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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gorman v Resource (NI) Limited [2013] NIIT 02756_11IT (09 April 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/2756_11IT.html
Cite as: [2013] NIIT 2756_11IT, [2013] NIIT 02756_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2756/11
CLAIMANT: Lisa Gorman
RESPONDENT: Resource (NI) Limited
DECISION
The unanimous decision of the Industrial Tribunal is that the claimant was not constructively dismissed by the respondent and accordingly the claim was dismissed.
Constitution of Tribunal:
Chairman: Ms E McCaffrey
Members: Mr P Killen
Mr J Magennis
Appearances:
The claimant was represented by Mr Brian McKee, Barrister-at-Law, instructed by Cleaver Fulton Rankin Solicitors.
The respondent was represented by Ms Michelle McGinley, of EEF Northern Ireland.
ISSUES
1. The issues for the panel to consider initially consisted of a claim for unpaid wages, a claim of victimisation and a claim of constructive dismissal. The issue of unpaid wages was resolved by negotiation between the parties at the outset of the hearing and the parties confirmed that they did not require any order from the tribunal in this regard. The claim of victimisation was subsequently withdrawn after the commencement of the case. This means that the only matter we have to consider is the claim of constructive dismissal. The issue for us to consider is whether the way in which the claimant was treated by the respondent following her making a complaint of sexual harassment against a PSNI Officer on 25 May 2011 was a breach of the implied duty of trust and confidence so as to entitle the claimant to resign her post as a Civilian Detention Officer on 7 September 2011.
2. Specifically, the claimant alleged the following matters, taken together, constituted a fundamental breach of the implied duty of trust and confidence:-
(1) A lack of response from the respondent, after the respondent was notified of the incident which occurred on 25 May 2011.
(2) Delay on the part of the respondent in dealing with the grievance raised by the claimant following the incident on 25 May.
(3) Failure by the respondent to offer the claimant suitable alternative employment:-
a. by failing to find her a post as a Call Handler; or
b. any other suitable post.
(4) By offering the claimant unsuitable posts.
We observe that these issues are somewhat different from those first identified and agreed by the parties in preparation for this case.
FACTS
3. We had the benefit of reading witness statements and hearing evidence from the claimant, from Una Franey, the HR business partner of the respondent and from Stephen McComb, Phil Parks, Beatrice Atcheson and Brian Barlow, all of whom were employees of the respondent company. There were some conflicts between the parties in relation to the events. Where there have been discrepancies in the evidence given, we have set out a succinct summary of the evidence and recorded our finding of fact. We do this as the tribunal of fact and to ensure that the parties are aware that we have considered all relevant matters in making our finding.
4. The claimant was employed by the respondent as a Civilian Detention Officer, working in various PSNI custody suites throughout Northern Ireland. Throughout the period relevant to this claim she also worked as a part-time police officer. She started her training course to be a Civilian Detention Officer on 9 November 2009. Having finished her training course she decided not to take up a position at that point and left work. However, she subsequently contacted Brian Barlow early in 2010 and said she would like to take up a post as a Civilian Detention Officer. Given that her training and her clearance for the role was still valid, it was agreed that she could commence employment on 28 February 2010.
5. The claimant suffered an assault by a female detained person in April 2010 and was off work due to this injury for three weeks. In August 2010 she suffered another assault which left the claimant with neck injuries, and was off work for a further five months. While off sick, the claimant applied for a job as a receptionist at Lisburn City Council and attended an assessment centre. During this time she received her full pay for six weeks and then received statutory sick pay. The claimant raised a grievance in relation to non payment of her full wages throughout her sick leave and this matter was dealt with by Philip Parks. She initially appealed his finding and then withdrew her appeal. This matter is referred to as background to events which subsequently occurred.
6. When the claimant returned from sick leave in January 2011, it was agreed by Brian Barlow that she would move from Musgrave Street, (where she had previously worked) to the custody suite at Antrim Pace Custody and Serious Crime Suite and it was agreed that she returned to work on a phased basis.
7. On 25 May 2011, the claimant suffered an incident of sexual harassment from a Police Inspector at Antrim Custody Suite. This incident formed the basis of a separate claim of sexual harassment which has since been resolved between the parties. However, we refer to the date and the incident as they form the backdrop for the claim of constructive dismissal. The claimant made a complaint to a Police colleague on the evening of this event and subsequently gave a statement to Inspector Doyle, which led to the suspension and later the prosecution of the officer responsible. She said that she had been told by Inspector Doyle that he would contact the respondent to make them aware of the incident and to ask for a new uniform shirt for her, because one of her uniform shirts had been taken by the Forensic Science Department as evidence in the matter. He later told her he had contacted the respondent, but we were not given the exact date by the claimant.
8. We do not doubt the
claimant’s belief in this regard. However, it was Brian Barlow’s evidence
to us that he was not made aware of the 25 May incident by the claimant at
all but was only contacted by Inspector Doyle on 8 June 2011. Mr Barlow
went to see the Inspector on 8 June and Inspector Doyle then made him
aware of the nature of the complaint and that a police investigation was
ongoing. The same day Mr Barlow made a point of speaking to the claimant
about the matter in the presence of a female colleague. He asked her if she
was content to remain at Antrim Police Station, given that the Police Officer
concerned had been suspended from duty and therefore was not working with her. The
claimant told him that she was happy enough to remain there and that she did
not wish to be transferred to another custody suite. Mr Barlow did not
question her about the events which had occurred as he was conscious that they
were subject to a Police investigation. The claimant asked him to look into
the possibilities of a Call Handling post or other positions within the
company. He offered her counselling and support through the Care Call Scheme and
told her that she could speak to him at any time. Following this,
Mr Barlow contacted Stephen McComb, who was the service lead in
relation to Call Handling, and arranged for the claimant to go on a Call
Handling Course running from 17 June 2011 until 2 July 2011
which she completed successfully. There was a conflict of evidence between the
claimant and Mr Barlow and Mr McComb in relation to this course.
Both Mr McComb and Mr Barlow were clear that the claimant was aware
from the outset that the Call Handling Course consisted of two mandatory parts;
the first of these is a course lasting approximately two weeks conducted by the
PSNI, the second part is three days
in-house training given by PSNI staff “on the job”. Mr McComb was clear
that he was present when Mr Barlow telephoned the claimant in relation to
the course to explain to her the elements of the course and the timetable,
because some days run from 9.00 am to 9.00 pm and there is weekend
work. It was also important that participants in the course are aware that
they cannot take calls from the public while at the course. The claimant’s
representative said Mr McComb’s evidence was that Mr Barlow “would
have” explained the course was in two parts and that this was not convincing. However
we have checked our notes and we are clear that Mr McComb said that Mr Barlow
did explain the elements of the course and that it was in two mandatory parts
to the claimant. He also said that instructors in the course would also have
explained this to participants. The claimant completed the first part of the
Call Handling Course with a 100% pass mark for this module in the course and the
pass mark was 85%. The course was marked as a “pass/fail” and that the level
of marking was not a consideration in deciding whether or not candidates were
placed for employment as a Call Handler.
9. The claimant was offered in-house training from 25 to 28 July 2011 but she could not attend because she was due to go to a wedding on 26 July. The next date for in-house training (which was conducted by PSNI) was 22 to 26 August 2011 but at that time the claimant was absent from work as a result of a further assault while on duty and so she was not offered that training slot. Subsequent in-house training had been arranged for later in September 2011, but by that stage the claimant had resigned. Part of the claimant’s complaint to the tribunal was that she believed she had been unfairly treated in that she had not been offered a post as a Call Handler after completing the course. The claimant was adamant in her evidence to the tribunal that she had not been aware that the Call Handler Course had two mandatory parts and that she could not understand why she had not been given a Call Handler’s post. We do not find the claimant’s evidence on this point convincing. First of all, she had been placed on the Call Handler’s post at the first available opportunity after her discussion with Mr Barlow on 8 June and she completed the first part of the course on 2 July. She subsequently had an appraisal meeting with Mr Barlow on 19 July where she received a very positive report from him, that report notes, “To move to Call Handling. Interested in management roles. And administration roles.”,
Mr Barlow recorded that “Lisa Gorman is an experienced CDO who can be relied upon to carry out her detailed duties in a professional and effective manner”.
There is no record in her appraisal report of any dissatisfaction being expressed by the claimant in relation to not being placed in a Call Handler’s position.
10. Secondly, we have Mr Barlow’s evidence, corroborated by Stephen McComb, that the elements of the course and its timetable had been explained to her by telephone and we accept that evidence. Thirdly, we find it inconceivable that the claimant could have completed the first part of the course without being aware that there was a second strand to it and that she would be required to complete that strand before taking up a position as a Call Handler. Fourthly, the claimant was offered in-house training as a Call Handler at the end of July and had turned it down because she had a day’s leave booked. She did not at any point say that she queried with Mr Barlow or Mr McComb why she had to carry out the in-house training or that she had queried the delay in her being appointed, especially after the end of July, when another colleague who had done the course at the same time as her was appointed to a Call Handler’s post. All of this confirms that the claimant was well aware she had to complete the second stage of the course and is disingenuous in suggesting she did not know of this. Other colleagues who completed the second element of the course were placed in Call Handler roles fairly promptly thereafter and there was no reason to think that the claimant would have been treated any different.
11. The claimant raised a written grievance in relation to the complaint of sexual harassment by a letter dated 26 July 2011. This letter was addressed to Brian Barlow and sets out her complaint in relation to the sexual harassment incident on 25 May 2011. The body of the letter is relevant to this complaint of constructive dismissal and therefore we set it out in full. It reads as follows:-
“Dear Mr Barlow
With reference to the sexual assault and harassment that I endured by a Custody Inspector on Wednesday, 25 May 2011, I wish to raise a formal grievance and have this fully investigated by Resource and the Police Service of Northern Ireland under the Bullying and Harassment Policy.
I have been left shocked and quite distressed by this experience and I am currently receiving counselling and medical help for this. I believe his actions on that night amounted to sexual assault and harassment as he was quite aware of my previous experience in a custody environment and I feel that because of this he may have thought that he would have got away with harassing me (sic).
There was a previous attempted incident which happened earlier in the year… There are currently legal proceedings in force in this case with the PPS, however I wish for Resource and the PSNI to investigate this under the appropriate policy.
Kind regards.
Lisa Gorman”
12. The relevant part of Company’s grievance procedure sets out as follows:-
“Employees may raise a complaint directly with a senior manager if it:-
● concerns an immediate manager;
● is of too personal or sensitive in nature to raise with her immediate manager;
● complaints concerning discrimination, bullying or harassment by the immediate manager.
It is our intention to consider all grievances as soon as practically possible and the grievance hearing will usually be held within 10 working days of receiving a letter of grievance.
THE GRIEVANCE HEARING
Employees will be invited to attend a grievance hearing at a reasonable time and place enabling them to give full details of which the alleged grievance can be discussed in depth. Employees must take all reasonable steps to attend the grievance hearing. Management will require time to review all information and, if necessary carry out further investigations. The outcome will be confirmed in writing within 10 workings days or as soon as reasonably practicable following the hearing.(our emphasis). Employees will also be informed of their right to appeal if they find the outcome to be unsatisfactory.
RIGHT OF APPEAL
If an employee considers that their grievance has not been satisfactorily resolved they should appeal it in writing to the next level of management (or follow the guidance set out in the letter you will receive confirming the outcome) within five working days of receipt of their letter confirming the outcome of their grievance hearing.
An appeal hearing will usually be carried out or an appeal hearing will usually be held within 10 working days or as soon as reasonably practicable upon receipt of the written notice of appeal. The manager hearing the appeal will confirm the outcome in writing within 10 working days of the appeal hearing or as soon as reasonably practicable, the employees must take all reasonable steps to attend the meeting. The decision at this stage is final.
INVESTIGATIONS
The Company is committed to ensuring that all grievances are fully investigated. This may entail carrying out interviews with the employee concerned and third parties such as witnesses, colleagues and managers as well as analysing written records and information. The investigation information will be made available to parties concerned.
The employees may be accompanied at each hearing by a work colleague or an accredited trade union official.”
We accept that Mr Barlow received this letter and then decided after discussion with Ms Una Franey, the HR business partner of the respondent that, given the sensitive nature of this matter, it would be preferable for it to be dealt with by a woman. The letter relates purely to the sexual harassment incident and does not relate in any way to appointment as a Call Handler.
13. Ms Franey wrote to the claimant on 5 August to meet her in relation to her grievance and by agreement this meeting took place on 11 August 2011. Detailed notes of the grievance meeting were recorded by Amy Jo Doherty on behalf of the respondent and their accuracy was not disputed. At the meeting Ms Franey explained to the claimant that because allegations had been made against the respondent’s client’s employee (ie, in this case, a Police Officer), the respondent could not proceed with the investigation against those individuals. She asked for the claimant’s authority to release the information gathered to the PSNI so she could ask them to carry out an investigation into the allegations made and return with an outcome. Ms Franey confirmed that she could speak to the respondent’s own employees in relation to this matter and the claimant confirmed that she was happy for the investigation to be passed on to the PSNI and that she was waiting for criminal proceedings to be taken against the Police Officer concerned.
14. Ms Franey went on to say to the claimant in this meeting, “How do you want this to be resolved, what would be your view on a satisfactory outcome?” The claimant replied that she would like to be moved out of custody because “I can’t do it anymore”. She went on to say that she had done the Call Handling Course but that she felt unhappy in “the custody environment”. She was asked what other position she would consider and said that she was willing to consider anything at all, but she would not have the necessary SIA licence for security work. She emphasised that she was keen to go into training and progressing. Ms Franey asked her what about the interim and the claimant replied that she had to remain in Antrim. Ms Franey also said to her, “Alternative employment is not guaranteed, where does that leave us?” The claimant replied that she had done the Call Handling Course and was “waiting on a telephone call from Stephen McComb”. The claimant did not raise any specific complaint in relation to any delay regarding a call handler’s post and the comment came in the context of a discussion about possible alternative employment. Her comment about the call from Mr McComb could relate either to a place on the follow-up course or a posting, it is not clear which, but she did not raise any complaint with Ms Franey about it. She commented, “Failing that I have to continue in custody. I have been told he won’t be brought back”, referring to the Police Officer who had harassed her. Ms Franey’s meeting with the claimant took place at 10.00 am on Thursday, 11 August and lasted for a couple of hours, which points to a thorough discussion of the issues.
15. Ms Franey’s evidence was that she then attempted to contact the various employees of the respondent who had witnessed the sexual harassment event and she initially tried to do this through their Line Manager and then contacted the witnesses direct. She said that because of sick leave and holiday commitments she was unable to arrange to see them all until early September, although she agreed in cross-examination that all the witnesses were available from 15-19 August, the week immediately following her discussion with the claimant. She also said that it was her intention to try and interview them all on the same day rather than see them on different days and risk the chance that they would then discuss their evidence between themselves. She also noted that she had other work responsibilities which needed to be carried out at the same time and Ms Franey also attempted to contact and interview the relevant police witnesses, but was unable to see them because of the ongoing police investigation. Her evidence was that she had expected this, but felt she had to ask.
14. It was the claimant’s case that the respondent had delayed in dealing with her grievance and had not completed the grievance procedure within the time specified in the grievance procedure or “as soon as reasonably practicable”. Ms Franey pointed out that she had attempted to contact the claimant by telephone on 24 August and had been unable to reach her. She had spoken again to the claimant on 25 August to update her on the grievance procedure, had explained to her at that stage that she had arranged to interview various witnesses on 8 September and the claimant did not raise any issue in relation to this. During the same phone call, Ms Franey discussed with the claimant alternative employment opportunities in particular Call Handler’s positions in Maydown and Belfast. This agrees with the claimant’s evidence which was that she was offered a Call handler’s post in Maydown or an “ad-hoc” position in Belfast. Ms Franey agreed that she told the claimant of other vacancies, including cleaners’ jobs, to make her aware of what the openings were, but not specifically offering the posts to her. It was suggested by the claimant that there were other jobs available for which she would have been suited and she referred to a list which was amongst the papers prepared for the case. Ms Franey confirmed that this list was prepared for the hearing and she was not cross-examined on this point. We note that all these posts were advertised. We accept that in considering alternative employment opportunities for the claimant Ms Franey focussed mainly on Call Handlers’ posts, which we believe was reasonable, given that these posts were the claimant’s preferred option. The claimant’s evidence on this point was that she had been insulted by the suggestion of a job as a cleaner and the post in Maydown was not viable, given the distance she would have to travel. She did not tell Ms Franey this at any time during the phone call and her response when cross-examined was, “In hindsight, should have.”
15. Ms Franey asked the claimant to consider these positions and come back to her but the claimant did not give any response to these opportunities, nor did she reply to further telephone messages from Ms Franey on 31 August and 1 September and a letter sent by Ms Franey to the claimant on 5 September, updating the claimant on the grievance procedure and asking her to contact Ms Franey to discus the job opportunities at Maydown and Belfast. By letter of 2 September 2011 the claimant was offered a position as a Receptionist at Lisburn City Council. Although this post paid considerably less than her job with the respondent, the claimant decided to accept this post and sent a letter of resignation to the respondent dated 7 September 2011. The relevant part of that letter reads as follows:-
“I am resigning due to the way I have been treated by Resource after the incidents that occurred resulting in my assaults and injuries, I have been treated extremely unfairly by resource(sic) as a company and have been given no support by them. I was assured that after completion of my call handling training I would be given a place in Castlreagh however this has not been the case and I have been told there are no positions available but this does not explain how some other people whom I trained with have started a post by the end of July, as you are aware I passed this course with 100% pass mark gaining a far higher mark than the other people in post, I feel I have been treated very unfairly and was only put on the course to “pacify” me after a serious assault by a senior member of staff. I have now been told that I can have a position in Maydown which would add a two hour each way travel time onto a twelve hour day which is ridiculous or if I so wished I could become a cleaner, neither of these posts are acceptable and to be offered them is an insult to me.
I feel it would be detrimental to my health and wellbeing to stay in a post with Resource, after submitting two grievance forms with Resource I gained absolutely nothing from them, first of all being told in training along with all other detention staff that wages would be paid if you are injured in work, this was not the case. Also a grievance in relation to my serious assault by a member of staff has not been treated with the severity it deserves.”
16. This letter makes no reference to any delay in dealing with her second grievance, only that it has not been treated with “the severity it deserves.” Following receipt of the claimant’s resignation letter, Ms Beatrice Atcheson, another member of the respondent’s Human Resources staff, wrote to the claimant refusing to accept her resignation and asking her to meet her in relation to the various allegations raised in her letter. The claimant e-mailed Ms Atcheson to say that she would be prepared to correspond in writing, but she would not be attending any meeting. Ms Atcheson replied on 26 September indicating that the respondent would reluctantly process her resignation but asking her to reconsider meeting with them.
17. On 27 September, Ms Franey also wrote to the claimant with the outcome of the grievance procedure. This letter was just over four pages long and sets out in detail the allegations made by the claimant, the evidence received from the other witnesses who were employees of the respondent and made a finding that a PSNI Inspector had indeed committed an act which amounted to sexual harassment against the claimant. The claimant had also made an allegation in relation to a previous incident involving the same individual, it was noted that the claimant had not previously brought this allegation to the attention of the respondent and she could not recall if there were any witnesses to it. Accordingly Ms Franey said she had not found sufficient evidence to support the claimant’s allegations in relation to the earlier incident. The claimant had made some other allegations in relation to the individual concerned, but Ms Franey was unable to find any evidence to support these allegations. However she did recommend that all employees should once again be made aware of the Equal Opportunities Statement of Policy, Dignity at Work, Policy and Grievance Procedure. Employees were to be advised that all incidents should be reported in a timely manner and she would ask the PSNI to take steps to ensure their employees complied with the standards set down in the respondent’s policies, she also said that she would ask the PSNI to undertake Equality Awareness and Dignity at Work training with their employees. Her letter advised the claimant of her right to appeal against the finding but the claimant did not take up this opportunity.
18. The claimant e-mailed Ms Atcheson and her Solicitor on 2 October indicating that she would not attend any meetings with the respondent, saying that she felt the outcome from the grievance meetings had been unsatisfactory and that attending a third meeting would have no bearing on any decision that the respondent intended to make.
THE RELEVANT LAW
19. The relevant statute law is Article 127(1)(c) of the Employment Rights (Northern Ireland) Order 1996 which provides as follows:-
(1) For the purposes of this Part, an employee is dismissed by his employer if (and, subject to paragraph 2(2)… only if -
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.
This is usually referred to as constructive dismissal. In a case of constructive dismissal we have to consider the following:-
(1) What are the terms of the contract of employment?
(2) Do the facts found by us as a tribunal constitute a breach of contract by the employer?
(3) Was that breach a fundamental breach of contract?
20. In this case, the claimant’s representative made it clear at the outset that it was her case that there had been a breach of the implied duty of trust and confidence which should exist between employer and employee and that it was this breach, he said, which was sufficiently serious to justify the claimant’s resignation. Both parties’ representatives made detailed and helpful submissions for which we are grateful.
21. The duty of implied trust and confidence was affirmed by the House of Lords in Mahmud and Malik v Bank of Credit and Commerce International SA [1997] ICR 606 in the following terms:-
“The employer shall not without reasonable and proper cause conduct itself in the manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.”
Lord Steyn commented that:-
“The implied obligation as formulated is apt to cover the great diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.”
22. In Mahmud and Malik the House of Lords rejected three suggested limitations to the scope of the duty of trust and confidence. It will be recalled that this was in the context of a claim by two former employees of BCCI who said that they considered that they had suffered loss and damage when that bank collapsed as they had been tainted by BCCI’s poor reputation and had been unable to find other work. First of all, the House of Lords held that the duty of trust and confidence may be undermined even if the conduct in question is not directed specifically at the employee. Secondly, the court held that it was not necessary for the employee necessarily to be aware of the wrongdoing whilst still employed, however the question of when the breach is discovered is highly relevant to the question of remedy: if a breach is not discovered until after the employment ends, the employee cannot rely on it as a ground for terminating the contract and thus it will not provide a basis for an unfair dismissal claim. Thirdly, the duty of trust and confidence may be broken even if an employee’s trust and confidence is not undermined. Similarly, it follows that there will be no breach simply because the employee subjectively feels that such a breach has occurred, no matter how genuinely this view is held. If, on an objective approach, there has been no breach then the employee’s claim will fail (Omilaju v Waltham Forest London Borough Council [2005] IRLR 35 EWCA). In Omilaju the Court of Appeal noted that many constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time, and as Lord Justice Dyson stated:-
“Suppose an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment instead he soldiers on and affirms the contract. He cannot subsequently rely on these acts to enables him to do so. If the later act he seeks to rely on is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to revoke the final straw principle.”
23. It has been noted by a number of commentators that the standard of the repudiatory contract required here is such that it must - objectively speaking - if not destroy, then seriously damage, trust and confidence. Mere damage is not enough, the term is there to protect the employee’s interest in not being unfairly and improperly exploited. The most recent authority on this topic to which we were referred is Buckland v Bournemouth University [2010] 4 All ER 186, where the Court of Appeal in England cited with approval the comments of HHJ Clarke in the EAT as follows:
“In summary, we commend a return to settled authority , based on the following propositions. (1) In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Mahmud test should be applied. (2) If, applying the Western Excavating(ECC) Ltd v Sharp [1978] ICR 221 principles, acceptance of that breach entitled the employee to leave, he has been constructively dismissed. (3)It is open to the employer to show that such dismissal was for a potentially fair reason. (4) If he does so, it will then be for the employment tribunal to decide whether dismissal for that reason, both substantively and procedurally (see J Sainsbury plc v Hitt [2003] ICR 111) fell within the range of reasonable responses and was fair.”
DECISION
19. In the context of this case, we note that there had been a number of conflicts in relation to the evidence given which we have set out above. We found the claimant’s evidence at times to be imprecise and misleading and in our view, this impacts on her credibility as a witness. Indeed she admitted that her statement, prepared for the hearing earlier this year, says that when she resigned her post with the respondent in September 2011, she had no job to go to. This is clearly incorrect, as she had already received and accepted an offer of work with Lisburn City Council. There was also the matter of the claimant’s schedule of loss, which had initially omitted any reference to the fact that the claimant had been on maternity leave for nine months in 2012/2013 and so not receiving her full pay. While we appreciate that such schedules are often prepared by solicitors, we also observe that their content is based on instructions from clients and would routinely be checked with them. In contrast, the respondent had documentation available to bear out the evidence given by its witnesses. We found Ms Franey to be a straightforward and honest witness who had done everything she reasonably could to investigate matters fully and in a timely fashion. We were also impressed with the clarity of the evidence given by Mr Barlow and Mr McComb and the other witnesses.
20. We take the various issues raised by the claimant in turn:-
(1) Lack of response on the part of the respondent in dealing with the claimant’s grievance following the incident on 25 May.
The claimant’s evidence was that she had spoken to Inspector Doyle about this matter and that he had told her he would contact Resource. She indicated she had spoken to him the day after the incident namely 26 May and was disappointed that there was no contact from Resource until 8 June when Mr Barlow came to see her at Antrim Custody suite. However, we accept Mr Barlow’s evidence that he was only made aware of the incident by Inspector Doyle in a telephone call on 8 June, that he came up to see Inspector Doyle as soon as possible that day and then saw the claimant that afternoon at Antrim. His behaviour on that occasion was entirely appropriate: he saw the claimant in private but with a female colleague present, he did not go into the detail of the act of allegations with her as he was aware that there was a Police investigation pending, which seems to us entirely proper. However, he made her aware of his concern for her, asked if she would wish to take up counselling and in particular, if she was happy to remain at Antrim Custody suite. The claimant said that she was content to remain there as the harasser had been suspended. In light of this, we believe that the respondent acted promptly and properly in dealing with the claimant’s concerns at this stage. The matter was already under investigation by PSNI and we cannot see that the respondent was under any obligation to carry out a separate investigation, indeed, it may have compromised the PSNI investigation to do so. The claimant had not at this point raised any formal grievance nor had she herself notified the respondent of the incident or asked for any particular support. We do not accept that there is any breach of the implied duty of trust and confidence on the employer’s part in this regard.
(2) Delay in dealing with the claimant’s grievance,
The claimant raised a written grievance in relation to her employment on 26 July 2011, which was, coincidently the day she could not attend the second part of the Call Handling Course because she was attending a wedding. This grievance set out in some detail the claimant’s concerns about the sexual harassment incident. It did not raise any issue in relation to sick pay (which was a part of her complaint when she later resigned) nor did she raise any issue in relation to the Call Handler’s Course at this time. The grievance was addressed by the respondent, passed to a female colleague to be dealt with due to the sensitivity of the nature of the complaint and the initial grievance meeting took place within the company’s timescale of 10 working days by agreement. Thereafter, Ms Franey’s evidence was that she wanted to arrange to see the necessary company witnesses, attempt to see the appropriate Police witnesses and to review the notes that she had prepared from her meeting with the claimant: all of this seems to us entirely proper. We appreciate that because of summer holiday arrangements it was difficult to arrange a day to see everyone immediately. We also appreciate that the company’s proposed timescale of 10 working days for giving a response to a grievance is a goal rather than an absolute time-limit. And while it may have been possible to carry out the interviews sooner we note Mr Franey had to contact the witness through their line manager which may have taken time. We note that Ms Franey had other responsibilities and had to give time to these as well.
At the grievance meeting on 11 August, Ms Franey made the claimant aware that the investigation would probably take some time. She followed this up with a telephone call to the claimant on 25 August when she advised the claimant that she had arranged to see all the witnesses on 8 September. The claimant did not object to this and did not raise any issue about the respondent not meeting a timescale at that time. We note that Ms Franey said that she attempted to see the Police witnesses but was told she could not interview them because of the Police investigation. She had at least made the attempt to do this, although she said in evidence that she thought it was unlikely that she would be allowed to speak to them because of the PSNI investigation and this proved to be the case. Her final outcome letter to the claimant dated 27 September is detailed and thorough, addresses each of the claimant’s allegations in turn and gives a considered and detailed response.
While we agree that the respondent failed to meet the 10 working days referred to in their procedure, we note that their procedure specifically says that the grievance will be dealt with within 10 days or “as soon as reasonably practicable”. We consider that in this case the respondent dealt with a serious allegation of sexual harassment timeously and thoroughly. Had they failed to give the matter the time and attention it deserved, we believe the claimant may well have justifiably complained that they had not taken her complaint seriously. We believe however that the respondent did address her complaint properly and thoroughly and that there is no breach of the implied duty of trust and confidence in this regard.
(3) Failure by the respondent to offer the claimant suitable alternative employment:-
(a) by failing to find her a post as a Call Handler; and
(b) by failing to provide her with any other suitable posts.
The claimant conceded that if we found as a fact that she knew that the call handler’s course was in two mandatory parts, then the respondent could not place her in a call handler’s post until she had completed both parts of the course. We have found that the claimant did know she had to complete both parts of the course and so we find that the respondent did not fail to find her a post as a call handler. Indeed there were three possible opportunities for her to complete the training within the three months after she completed part one of the course and she was unable to take the first two because of leave and because of sick leave respectively. On the third occasion, she had already resigned her post. In our view, the respondent had acted promptly and properly in this respect.
On the second aspect of this point, the allegation that the respondent failed to find another suitable job for the claimant, we do not accept that this was the case. First, the claimant was employed as a civilian Detention Officer and she was seeking alternative work but there was no obligation on the respondent to find her another job. Secondly, the claimant had made it clear that she was primarily interested in the call handler’s role and this was the job which Una Franey was seeking for her. The claimant at the hearing alleged that she could have done several jobs which were vacant in August 2011 and that Ms Franey had failed to make her aware of them, but the reality was that in August 2011 the claimant had made it clear that she wanted a call handler’s post. While the call handler vacancies available in August 2011 may not have been suitable for the claimant because of distance (Maydown) or the “ad hoc“ nature of the post (Belfast), the respondent is not obliged to manufacture a vacancy purely to suit the claimant. Ms Franey had made it clear to the claimant at their meeting on 11 August that alternative employment was not guaranteed. The claimant has alleged that she was also offered unsuitable unemployment in the form of a cleaning job. Ms Franey’s evidence, which we accept, was that she made the claimant aware of the available openings, but was leaving it up to the claimant to indicate if she wanted to be considered for any of them.
We confirm that we have considered whether on the basis of the facts found, all the events from the 25 May 2011 to the end of the claimant’s employment, taken together and viewed objectively, constituted a breach of the implied duty of trust and confidence and we do not believe that they do. The claimant was in a job which was physically demanding and could be dangerous; she had been unfortunate enough to suffer three assaults from detained persons over a period of about 16 months. Each of these incidents had been reviewed by her employers and it was confirmed that staffing levels were approximate. On top of this she had been the victim of sexual harassment from a police colleague in May 2011. We have every sympathy for her situation and can appreciate that she wanted to move from her post as a Civilian Detention Officer. But none of these incidents was caused by any act or default of the respondent; indeed, we believe that the respondent acted responsibly and as a good employer throughout the whole period. For all these reasons, we find that the claimant was not constructively dismissed and her claim is dismissed.
Chairman:
Date and place of hearing: 13-15 March 2013, Belfast.
Date decision recorded in register and issued to parties: