers Union [1989] IRLR 361, the Northern Ireland Court of Appeal held in relation to the issue of contributory fault:-
(i) The tribunal must take a broad common sense view of the situation.
(ii) That broad approach should not necessary be confined to a particular moment, not even the moment when the employment is terminated.
(iii) What has to be looked for in such broad approach over a period, his conduct on the part of the employee, which is culpable or blameworthy or otherwise unreasonable.
(iv) The employee’s culpability or unreasonable conduct must be contributable to or played a part in the dismissal.
In Allders International Ltd v Parkins [1982] IRLR 68, it was emphasised that it is the employee’s conduct alone, which is relevant to the issue of whether the loss resulting from the dismissal should be reduced on grounds of contributory fault.
Provided the employee’s conduct is blameworthy/culpable/unreasonable, as seen above, there can still be reduction for contributory fault, even if the dismissal is constructive (see Garner v Grange Furnishings Ltd [1977] IRLR 206).
The Northern Ireland Court of Appeal in the case of GM McFall & Co Ltd v Curran [1981] IRLR 455, which is binding on this tribunal held that the general rule is that both the basic and the compensatory awards should be reduced by the same amounts. Further, the general rule is that industrial tribunals have no power to reduce compensation for contributory fault if the misconduct occurs during the notice period (see Korn Employment Remedies 14.29).
4.1 In light of the facts as found by the tribunal, as set out in Paragraph 2. of this decision, the tribunal was satisfied, when the claimant failed to obtain any resolution of the outstanding issues by the respondent, as sought by her in her letter dated 21 July 2010, the respondent was in breach of its contractual obligations to the claimant. She had had imposed on her a Final Written Warning, which was a serious disciplinary sanction, on 15 March 2010 relating to her walking off shift and her unauthorised absence on 20 January 2010. Under the relevant procedures she was entitled to appeal this disciplinary sanction; but, at no time did the respondent arrange an appeal hearing, even when prompted to by the letter of 21 July 2010 from the claimant.
Further, an investigatory meeting was held on 31 March 2010 by Mrs Casey relating to the claimant’s failure to attend the training at Dunlarg on 16 February 2010 and to consider, in particular, whether or not a disciplinary hearing was required to be arranged arising from the claimant’s conduct on that date, pursuant to the respondent’s disciplinary procedures. Clearly, if such a hearing was to be arranged, it had potential serious implications for the claimant, not least having regard to the Final Written Warning already on her record (subject to appeal, as indicated above). Indeed, the issues, the subject-matter of the Final Written Warning and the investigatory meeting were clearly in the mind of Mrs Black, when she provided an unfavourable reference to the respondent, on 22 July 2010, the day after the claimant’s letter to her seeking resolution of the ongoing issues, which included the above matters.
Yet, the claimant was never told anything more about whether or not she would face disciplinary charges arising from the events of 16 February 2010, nor was an appeal hearing arranged.
4.2 However, although each of the above matters are significant and important, the greatest failure in relation to its contractual obligations was the failure of the respondent to provide to the claimant an outcome to her grievance, which she had brought against Mrs Black and Mrs McKearnan. She had had a grievance meeting with Mrs Casey on 31 March 2010 and should have been informed, within a reasonable time thereafter, as provided for under the statutory grievance procedures, the outcome of her grievance. Nothing further was done by the respondent even when she wrote on 21 July 2010, giving four weeks notice of her resignation. Her letter was not acknowledged. If Mrs Casey required to carry out further investigations/carry out further interviews before she could reach a conclusion, this could have been easily explained to the claimant in a letter. No such explanation was given. Even the letter of 21 July 2010, giving four weeks notice, failed to stir the respondent into action. Significantly, the respondent was only stirred into action to deal with the grievance when the claimant brought tribunal proceedings; and it was recognised, by the respondent’s Human Resource Department, that the grievance had to be dealt with as part of the respondent’s defence. The statutory grievance procedures provide steps in connection with the said grievance to be taken within a reasonable time. In this case nothing was done by the respondent prior to the commencement of the tribunal proceedings. Indeed, the grievance appeal was not completed until March 2011, immediately before the commencement of the tribunal hearing.
4.3 The tribunal has no doubt that the above breaches of the claimant’s contract was sufficiently important and serious to justify her resigning. Indeed, she gave the respondent four weeks to rectify the situation, without any success, rather than just resigning on 21 July 2010. She clearly, in her letter, was asking for the respondent to provide an outcome to the outstanding issues; but was totally ignored. By failing to respond to the claimant at all, and by its conduct, as set out above, the tribunal was satisfied the respondent evinced an intention not to be bound by its obligations, and did so in a manner that was likely to destroy or seriously damage the relationship of trust and confidence between the claimant and the respondent. As stated above, if there had been some letter of explanation sent between 1 April 2010 and 20 August 2010, indicating, for example, further steps that had to be taken by Mrs Casey and/or relevant timescale for doing them, the situation might have been very different. In the absence of same, the respondent acted without reasonable and proper cause (see Mahmud case). Failure to deal properly with a grievance, leaving aside the other matters relating to the outstanding appeal of the disciplinary sanction and/or the outcome of the investigatory meeting, within a reasonable time, in the circumstances, was a clear breach of the said duty of trust and confidence. The other matters relating to the appeal and the investigatory meeting compounded and added to the breach already established by the failure to properly deal with the grievance brought by the claimant against Mrs Black and Mrs McKearnan, which were at the centre of the claimant’s dispute with her employer. The tribunal has no doubt that the claimant wrote the letter of 21 July 2010 and subsequently resigned because of the serious breaches of the respondent’s obligations to her. Indeed, the wording of her letter of 21 July 2010 could not have been clearer in illustrating her wish for resolution and, if this was not forthcoming, she would have to resign on 20 August 2010. Yet the respondent took no action to show that it intended to carry out its contractual obligations in relation to the above matters outstanding and which the claimant had written to the respondent in her letter dated 21 July 2010.
4.4 In the circumstances, as set out above, the tribunal was satisfied not only was the claimant constructively dismissed but also the said dismissal was unfair. Having acted and/or failed to act, as set out above, the respondent failed to act reasonably in the circumstances (see Stevenson & Co (Oxford) Ltd case).
4.5 The claim of constructive dismissal was a claim to which the statutory grievance procedures related and the respondent’s representative accepted the said procedures were not completed before the claimant’s tribunal proceedings were begun. Indeed, as set out above, there was complete inertial on the part of the respondent in seeking to resolve the matter, not even when the claimant sent, in essence, a reminder in her letter of 21 July 2010 and gave the respondent an opportunity to act promptly and avoid the claimant having to carry out her threats of resignation on 20 August 2010. Despite the foregoing, no action was taken by the respondent to remedy the situation. As stated above, although there is no precise timetable set out in the statutory procedures for taking various steps, the tribunal has no doubt that failure to conclude the grievance procedure between 31 March 2010 and 20 August 2010 and/or before the claimant issued her claim to the tribunal was unreasonable. Indeed, no explanation as been given for the failure to deal with the outstanding matters during this period.
In the circumstances, the tribunal was satisfied that the respondent’s failure to complete the procedure was very serious and that major blame must therefore attach to the respondent, given that the consequences of the failure of the respondent lead directly to the said constructive dismissal of the claimant. One of the main purposes of the statutory grievance procedure is to enable parties to resolve their differences and thus avoid the necessity for tribunal proceedings.
The tribunal therefore concluded that an uplift of 50% of the compensatory award payable by the respondent to the claimant for the unfair dismissal was appropriate.
4.6 However, the tribunal also found it necessary to consider whether a Polkey reduction was also required to be made to the compensatory award. In particular, the tribunal, had regard to its findings of fact in relation to the actions of the claimant in her dealings with Mrs McKearnan and Mrs Black; but also to the fact that the claimant’s grievance against Mrs Black and Mrs McKearnan was not upheld by Mrs Casey; albeit after proceedings had been brought by the claimant and subsequently on appeal by Ms Harbinson. In the circumstances, the tribunal reached the conclusion that, even if the respondent had acted as it should have done and concluded the matter before the period of notice expired, the same result would have been arrived at by the respondent – namely the claimant’s grievance against Mrs Black and Mrs McKearnan would still not have been upheld.
If that is so, the issue then arises whether the claimant would still have resigned, if she had been faced with such a result. The claimant never had to take that decision, as the grievance was not resolved before the period of notice had expired and she resigned. It is clear that the claimant continues to be dissatisfied with the conclusion of Mrs Casey and subsequently Ms Harbinson, on appeal, that the grievance, in essence, against both Mrs Black and Mrs McKearnan should not be upheld. The tribunal has no doubt that if the result had been as found by Mrs Casey and Ms Harbinson, the claimant would have been very disappointed. Even if the grievance appeal hearing had been conducted by someone more senior than Ms Harbinson, the tribunal suspects that this would have made little or no difference to the result. Although Ms Harbinson found in the claimant’s favour in relation to some minor matters in relation to her grievance against Mrs Black, on the main issue of harassment the claimant’s grievance was not upheld. Clearly in deciding this issue, a considerable amount of speculation arises. In this context, the tribunal noted that, even in relation to a meeting over her sick absence after 1 April 2010, the claimant was not prepared to meet Mrs Black at the Care Centre. At this time, relations with Mrs Black were clearly very bad; but the result of the grievance, in the absence of any resignation, would have required her to return to work as a Care Assistant under Mrs Black at the Care Centre, and where Mrs McKearnan remained employed, albeit she would not have been her supervisor. It also has to be remembered, on a previous occasion, the claimant preferred to continue to work at the Care Centre, not least because the job of Care Assistant was a job she enjoyed and the Care Centre was near her home. Added to the foregoing, there were further areas of speculation – would the claimant have lost any appeal held in relation to the Final Written Warning and/or faced disciplinary charges for her actions on 16 February 2010? It is totally unclear, on the evidence before the tribunal, whether or not disciplinary proceedings would have been brought against the claimant in relation to her actions on 16 February 2010 and, if so, what the result of those would have been. In relation to her appeal and in relation to her Final Written Warning, the tribunal is of the opinion, on the facts as found by it, that the Final Written Warning would not have been changed on appeal.
There are clearly many uncertainties in relation to the above matters; but as the authorities have made clear the tribunal, despite the uncertainties, should attempt to come to a conclusion. Further, if the outstanding matters had been dealt with before the period of notice had expired and the result was, as set out above, the issue remains whether the claimant would still have resigned. It was those failures by the respondent which enabled the claimant to bring a successful claim of constructive unfair dismissal. Taking all the about certainties into account, the tribunal decided that a Polkey reduction of 50% was appropriate in the circumstances to reflect the fact that the claimant might still have resigned.
4.5 The tribunal also concluded that, in the period from 31 March 2010 prior to her sending the letter of 21 July 2010 and the period of notice commencing, the claimant could have contacted either Mrs Black, Mrs Casey, the Area Manager or Human Resources, either by telephone or letter to ask what was happening in relation to outstanding matters. She did not do so and, when she wrote on 21 July 2010 she gave four weeks notice of her resignation. Whilst the tribunal is satisfied the respondent, as set out above, was at fault in doing nothing during this period, and as employer the greater responsibility lay on it and not the claimant to take the necessary action, it concluded the claimant, by doing nothing, also contributed to her dismissal. The tribunal decided to reduce the claimant’s compensation by 10% to reflect this contribution. If the claimant had not given notice and merely resigned in her letter of 21 July 2010, the reduction for contributory fault made by the tribunal would have been considerably larger.
4.6 The claimant was fit to resume work from 20 August 2010 but was unable to find any work. Subsequently in November 2010 she started her own business but has received little or no income from the business to date. The tribunal decided it was appropriate to allow the claimant to be compensated for loss of earnings from 20 August 2010 to 20 August 2011, by which stage the tribunal was hopeful, on the very limited evidence before it, that the new business should be able to produce an income for her similar to what she had previously earned from the respondent.
5.1 In relation to the claimant’s claim for unfair dismissal, as found by the tribunal, the tribunal assessed the compensation to be paid by the respondent to the claimant as follows:-
A. Basic award
1.5 x £136.57 £ 204.85
Less 10% for contributory fault £ 20.48
£ 184.37
B. Compensatory award
(i) Loss of earnings from
20 August 2010 to
1 April 2011 at £132.00 per week
32 x £132.00 £4,224.00
(ii) Loss of earnings from
1 April 2011 to
20 August 2011 at £132.00 per week
20 x £132.00 £2,640.00
(iii) Loss of statutory rights £ 350.00
£7,214.00
Less Polkey reduction @ 50% £3,607.00
Add 50% uplift for breach of statutory
Grievance procedures £1,804.00
£5,411.00
Less 10% for contributory fault £ 541.00
£4,870.00
Total Monetary Award – A + B £5,054.37
5.2 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
5.3 The Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996 apply to this decision. Your attention is drawn to the attached Recoupment Notice which forms part of this decision.
Chairman:
Date and place of hearing: 28 – 31 March 2011; and
1 April 2011, Belfast
Date decision recorded in register and issued to parties:
Case Ref No: 2142/10
CLAIMANT: Elizabeth Grant
RESPONDENT: Southern Cross Healthcare 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; The Social Security (Miscellaneous Amendments No 6)
(Northern Ireland 2010.
£
(a) Monetary award 5,054.37
(b) Prescribed element 4,181.76
(c) Period to which (b) relates: 20
August 2010 to
1 April2011
(d) Excess of (a) over (b) 872.61
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-related Employment and Support Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department for 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-related Employment and Support 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 nine 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 for 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.