Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2013/1710_12IT.html
Cite as: [2013] NIIT 1710_12IT, [2013] NIIT 01710_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1710/12

CLAIMANT: Donal McBrearty

RESPONDENT: J McAleer and Sons Ltd

DECISION

The decision of the tribunal is that the claimant was unfairly constructively dismissed. He is entitled to an award of £19,713.51 by way of compensation.

The claimant’s claim in so far as it relates to a breach of the Working Time Regulations (Northern Ireland) 1998 is dismissed.

Constitution of Tribunal:

Chairman: Mrs A Wilson

Members: Mr E Grant

Mrs T Kelly

Appearances:

The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Babington and Croasdaile, Solicitors.

The respondent was represented by Mr McKeown, Barrister-at-Law, instructed by Andrew T Armstrong and Company, Solicitors.

THE EVIDENCE

1. (i) The tribunal considered the witness statements of the claimant and of Mr Gerald McAleer and Mr Tony Barton for the respondent together with their sworn evidence under cross examination. Bundles of documents were prepared, agreed and furnished to the tribunal and the tribunal considered those documents within the bundles as referred to together with the claim form and response.

(ii) The tribunal considered the written and oral submissions of Messrs Grainger and McKeown.

(iii) In considering points of conflicting evidence as between Mr McAleer and Mr McBrearty, the tribunal on many points preferred the evidence of Mr McBrearty. Mr McBrearty was the more straightforward witness. He replied without hesitation to questions asked of him in cross examination and his evidence under cross examination was consistent with his witness statement and with documentation presented to the tribunal.

(iv) Mr McAleer was evasive and argumentative under cross examination and there were inconsistencies in his recollection of some events. In other instances his evidence lacked credibility. By way of example Mr McAleer denied sending text messages to the claimant. He described himself as not being a “text man". It subsequently emerged during the course of the hearing that he had in fact sent a number of text messages to the claimant as evidenced by agreed transcripts produced to the tribunal. He was hesitant and cautious in giving evidence. He frequently asked for questions of the utmost simplicity to be repeated and on occasions sought clarification as to whether there were notes relative to the question posed of him before replying. He was less than straightforward on a number of points and had to be reminded on a number of occasions by the Chairman of what was expected of him as a witness.

(v) In evaluating the evidence the tribunal found Mr McAleer’s presentation and demeanour at hearing to be entirely consistent with the claimant’s description of his behaviour during the course of the employment relationship and consistent with transcripts of recordings furnished of interactions between the parties.

(vi) The tribunal considered agreed transcripts of recordings made by the claimant of certain phone calls and meetings with Mr McAleer and others which recordings were made surreptitiously. There was no objection to transcripts of these recordings being admitted. The tribunal took into account the fact that those recorded were not aware that they were being recorded by Mr McBrearty in circumstances where Mr McBrearty was clearly so aware and undoubtedly modified his contributions accordingly. Further the tribunal is mindful that the transcripts did not provide a reliable reflection of the mood of the recorded meetings or conversations beyond the sense that interactions were for the most part heated and lacking in mutuality of respect. The tribunal also noted that whilst some meetings and calls were recorded others were not. All recordings were considered in that context. The recordings were shared with the respondents in advance of the hearing and despite the surreptitious nature of the recordings it was agreed that the transcripts provided were accurate reflections of the recordings and of what transpired by way of discussion at the meetings and during the recorded telephone conversations.

THE CLAIM FORM

2. In his claim form the claimant claims unfair constructive dismissal, breach of the Working Time Regulations and failure by the respondent to provide him with a written statement of particulars of employment in accordance with the requirements of the Employment Rights (Northern Ireland) Order 1996 (“the Employment Rights Order”).

THE RESPONSE

3. The respondent in its response denies all claims.

4. Having considered the claim form and the response the tribunal concluded that the issues to be determined in general terms were as follows:-

(i) What were the reasons for the claimant’s resignation?

(ii) Did those reasons or any one of them amount to a breach of contract by the respondent?

(iii) If the claimant resigned in response to a breach or contract by the respondent the following issues arise:-

(a) Was that breach sufficiently serious to justify the claimant’s resignation?

(b) Did the claimant leave in response to the breach or for some other unconnected reason?

(c) By giving and working a notice period (and more generally) did the claimant waive the breach or agree to a variation in his contractual terms?

The following specific issues arise:-

(i) Did the claimant receive a written statement of particulars of his employment in accordance with the requirements of the Employment Rights Order on commencement of his employment and from time to time during his employment as changes were made to those particulars?

(ii) Did the document provided to the claimant following the meeting on the 8^th day of June 2012 truly reflect his terms and conditions of employment and meet with the requirements of the Employment Rights Order?

(iii) In the event that the tribunal find that the claimant did not receive the required written statement of employment particulars in accordance with the provisions of the Employment Rights Order the amount to be awarded in respect of compensation has been agreed.

(iv) Were the claimant’s working hours unilaterally changed by the respondent so as to amount to a fundamental breach of contract?

(v) Was the claimant’s required weekly working time in contravention of the Working Time Regulations (Northern Ireland) 1998.

(vi) If the respondent acted in breach of the Working time Regulations what compensation is due to the claimant?

(vii) Was the claimant undermined at work in circumstances amounting to a breach of the implied term of mutual trust and confidence between the parties amounting to a breach of the employment contract?

(viii) Did the arrangement whereby the claimant’s salary payment was converted to euro or paid in sterling as requested by the claimant amount to a term implied into the claimant’s contract of employment entitling him to determine the currency of payment on a monthly basis?

(ix) Did the respondent’s indication that the currency of payment option was to be discontinued amount to a fundamental anticipatory breach of contract?

(x) Did the claimant’s resignation amount to unfair constructive dismissal? In addressing this question the tribunal must consider not only the reason for the claimant's resignation but must also whether the respondent acted reasonably in all the circumstances of the case (Stephenson & Co. (Oxford Ltd v Austin [1990] ICR 609 EAT).

(xi) If the claimant was unfairly constructively dismissed certain elements of compensation has been agreed. Where compensation is not agreed what amount is due to the claimant?

(xii) What is the total amount of compensation due to the claimant?

FINDINGS OF RELEVANT FACT

5. The claimant was employed by the respondent from 1 June 2000 until his resignation on 12 June 2012. He resigned on 12 June 2012 giving two weeks’ notice and his effective date of termination was 26 June 2012.

6. The respondent operates a wholesale builders’ merchant providers business. The claimant was employed as a Sales Representative in that business. He was the first sales representative (apart from family members) to be employed by the respondent and it was part of his role to expand and develop the business. He was successful in this regard and a competent employee.

7. In 2009 the claimant became the Senior Sales Representative. The transition from Sales Representative to Senior Sales Representative attracted no increase in salary, no preferential terms or conditions of employment and no added responsibility. The claimant did not have line management responsibility for any staff apart from a mentoring role relative to Mr Thomas O Laughlin. His duties did not differ from those of any other sales representative employed by the respondent. The title “Senior Sales Representative” was nonetheless a title which the claimant valued and he prided himself on being the number one sales person in terms of achieved sales. He strove to maintain his position in this regard.

8. It is common case that the claimant was excellent at his job and contributed significantly to the expansion of the business. There were never any disciplinary issues relative to his performance and until in or around 2007 relationships between the parties were harmonious. There was a familiarity in the relationship which strayed beyond a typical employer/employee relationship and the tribunal has formed the view that this was a contributing factor to a breakdown of the relationship between the claimant and Mr Gerard McAleer.

THE CURRENCY CONVERSION ARRANGEMENT

9. The respondent is an employer based in Northern Ireland and the claimant was paid his salary in sterling. He paid tax in Northern Ireland on his sterling pay. He lives in Donegal and throughout his employment he enjoyed the choice exercised on a monthly basis as to whether his pay should be lodged to his sterling bank account or to his euro bank account. This is referred to for the purposes of this decision as the “currency conversion arrangement”. The tribunal is satisfied that the arrangement was routine, was consistently applied and that the claimant for the most part choose payment into his euro bank account.

10. The currency conversion arrangement was advantageous to the claimant because he avoided the bank charges which are associated with currency conversion and the respondent offered a better exchange rate than that offered by the bank. The claimant received payment into his sterling account from time to time but the tribunal is satisfied that this was always at his request. In accordance with this arrangement the claimant received payment in sterling on the following dates in the last 5 years of his employment:-

29 June 2007, 27 March 2008, 28 April 2008, 2 June 2008,

29 July 2009, 27 September 2010, 21 December 2011,

25 January 2012, 26 April 2012, 29 May 2012 and 26 June 2012.

11. For reasons given above (paragraph 1(iii) to (iv)) and in reliance on documentation furnished the tribunal do not accept Mr McAleer's case that currency conversion was only provided if requested by the claimant and it was convenient to the respondent. The tribunal have heard no compelling evidence of convenience to the respondent ever having been considered and have indeed no evidence of what constituted convenience to the respondent. Neither is there any compelling evidence that conversion was ever dependent on the prevailing rate of exchange as is the respondent’s case.

12. The tribunal considered the case of Albion Automotive Ltd v Walker [2002] All ER (D) 170 and is satisfied on the evidence that the currency conversion arrangement was routine and was consistently applied. It was followed without exception for a substantial period of the claimant’s employment. The currency of payment was always determined by the claimant and the tribunal is not satisfied that currency conversion was ever considered against inconvenience to the respondent or against the prevailing exchange rate. The tribunal is satisfied that the claimant had an expectation that the arrangement would persist throughout his employment and that he regarded it as an entitlement in accordance with his contract. The tribunal is satisfied that it was a term implied into the employment contract by reason of the aforementioned considerations.

13. The proposal to discontinue the currency conversion arrangement was first mentioned to the claimant on 16 August 2011 when Mr Gerard McAleer firmly indicated to the claimant that the arrangement would change by agreement “between you and me". When the claimant tried to discuss the proposed change he was accused by Mr McAleer of being intransigent and was told "it will be happening". Following this exchange the claimant explored various methods of converting his sterling salary to euro and it transpired that conversion would result in between a 2% to 2.5% reduction in his actual pay.

14. In February 2012 Mr McAleer again raised the currency conversion arrangement with the claimant. Following a heated discussion he (Mr McAleer) agreed to consider a proposal by the claimant that his salary be adjusted upwards to reflect the consequential loss which would be suffered as a result of any discontinuance of the arrangement.

15. In April 2012 payment in sterling was commenced without the agreement of the claimant and without any reference by Mr McAleer to the earlier promise to consider a salary adjustment. The tribunal is satisfied that no consideration was given to such an adjustment. The claimant's salary was paid in sterling on the 26 April 2012, 29 May 2012 and 26 June 2012.

16. The claimant did not agree to the revised arrangement and the tribunal is satisfied that he did not acquiesce in the change. He consistently queried the fact of sterling payment with Mr McAleer and having in blunt terms been given the firm impression that it was not a matter that was open to discussion, he instructed his solicitor to pursue it. On the 9 May 2012 his solicitor wrote to the respondent relative to a number of issues including the currency conversion arrangement.

17. Following receipt of the solicitor's letter the respondent arranged a meeting with the claimant and that meeting took place on 8 June 2012 (“the 8 June meeting”) and was attended by Mr Gerard McAleer, Mr Conor McAleer, Mr Tony Barton and the claimant. This meeting will be considered in greater detail later. Following the meeting Mr Barton e-mailed the claimant indicating that the currency conversion arrangement would re commence and continue for a four month period in anticipation of an agreement being reached between the parties.

18. It is the claimant’s evidence that he had no confidence in this arrangement nor did he believe that the promise of an agreement was genuine. His evidence is that he believed ultimately that the currency conversion arrangement would cease with or without his consent. His conversations with Mr McAleer coupled with his experience of Mr McAleer’s behaviour relative to employment matters generally led him to believe this to be the case. The tribunal is satisfied that this was a reasonable and genuinely held belief based upon conversations the claimant previously had with Mr McAleer including the conversation in February 2012 (paragraph 14 refers) during which Mr McAleer promised to consider his (the claimant’s) suggestion of a salary adjustment and failed to do so, his earlier comment to the effect “this will be happening” and his blunt manner when approached by the claimant following the first non consensual payment into his sterling account in April 2012 (paragraph 16).

19. It is the claimant’s case that ending the currency conversion arrangement in the circumstances described amounted to a breach of a fundamental term of his employment contract and furthermore it is his case that the respondent’s handling of the matter was unreasonable and contributed to a breakdown in trust and confidence between the parties.

20. The tribunal is mindful that the promise following the 8 June meeting to reinstate currency conversion and to review the arrangement in four months was made by Mr Barton rather than Mr McAleer. Mr Barton during the same meeting undertook to provide the claimant with a copy of his employment contract. Mr Barton delivered on the promise to provide a copy of the employment contract but the copy provided was simply a standard document which did not contain the detail required by the claimant in accordance with the Employment Rights Order. The tribunal is satisfied in these circumstances that the claimant was fortified in his view that there was no will on the part of the respondent to meaningfully engage relative to the currency conversion arrangement and that the arrangement would cease with or without his consent.

21. The discontinuance of the currency conversion arrangement was a material factor informing the claimant’s decision to resign. The tribunal is satisfied that this effectively amounted to a reduction in contractual pay (albeit an anticipatory reduction) and a fundamental breach of a term implied into the claimant’s contract. Further the manner in which it was handled by Mr McAleer was unreasonable in all the circumstances recited and served to damage the relationship of trust and confidence between the parties.

HOURS OF WORK

22. In the early years of the claimant’s employment there was a flexible approach adopted towards working hours. It was required of the claimant that he would travel to meet with customers throughout Ireland, that his first call would be to the customer furthest away and that on his return journey he would visit other customers. This typically entailed long hours and overnight stays away from home. The practice at that time was that if he worked a long day or had an overnight stay, the claimant was allowed a short day later in the week. It was routine that administrative work generated whilst travelling would be completed by the claimant either in the office or from home. The tribunal have no evidence to suggest that there was ever a time when there was no after hours administrative work to be completed. Further the tribunal is satisfied that initially there was an informal approach to the working relationship and because the claimant was generating sales and contributing to the development of the business he was subject to minimal supervision by Mr McAleer.

23. From 2007 onwards as the business developed more formality was introduced into the work place. In 2007 the respondent introduced a new IT system and in late 2007 and 2008 two additional sales representatives were appointed. In 2008 a mobile IT system for sales staff was introduced which required real time information on stock levels, prices etc to be available online during the working day. Quotations, orders, invoice checking and e mail queries which had previously been dealt with in the office or from home now were required by the respondent to be dealt with during the course of the working day whilst on the road (by the roadside) or with customers. This requirement was introduced so as to facilitate access at all times to accurate and up to date information for sound business reasons. The claimant found the recording process to be time consuming due largely to the unavailability of a broadband signal in many areas and he found the requirement to input information by the roadside to be cumbersome.

24. A system of "tagging orders" for delivery and payment was introduced. The tribunal accepts the claimant’s evidence that this was a more time consuming process than the respondent suggested. It was the respondent’s case that it could be completed in a matter of seconds. The tribunal is however satisfied that it was a legitimate requirement introduced for sound business reasons.

25. Weekly planners and reports were introduced and were required to be submitted to the office no later than 8.30 on Monday mornings. This typically entailed some home working over the weekend.

26. The tribunal is satisfied that all these changes were legitimate changes introduced for sound business reasons and whilst the claimant found them to be time consuming the tribunal is not satisfied that they served significantly to increase his working hours. The tribunal was not persuaded by the claimant’s evidence in this regard and is satisfied that he was unreasonably resistant to change. It is clear from the 8June meeting which will be detailed later that he wanted his working life to revert to the flexible arrangements which pertained during the first years of his employment.

27. The claimant objected to a car tracking system being fitted to his car for monitoring purposes in accordance with the respondent’s policy to fit such a device to all sales representatives’ cars. It is the respondent’s case that this was due to his reluctance to have his working hours monitored. Is the claimant’s case that it was because he did not want private travel monitored? In any event the tribunal regard it as evidence of his resistance to change and find on the balance of probabilities that he did not want to have his travel monitored. Ultimately the devise was not fitted to the claimant’s car and there was no reliable means of monitoring his whereabouts.

28. The claimant was vocal in his objections to the requirement to record information online during the working day and the tribunal is not persuaded that he was agreeable to be flexible relative to changing working practices or that he accepted the changes as legitimate. In these circumstances and having considered the evidence in some considerable detail over many hours of deliberation the tribunal is satisfied on the balance of probabilities that the claimant exaggerated the impact of online recording on his working hours and failed to make any reasonable efforts to adapt to the new systems. In making this finding the tribunal gave due consideration to the contemporaneous notes handwritten by the claimant and furnished to the tribunal.

29. In 2010 decisions were taken by the respondent to introduce some structure relative to working hours. A trial was introduced whereby all sales representatives (to include the claimant) were allowed to work a day from home if the two previous days involved an overnight stay. Working from home in these circumstances was designed to facilitate sales representatives in completing the administrative work referred to above.

30. The respondent seeks to make the case that the system of working from home was abused by the claimant. However in circumstances where the tribunal has no evidence of this ever being raised as an issue with the claimant during the course of his employment either informally or otherwise the tribunal disregard it.

31. At a sales meeting on 10 December 2010 Mr McAleer instructed all sales representatives to be with their first customer at 8.30 am and their last customer at 5.30 pm. It is the claimant’s case that this was a new requirement and that it had particular impact upon him in that he lived in Donegal and had the greatest distance to travel to be with his first customer at 8.30 am. It is the respondent’s case that this requirement always applied, that it applied equally to the claimant’s employment and that it was simply being more strictly enforced.

32. The tribunal prefer the evidence of Mr McAleer relative to this point. It is his case that customers of the business were open from 8.30 am onwards and that sales representative hours needed to correspond to customer’s hours in the interests of business efficiency. This makes business sense and having evaluated Mr McAleer’s testimony the tribunal accept it to be the case. The tribunal is satisfied that the difficulty arose because when the claimant was first appointed there was a flexible approach to his working hours and he was subject to minimal supervision.

33. A decision to terminate the home working arrangement was announced to sales staff by Gerard McAleer at a meeting on 11 February 2011 ("the 11 February meeting") and much is made of this by the claimant in his evidence. However it appears to the tribunal in reliance upon the claimant’s own evidence under cross examination that the arrangement was not in fact discontinued and was availed of by the claimant up to the effective date of termination of his employment contract.

34. The 11February meeting was an important meeting in the context of this case. It was scheduled to take place at 7.00 am in the offices of the respondent as a one off meeting arranged to facilitate IT training arranged at some considerable expense to the respondent. All sales staff was present for the purposes of that training which was followed by a sales meeting. The claimant was offered overnight accommodation in a local hotel to facilitate his attendance at the meeting which he did not avail of for personal reasons. In these circumstances the tribunal is unsympathetic to his objection to the timing of the meeting as raised in his solicitor’s letter of 9 May 2012. It is raised again in his claim form and a written note was kept by him recording the hours worked by him that particular day. During the meeting the claimant and Mr Thomas O Laughlin questioned the proposal to terminate the home working arrangement and objected on the grounds that it would limit the time available to sales staff to complete administrative work. When Mr O Laughlin raised a query as to when paperwork should be completed he was summarily dismissed by Mr McAleer.

35. The tribunal is satisfied that with the benefit of hindsight Mr McAleer recognised that his behaviour in arbitrarily dismissing Mr O Laughlin was an ill advised and impulsive reaction. The tribunal also find that on the balance of probabilities he was reacting (albeit inappropriately) to what he regarded as intransigence amongst his staff and a belief that his business was being “sales led rather than management led”. Nevertheless the tribunal find the arbitrary dismissal of Mr O Laughlin as indicative of Mr McAleer's inadequate personnel management skills.

36. The work environment was quite strained in or around this time and particularly so between the claimant and Mr. Gerard McAleer. The tribunal find on the balance of probabilities that this was attributable to fault on both sides. Mr McAleer was struggling to manage his business in the face of employee resistance during a tough recession and the claimant was difficult to manage. The claimant was resistant to change and was vocal in that resistance. Mr McAleer regarded him as encouraging resistance amongst staff and considered him responsible for the behaviour of Mr O Laughlin at the meeting on the 11February.

37. It appears to the tribunal that neither party was willing to engage with the other relative to points of contention and because of the familiar relationship which initially at least existed between them the professionalism normally associated with and expected of an employment relationship was missing. The tribunal is satisfied that the claimant was not easy to manage and Mr McAleer whilst clearly a good businessman was not a good personnel manager.

38. On 14 February 2011 the claimant was hospitalised with a suspected miniature stroke. He remained in hospital until 22 February 2011 and returned to work on 7 March 2011. Between 15 February 2011 and 3 March 2011 the claimant received eleven text messages from Mr McAleer including one at 12.35 am on 3 March 2011. All messages were along the lines of "Donal give me a ring" and "Donal give me a call please we are sorting things out for next week”. The tribunal is satisfied that from 15 March Mr McAleer knew the claimant was in hospital and that the text messages were work related rather than by way of enquiry regarding his health.

39. The tribunal do not accept Mr McAleer's explanation for the 12.35 am text. He explained that he was out of the country at the time and as a result of which delivery of the text was in all likelihood delayed. Mr McAleer was in Donegal at the time and experience is that there is typically no time delay in texts sent from Northern Ireland to Donegal. Further he gave evidence to the effect that he "was not a text man" and that he “did not send texts”. This is consistent with his contribution to the 8 June meeting which will be detailed later. The transcripts produced of numerous texts sent by him prove that he did send texts and on a regular basis.

40. It is the claimant's case that he was put under unacceptable pressure by Mr McAleer to return to work whilst unwell and that he was told by Mr McAleer in a telephone conversation on 4 March 2011 that consideration would have to be given to laying staff off. Mr McAleer denies pressurising the claimant to return. It is his evidence that the claimant was anxious to return to maintain his position as number one sales person and that no mention was ever made of laying off staff.

41. In circumstances where a new member of staff was recruited shortly after the claimant’s return to work (albeit to replace Mr O Laughlin) the tribunal find on the balance of probabilities that Mr McAleer did not mention laying off staff. However given the amount of contact from Mr McAleer during the claimant's sick absence the tribunal is satisfied that the claimant felt some pressure to return. However the tribunal is also satisfied that he was keen to return so as to maintain his customers and retain his position as the number one sales man. In making this finding the tribunal considered evidence that whilst on sick leave the claimant queried Mr McAleer’s contact with a particular customer in Donegal who had been allocated to him. The tribunal is satisfied that by this time Mr McAleer and the claimant distrusted each other to a significant extent.

42. At a sales meeting on 12th December 2011 it was recorded under matters arising that all sales representatives were to answer all calls from 7.30 am (page 428 of the bundle). The tribunal do not accept Mr McAleer's evidence at paragraph 40 of his witness statement that this requirement applied only in emergencies. The record of the meeting on 12 December clearly records the following;

"All sales reps as from the 14th December 2011 must answer all calls from 7.30am".

There is no mention of it applying only in emergencies.

43. It is the claimant’s case that the changes introduced relative to working hours in so far as they related to start and finishing times amounted to a material change to his terms and conditions of employment. It is his case that the effect of the changes when combined with the changes introduced to working practices served to significantly increase his required working hours.

44. It is the respondent’s case that there was no increase to working hours because the requirement to be with customers at 8.30 always applied and the introduction of IT reduced the amount of administrative work required. It is Mr McAleer’s case that all administrative work could be completed during the working day either whilst with customers or whilst travelling. It is his evidence that the claimant could have completed all his work between the hours of 8.30 am and 5.30 pm.

45. Having carefully considered and evaluated all evidence the tribunal is satisfied that additional work was generated by the introduction of a sophisticated IT system. This work was not always capable of being done whilst with customers or by the roadside due to time constraints and the unavailability of a signal whilst on the road. The knock on effect was that the claimant spent time working from home either at the end of the working day or at weekends. The tribunal is however satisfied that the claimant’s work typically involved an element of working at evenings and week ends. The tribunal is satisfied on the balance of probabilities that this was always the case

46. The tribunal have accepted that the requirement to be with the first customer at 8.30 am was not new (paragraph 32 refers) but was to be more strictly enforced. The tribunal do not accept that the strict enforcement of this requirement materially increased the claimant’s working hours (see para 52 below).

47. It is the claimant’s evidence that the requirement to be with his first customer at 8.30 am caused him concern only relative to customers located at a distance from his home. However in respect of these customers the claimant was afforded accommodation in a local hotel to facilitate ease of travel and early customer contact.

48. The tribunal proceeded to consider whether the structure introduced relative to working hours amounted to a change in the claimant's working hours so as to amount to a breach of the employment contract. The tribunal is satisfied that it did not.

49. The claimant worked as a sales representative. He earned a considerable salary. The nature of his job was such that it was unsuited to a strict 8.30 am to 5.30 pm working day. The tribunal is satisfied that from the beginning the claimant completed an amount of administrative work from home and that his working day extended beyond “normal” working hours. Problems only arose when efforts were made to add structure to what had previously been a flexible approach to working hours. The claimant was resistant to change and indicated during the 8 June meeting that he was not willing to accept any contract that reflected a departure from the more flexible system in place when he was appointed.

50. The tribunal is satisfied that the claimant was resistant to the accountability associated with the changes sought to be introduced. This is evidenced by his reluctance to allow a car tracking system to be installed in his car so as to better monitor his travelling.

51. The tribunal carefully considered evidence of the negative impact on the claimant of the discontinuance of the home working day. However it appears that the day working from home was not in fact discontinued. It was the claimant's own evidence under cross examination that it was still allowed up until 12 June 2012 ie the date of his resignation and was used by him to complete "back up work and planning work".

52. The tribunal considered the enforcement of the requirement to be with the first customer at 8.30 am and the last customer at 5.30 pm. On the balance of probabilities this is likely to have had some impact on the claimant’s working hours but the tribunal is satisfied that it was not significant. The claimant concedes that the requirement had an adverse impact in so far as it related to customers a distance from his home. However in respect of these customers the claimant was expected to stay at a convenient local hotel to facilitate contact. On his own evidence the claimant had no difficulty adhering to the requirement relative to local customers. Further the tribunal have no evidence that the requirement was enforced relative to the claimant.

53. The tribunal is satisfied that the requirement to be available from 7.30 am onwards was a variation of the claimant’s terms and conditions of employment. It is likely to have had an impact on the claimant’s working hours but in the context of an unfair constructive dismissal case the tribunal has no evidence that any impact was significant or that the requirement was imposed in practice.

54. Having carefully considered the evidence much of which lacked focus, was confused and all of which was in contention the tribunal cannot be satisfied that the changed regime relative to working hours in the circumstances of this case amounted to a fundamental breach of the claimant’s contract of employment. Ultimately the tribunal is satisfied that the requirement to be with the first customer at 8.30 am and the last customer at 5.30 pm was always in place. There was always an element of administrative work to be completed after hours. The requirement to answer calls from 7.30 am onwards was new but on the evidence considered against the balance of probabilities the tribunal is not satisfied that it materially affected the claimant.

55. The tribunal is satisfied on the evidence that a more structured approach to working hours was introduced to optimise working hours, to better manage employment relationships and to address the challenges brought about by the recession. The claimant was resistant to the respondent’s legitimate efforts in this regard and the tribunal is satisfied that a large measure of his resistance can be attributed to the fact that his working life was becoming less flexible and more structured with increased accountability. He was to be subjected to closer monitoring than previously and he was not agreeable to this.

Complaint of Undermining

56. It is the claimant's case that from in or around April 2011 onwards he had a sense that he was being undermined at work by Mr McAleer. It is his case that a lot of lucrative customers were taken off him and assigned to other sales representatives.

57. It is the respondent's case that customers were taken off the claimant following his period of sick leave so as to reduce his workload and in circumstances where there was no commission element to his pay it did not affect his capacity to earn. A sales representative was appointed to cover the Sligo area and albeit that this was an appointment to replace Mr O Laughlin it is the respondent’s case that this would serve to reduce pressure on the claimant in that his responsibility for customers in the Sligo area would disappear.

58. In the context of the claimant’s argument that there was an effort on the part of the respondent to undermine him, the tribunal considered the transcript of a meeting on 4th April 2011. The tribunal is satisfied that Mr McAleer believed that the appointment of a new sales representative to cover the Sligo area would reduce the claimant's workload. The claimant in his claim form complained of having to cover Mr O Laughlin's area and this appointment had the effect of addressing this concern. This is inconsistent with the respondent seeking to undermine the claimant.

59. It is the claimant’s evidence that he was given to understand by Mr McAleer that he would be given responsibility for the “larger multiples”. The multiples market was a lucrative one and one that the respondent was keen to acquire. However the reality was that the claimant was not permitted to visit these customers alone and he felt undermined by the fact that Mr McAleer insisted on accompanying him and that from time to time appointments had to be cancelled to facilitate this.

60. It is the respondent’s case that it was Mr McAleer's intention to accompany all sales representatives on visits to multiple customers because this was an area in which the respondent previously had limited success and Mr McAleer was keen to reverse this trend and to meet personally with personnel within those companies to that end. It is his case that there was no attempt to undermine the claimant and the tribunal accept the evidence of Mr McAleer in this regard. Ultimately the multiple customers were transferred to Mr Barton who had experience of dealing with such customers.

61. The claimant was requested to assist in the interview and training of the newly appointed sales representative. This seems inconsistent with his argument that he was being undermined. He refused to participate in interviewing or training on the basis that queries relative to his own employment remained outstanding. Irrespective of the reasons for the claimant’s refusal to assist the tribunal finds that such a refusal in a typical employment relationship would have been an issue. The tribunal have no evidence to suggest that it was an issue in this case and had the respondent been seeking to undermine the claimant it is likely that it would have been.

62. It is the claimant's case that customers were removed from his list so as to undermine him. He objected in some instances to customers being removed and it is his case that any objection he had was unrelated to the value of the customer to the business but was related to geography and the distance he was required to travel.

63. The tribunal do not accept this to be the case. The claimant in his claim form complains of "substantial customers in Monaghan and Meath who generated substantial income each year" being removed from him. He further complains of "my more lucrative customers being moved to other sales men". There is no mention in his claim form of geography being an issue. The claimant had understandable pride in the fact that he was the most senior salesman and the most successful in terms of generating sales. He was keen to retain that position and for that reason also the tribunal consider it more likely than not that he was keen to retain lucrative customers regardless of where they were based.

64. It is the respondent’s case that customers were not removed from the claimant’s allocation of customers without the claimant’s consent and the tribunal is satisfied on the balance of probabilities that this was the case. The evidence on this issue was confused. The onus is on the claimant to satisfy the tribunal of the alleged breaches of his employment contract and the claimant has not succeeded relative to this point. Furthermore various proposals relative to the claimant were not imposed in practice because he did not consent. This was the case relative to the car tracking proposal and the proposal relative to the day working from home. He objected to participating in the interview and training of a new sales representative and was not required to do so against his wishes. In all these circumstances it seems more likely than not that any objections that the claimant had relative to customer allocation would have been acceded to. Additionally had the claimant an issue relative to particular customers being removed from his allocation the tribunal would have expected those customers and their value to the business to have been more specifically identified and detailed in evidence. Evidence on this point was more general than specific.

65. It is the claimant's case that collective sales meetings were discontinued in or around September 2011 and replaced by impromptu meetings. The tribunal accepts this to be the case but is not persuaded by the evidence that it is significant in terms of this case. There is certainly no compelling evidence that this was done so as to undermine the claimant. It applied equally to all sales staff and was within the remit of the respondent.

66. On 1 March 2012 Mr Tony Barton was appointed by the respondent to the newly created role of Sales Co Coordinator. His role was to better co ordinate sales. This included management (excluding personnel management) of the sales team and of customers and the assignment of sales representatives to particular customers based primarily on geography. In addition he had duties relative to stock including redesigning the sales brochure and updating price lists. He did not have managerial responsibility for any staff but all sales representatives were required to co operate with him for co ordination purposes.

67. The claimant regarded the appointment of Mr Barton as undermining his own position of senior sales representative. In his claim form he refers to the appointment in the following terms:-

"A Sales Manager named Tony Barton was appointed within the past year, although I was the Senior Sales Representative and had been employed for 12 years in that role and was the most senior sales person with the company”

In his witness statement he describes his belief that his role as senior Sales Representative was “meaningless” following the appointment of Mr Barton and he resented having to submit his weekly planner to Mr Barton. It is his case that he was alone in this requirement. The tribunal do not accept this to be the case and is satisfied on the evidence that Mr Barton applied all requirements equally to all staff. Mr Barton has proved himself to be a reliable witness and is regarded by the tribunal to be a lone voice of reason in the context of this case generally.

68. There is no evidence that the claimant was ever employed in the role assigned to Mr Barton. Some duties previously carried out by the claimant relative to brochures, price lists etc were transferred as was responsibility for the multiples but the tribunal is not persuaded that these were transferred so as to undermine the claimant but rather by reason of the fact that they fitted more easily with the role of sales co coordinator and relative to the multiples, Mr Barton was the more experienced.

69. The tribunal is satisfied that the appointment of Mr Barton was in no way intended to undermine the claimant. Neither is there compelling evidence that the claimant's position as Senior Sales Representative was affected to any significant extent by the appointment. The appointment of Mr Barton was a business decision properly made for legitimate business reasons by the respondent.

70. The tribunal is satisfied that the claimant felt undermined by the appointment of Mr Barton and that he felt his position diminished by reason of the appointment. However the tribunal is not satisfied that this was the intention of the respondent or that there was any objective reason for the claimant to feel undermined. However disquiet on the part of the claimant in this regard could have been addressed had Mr McAleer introduced Mr Barton to the sales team and clarified his role. The tribunal have no evidence to suggest that this was done. It appears that the role was only clarified when Mr Barton introduced himself and explained his role at his first sales meeting and this is likely to have proved unsettling for the claimant.

71. The claimant refers to difficulties he encountered relative to customer allocation and refers to an e-mail he received from Mr Barton in reply to concerns raised describing it as blunt. The tribunal considered the reply referred to and fail to understand the claimant’s complaint that it was blunt. It seems clear, authoritative and entirely appropriate. It is suggestive of frustration on the part of the respondent borne out of unsuccessful attempts to agree distribution of customers and is not regarded by the tribunal as evidence of the claimant being undermined.

72. The claimant asserts that he was excluded from communications to include updated price lists and other essential information relative to his work from in or around September 2011. It is his evidence that other sales representatives were instructed to exclude him. The tribunal is not satisfied on the evidence that any breakdown in communication was deliberate. Furthermore the tribunal is satisfied that Mr McAleer was a good businessman committed to his business and seeking to steer it through the recession. In these circumstances it is highly unlikely that he would have excluded the claimant from information essential to the success of the business or that he would have instructed others to do so.

73. For reasons given above the tribunal is not persuaded by the evidence that there was any attempt to undermine the claimant or that the actions of the respondent had the effect of undermining the claimant. However the management by Mr McAleer of issues raised by the claimant coupled with poor communication served to damage the relationship of trust and confidence between the parties.

WRITTEN STATEMENT OF EMPLOYMENT PARTICULARS

74. On 4 March 2011 following the claimant's hospitalisation and the recent dismissal of Mr O Laughlin the claimant requested a copy of his contract of employment. He was particularly interested in clarifying the contractual position relative to his working hours.

75. It is the respondent's case that a written contract was furnished to the claimant on his appointment and Mr McAleer's evidence that the retained copy was destroyed in a fire in the company's premises in 2009.

76. It is the claimant's case that he never received a written contract of employment and that the only document (apart from notifications relative to pension) received by him was a standard pro forma which he received more recently containing minimal detail and not reflecting his actual terms and conditions in accordance with the requirements of the Employment Rights Order.

77. The tribunal finds on the balance of probabilities that the claimant did not receive a written contract on his appointment. In finding this to be the case the tribunal considered the fact that initially the business was small, it was run on a relatively informal basis and had no identifiable HR expertise. The tribunal considered evidence that the company accountant who remains with the company handled such matters but the tribunal did not have the benefit of hearing from the accountant. Further the claimant presents as well organised. The tribunal is satisfied that had he received a written contract he would have retained a copy and he would have had no reason to consistently request a copy.

78. From March 2011 onwards the claimant made numerous requests for a copy of his contract. He was met with extreme resistance from Mr McAleer who perceived him as being difficult and who failed to appreciate the fact that he was entitled to written particulars in accordance with the Employment Rights Order. The claimant received a document purporting to be a duplicate of his original contract on 25 May 2012 and a further document purporting to be a contract of employment by e-mail on 8 June 2012. The tribunal examined these documents and is satisfied that neither met the requirements of the Employment Rights Order.

79. The tribunal finds that Mr McAleer was obstructive and unreasonable in refusing to provide the claimant with a copy of his contract. The claimant's account of efforts made by him on numerous occasions to secure a copy contract and his accounts of Mr McAleer's response is consistent with Mr McAleer’s attitude and demeanour whilst giving evidence under cross examination.

80. In a meeting on 4th April 2011 (pages 227 - 243 of the bundle ) Mr McAleer specifically told the claimant that he was not prepared to give him a written contract of employment that would tell him his hours of work (page 232 of the bundle). This was consistently his stance throughout the meeting and more generally. The tribunal regard this as evidence of unreasonableness on the part of Mr McAleer coupled with a disregard for the claimant’s rights as an employee irrespective of the consequences.

81. The tribunal find that the respondent was in deliberate breach of the requirement to provide the claimant with written particulars of employment in contravention of Articles 33 and 36 of the Employment Rights Order. Further the tribunal finds that the manner in which Mr McAleer dealt with legitimate requests by the claimant for such written particulars contributed significantly to the breakdown in trust and confidence between the parties. The tribunal regard Mr McAleer’s direct refusal to provide a contract that would inform the claimant relative to his required working hours as unreasonable and as evidence that he had scant regard for the claimant’s employment rights. The tribunal addressed its mind as to whether at this time the respondent no longer wished to be bound by the employment contract and having considered the evidence and evaluated the witnesses and Mr McAleer in particular the tribunal is satisfied on balance that this was the case. Mr McAleer found the claimant extremely difficult to manage and ultimately discontinued his efforts to manage him appropriately. He failed to distinguish between what was a legitimate request on the part of the claimant (currency conversion issues and written particulars of employment) and what was not.

SOLICITORS LETTER

82. Following consistent ongoing difficulties between the claimant and Mr McAleer the claimant contacted his solicitor relative to the employment issues currently under consideration. His solicitor wrote to the respondent on 9 May 2012 raising a number of grievances. The solicitor requested a copy of the claimant's contract of employment and raised the issues of contention which are currently under consideration. These included grievances relative to hours of work, currency conversion and the claimant's complaint that he was being undermined at work.

83. Mr McAleer responded by letter dated 25 May 2012 (“the response”).

84. A standard document purporting to be a copy of the claimant's contract of employment was attached to the response. The tribunal have considered this document and is satisfied that it did not meet the requirements of the Employment Rights Order or provide the specific information requested by the claimant.

85. The response addressed the issue of working hours and incorporated a denial that there had been any increase in working hours. The point was made that the claimant refused to have a tracking device fitted to his car so as to enable his travelling to be monitored. The tribunal have considered the issue of the tracking device and is agreed that there was a request by the respondent to have one fitted, the claimant refused relying on reasons of privacy and the matter was not pursued by the respondent.

86. The response raised an issue regarding the claimant's poor sales performance. The tribunal is satisfied on the evidence that the claimant's sales figures were consistently on target and it is common case that he was good at his job.

87. The response did not address the currency conversion arrangement.

88. The tribunal considered the response in the context of the evidence overall and is satisfied that it justifies the conclusion reached by the claimant that the respondent was unwilling to concede any merit in any point being made by the claimant and that there was no attempt to meaningfully address any point raised. This included the valid request for a written contract of employment and valid queries relative to the currency conversion arrangement.

89. It is the claimant’s case that his grievances were not being taken seriously by Mr McAleer and in the context of Mr McAleer’s response to the solicitor’s letter this seems a reasonable conclusion. The tribunal is satisfied that the response did not address the grievances raised. It is regarded by the tribunal as a further indication that the respondent did not wish to be bound by the employment contract.

8 JUNE 2012 MEETING

90. Following the solicitor’s letter and the response the claimant was invited to a meeting on 8 June 2012. The meeting was attended by Mr Gerard McAleer, Mr Conor McAleer, Mr Tony Barton and the claimant. The agenda circulated shortly before the meeting included the following items:-

1) General discussion

2) Sales Trends-explanation for differences month on month

3) Controllability and

5) Disciplinary issues (as and when they arise).

The claimant recorded the meeting without the knowledge of the other attendees and the tribunal considered the claimant's contributions to the meeting in this context. The transcript of the recording was agreed between the parties and considered by the tribunal.

91. From the very outset the meeting was heated and particularly so between the claimant and Mr McAleer. The agenda was not followed and the issues discussed were those forming the subject matter of this case ie hours of work, currency conversion, written contract of employment and the claimant’s complaint that he was being undermined.

92. It is clear from the recording of the meeting and indeed acknowledged at the meeting that there was a personality clash and some intransigence between the claimant and Mr Gerard McAleer. Despite the best efforts of Mr Barton and Mr Conor McAleer to steer the meeting to a reasonable conclusion the meeting developed into a free for all with the main protagonists speaking over each other, interrupting each other and the claimant threatening to leave the meeting. The issues in contention were raised by the claimant and not addressed by Mr Gerard McAleer. There was no element of professionalism in evidence and no semblance of an employee/employer relationship or of any intention on the part of Mr Gerard McAleer to be bound by his obligations under the employment contract.

93. Mr Tony Barton adopted a reasoned approach throughout the meeting. He attempted to add focus and structure and to resolve matters but was largely unsuccessful due to disagreements between Mr Gerard McAleer and the claimant. He made it clear that if the claimant had difficulties with his customer allocation he (Mr Barton) was prepared to sit down and reach an acceptable agreement. He agreed to sort out a written contract of employment and to seek to resolve the issues relative to pay i.e. the currency conversion arrangement.

94. Mr Barton during the course of the meeting acknowledged that the issues between the claimant and Mr Gerard McAleer had snowballed into a larger issue that was capable of being resolved if the claimant and Mr McAleer were prepared to sit down and sort things out in a sensible manner without "squealing and shouting". The tribunal is satisfied that was an accurate summation of the position but that ultimately Mr McAleer and Mr McBrearty distrusted each other and that Mr McBrearty in all likelihood no longer wished to be bound by the employment contract.

95. The claimant clarified to the meeting what he required relative to his contract of employment in the following terms:-

"If you give me a contract that's roughly in line with the understanding we had for the first 5,6,7 years when i worked here, where there was flexibility regarding away nights and short days to make up for it and things like that then theres no problem. But thats where the difficulty is, that all that flexibility has gone out of it"

The claimant also made it clear that if any contract furnished to him indicated the requirement to be at his first customer at 8.30 am, his last customer at 5.30 pm leaving administrative work to be done at weekends then it was his intention to resign in the interests of his health and family life.

96. Following this meeting the claimant received an email dated 8 June 2012 from Mr Barton. A copy contract of employment was attached. The copy contract attached was a standard document which did not satisfy the requirements of the Employment Rights Order or clarify the claimant's required working hours. The claimant was also informed that the currency conversion arrangement was to be reinstated for a period of four months following which "we will review the situation……and come to a further agreement”.

97. On 11 June 2012 the claimant resigned from his employment giving two weeks notice. His letter of resignation was couched in the following terms:-

“The purpose of this letter is to inform you of my official resignation from the company.

This is a decision I have not taken lightly, but I feel is the only course available to me as my position with the company has been made untenable in recent times.

This is borne out by the company's failure to provide me with complete terms of employment despite my numerous requests for same, the company's failure to address then on-going question of my hours of work and the company's unilateral decision to alter the method of payment of salary despite my clear indication that I was not in favour of these changes.

The above coupled with the ongoing undermining of my position within the company as detailed in previous communications are a clear breach of trust and confidence and as such leave me with no option but to take this course of action.

It is my intention to work two weeks notice from the date of this letter. I trust we can use that time to ensure a smooth transition for staff and customers.

Regards,

Donal McBrearty.”

THE LAW

98. The right not to be unfairly dismissed is enshrined in the Employment Rights (Northern Ireland) Order 1996. Article 126 provides that an employee has the right not to be unfairly dismissed by an employer. Article 127 provides the circumstances in which an employee is dismissed. This includes where 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. This is known as constructive dismissal and it is the claimant's case that he was constructively dismissed.

99. The tribunal considered Harvey on Industrial Relations and Employment Law paragraphs 409 to 600 (“Harvey”) and the leading case of Western Excavating (ECC) Ltd v Sharp [1978] ITLR 27.

100. The tribunal considered the case of Mahmud v Bank of Credit and Commerce [1997] IRLR 462 and the following extract:-

"The employer shall not without reasonable and proper cause conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee"

101. Conduct on the part of the employer likely to destroy or seriously damage the employment relationship must be repudiatory in nature. The tribunal must consider the conduct and decide objectively whether there is a repudiatory breach by considering its impact on the contractual relationship of the parties. Some examples are given in Harvey of conduct likely to involve a breach of the duty not to undermine trust and confidence so as to destroy or seriously damage the employment relationship. These include failing to treat a long-serving employee with dignity and consideration (Garner v Grange Furnishing Ltd [1977] IRLR 206) and persistently attempting to vary an employee's conditions of service (Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347.

102. The duty not to undermine trust and confidence is capable of applying to a series of acts by the employer which individually can be justified as being within the four corners of the contract (Woods v WM Car Services (Peterborough) Ltd).

103. Constructive dismissal can arise where the employee leaves in response to an anticipatory breach.

104. The employee must leave in response to the breach and not for some other unconnected reason and must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose the right to treat himself as discharged (Western Excavating (ECC) Ltd v Sharp).

CONCLUSIONS

105. What were the reasons for the claimant’s resignation?

The tribunal having carefully considered and evaluated the evidence is satisfied that the claimant resigned as a result of a complete breakdown in the employment relationship between himself and Mr Gerard McAleer. This breakdown is evidenced by the factors considered separately above and more specifically below. The tribunal finds that Mr Gerard McAleer failed to deal with the claimant’s legitimate grievances in accordance with his responsibility as a reasonable employer. This is evident from his unilateral approach to employment matters and in particular the currency conversion arrangement, his inadequate response to the solicitor’s letter, his stated intention never to provide a written contract of employment detailing the claimant's hours of work and his unreasonable behaviour at the meeting on 8 June 2012. Mutual trust and confidence was damaged over a period of time and following the meeting on 8 June 2012 the claimant’s reasonable conclusion was that the relationship was irretrievable. The tribunal is satisfied that the contract was repudiated by Mr McAleer at that time and that Mr McAleer’s behaviour leading to repudiation was unreasonable.

106. Did those reasons or any one of them amount to a breach of contract by the respondent?

The tribunal has considered the reason for the claimant’s resignation and find as follows:-

(i) The claimant was deliberately not provided with a written contract of employment in accordance with the requirements of the Employment Rights Order. The manner in which his many requests for such a contract were treated was in fundamental breach of the implied contractual duty of trust and confidence between the parties (paragraph 80 in particular refers) and amounted to unreasonable and repudiatory behaviour on the part of Mr McAleer.

(ii) The claimant reasonably believed that the currency conversion arrangement was to be unilaterally discontinued and this amounted to a fundamental (albeit anticipatory) and repudiatory breach of contract.

(iii) The tribunal is satisfied on the facts recited above that there was a complete and irretrievable breakdown of trust and confidence between the claimant and Mr McAleer so as to amount to a repudiation of the employment contract. Mr McAleer’s behaviour as detailed above led the claimant to the reasonable conclusion that the relationship was irretrievable.

107. If the claimant resigned in response to a breach of contract by the respondent the following issues arise:-

(a) Was that breach sufficiently serious to justify the claimant’s resignation?

(i) The tribunal is satisfied that the unilateral discontinuance of the currency conversion arrangement was sufficiently serious to justify the claimant’s resignation. This was to have the effect of reducing his earnings by between 2% and 2.5% and it is well recognised in law that a unilateral reduction in pay amounts to a fundamental breach of contract. (Industrial Rubber Products v Gillon [1977] IRLR 389). However the tribunal is satisfied that had this been an isolated breach the claimant, on the balance of probabilities, would not have resigned. It was however a contributing factor to his resignation.

(ii) The tribunal is satisfied that the breakdown in trust and confidence between the claimant and Mr McAleer escalated to the point that it was sufficiently serious as to justify resignation. Effectively the contract of employment was repudiated by the unreasonable behaviour of McAleer and this became clear to the claimant following the 8June meeting.

108. Did the claimant leave in response to the breach of for some other unconnected reason?

The tribunal is satisfied that the claimant resigned in response to the breaches of contract detailed. The claimant did not have other employment to go to and sacrificed a considerable salary in resigning.

109. By giving and working a notice period (and more generally) did the claimant waive the breach or agree to a variation in his contractual terms?

(i) The tribunal is satisfied that the claimant did not waive the breach or agree to any variation in his contractual terms. The claimant was determined and vocal in his resistance to the discontinuance of the currency conversion arrangement. The respondent cannot reasonably have believed that he accepted it, albeit that it was implemented temporarily. Ultimately the claimant raised the issue through his solicitor such was his determination not to accept it. The letter from his solicitor triggered the series of events leading to his resignation.

(iii) The 8June meeting is crucial relative to the timing of the claimant’s resignation. Following this meeting the claimant recorded in a contemporaneous aide memoire that he was hopeful that Mr Conor McAleer and Mr Barton were in favour of resolving issues. This changed on receipt by him of the standard contract of employment forwarded to him by Mr Barton following the meeting. The document forwarded differed only slightly from the standard document furnished to him earlier and did not provide the detail required of him. At that point he formed the firm belief that there was no will on the part of the respondent to resolve issues. This led him to believe that the promise given regarding the currency conversion arrangement ie to reinstate and review after four months was meaningless and that the arrangement would be discontinued with or without his consent.

(iv) Following the 8June meeting the breakdown of trust and confidence between the claimant and Mr McAleer was complete. The claimant had been hopeful that matters could be retrieved by goodwill on the part of Mr Conor McAleer and Mr Tony Barton. However that hope dissipated when Mr Barton did not deliver relative on his promise to provide a contract of employment clarifying his hours and meeting the requirements of the Employment Rights Order. The claimant then resigned promptly.

110. The tribunal is satisfied that for reasons recited the claimant was unfairly constructive dismissed.

WORKING TIME REGULATIONS

111. The tribunal has not been presented with sufficient specific evidence to justify a finding that the respondent was in breach of the working time regulations relative to the hours worked by the claimant.

112. The tribunal considered regulation 4 of the Working time Regulations (Northern Ireland) 1988. The tribunal heard no evidence relative to the appropriate reference period to be applied or whether a relevant agreement was in place. It is not the role of the tribunal to speculate in such matters.

113. The tribunal would have expected detailed records of hours worked over the applicable reference period to have been furnished and introduced into evidence. They were not. Evidence in this regard was in general terms.

114. The records required to be kept by the respondent in accordance with the regulations were not sought, produced or mentioned in evidence.

115. In all these circumstances the tribunal dismisses the claim in so far as it relates to working time.

COMPENSATION

116. The claimant is entitled to compensation in accordance with Articles 152 to 161 of the Employment Rights Order in respect of unfair dismissal taking into account the provisions of Article 27 of the Employment (Northern Ireland) Order 2003 in so far as it relates to the respondent's failure to provide the claimant with a statement of employment particulars.

117. The tribunal considered the prepared schedule of loss, some aspects of which were agreed.

118. In accordance with the agreed schedule of loss the tribunal awards the sum of £6,235.00 in respect of the basic award.

119. The tribunal considered Article 156 (2) of the Employment Rights Order. The tribunal is satisfied that the claimant was unfairly constructively dismissed because of the breakdown in trust and confidence between the parties to the extent that the employment relationship was repudiated. The tribunal is satisfied that for reasons outlined throughout this decision the fault for the breakdown of the relationship can be attributed to both parties.

120. Fault on the part of the claimant can be summarised to include the fact that he was intransigent to the extent that he was difficult to manage and was unreasonably opposed to legitimate change to the extent that some changes were not capable of being implemented relative to him. He was inflexible in his interactions with Mr Gerard McAleer and so unreasonable in his resistance to change that Mr McAleer became incapable of managing him. He failed to carry out some lawful instructions e.g. relative to car tracking. Mr Barton found him to be uncooperative and aggressive to the extent that his (Mr Barton’s) duties as sales co-ordinator were difficult to perform. Had the claimant behaved more reasonably as an employee the tribunal is satisfied that the breakdown in the employment relationship may not have escalated to an irretrievable level.

121. In all these circumstances the tribunal is satisfied that the claimant's conduct prior to his constructive dismissal contributed to the breakdown of the employer/employee relationship and was such that it is just and equitable to reduce the basic award by 25%.

122. The tribunal awards the sum of £6,235.00 less £1558.75 in respect of contributory fault = £4676.25 in respect of the basic award.

123. The tribunal award an uplift of four weeks pay in respect of failure to provide a statement of employment particulars. The tribunal is satisfied that an uplift of four weeks pay is just and equitable given the claimant's persistent attempts over avery considerable period to get a copy and the blatant refusal of Mr McAleer to provide a copy (paragraph 80 refers). The statutory maximum amount of a weeks pay is determined for present purposes by the Employment Rights (Increase of Limits) Order (Northern Ireland) 2012 and is £430.00. The tribunal award an uplift of £1,720.00 under this heading.

124. The tribunal considered Article 157 of the Employment Rights Order in calculating the compensatory award

125. Article 157 provides that the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

126. The tribunal considered loss sustained by the claimant and attributable to action taken by the employer under the following headings.

127. The claimant claims £22,336.78 in respect of loss of earnings. This relates to the period from 30 June 2012 to 1 May 2013.

128. The claimant is required to mitigate his loss and so the tribunal considered evidence regarding the claimant's efforts to find suitable alternative employment. His evidence is that he trawled newspapers, web sites etc but failed to find suitable work in the field he was working in. He expressed a willingness to consider any vacancies in the construction industry but was unsuccessful in obtaining suitable employment due the impact of the recession on the construction industry. He gave evidence of considering part time work as an option but ruled it out on the basis that it would not be possible to accumulate sufficient part time work to create a reasonable salary.

129. The claimant’s duty to mitigate his loss arises in accordance with Article 157(4) of the Employment Rights Order. Evidence relative to his efforts to mitigate his loss is general rather than specific. No documents were provided to support oral testimony relative to vacancies considered. There is no evidence of any specific vacancies considered or of any job applications considered. The tribunal were not provided with specific details of any part time jobs considered or of the media relied upon in the search for work.

130. The tribunal cannot be satisfied on the limited evidence relative to mitigation of loss that the claimant was willing to explore opportunities outside of the construction related industry or that he was willing to accept part time work. The claimant is a competent sales man with transferable skills and an excellent track record in sales. It is entirely possible that had he been so minded he would have been able to secure work outside the construction related industry. The tribunal have no evidence that he applied his mind seriously to such alternative employment.

131. The claimant commenced business on his own account on 1 October 2012. After that time he concentrated his efforts on building his own business and discontinued his search for direct employment. The tribunal find that any effort to mitigate his loss ceased after the 1 October 2012. In these circumstances the tribunal is not satisfied that it is just and equitable to make an award in respect of 52 weeks loss of earnings. The tribunal award lost earnings for the period between 30 June 2012 and 1 October 2012 amounting to 13 weeks at £430.00 (statutory maximum) per week. The total award under this heading is £5,590.00.

132. The claimant claims the sum of £27,011.92 in respect of future loss. For reasons recited at paragraph 131 the tribunal makes no award in respect of future loss.

133. The tribunal award the sum of £9,636.00 is respect of the loss suffered by the claimant following the loss of his car. This sum is agreed and the tribunal is satisfied that it is just and equitable to award that sum.

134. The claimant claims compensation for loss of a health card which he held whilst living in the Republic of Ireland and working in Northern Ireland. The tribunal have no evidence to suggest that the claimant sought work or was willing to consider work in Northern Ireland having decided to start up his own business in the Republic of Ireland. In these circumstances the tribunal do not consider it just and equitable to make an award in respect of financial loss sustained by the loss of health card.

135. The claimant claims loss of pension in the sum of £16,242.72 to include loss of contribution from the date of dismissal until the hearing date and for 52 weeks thereafter to reflect future loss. For reasons given above the tribunal make no award in respect of future loss.

136. The tribunal is satisfied that it is just and equitable to award the sum of £2,030.34 representing the loss of contribution as set out in the schedule of loss from the date of resignation to the date upon which the claimant commenced business on his own account being a 13 week period.

137. The tribunal awards the sum of £500.00 in respect of loss of statutory rights.

138. The tribunal awards the sum of £17,756.34 in respect of the compensatory award.

139. The tribunal considered Article 157 (6) of the Employment Rights Order which provides that where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

140. For reasons recited and summarised at paragraph 120 above the tribunal reduce the compensatory award by 25%.

141. The total compensatory award is £17,756.34 less 25% (£4,439.08) = £13,317.26.

142. The tribunal award compensation to the claimant in the total sum of £13,317.26 (compensatory award) plus £ 6,396.25 (basic award) = £19,713.51

143. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 1-3 May and 9-11 July 2013, Belfast.

Date decision recorded in register and issued to parties: