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Cite as: [2013] NIIT 653_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 653/13

CLAIMANT: George O’Neill

RESPONDENT: Dominick Healy & Sons Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent and the claimant’s claim is therefore dismissed.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mr R Hanna

Ms E Gilmartin

Appearances:

The claimant was represented by Mr P Moore, of PM Associates.

The respondent was represented by Ms R Connolly, Solicitor, of Rosemary Connolly, Solicitors.

Reasons

1.1 The claimant presented a claim to the tribunal, on 28 March 2013, in which he made a claim of unfair constructive dismissal. The respondent presented a response to the tribunal, on 3 May 2013, in which it denied liability for the claimant’s said claim. The claimant’s representative, at the commencement of the hearing, confirmed that, if the tribunal found that he had been unfairly dismissed, the claimant was not seeking the remedy of reinstatement and/or re-engagement and that, in the circumstances, the remedy sought by the claimant was compensation only. The claimant, who was born on 22 December 1960, was employed by the respondent, for the purposes of these proceedings, from in or about March 2009, as a part-time trainee funeral director/driver, working under a 20 hours per week flexible contract of employment. During the course of the hearing, it was agreed by the representatives that, subject to liability, and based on the claimant’s period of employment with the respondent and his relevant earnings, at the date of the termination of his employment on 15 January 2013, the claimant, for the purposes of any basic award, would be entitled to compensation of £660.00 (£220 x 3), together with a sum for loss of statutory rights, as determined by the tribunal, for the purposes of any compensatory award. The claimant withdrew any claim for loss of earnings as part of any compensatory award. In view of the tribunal’s decision, as set out above, it was not necessary for the tribunal to further consider the issue of remedy and, in particular, any amount to be awarded by way of loss of statutory rights.

1.2 It was not disputed that the claimant was employed by the respondent, Dominick Healy & Sons Ltd, and that in or about September 2012, Sean Healy and Thomas Healy, who also traded and continued to trade as Healy Brothers, Funeral Directors, took over and became the owners of Dominick Healy & Sons Ltd on the death of their father, Dominick Healy.

2.1 The tribunal heard oral evidence given by the claimant and also, on his behalf, by Stephen Connolly. The tribunal heard oral evidence, on behalf of the respondent, given by Mrs Jeanette Doyle, Ms Colette Healy, Ms Eileen Healy, Mr Sean Healy and Mr Thomas Healy.

Having considered the evidence given to the tribunal by the parties and their witnesses, as referred to above, the documents in the trial bundles ‘as amended’ to which the tribunal was referred during the course of the hearing, together with the oral submissions by the representatives of the claimant and the respondent, the tribunal made the following findings of fact, as set out in the following sub-paragraphs, insofar as necessary and relevant for the determination of the claimant’s claim.

2.2 The tribunal is satisfied that the claimant, at all material times, had a personal hygiene problem and was the subject of many complaints by fellow employees of the respondent to both Eileen Healy and her sister, Colette Healy, who were, in essence, the management team of the respondent before the takeover of the respondent by Sean and Thomas Healy in or about September 2012. Eileen and Colette Healy were the sisters of Sean and Thomas Healy. In particular, the tribunal is satisfied Stephen Connolly, a fellow employee of the claimant, had been particularly vocal in his complaints about the claimant’s said problem, including at meetings on or about 27 March 2012 and on or about 27 September 2012. The tribunal concluded his initial denials, in evidence, of his said complaints to management, which he subsequently had to admit had taken place, resulted from the fact that, at the relevant time, he had fallen out with the claimant; albeit he was subsequently reconciled by the events in December 2012, to which reference is made later in this decision. The tribunal is further satisfied, from the diary notes of Colette Healy that, at a staff meeting on 3 May 2012, conducted by Colette Healy, at which the claimant was present, reference had been made by her to the issue of personal hygiene and its importance and how there had been complaints from members of staff regarding the personal hygiene of certain employees (unnamed). The tribunal accepted Colette Healy had found it difficult and embarrassing to raise this sensitive issue at the meeting and, in the circumstances, she had not singled out the claimant to avoid any embarrassment and had therefore raised the issue in the general way set out above. The claimant initially denied, in evidence, there had been any such meeting; but he then subsequently accepted there had been a meeting and that the other issues referred to in the diary notes had been raised by Colette Healy but continued to deny this particular issue had been raised. The tribunal found his continuing denial, in the circumstances, lacked any credibility.

2.3 In mid-November 2012 following the said takeover, Sean Healy approached the claimant a few days after the claimant had taken part in a funeral. Sean Healy asked to speak to the claimant in the yard of the respondent. He pointed out to the claimant there had been a problem at the funeral with his personal hygiene. The claimant explained that this had arisen because he had not showered that particular morning and he was wearing a fleece and a big overcoat. Sean Healy told him to keep a check on his personal hygiene and to make sure he used a deodorant. The tribunal has no doubt the conversation was embarrassing to both the claimant and Sean Healy. However the tribunal is satisfied Sean Healy had done it as discreetly as possible in the yard away from the tearoom, where the other employees would have been. Indeed, the claimant, in evidence, did not raise any serious complaint about this conversation, save that he believed it should have been in the office. Sean Healy informed the tribunal that he did not do so because he did not want the conversation to be formal, which a meeting in the office might have implied. The tribunal could see no grounds for criticism of the actions of Sean Healy.

2.4 Later in November 2012, some short time after the meeting in the yard with Sean Healy, the tribunal is satisfied that there was an incident involving the claimant and Thomas Healy. Thomas Healy was aware from conversations with his brother, Sean, of the problem with the claimant’s personal hygiene, the staff complaints and that his brother had previously spoken to the claimant about it, as set out above. There was considerable conflict of evidence about what actually took place. However, the tribunal concluded that Thomas Healy did, in sight and hearing of other employees in the yard, take a can of deodorant out of his vehicle and hold it up towards the claimant and made some remark, which would have been heard by the other employees in the yard at the time, about spraying this on the claimant. The tribunal does not accept that such a remark was appropriate in the circumstances and, in particular, by a member of the senior manager of the respondent. The tribunal does not accept Thomas Healy’s explanation that it was said in a jocular fashion, in particular, where he maintained he had no recollection of any incident. Indeed, this has to be contrasted with the action taken by his brother some short time previously, as referred to above. However, equally, the tribunal does not accept that the claimant was as embarrassed and distressed as he attempted to suggest in evidence. Significantly, in the tribunal’s judgment, there was no evidence of any other similar incident, either before or subsequently, involving the claimant and Thomas Healy in relation to the issue of the claimant’s personal hygiene. Further, the tribunal noted that the claimant continued to work for the respondent without any difficulty and without raising any grievance and/or making any complaint about the actions of Thomas Healy.

2.5 On 8 December 2012, the claimant’s brother suffered a serious head injury, following an accident, and was taken to the Royal Victoria Hospital. The claimant, to his credit, carried on working but understandably spent much of his spare time at the hospital whilst his brother had a number of operations. However, on the night of 17 December 2012, he spent the whole night at the hospital, due to the serious life-threatening condition of his brother and, on the morning of 18 December 2012, he was told by the doctors at the hospital his brother’s life-support machine would have to be switched off later that day. The claimant had been due to work at a funeral that morning at or about 11.00 am. He rang his colleague, Stephen Connolly, at about 7.10 am to pass the message on to the respondent that he would be unable, in the circumstances, to work at the funeral. He later was able to phone Colette Healy. The tribunal is satisfied she did not phone him. After confirming that she had got the message, Colette pointed out, in a very short conversation she had with the claimant, that he should have contacted herself and/or either Sean or Thomas Healy or Eileen Healy. The claimant, whom the tribunal accepts was naturally in a very distressed condition in the circumstances, told Colette Healy that he had now informed her and then abruptly hung up. The tribunal rejects, in particular, any suggestion that Colette Healy was rude or abusive; albeit it accepts, given the circumstances, her reference to the appropriate procedure was somewhat unnecessary. On the evening of 18 December 2012, the claimant’s brother’s body was taken to the morgue. On 19 December 2012 the claimant went to the office of the respondent to make arrangements for the funeral with his mother, sister and his partner. The tribunal noted that the claimant and his family decided to use the respondent for the funeral of his brother. In particular, it does not accept the claimant wanted to use another funeral firm and it was only due to the wish of his mother to use the respondent, as it had been responsible for the claimant’s father’s funeral. The tribunal is satisfied that the claimant was instrumental in wanting to use the respondent, as he believed, as an employee, he could influence how the respondent would carry out the funeral. It was agreed by the respondent that the claimant, as he insisted he wanted to do, would be allowed to drive the hearse to pick up his brother’s body from the morgue and to bring it back to the respondent; and that he would assist in the preparation of the body before driving the hearse to the family home. Thomas Healy, having confirmed with the claimant he wished to do all of this, sympathetically expressed the view that he could not have done it, if it had been his brother. Thomas Healy then asked the claimant could he accompany the claimant in the hearse, to which suggestion the claimant agreed. When they arrived at the family home, the claimant then introduced Thomas Healy to the members of the family who were present. The tribunal cannot accept that, if the incident in November 2012 involving Thomas Healy, referred to above, had had the effect on the claimant, as he sought to suggest, he would ever have allowed Thomas Healy to accompany him in the hearse when he brought his brother’s body to the family home. Further, he would never have brought him into the family home and introduced him to his mother and members of the family. The tribunal is satisfied that the claimant had long since moved on from the incident and had resumed his normal working relationship with Thomas Healy, without any other difficulty.

2.6 The tribunal is further satisfied that the claimant, despite his denials, played a major role in agreeing the arrangements with the respondent for the actual funeral of the claimant’s brother. The claimant tried to insist on who would be employed to work at the funeral. In particular, one of the three men he wanted was a former employee and this request was refused by the respondent. The claimant accepted, in evidence, the respondent was entitled to refuse the request, regardless of the fact he was an employee. Despite this, agreement was eventually able to be reached with the respondent about the identity of the three employees of the respondent to be used for the funeral, which included Stephen Connolly. The funeral took place on 22 December 2012. After the funeral, the claimant sought to insist that Stephen Connolly drive the respondent’s vehicle, with the claimant’s mother, back to the family home; although another driver had been assigned to that task and Stephen Connolly had been assigned to return the hearse to the respondent’s premises. This request by the claimant was refused by Thomas Healy, who had come, from Lisburn, to the funeral in view of the problem that had arisen. In the course of his evidence, although it had not been previously pleaded, the claimant said that it was this refusal by Thomas Healy to let Stephen Connolly drive his mother home, had made up his mind to cease to work for the respondent, whereas in the claim form he had sought to rely upon the incidents in November 2012 involving both Sean Healy and Thomas Healy. The claimant did not dispute that the allocation of drivers was the responsibility of Thomas Healy and/or Sean Healy and the other members of the management of the respondent and not his responsibility under his contract of employment; and that, in any event, he was at the funeral not as an employee but as a client of the respondent. However, the refusal of Thomas Healy to allow Stephen Connolly to change his duties to take the claimant’s mother home clearly annoyed the claimant, whom the tribunal accepts would, at the relevant time, have been in a distressed and emotional state, having just buried his brother.

2.7 The claimant did not return to work but continued to be paid by the respondent until 15 January 2013, when he telephoned Mrs J Doyle, the office manager of Healy Brothers in their offices in Andersonstown and told her to tell Thomas Healy to send him his P45 as he was not returning to work after all that had happened to his brother. The tribunal does not accept that the claimant attended Mrs Doyle’s office in person. There was no resignation letter and his resignation was made orally, as set out above.

3.1 Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) it is provided:-

“(1) An employee has the right not to be unfairly dismissed by his employer.”

3.2 Under Article 127 of the 1996 Order it is provided:-

“(c) The employee terminates a contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

3.3 As stated in Harvey on Industrial Relations and Employment Law, Volume 2, Section D1, at Paragraph 403, it has long been held that:-

“In order for an employee to be able to claim constructive dismissal four conditions must be met –

(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

(2) That breach must be sufficiently important to justify the employee resigning or else it must be the last in a series of incidents which justify him leaving. Possibly a genuine, albeit erroneous interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

(3) He must leave in response to the breach and not for some unconnected reason.

(4) He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.”

3.4 It should also be noted, in the above context, that a constructive dismissal is not necessarily unfair and it is normal for a tribunal, in order to make a finding of unfair constructive dismissal, to find the reason for the dismissal and whether the employer has acted reasonably in all the circumstances (Stevenson & Company (Oxford) Ltd v Austin [1990] ICR 609).

3.5 Even if an employee cannot establish a breach of an express term of a contract, it has also been recognised that a contract of employment includes an implied obligation that an employer would not, without reasonable and proper cause, act in a manner calculated to or likely to destroy or seriously damage the relationship of trust and confidence between an employer and employee often referred to as the Malik term (see Malik v Bank of Credit & Commerce International SA [1997] UKHL 23 and Baldwin v Brighton & Hove CC [2007] IRLR 232).

As seen in Amnesty International v Ahmed [2009] ICR 1450 and Ministry of Justice v Sarfraz [UKEAT/0578/10] the phrase ‘without reasonable and proper cause’ and ‘destroy or seriously damage’ must be given their full weight. As Lord Stern stated in Malik the term is there to protect ‘the employee’s interest in not being unfairly and improperly exploited’; the conduct must, objectively speaking, if not destroy then seriously damage trust and confidence – mere damage is not enough.

In Abbey National PLc v Fairbrother [2007] IRLR 320 the Employment Appeal Tribunal set out the following useful guidance:-

“(30) ... conduct calculated to destroy or seriously damage the trust and confidence inherent in the employer/employee relationship may not amount to a breach of the implied term; it will not do so if the employer had reasonable and proper cause for the conduct in question. Accordingly, the questions that require to be asked in a constructive dismissal case appear to us to be:-

1. What was the conduct of the employer that is complained of?

2. Did the employer have reasonable and proper cause for that conduct?

If he did have such cause then that is an end of it. The employee cannot claim that he has been constructively dismissed.

3. Was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?”

3.6 The above authorities established it is an implied term, which is descriptive of conduct, viewed objectively, that is repudiatory in nature. In assessing whether or not there has been a breach, what is significant is the impact of the employer’s conduct on the employee, objectively tested, rather than what, if anything, the employer intended (see further Woods v WM Car Services Peterborough [1981] IRLR 3) and the Malik decision. In the more recent decision of Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, the Court of Appeal emphasised that a tribunal should determine the matter by reference to the law of contract and not by reference to the fairness and/or merits of the case:-

“the range of reasonable responses test is not appropriate to establish whether an employer has committed a repudiatory breach of contract entitling an employee to claim constructive dismissal”;

and thereby confirming the test for establishing constructive dismissal remains objective (see Western Excavating v Sharp [1978] ICR 221). In the case of Tullett Prebon PLc v BGC Brokers LP [2011] IRLR 420 it was confirmed that the test for determining whether there was a repudiatory breach of the implied term of trust and confidence had to be determined objectively, ie from the perspective of the reasonable person in the position of the innocent party.

In the decision of the Court of Appeal in the case of Nottingham County Council v Meikle [2005] ICR 1.

Keane LJ held:-

“It has been held by the EAT in Jones v Sirl & Son (Furnishers) Ltd [1997] IRLR 493 that in constructive dismissal cases the repudiatory breach of the employer need not be the sole cause of the employee’s resignation. The EAT there pointed out that there may well be concurrent causes operating on the mind of an employee whose employer has committee fundamental breaches of control and that the employee may leave because of both those breaches and another factor such as the availability of another job. It suggested the test to be applied was whether the breach of breaches were the ‘effective cause’ of the resignation. I see the attractions of that approach but there are dangers in getting drawn too far into questions about the employee’s motives. It must be remembered that we are dealing here with a contractual relationship and constructive dismissal is a form of termination of contract by a repudiation by one party which is accepted by the other; see the Western Excavating case. The proper approach therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract as at an end. It must be in response to the repudiation but the fact that the employee also objected to other actions or inactions of the employer not amounting to a breach of contract would not vitiate the acceptance of the repudiation … .”

This dicta was followed by Ellis J, as he then was, in the case of Abbeycars (West Horndon) Ltd v Ford [UKEAT/0472/07] when he stated:-

“On that analysis it appears that the crucial question is whether the repudiatory breach played a part in the dismissal … “

and

“It follows that once a repudiatory breach is established if the employee leaves and even if he may have done so for a whole list of reasons, he can claim that he has been constructively dismissed if the repudiatory breach is one of the factors relied upon.”

and also was followed in the case of Logan v Celyn Home Ltd [UKEAT/0069/12] where HHJ Shanks stated:-

“ … It should have asked itself whether the breach of contract involved in failing to pay the sick pay [the relevant breach] was a reason for the resignation not whether it was the principal reason.”

This approach was again recently confirmed and followed by Langstaff P in the case of Wright v North Ayrshire Council [EATS/0017/13] where he emphasised that it is an error of law for a tribunal, where this more than one cause, to look for the effective cause in the sense of the predominant, principal, major or main cause and in so doing he raised concerns how the relevant law is expressed in Paragraph 521 of Harvey on Industrial Relations and Employment Law, Volume 1, Section D1.

3.7 As has long been recognised (see further Paragraphs 480 – 481.01 in Harvey on Industrial Relations and Employment Law, Section D1, any constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee contending that he left in response to a course of conduct carried on over a period of time, but the particular instance which caused the employee to leave may in itself be insufficient to justify his taking that action; but nevertheless, when viewed against a background of such incidents, it may be considered sufficient by the courts to warrant to treating the resignation as a constructive dismissal (‘the last straw’ doctrine). As was made clear in the case of London Borough of Waltham Forest v Omilaju [2005] IRLR 35 in order to result in a breach of the implied term of trust and confidence, a ‘final straw’ which is not in itself a breach of contract, must be an act in a series of earlier acts which taken together amount to a breach of the implied term. The Court of Appeal held in particular:-

“The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts upon which the employee relies, it amounts to a breach of the implied trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant so long as it is not utterly trivial. Thus, if 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 and affirms the contract, he cannot rely on those acts to justify a constructive dismissal if the ‘final straw’ is entirely innocuous and not capable of contributing to that series of earlier acts. The ‘final straw’, viewed in isolation, need not be unreasonable or blameworthy conduct. … Moreover an entirely innocuous act on the part of the employer cannot be a ‘final straw’, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in the employer. The test of whether the employee’s trust and confidence has been undermined is objective.”

(See further Pan v Portigon AG London Branch [2013] UKEAT/0116 where the tribunal followed the guidance of Omilaja and found a return to work letter sent by the respondent to the claimant as ‘innocuous’ where, insofar as it was relied upon by the claimant, was the last straw entitling him to regard himself as discharged from further performance.)

3.8 As stated previously, the claimant must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach (or more technically affirmed the contract). In the Pan case the Employment Appeal Tribunal accepted that, in the context of constructive dismissal, the concepts of waiver and affirmation amounted to a distinction without a difference. In a recent decision of the Employment Appeal Tribunal, in the case of Hadji v St Luke’s Plymouth [UKEAT/0095/12], the Employment Appeal Tribunal, in the course of its judgment, set out the essential principles from the case law, in relation to the issue of affirmation in the field of employment contracts in constructive dismissal. These principles, as set out by the Employment Appeal Tribunal, are as follows:-

“(i) The employee must make up his [her] mind whether or not to resign soon after the conduct of which he complains. If he does not do so he may be regarded as having elected to affirm the contract or as having lost his right to treat himself as dismissed. Western Excavating v Sharp [1978] ICR221 as modified by WE Cox Toner (International) Ltd v Crook [1981] IRLR 443 and Cantor Fitzgerald International v Baird [2002] EWHC 2736 (QB).

(ii) Mere delay of itself, unaccompanied by express or implied affirmation of the contract, is not enough to constitute affirmation; but it is open to the employment tribunal to infer implied affirmation from prolonged delay – see Cox Toner.

(iii) If the employee calls on the employer to perform its obligations under the contract or otherwise indicates an intention to continue the contract, the employment tribunal may conclude that there has been affirmation : Fereday v Staffs NHS Primary Care Trust [UKEAT/0513/ZT] Judgment 12/7/2011, Paragraphs 45/46(iv), there is no fixed time-limit in which the employee must make up its mind; the issue of affirmation is one which, subject to these principles, the tribunal must decide on the facts; affirmation cases are fact-sensitive : Fereday, Paragraph 44

4.1 In light of the facts, as found by the tribunal, and after applying the guidance set out in the legal authorities referred to in the previous paragraphs of this decision, the tribunal reached the following conclusions, as set out in the following sub-paragraphs.

4.2 The tribunal is satisfied that the particular incidents involving Sean and Thomas Healy in or about November 2012 were not relevant to the claimant’s decision to resign his employment with the respondent on or about 15 January 2013 and his reason, as he accepted in evidence, solely related to what had taken place at the funeral of his brother on or about 22 December 2012.

There is no doubt that the claimant had a personal hygiene problem, of which he was fully aware, and which had been the source of complaints by other employees to the respondent, including by his friend and fellow employee, Stephen Connolly. The tribunal can understand that, given the nature of the work of the respondent, to have an employee with such a problem would be particularly unfortunate and sensitive, given the close proximity of clients in the respondent’s vehicles. In any event, the tribunal could find that there was nothing wrong in the actions of Sean Healy in or about November 2012, when he spoke to the claimant informally in the yard, following complaints which had been made after a funeral about the claimant’s personal hygiene. The tribunal has no doubt that Sean Healy, as a senior member of management, was entitled to raise the issue and he did so with sensitivity and appropriately. It could further accept he had a good and proper reason for doing so informally in the yard, rather than in the office, as suggested by the claimant, which could have had an implication of formality. The tribunal had more concern about the actions of Thomas Healy some short time later. The actions were, in the tribunal’s judgment, inappropriate and, in particular, by a senior member of management and given the sensitivity surrounding the issue of the claimant’s personal hygiene. The tribunal does not accept the remarks were made in a jocular fashion, as suggested by Thomas Healy. However, it was a one-off event by Thomas Healy, which had not occurred before or subsequently. Whilst the actions of Thomas Healy, in the tribunal’s judgment, could have been considered, in the circumstances, to have been a breach of contract by dealing with this problem in such a way, the tribunal could not accept it was of such a fundamental nature to justify the claimant’s resignation. Indeed, the tribunal does not accept the claimant took it as such a serious breach of contract at the time. The tribunal noted he continued to work as normal and did not complain or raise any grievance. In any event, even if the actions of Thomas Healy was a relevant breach of contract, the tribunal has no doubt that, by continuing to work on for the following month, without protest or complaint, the claimant waived any breach and/or affirmed his contract of employment. In the judgment of the tribunal, this was confirmed by the claimant agreeing to Thomas Healy accompanying his deceased brother’s body to the family home and when they arrived at the family home by the claimant introducing Thomas Healy to his mother and other members of his family at the family home. If the situation, in relation to Thomas Healy, was as described by the claimant, he would never have allowed Thomas Healy to accompany his deceased brother in the same vehicle or have taken him into the family home and then introduced him to his mother and other members of his family.

4.3 In relation to the funeral itself, the tribunal was not satisfied the claimant established any breach of contract of his contract of employment, let alone one which would have justified his said resignation. The claimant at the funeral was a client of the respondent and was not there in the capacity of an employee. The tribunal is of the opinion the claimant forgot this and thought, as an employee, he could dictate how the funeral would be conducted by the respondent, his employer. The claimant correctly accepted, in evidence, he could not insist that a previous employee was one of the men attending the funeral on behalf of the respondent. Similarly, he could not dictate that the role given to Stephen Connolly for the funeral should be changed by Thomas Healy and that Stephen Connolly should be allowed to drive the claimant’s mother home, even if this was the wish of the claimant and/or his mother. It is correct that Thomas Healy could have allowed this change of duty for Stephen Connolly; but to refuse to do so could not involve, in the circumstances, any breach of the claimant’s contract of employment. This undoubtedly was a major source of annoyance to the claimant, whom the tribunal accepts was, at the time of the funeral, naturally in a distressed and emotional state. From the facts, as found by the tribunal and the conclusions reached by the tribunal, as set out above, the tribunal does not consider that the ‘last straw doctrine’ has any application to this matter. There was no relevant repudiatory breach of contract. There was no conduct on the part of the respondent calculated to destroy or seriously damage the trust and confidence inherent in the employment relationship between the claimant and the respondent.

In the circumstances, the tribunal was not satisfied that the claimant had shown he was constructively dismissed by the respondent.

5.1 The claimant’s claim of unfair constructive dismissal must therefore be dismissed.

Chairman:

Date and place of hearing: 30 – 31 July 2013, Belfast

Date decision recorded in register and issued to parties: