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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Simpson v Castlereagh Borough Council [2012] NIIT 02147_11IT (02 January 0 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/2147_11IT.html
Cite as: [2012] NIIT 02147_11IT, [2012] NIIT 2147_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2147/11

CLAIMANT: Jill Simpson

RESPONDENT: Castlereagh Borough Council

DECISION

The unanimous decision of the tribunal is that the claimant’s claim of victimisation on the ground of sex and disability is dismissed. The tribunal also found that the claimant was constructively unfairly dismissed.

Constitution of Tribunal:

Chairman: Mr B Greene

Members: Mrs M Heaney

Mr P Killen

Appearances:

The claimant was represented by Mr Michael Potter, of counsel, instructed by Savage and Co Solicitors.

The respondent was represented by Mr Conor Hamill, of counsel, instructed by Worthington Solicitors.

The sources of evidence

1. The tribunal heard evidence from the claimant and on her behalf from Alistair Joynes and for the respondent from Heather Currie, Caoimhe Whinnery, Councillor Brian Hanvey, Joan McCoy and Councillor Judith Cochrane MLA. The tribunal also received five bundles of documents amounting to 447 pages, closing written submissions from both parties and the respondent’s non-exhaustive chronology.

The claim and defence

2. The claimant claimed that she was constructively dismissed, suffered a breach of contract, suffered discrimination on the grounds of sex and disability by reason of victimisation and suffered the loss of outstanding monies including pay and emoluments owed to her by reason of a breach of contract. The respondent denies the claimant’s claims in their entirety.

The issues

3. Following a Case Management Discussion on 1 December 2011 the parties agreed the main legal and factual issues in dispute. They also set out a number of agreed facts.

Agreed facts

4. The parties agreed:-

(1) The claimant brought sex discrimination proceedings in July 2008.

(2) The claimant lodged statutory grievances in April and August 2008.

Issues in dispute

Legal issues

5. (1) Were the original IT1 claims relating to sex discrimination and disability discrimination and the internal grievances dated 3 April, 25 April and 12 August 2008 protected acts?

(2) Did the respondent unlawfully victimise the claimant contrary to the Sex Discrimination (Northern Ireland) Order 1976 and the Disability Discrimination Act 1995 as amended?

(3) Was the claimant constructively dismissed contrary to Part XI of the Employment Rights (Northern Ireland) Order 1996?

(4) Has the claimant suffered a breach of contract in relation to wages or other payments?

(5) What is the appropriate remedy?

Factual Issues

6. (1) Why was the claimant not provided with a decision on her grievance prior to July 2011?

(2) What were the reasons for the respondent’s delay in reaching its decision on the claimant’s grievance?

(3) Was the respondent, its servants and agents on notice of the medical imperative of bringing the grievance to a conclusion to facilitate the claimant’s return to work?

(4) Is the delay in part explained by the council’s alleged desire not to accept the findings of an independent consultant which it engaged?

(5) How long are grievances ordinarily or usually brought to a conclusion at the decision stage?

(6) What grievance mechanism, procedure or practice was adopted to investigate and reach findings and/or a decision of the claimant’s grievance?

(7) Was one or more than one investigation undertaken?

(8) What was the status of the Joynes’ report?

(9) Following the claimant’s resignation did the respondent provide a decision on the grievance?

At the beginning of the hearing Mr Hamill accepted for the purposes of legal issue (1) that the bringing of proceedings in 2008 constituted a protected act.

On 17 April 2012 the tribunal directed, following agreement between the parties that this hearing would deal with liability only.

Findings of Fact

7. (1) The claimant was employed by the respondent from 17 January 1991 until 28 June 2011 when she resigned. She was Public Relations and Marketing Manager. She earned per month £2500 gross and £1800 net.

(2) Between 2004 and 2008 a series of incidents relating to her employment, which she regarded as inappropriate, occurred as a result of which she was off work from March to September 2005 and from December 2006 until June 2007.

(3) On returning to work she contends that the inappropriate treatment continued.

(4) On 3 April 2008 she lodged a formal grievance regarding bullying, harassment and discrimination on the grounds of gender and disability. She asked for an independent element in the grievance procedure as her allegations concerned senior officers of the council. Further she regarded the Chief Executive as an inappropriate person to conduct her grievance as she had previously been involved in an allegation of discrimination against him on the ground of gender. She lodged further grievances on 25 April and 5 August. The grievances amounted to some 130 allegations against four officers of the council.

(5) Shortly after she went off work she lodged a claim for discrimination on the grounds of sex and disability on 11 July 2008. Subsequently she withdrew her proceedings in the Industrial Tribunal because she had commenced High Court proceedings in 2008 against the respondent in which she claimed breach of the Protection From Harassment Order (Northern Ireland) 1997, negligence and breach of contract.

(6) The respondent has a grievance procedure which states:-

“1.1.5 It is essential that the procedure operates quickly and efficiently, and the time limit specified at each stage (and between stages) of the procedure are followed unless altered by mutual agreement between the parties concerned …

Stage 2 (Formal)

1.2.6 If the employee continues to be aggrieved he/she would fill in a written notification … of the grievance submitted to his or her supervisor for comment and transmission to the section/office manager who will set up a grievance hearing (Stage 2) …

The Human Resources Section will advise the manager on the setting up of a grievance hearing. The meeting will be arranged as soon as possible (not later than five working days) with the aggrieved employee, who is entitled to be accompanied by a Trade Union representative/staff representative or fellow companion.

1.2.8 The object of the hearing will be to establish whether the grievance is justified and, if so, to attempt to find a mutually acceptable solution. Both the employee and the line manager will be given an opportunity to present the case independently …

1.2.9 As soon as possible after this hearing (not later than five working days) the officer hearing the grievance should confirm the decision in writing.

1.2.10 If a grievance under Stage 2 is raised by a manager or director who reports directly to the Chief Executive, then the grievance will be conducted by the Chairperson of the Staff and Office Committee …

Stage 3 (Final)

1.2.11 If a grievance is unsuccessful, or if the employee is dissatisfied with the action to be taken to remedy the grievance, or if a reply is not received within five working days, he/she may appeal in writing to The Director of the Service/Chief Executive/Chairman of the Staff and Office Committee (as appropriate) who will convene an appointed Sub-Committee. Normally this will be within 10 working days of the appeal being lodged.

The grievance will be heard by a Sub-Committee of Councillors appointed by the Staff and Office Committee to include the Mayor and Chairperson of the Staff and Office Committee …

1.2.13 A grievance should normally end with the appeal to the Director of the Service/Chief Executive/Chairman of the Staff and Office Committee (as appropriate) and with the decision of the Subcommittee of Council.”

(7) In May 2008 the council appointed Alistair Joynes, an external consultant, to deal with the claimant’s grievances as the grievance involved senior members of the council. The respondent advised the tribunal that there is no written record or evidence of terms of appointment being given to Mr Joynes before he commenced his work.

(8) The report done by Mr Joynes exceeded 100,000 words. It was contained in 14 lever arch files. The conducting of the investigation and findings lasted over one year and cost in the region of £35,000. During his enquiries Mr Joynes, assisted by his wife, conducted 51 interviews with 23 persons. The report was delivered to the respondent on 13 May 2009.

(9) The tribunal is satisfied that the objective of Mr Joynes was to produce a report in which he had investigated all the grievances raised by the claimant and made findings in relation to each of the allegations made by the claimant, ie to uphold them or reject them. In so concluding the tribunal had regard to the following matters:-

(a) Mr Joynes told the tribunal that his job was to hear and determine the grievances. He was not to make recommendations as to what should happen thereafter either to persons or procedures. The tribunal found Mr Joynes an impressive and honest witness.

(b) The memo from Heather Currie, temporary HR manager, of 20 October 2008 to Alistair Joynes where she set out how an internal investigation was to be conducted within the council and asked that Mr Joynes follow that procedure. She set out five points which were:-

“1. The complainant records their account of instances together with any supporting documentation which they intend to reply upon, plus names of any witnesses who may be able to provide relevant details on the incident(s) in question.

2. The investigator interviews the complainant and reviews the information or data produced by him/her. The complainant calls relevant witness to verify, confirm or discount the allegations made.

3. The respondent is provided with complainant’s allegations, account of incidents and any supporting documentation or witness statements as alleged by complainant.

4. The investigator interviews the respondent and reviews their account, and any supporting information supplied. Further witnesses may be called if required.

5. The investigator reviews each allegation and determines whether if it is with or without foundation, based on the evidence supplied by both the complainant and respondent, witness statements etc”.

(c) In Mr Joyne’s letter of 22 October 2008, in response to Heather Currie’s letter of 20 October 2008, he took issue with point 2 of Heather Currie’s letter but otherwise affirmed what was her requirements for the grievance investigation. In particular Mr Joynes indicated that he intended to review each allegation and determine whether it is with or without foundation based on the evidence verbal and written supplied by the claimant, the respondents [the persons about whom the claimant complained] and the witnesses. This letter did not elicit any response from the council that Mr Joynes was exceeding his brief or misunderstood his brief.

(d) The letter from Joan McCoy, the acting Chief Executive, of 29 April 2009 to the claimant in which she stated that Councillor Lawrence Walker would receive the investigation report on behalf of the council. She further stated in her letter:-

“Thereafter, Councillor Walker will write to you setting out the procedure to be followed to take this matter forward. This will consider the composition of the panel, the disclosure of the Investigation Report, the procedure to be adopted by the panel to take forward any findings or recommendations and any other questions which arise from the Investigation Report.”

(e) The decision of the grievance panel which met on 11 August 2009. A memo of the panel meeting records:-

“The panel reiterated that it was not their role to reinvestigate the grievance. They stated that they would accept the findings of the investigator, based on the evidence which was available to him.”

(f) The evidence of Heather Currie in her witness statement at paragraph 9 where she stated:-

“It was my understanding that Mr Joynes would make a decision based on the evidence for each of the allegations; these decisions would then be communicated to a Member or a Panel of Members who would decide what further action to take if necessary.”

(10) During the currency of the investigation undertaken by Alistair Joynes a number of the persons, against whom complaints were made, and some councillors made complaints to the council, about the process and procedure followed by Mr Joynes, suggesting that he was not impartial or assisted the claimant in the presentation of her grievance. The respondent took advice from the Staff Commission and from its own solicitors in relation to these complaints and concluded that the approach being followed by Mr Joynes was a reasonable approach. Subsequently the respondent wrote to Mr Joynes stating that they had received complaints and that they had taken advice and the advice was that the approach being followed by him was a reasonable approach.

(11) Mr Joynes responded by letter of 22 October 2008 in which he denied that there was any basis for any of the complaints. He set out the approach that he intended to follow and what he intended to do. He included in his letter a paragraph which read:-

“We would, therefore, ask you to indicate to us that all the respondents [ie, persons against whom complaints were made] are now content with the process which we are undertaking at Castlereagh Borough Council? If they are not would you please indicate to us the nature of the remaining concerns and provide us with any evidence that they may have for their concerns.”

(12) The council did not reply to Mr Joynes’ letter on this point. However an internal memo marked confidential from Joan McCoy, the Acting Chief Executive, to Heather Currie stated:-

“Heather [redacted portion] then we need to write to the respondents asking that they either register a formal complaint, or agree to continue with the process as set up by the Council, through an independent consultant. We cannot allow respondents to simply bank concerns, and continue with the process at the same time. This would mean backing the horse both ways! They either have to formally complain, let us have it checked, then we seek their consent to continue with the process, if it is deemed in order.”

It appears that the respondents did not make any formal complaints.

(13) On 13 May 2009 the respondent received the report from Alistair Joynes. In his report Mr Joynes upheld 33 of the claimant’s grievances, did not uphold 76 of her grievances and partially upheld 21 of her grievances.

(14) A panel of councillors comprising Brian Hanvey, Judith Cochrane and Lawrence Walker was appointed on 19 May 2009 to consider the report and advise on the way forward. Councillor Walker was appointed chairman.

(15) The panel met on 11 August 2009 with Heather Currie present to provide administrative support. The minute of the meeting prepared by Heather Currie states:-

“The panel reiterated that it was not there role to reinvestigate the grievance. They stated that they would accept the findings of the investigator, based on the evidence which was available to him.

They discussed a range of recommendations, for example, extending the list of harassment advisors, reviewing the attendance policy, sending an email reminding of appropriate use of IT. Also discussed potential disciplinary action.

The panel discussed the need to suspend RG on a precautionary basis in light of allegation number 7. HC sought legal advice and it was considered this would be disproportionate at this stage. No other formal complaints have been made, emails inappropriate but could be read as factual, no evidence of violent behaviour.

Agreed to seek clarification from the investigator on a number of issues relating to RG and HM.

Agreed that the panel would meet again following receipt of the above clarification from the investigator.”

(16) The respondent wrote to the claimant on 13 August 2009 in response to a letter from the claimant. In the course of the letter they stated that the panel had met again to consider the report and that it was seeking clarification on a number of points from Joynes. The letter also suggested that the process had been lengthy and difficult and that they hoped the claimant would appreciate the need to be thorough due to the volume of the report and the issues which had been raised.

(17) On the same date the respondent wrote to Mr Joynes seeking clarification in relation to complaint number 7 against Mr Gillanders and particularly where the claimant had alleged that he had displayed violent behaviour. They also sought clarification on the allegations concerning attendance management which appeared in four other complaints against Mr Gillanders. Finally they sought clarification in respect of a complaint against Heather Moore in relation to her knowledge about the claimant having allegedly been victimised by Mr Gillanders. The respondent did not mention any other criticisms of Mr Joynes’ report nor suggest that it was in any way flawed.

(18) By letter of 25 August 2009 Alistair Joynes responded at length to each of the queries raised by the respondent setting out the evidence in relation to each of the grievances which he had upheld and why he had upheld them. He further suggested that the claimant should be provided with their queries and his response if the respondent was to preserve openness and transparency.

(19) On 14 September 2009 Councillor Walker had a telephone conversation with Heather Currie. According to Heather Currie’s memo of the conversation she posed the question to Councillor Walker whether the council wished to accept the report or to investigate further. She also pointed out the alternatives of following the grievance hearing by making recommendations or considering disciplinary action or renewing council policies or training etc. The report was then scheduled to go to the Finance and General Purposes Committee for a special meeting on 30 September 2009.

(20) Councillor Walker wrote to the claimant on 28 October 2009. In that letter he stated:-

…

“I can also advise that this Panel will form the grievance panel. In accordance with the Council’s procedures, you will be given the opportunity of addressing the Grievance Panel. I will point out that the Grievance Hearing will not be a re-run of the investigation, but will focus on any concerns you have with the report. It would assist the Grievance Panel if you could submit in advance of the Hearing a summary of these issues.

I will contact you again shortly to arrange a suitable date for the Grievance Hearing, and would ask that in the interim you prepare a summary for the Panel based on any issues you wish to raise in connection with the investigator’s report. This will enable us to allocate a suitable period of time for the hearing”.

…

(21) The claimant replied to Councillor Walker in writing on 8 November 2009. In the course of her letter she stated, inter-alia:-

…

“I was somewhat surprised in reading your letter as to the total departure from the Council’s grievance procedures and why this route in particular. From your correspondence the agenda I am asked to prepare for is at odds with the established grievance procedures i.e. in what the grievance panel is being convened to consider, namely issues I may have with the investigator’s report not my grievance.

With the greatest respect to you and your colleagues, the report has now been with the panel for nearly seven months and it does seem strange that I am now only being asked if I have any issues, being mindful of my letter to you dated 3 August 2009. Surely the substantive and detailed investigator’s report is sufficient for the panel to come to a decision and take some action regarding the respondents?”

…

She continued later in her letter:-

…

“On paper, the agenda for the grievance hearing the panel proposes would seem to be for me to address any issues I may have with the investigator’s report. My grievance is my grievance and remains my grievance, not issues that I may or may not have with the investigator’s report.

…

In accordance with Castlereagh Borough Council’s policies and procedures it is the Grievance Panel’s responsibility to come to a decision based on the findings of the appointed investigator, not the complainant’s comments on the investigator’s report, making recommendations and taking action as necessary.”

…

The claimant then posed three questions to Councillor Walker:-

“1. Have you accepted Mr Joynes’ report in its entirety, subject to any concerns that I may have that anything has been missed?

2. When can I expect to receive the remainder of the report which includes your questions and Mr Joynes’ responses?

3. Can you provide a confirmed date of issue of the panel’s report and when I can expect to receive it?”

(22) On 1 December 2009, Councillor Walker wrote to the claimant and set out the procedure that the panel intended to follow, that is to give an opportunity to the claimant to make such submissions as she deemed appropriate to the panel and that the panel would hear from other witnesses as it considered appropriate. Following that the panel intended to issue its decision. Councillor Walker went on to ask the claimant to provide any submissions to the hearing by 15 December 2009 at which point a date for a grievance hearing would be given to her. On 7 January 2010, Councillor Walker wrote to the claimant about his letter of 1 December 2009 and asked her to confirm that she did not wish to make any further submissions. He also indicated that if they had not received any submissions from her by 15 January 2010, that he would assume she had nothing further to add. The respondent did not receive any submissions from the claimant by 15 January 2010. However, Councillor Walker wrote to the claimant again on 2 February 2010 advising her that if he had not heard from her by 12 February 2010 that he would assume that she did not wish to make any further submissions.

(23) The panel met on 2 February 2010. Present at the meeting were Councillors Brian Hanvey, Judith Cochrane and Michael Copeland. One of the items on the agenda was the issue as to whether the claimant’s internal grievance conflicted with her civil case. A further meeting was held on 24 February 2010 attended by Councillors Hanvey, Cochrane and Copeland. At the meeting an issue on the agenda was, “Why did the report by Alistair Joynes exceed the remit?”. A further item on the agenda was, “Could we hear the case after the high court?”.

(24) The claimant wrote to Councillor Walker on 6 March 2010 requesting an update on the status of her grievance and again expressing her concern about the length of time it was taking and the impact that this was having on her.

(25) Joan McCoy, Director of Administration and Community Services, wrote to the claimant on 20 May 2010 in response to her letter of 6 March 2010. She indicated that the process had been impeded due to the ill health of the Mayor, Councillor Lawrence Walker. She further stated that as a result of that Councillor Copeland had recently been nominated to take his place on the grievance panel and that he had received a copy of the investigator’s report which he is taking time to consider in detail. She went on to say that the panel will then reconvene and a date for the grievance hearing will be scheduled as soon as possible.

(26) Heather Moore, one of the persons against whom the claimant lodged a grievance, sent an e-mail to Joan McCoy on 7 June 2010 in which she stated:-

…

“I feel that the perceived grounds for the grievance being submitted in the first instance are potentially being exacerbated by the length of time that the matter has continued to be unresolved. Equally if the matter continues to go to court, the council’s lack of implementation of “internal procedure” does not present as a very good defence.”

She added later in her e-mail:-

“… It concerns me that he [Councillor Copeland] may feel that I am putting pressure on him personally, when in fact the whole process has been somewhat convoluted and in breach of the policy from the outset.”

(27) Joan McCoy responded to Heather Moore by e-mail of 7 June 2010 and in the course of that e-mail stated:-

“As already noted the extended delay in the process was outside the control of HR. I accept that there was perhaps a
6-8 week period when the then appointed HR Manager failed to proactively press the process, which I sincerely regret, however this as you are also aware was also addressed.”

(28) The panel of Councillors Brian Hanvey, Michael Copland and Judith Cochrane met on 15 November 2010. According to the notes of the meeting they discussed the process and the hearing for the claimant and an opportunity for witnesses to put forward their case. They also agreed that a letter be sent to the claimant to update her on the process and similarly a letter to the persons against whom the claimant had lodged her grievance. It was agreed that Judith Cochrane would become the Chair of the Committee. An issue arose as to whether allegation 10 might refer to Councillor Michael Copeland and it was agreed that advice be taken on this issue.

(29) Councillor Cochrane wrote to the claimant on 29 November 2010 to update her on the current status of the case. In the course of the letter Councillor Cochrane indicated to the claimant that she could assure the claimant that the panel had considered the investigator’s report in detail. She also stated in the letter:-

“It is our intention therefore to arrange a date for the grievance hearing within the next few weeks. The hearing will provide an opportunity for the panel to hear not only from you but any other witnesses that it considers appropriate. Following the hearing the panel’s decision will be issued to you.”

(30) The claimant wrote to Councillor Cochrane on 12 December 2010. In the letter she suggested that it was erroneous to imply that any delay in dealing with the claim was due to the claimant’s failure to make a submission. She then outlined the correspondence from 7 January 2010 in relation to her grievance and stated:-

…

“The amount of correspondence containing broken promises and profuse apologies for the Council’s delay is wholly unacceptable and adds insult to injury to an employee with 20 years experience of the day to day workings of Castlereagh Borough Council.”

(31) Councillor Cochrane replied to the claimant on 7 January 2011. In the letter Councillor Cochrane stated it was not her intention to imply that any delay had been caused to the process by reason of the lack of submissions by the claimant. She further stated that it was acknowledged that the claimant had complied fully with the process. She then stated that the panel intended to hold a grievance hearing within the next few weeks. She hoped that would be before the end of January 2011. She further indicated to the claimant that Councillor Copeland would be replaced on the panel by Councillor Jeffers and that he had been provided with the copy of the report and a copy of their intended timescale.

She then stated:-

“In relation to your specific question regarding the report prepared by Mr Joynes, I can advise that acceptance or otherwise of the report can only be determined following the grievance hearing. I can confirm that the panel has sought clarification from Mr Joynes on certain issues and will do so again as necessary, during the course of our final deliberations.”

A copy of the letter was sent to Mr Joynes.

(32) Mr Joynes wrote to the respondent on 17 January 2011 following receipt of a copy of Councillor Cochrane’s letter of 7 January 2011 to the claimant. In his letter he commented:-

“… We were surprised to receive this [copy of the letter to the claimant] and to note that the issues had yet to be resolved, given that our report was presented in early May 2009 (i.e. some 20 months ago). Whilst we appreciate that Castlereagh Borough Council have had some difficulty in constituting a panel we were concerned to read Councillor Cochrane’s comment as follows:-

“… I can advise that acceptance or otherwise of the Report can only be determined following the Grievance Hearing.

It would, in our experience, be common practice for the parties to agree the investigation report, prior to entering into the Hearing, particularly where the report has embraced the information provided by all parties in an independent manner.

We would also note that, on one occasion following the presentation of our Report, we were asked to provide additional comment to specific questions posed by the panel. We responded to this request and have had no further comment or question from Castlereagh. Surely, if the panel had questions or needed further clarification, it would be necessary to seek this information before any Hearing would take place? Also, it would have been expected that this would not be after such a long timescale of almost two years. If the panel intended to set aside any of our findings, it would be necessary for Mrs Simpson and her advisors to be made aware of this intention, together with the reasons which led to this conclusion. We are not aware of any such information being released to Mrs Simpson.””

…

(33) Councillor Cochrane wrote to the claimant again on 1 February 2011 inviting her to a grievance hearing scheduled for 24 February 2011. She also stated in her letter:-

…

“I can assure you that the Panel have read the report, witness statements and evidence gathered in detail, and it is not our intention that the hearing will be a re-run of the investigation. Rather, the hearing will enable the panel to seek clarification from you on a range of issues.

Following the hearing with you, the Panel will hear from the Respondents and any other witnesses it considers appropriate.

In accordance with the Council’s procedures, you are entitled to be accompanied at the hearing by a trade union representative or work colleague.”

…

(34) The panel met again on 16 February 2011. The notes record that the claimant had not confirmed that she would be attending on 24 February 2011. It was also noted that the respondents had been written to, to tell them that their hearing would be in March and that they could submit a summary to the panel if they wished. New dates for the hearing were needed and the query was raised with the panel were there specific areas that it would like to hear from the respondents about. The note also recorded that there was no word yet on the negotiations with the insurance company. A summary of Alistair Joynes’ letter of 17 January 2011, in relation to informing the claimant if the findings had not been accepted and giving reasons for that and that if there was further input from Mr Joynes there might be a cost, was put to the meeting.

(35) On 20 February 2011, the claimant wrote to Councillor Cochrane. In her letter she recorded the chronology of her grievance and the Joynes report. She commented:-

…

“… Accordingly, I would have expected the process to be brought to a conclusion by the end of 2009. It is now 2011 the grievance has still not been concluded. I find this totally unacceptable.”

She continued:-

“Your letter of 7 January 2011 indicates that a grievance “hearing” is now necessary to determine whether the report is to be accepted or rejected by the Council. Further my attendance is expected to facilitate further enquiries.

Can you clarify the purpose of such a hearing as it was my understanding that the consultant’s role was to hear and determine the grievance, which he has done. Moreover the council has in its possession detailed statements which I have made in relation to the issues raised in my grievance.”

She then added:-

“I have been and remain profoundly frustrated by the failure of the Council to promptly take the grievance process forward to a conclusion since the consultant provided his report in May 2009. I do not understand why the Council has failed to address the report and its findings long before now. I have difficulty comprehending why a further meeting or ‘hearing’ is necessary.

Notwithstanding, if you can explain the purpose of the meeting and the rationale for my attendance, I will be able to make an informed decision in relation thereto. Indeed it might be useful to forward the questions or issues you intend to raise or address to enable me to prepare for the meeting.”

(36) Councillor Cochrane replied to the claimant on 22 February 2011. In the letter Councillor Cochrane apologised for the delay, suggested it was outside her control and assured the claimant that they were trying to resolve the matter within the next few weeks. She repeated what she had said in previous correspondence:-

“… acceptance of the report will be determined following the Grievance hearing. The independent investigator was to investigate the matter fully, and provide a report which would enable the panel to reach its’ conclusions.

You have been offered the opportunity to attend the Grievance Hearing in accordance with the council’s procedures. The purpose of the hearing will be to enable the panel to seek clarification from you on a range of issues, and to hear from the respondents and any other witnesses considered relevant. …”

She concluded:-

“I would advise that if you do not attend the hearing on 24^th February, that it will proceed in your absence.”

(37) The claimant replied by letter on 23 February 2011 wrongly dated 20 February 2010. In the letter the claimant again complained about the delay, the absence of any guaranteed date of when the matter would be resolved and her belief that all the information was already contained within the report. She finished her letter by stating:-

“Despite my reasonable request to enable me to properly prepare for the meeting you have refused to provide me with any prior notification of the list of issues the panel intend to raise.

Your decision that it is “inappropriate” to forward a “list of issues” would draw me to the conclusion that, on this basis, there is no benefit in my attendance at a meeting which denies me the opportunity to be properly prepared. I shall therefore not be in attendance.”

(38) Councillor Cochrane replied to the claimant on 28 February 2011 indicating that the panel had met on 24 February 2011 in the absence of the claimant. She further stated that the panel would meet with the respondents over the next few weeks. She stated that the panel would then reach its conclusions and the report would be forwarded to the claimant by 31 March 2011.

(39) The council wrote to the claimant on 20 April 2011 stating that due to the absence of key personnel the meetings scheduled for March were unable to proceed. The letter indicated the council was attempting to arrange alternative dates and indicated that it would be in touch with the claimant as soon as it had secured alternative dates with the respondents and would provide a new timetable for completion.

(40) The claimant resigned on 28 June 2011. In her letter of resignation she complained about the delay in arriving at a conclusion to her grievance. She stated:-

…

“I received correspondence in response indicating that the Panel was considering the matter. I was informed that the report would be provided by 31 March 2011. However I received further correspondence dated 20 April 2011 informing me that the matter would again be subject to delay and a new timescale would be furnished.

I have heard nothing since. I can only assume that this is a further delaying tactic given that the Council presumably does not want to face up to the substantive findings of the Joynes Report. I have no trust or confidence in the Council’s preparedness to properly address the matter of my grievance or employment future.”

She then added:-

“The delay in addressing my situation particularly when the Council is in possession of a comprehensive investigative report upholding many of my concerns and grievances for over two years following its lodgement with the Council as unacceptable and intolerable.

I have been waiting for three years for a conclusion. Since you have refused to treat me with respect, address my concerns and redress my grievances in a prompt and efficient manner, I have no option but to take responsibility to secure finality for myself.

Consequently I hereby resign my employment with the Council.”

…

(41) The panel appointed by the respondent on 23 November 2011, issued a report on the claimant’s grievance.

(42) The claimant believes that the delay in dealing with her grievance was because the report of Alistair Joynes upheld part of her grievance particularly in relation to discrimination and harassment and she believed that she has been victimised accordingly.

(43) The respondent believes that the Joynes report had serious flaws. However, it only made the claimant aware of these alleged flaws on or about 12 April 2012.

(44) The respondent’s criticisms of the Joynes report as recommended in the Witness Statements of Councillor Hanvey (paragraph 6), Councillor Cochrane (paragraph 6) and Heather Currie (paragraph 23) are, about the weight that was given to some evidence of some witnesses over others; inconsistencies within the report; that allegations were upheld on the basis of little or no evidence; and that the investigator favoured one version of events over another even though there appeared to be no evidence in support of either version. Further it believes that witnesses statements were relied on to uphold allegations where the witness had not observed the event complained of but merely had recounted the claimant’s version of events. The respondent then concluded that the findings of the investigator were skewed.

The Law

8. (1) A breach of contract arises when the employer breaches any term of the claimant’s contract of employment whether that term is an express term or an implied term or arises by operation of law.

(2) To establish a constructive dismissal that is unfair the claimant must prove that:-

(a) there was a breach of her contract of employment, and

(b) the breach went to the core of the contract, and

(c) the breach was the reason or principle reason for her resignation, and

(d) she did not delay in resigning after the breach occurred, and

(e) in all the circumstances the respondent acted unreasonably.

(3) The breach of contract can be a breach of an express term of the contract or a breach of an implied term or both.

(4) Implied terms of the contract include:-

(i) a breach of the duty of trust and confidence;

(ii) a breach of the duty of cooperation and/or support;

(iii) a breach of the duty promptly to redress grievances; and

(iv) a breach of the duty to provide a suitable working environment. (Harvey on Industrial Relations and Employment Law DI [429] to [479]).

(5) A breach of the implied term of trust and confidence can be by a single act of the employer or a course of conduct by the employer over a period of time.

(6) Where a course of conduct is relied upon it is not necessary that any single act itself amounts to the breach of the implied term of trust and confidence but the course of conduct, cumulatively, must amount to the breach of the implied term.

(7) Where a constructive dismissal claim arises from an alleged breach of the implied term of trust and confidence where the employee leaves in response to conduct carried on over a period of time the particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but where viewed against the background of such instances it may be considered sufficient by the course to warrant their treating the resignation as a constructive dismissal. It may be the “last straw” which causes the employee to terminate a deteriorating relationship.

(8) However, in Omilaju v Waltham Forest London Borough Council [2005] IRLR 35 the Court of Appeal held that where the alleged breach of the implied term of trust and confidence constituted a series of acts the essential ingredient of the final act was that it was an act in a series the cumulative effect of which was to amount to the breach. It followed that although the final act may not be blameworthy or unreasonable it had to contribute something to the breach even if relatively insignificant. As a result, if the final act did not contribute or add anything to the earlier series of acts it was not necessary to examine the earlier history. (Harvey on Industrial Relations and Employment Law D1 [480] and [481.01]).

(9) There is no fixed time within which the employee must make up his mind. A reasonable period is allowed. It depends upon all the circumstances including the employee’s length of service…, the nature of the breach, and whether the employee has protested at the change. Mere protests will not, however, prevent an inference that the employee has waived the breach, although a clear reservation of right might do so… (Harvey on Industrial Relations and Employment Law D1 [524]).

(10) Even where there is a breach, the employee may choose to give the employer the opportunity to remedy it. The employee will not then be prejudiced if he delays resigning until the employer’s response is known. … (W E Cox Toner (International) Ltd v Crook [1981] IRLR 433). (Harvey on Industrial Relations and Employment Law D1 [523.01]).

(11) A person “A” discriminates against another person “B” if he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s and he does so for any one of the following reasons:-

(i) because B has brought proceedings against A or any other person under the Sex Discrimination (Northern Ireland) Order 1976, or

(ii) gave evidence or information in connection with such proceedings brought by any person; or

(iii) otherwise did anything under or by reference to the Sex Discrimination (Northern Ireland) 1976 in relation to A or any other person;

(iv) alleged that A or any other person has (whether or not the allegation so states) contravened the Sex Discrimination (Northern Ireland) Order 1976 or

(v) A believes or suspects that B has done or intends to do any of these things. (Article 6 Sex Discrimination (Northern Ireland) Order 1976).

(12) A person “A” discriminates against anther person “B” if he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s and he does so for any of the following reasons:-

(i) because B has brought proceedings against A or any other person under the Disability Discrimination Act; or

(ii) gave evidence or information in connection with such proceedings brought by any person; or

(iii) otherwise did anything under or by reference to the Disability Discrimination Act in relation to A or any other persons; or

(iv) alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or

(v) A believes or suspects that B has done or intends to do any of those things (Section 55 Disability Discrimination Act 1995 (as amended)).

(13) An employer shall not make an unauthorised deduction from wages unless the deduction is required or authorised by statute or the employee’s contract of employment or the worker has previously signified his consent in writing to the making of the deduction (Article 45 the Employment Rights (Northern Ireland) Order 1996).

(14) An employee may bring a claim for the recovery of damages for any sum which is due or is outstanding on the termination of the employee’s employment (Article 3 Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994).

Application of the Findings of Fact and the Law to the Issues

9. (1) The claimant lodged a grievance on 3 and 25 April 2008. The respondent appointed Alastair Joynes to deal with the claimant’s grievance in May 2008. The claimant added to her grievance on 5 August 2008.

(2) The report submitted by Alastair Joynes was received by the respondent on

13 May 2009.

(3) The respondent appointed a panel of councillors on 19 May 2009 to consider the report and advise on the way forward.

(4) The final report on the grievance from the panel appointed was issued to the claimant on 23 November 2011. The claimant had resigned on 28 June 2011.

(5) The principle reason for the delay was the approach adopted by the respondent. Having accepted the findings of Joynes report on 11 August 2009 the respondent spent two years and three months considering the report, behaving as though they had rejected the findings but without saying so or disclosing any specific concerns they had with the report to the claimant despite her request. Councillor Cochrane informed the claimant by letter of 22 February 2011 that the acceptance or rejection of the report would be determined by the grievance hearing after 22 February 2011.

(6) Other factors contributed to the delay ie singular lack of urgency and purpose of the respondent in dealing with the grievance, which is obvious from the correspondence between the respondent and the claimant; the lack of adequate or sufficient administrative support to the panel appointed to hear the matter; the changes of personnel on the panel through death, illness and conflict of interest; and the restricted commitment that councillors could give by reason of their other work, available time and elections.

(7) While it is easy to understand that a grievance should be determined as quickly as reasonably possible, and the respondent’s grievance policy recognises this, medical evidence was not opened to the tribunal about any medical imperative on the respondent to bring the grievance to a conclusion.

(8) It seems to the tribunal that there are four possible explanations for the delay brought about largely by the respondent:-

(a) the criticisms levelled against the report by the respondent and set out at paragraph 7(44) above, or

(b) that the respondent victimised the claimant because she had brought claims against the respondent in which she alleged discrimination on the ground of sex or disability, or

(c) that the respondent did not want to accept the findings of the Joynes report, or

(d) some combination of the other three reasons.

(10) The tribunal rejects the explanation at paragraph 9(8)(a) above. In so doing the tribunal had regard to the following matters:-

(a) If the criticisms set out at paragraph 7(44) above have any substance then why, according to the respondent’s own evidence, had the respondent not decided whether to accept or reject the findings of the Joynes report until after 22 February 2011. This was not explained to the tribunal.

(b) These criticisms were not raised with Alistair Joynes so that he could explain how he dealt with them and arrived at the conclusions he made. This was not explained to the tribunal.

(c) No evidence was given as to how the further hearings or information gathered by the respondent enabled it to deal with those criticisms.

(d) Through all the grievance panel’s meetings there is not any record of these criticisms being raised or discussed.

(e) The criticisms of the Joynes report, referred to at paragraph 7(44) above, appear in almost identical terms in the witness statements of the two panel members who gave evidence and Heather Currie. None of them was able to illustrate, by way of example, the criticisms made. Councillor Hanvey told the tribunal that paragraph 6 of his witness statement was written by the respondent’s HR Department. The same wording is reproduced in the witness statements of Councillor Cochrane and Heather Currie.

(f) The criticisms stated in paragraph 7(44) above can confront any fact finding judicial or quasi-judicial body. Those criticisms are capable of being resolved by an experienced fact-finder using other factors such as demeanour of witnesses giving evidence, the manor of delivery of their evidence, internal consistency of the evidence, the clarity with which answers are given, the amount of detail about the event and incident, to name but a few factors. The respondent did not raise these criticisms with Mr Joynes to ask him how he dealt with them.

(g) Alistair Joynes’ approach to his investigation and report largely followed the same route as the respondent’s own policy and his approach had been approved by the Civil Service Staff Commission and the respondent’s own solicitors.

(h) The respondent’s criticism of the report of Alistair Joynes was not put to Alistair Joynes when he gave his evidence.

(11) The tribunal also rejects the explanation at 9(8)(b) above. In so doing the tribunal had regard to the following matters:-

(a) Up to August 2009 there is not any evidence of victimisation on the part of the respondent on the ground of sex or disability as once the claimant had lodged her grievances the respondent had followed the procedural requirements and the approach the claimant had proposed, ie an independent person to determine her grievance. The time limits for action were not adhered to but by reason of the volume of complaints and the extent of the report. Thus the delay until 11 August 2009 is not a criticism of the respondent.

(b) The claimant’s criticism’s can only be that the delay from 11 August 2009 to 28 June 2011, when she resigned, and the subsequent rejection of all but a few of Alistair Joynes’ findings favourable to her were done because she had brought a claim for sex discrimination which she later withdrew or brought a High Court claim which is ongoing or that the process was deliberately delayed for that reason.

(c) There was little or no evidence before the tribunal that disability was a reason for the respondent’s behaviour and the tribunal rejects that as a reason for the alleged less favourable treatment.

(d) It is hard to see how delaying the grievance determination, could benefit the respondent or reasonably be seen as a logical form of retaliation for claims made by the claimant. Accordingly the tribunal thinks it is unlikely that the delay was a form of retaliation against the claimant.

(e) The rejection of most of her grievances by the respondent could amount to less favourable treatment but if rejection of her claims was the objective of the respondent why did it bring in an independent decision-maker which undermined its ability to control or influence the outcome. The tribunal rejects this explanation also.

(12) The tribunal concludes that on balance the explanation for the delay is that the respondent did not wish to accept the findings of the Joynes report because some of them related to sex discrimination; involved a number of senior council officers; and thereby raised questions about how the respondent conducted its workplace and work environment. In so concluding the tribunal had regard to the following matters:-

(a) The lack of any persuasive evidence that the criticisms of the Joynes report had substance, as set out above.

(b) The rejection of victimisation of the claimant on the ground of sex and disability as an explanation for the reasons, set out above.

(c) The respondent was under pressure from before the Joynes report was available from the persons complained against by the claimant and some councillors about its conduct of the grievance process.

(d) It is easy to understand that any public body, acting for and on behalf of the public and financed by public funds, would not want findings of discrimination against it and some of its senior officers.

This explanation does not fall within any of the grounds necessary for a successful claim under Article 6 of Sex Discrimination (Northern Ireland) Order 1976.

(13) For the reasons set out at paragraphs 9(10) and (11) above the tribunal does not consider there is sufficient evidence to suggest there was a combination of explanations as set out at paragraph 9(8) above to explain the respondent’s actions.

(14) While there have been exceptions, apart from the incident claim, there is no evidence before the tribunal to suggest that the respondent did not follow its guidance procedure vis-a-vis time limits as set out above at paragraph 7(6).

(15) The mechanism used by the respondent, initially was to follow its own grievance procedure with a number of exceptions ie the use of an independent person, Alistair Joynes, to make findings in respect of all the allegations, and the non-adherence to the time limits. After 11 August 2009 the respondent embarked on its own investigation of the grievances and decision making without ever having rejected the findings of Mr Joynes.

(16) The respondent concedes the claimant’s claim of sex discrimination in July 2008 was a protected act. While no such concession was made about any claim which she made in relation to disability discrimination, if that claim was made in the 2008 proceedings it may well have been a protected act although evidence on this matter was not adduced before the tribunal. The claimant’s grievance of 3 April 2008 satisfies the requirement of being a protected act.

(17) The tribunal is not persuaded that the claimant was unlawfully victimised contrary to the Sex Discrimination (Northern Ireland) Order 1976 and the Disability Discrimination Act 1995 as amended for the reasons set out above.

(18) The tribunal is satisfied that the claimant was constructively unlawfully dismissed contrary to Part XI of the Employment Rights (Northern Ireland) Order 1996. In so concluding the tribunal had regard to the following matters:-

(a) The tribunal is satisfied that the respondent breached the implied term of trust and confidence. This related both to specific events ie failure to address the claimant’s grievance promptly and a course of conduct which included delay, lack of openness, failure to adhere to undertakings given and by following an approach of dealing with the grievance that was bound to lead to delay.

(b) The respondent accepted the Joynes’ findings by 11 August 2009. It raised a number of queries with Mr Joynes and these where answered on 25 August 2009. As late as 22 February 2011 the respondent stated that the acceptance or rejection of the Joynes report had not been determined. So if the respondent had not rejected the report by 27 February 2011 what was happening between 25 August 2009 and

22 February 2011?

(c) If the respondent was accepting the report, as they had decided and recorded, on 11 August 2009 then it should have been able to conclude the claimant’s grievance within a number of months from 25 August 2009.

(d) If the respondent was rejecting the report, for the reasons set out in paragraph 7(44), why did it not tell the claimant that it was so doing? This would also have determined the claimant’s grievance much quicker.

(e) If the criticisms at paragraph 7(44) above were such as to cause concern but fell short of justifying rejection why did the respondent not ask Joynes to answer the criticisms and tell the claimant about these concerns. If the respondent had concerns it should have addressed those concerns in a much shorter period.

(f) There was a lack of openness on the part of the respondent towards the claimant, though she was invited to make submissions about the Joynes report. The respondent did not tell her why it invited submissions ie because it had rejected Joynes’ findings in her favour or because it wanted to give her an opportunity to deal with the complaints she made which Joynes had rejected or if accepting the findings what recommendations or policy changes or other matters flowed from that, such as eg how would the claimant work with any of those found to have treated in a discriminatory fashion.

(g) When on 22 February 2011 the respondent told the claimant it wanted clarification on issues from her and she asked what those issues were the respondent refused to tell her.

(h) The respondent, having arranged for an independent person to investigate the claimant’s complaints and to make findings on them, did not accept them. If the criticisms the respondent makes of the report are correct then there would have been reasons that could have justified rejection but by 22 February 2011 the respondent still had not decided to reject the report.

In practical terms having not accepted the Joynes report, the approach of doing further investigation and determination of the grievances by a panel of councillors was destined to lead to further delay by reason of the councillors’ other commitments and elections.

(i) Having engaged an independent person to investigate and make findings on the claimant’s grievances the respondent bears responsibility for any delay thereafter when it delays the process without concluding that there was substance to any of the declared criticisms.

(j) The respondent failed to properly address the claimant’s grievance. This can be seen as an implied term in its own right or as part of the implied term of trust and confidence.

(19) The failure to address the claimant’s grievance properly and the breach of the implied term of trust and confidence went to the core of the claimant’s contract.

(20) The tribunal is satisfied that the principle reason for the claimant’s resignation was the breach of the implied term of the breach and confidence of the claimant’s contract. This is clear from her letter of resignation. This was not challenged by the respondent.

(21) The tribunal is not satisfied that the claimant delayed too long before resigning or waived the breach. In so concluding the tribunal had regard to the following matters:-

(a) The claimant had not been at work since July 2008 and therefore had not worked on despite the breach.

(b) The claimant has throughout sought to bring the grievance procedure to a conclusion and has remonstrated with the respondent about the delay.

(c) Prior to August 2009, by reason of the use of an independent person to investigate and make findings, the preparation and delivery of the report to the respondent and the time to consider it, no criticism is made by the claimant of the time-frame.

(d) As the respondent did not disclose to the claimant that it had either rejected the Joynes’ report or intended to investigate concerns in harboured with the report the claimant was led to believe that the respondent was finishing its consideration of the report and was confronted with a number of set backs ie death, illness, a conflict of interest, affecting membership of the panel, loss or lack of administrative support, councillor’s available time and elections, the claimant waited patiently hoping for a determination of her grievance.

(e) The respondent eventually gave the claimant a deadline for the determination of her grievance ie 31 March 2011. Having been given a deadline the claimant was entitled to wait until that time had elapsed. On 20 April 2011 the respondent wrote to the claimant stating that the meeting scheduled for March 2011 did not take place and it would be in touch with the claimant to provide a new timescale. The claimant again patiently waited. The respondent had not contacted the claimant by 28 June 2011 and the claimant resigned.

(f) The failure of the respondent from 20 April 2011 to 28 June 2011 to provide a new timescale to the claimant for determination of her grievance constitutes the “last straw” and entitles the claimant to resign.

(22) The tribunal is satisfied, based on what is set out above, that the respondent acted unreasonably.

(23) The tribunal is also satisfied that the claimant suffered an unfair constructive dismissal.

(24) The claim will now be relisted to decide remedy.

Chairman:

Date and place of hearing: 16, 17, 18, 19 and 20 April, 15 and 18 May and
25 June 2012.

Date decision recorded in register and issued to parties:

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