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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Thompson v Andrew McCartney and Peter McC... [2013] NIIT 679_13IT (10 December 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/679_13IT.html
Cite as: [2013] NIIT 679_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 679/13
CLAIMANT: May Thompson
RESPONDENTS: Andrew McCartney and Peter McCartney
T/a McCartney & Company
DECISION
The unanimous decision of the tribunal is that the claimant is entitled to £2,010.00 in respect of a contractual pension contribution up to the date of her resignation on 7 January 2013 and that the claims of unlawful age discrimination and constructive unfair dismissal are dismissed.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Dr C Ackah
Mrs E McFarline
Appearances:
The claimant was represented by Mr Thompson.
The respondents were represented by Mr N Philips, Barrister-at-Law, instructed by Worthingtons, Solicitors.
Background
1. The claimant was a qualified chartered accountant, aged 58 years, who was employed at all relevant times as a manager in the respondent company. She had first been employed in 1977 and resigned on 7 January 2013.
2. The respondent company was a long established family firm of chartered accountants. During most of the period of the claimant’s employment, the only owner of the business was Mr Andrew McCartney. In August 2010, his son, Mr Peter McCartney, joined the firm initially as a senior manager but with a view to becoming a partner and eventually taking over from his father. He became Managing Partner in May 2011.
3. The claimant was unhappy with some of her work going to Mr Peter McCartney in August 2010 and later was unhappy with further work going to a new senior manager, Mrs Catherine McIlwaine, who was due to start in 2013. She also alleged that there had been in the interval between August 2010 and January 2013 a ‘sustained and nasty’ campaign to get rid of her from the firm. She alleged that she had been treated less favourably on grounds of age than Ms Nichola Patton, another chartered accountant who was similarly employed as a manager. On her resignation, the claimant did not receive a pro rata pension contribution up to 7 January 2013 for that part of the relevant year which ran up to the end of March 2013 because she had not completed all of that year in employment.
4. The issues for determination by the tribunal were:-
“(1) Had the claimant been entitled to a pro rata pension fund payment for the part of the year 2012/2013 completed up to her resignation on 7 January 2013? Was the failure to pay a pro rata contribution an unauthorised deduction of wages or a breach of contract?
(2) Had the claimant been unlawfully discriminated against on grounds of age in comparison with Nichola Patton?
(3) Had the claimant been constructively and unfairly dismissed?”
Relevant law
Unlawful deduction of wages/breach of contract
5. If an employee suffers an authorised deduction from wages, that employee can bring a claim to this tribunal under the Employment Rights (Northern Ireland) Order 1996. If on termination of employment, there is an outstanding breach of contract, the employee can bring a claim of breach of contract to this tribunal under the Industrial Tribunals (Extension of Jurisdiction) Order (Northern Ireland) 1994.
In either case, the issue is whether the employee was contractually entitled to the sum claimed and, if so, whether it was paid.
Age discrimination
6. The Employment Equality (Age) Regulations (Northern Ireland) 2006 provides that it is unlawful to discriminate against an employee on the grounds of age and a complaint of such unlawful discrimination lies to this tribunal.
Constructive unfair dismissal
7. To establish that he has been constructively dismissed, an employee must show that his employer had committed a serious and repudiatory breach of contract, that the employee had left because of that breach and that he had not accepted and had not waived that breach.
A relevant serious breach of contract can include not just the breach of a specific or written contractual term but a serious breach of the implied term of trust and confidence. Such a breach of the implied term would occur if an employer had acted in a manner which was calculated or was likely to destroy or seriously damage the relationship of trust and confidence.
In Brown v Merchant Ferries Ltd [1998] IRLR 682, the Northern Ireland Court of Appeal said that although the correct approach to constructive dismissal cases was to ask whether the employer had been in breach of contract and not to ask whether the employer had simply acted unreasonably, if the employer’s conduct is seriously unreasonable, that may provide sufficient evidence that there has been a breach of contract.
A constructive dismissal must, of course, also be unfair.
Format of the Hearing
8. Witness statements had been exchanged in advance between the parties in accordance with case-management directions dated 18 June 2013. Those directions specified that:-
“A witness statement must be complete statement of the evidence relating to the issues, in respect of both liability and remedy, in the case that the witness wishes to give to the tribunal. A witness will not be permitted to add to his statement without the consent of the tribunal. Consent will only be given where there is a good reason for doing so.”
Despite this direction, which should have been clearly understood by both the claimant and the claimant’s representative, who are both chartered accountants, the claimant’s witness statement did not refer to financial loss or to the mitigation of that loss. The claimant was permitted to introduce oral evidence-in-chief to remedy this defect.
9. On behalf of the claimant, witness statements from the claimant, Ms Deborah Smyth, Mrs Jean Buchanan and Ms Tracy Rosborough were exchanged. The witness statements were read by the tribunal before the hearing. In the event, Mrs Buchanan and Ms Rosborough were unable to attend due to illness to swear or affirm to their witness statements and to be cross-examined. There was no request for a postponement to enable them to attend and there was no indication of when either witness might become available. Given the contents of the witness statements, it did not appear that any directly or significantly relevant evidence was available to the tribunal from either witness.
An unsworn or unaffirmed witness statement from a witness who cannot be cross-examined can only have limited weight.
10. On behalf of the respondents, witness statements were exchanged from Mr Peter McCartney, Mr Andrew McCartney, Ms Nichola Patton, Mr Jonathon Lath and Mr Andrew Fleming. The witness statements were read by the tribunal before the hearing. All the respondents’ witnesses attended, swore or affirmed to their witness statements and were cross-examined.
11. The hearing lasted, together with reading time, for four days from 18 November 2013 to 21 November 2013. On the last day of that hearing, the respondents made their final submission for approximately 30 minutes up to 11.30 am. The claimant’s representative was then allowed two hours to further consider his position and to prepare his submissions to be made at 1.30 pm.
Pension issue
12. In this case, it seems appropriate to record the findings of fact and the decision separately in respect of the each of the three distinct heads of claim. This decision will therefore deal with first with the claim in respect of the pension contribution which the claimant alleges was payable pro rata from 1 April 2012 to 7 January 2013 as a contractual entitlement.
13. That claim depends, firstly, on there being a contractual obligation to pay pension contributions rather than simply a practice, on the part of the employer, of paying an annual voluntary bonus. It also depends on part of that contractual obligation being to pay pro rata for the relevant proportion of the last year’s employment and therefore not to limit any payment to only completed years of employment.
14. The claimant stated that when the company pension scheme was introduced in 1989, the employees, including the claimant, were offered membership of the scheme on the basis that they accepted a pay freeze over two years comprising four biannual cost of living increases. This was a period of relatively high inflation and any such pay freezes would have had significant initial impact on any member of the pension scheme and it is equally clear that those effects would continue through to the present day. Even where any such pay freeze had long since come to an end, subsequent pay increases could only take effect on a lower base salary, thereby perpetuating the effect of any pay freeze.
A 10% employer’s contribution of the basic salary was to be made by the employer and it was open to any employee to add any voluntary contributions on their own behalf.
15. The claimant pointed to NPI correspondence which showed that for the first three years of the policy, the employer’s pension contributions remained the same for the claimant. This is highly indicative of a pay freeze on the introduction of the scheme and on the acceptance of membership by the claimant. Mr Andrew McCartney countered this by pointing to one of his documents which showed a different and higher payment in respect of the first year’s contribution. Whether or not that different and higher figure contained administrative or other charges is not clear. Mr Andrew McCartney also pointed to other years in the NPI list which appeared to show no increase in the pension contributions over the previous year. No clear answer presented itself from this exchange of documentary evidence. Perhaps surprisingly and unusually for chartered accountants, neither the claimant nor Mr Andrew McCartney could point to any conclusive paperwork and much of the scheme appears to have been oral.
16. Ms Nichola Patton, in her evidence, was quite clear that membership of the scheme had been offered to her on the basis that she would undergo a pay freeze. It is not altogether clear whether that comprised four biannual pay increases or simply two annual pay increases over two years but it seems clear that her evidence was that a salary sacrifice had been required. She decided not to join the pension scheme.
17. Mr Andrew McCartney confirmed that most staff did not take up membership of the pension scheme when offered. He explained that this low take-up was probably because he had explained to staff that it would not be in anyone’s particular interests to remain in the scheme for only a short period. That is possible, but it seems unlikely that this deterred most potential members where the employer intended to put in a 10% contribution, unless it was indeed the case that the general expectation was that pay would be frozen for two years if an employee wanted to join the scheme.
18. Mr Andrew McCartney stated that there had been no salary sacrifice on the part of the claimant in 1989 and 1990. The claimant maintained the opposite. Neither had any conclusive records or paperwork and both were relying on their memories. It may be that those memories have been confused by the passage of time and by intervening incidents.
19. Given Ms Nichola Patton’s evidence and the fact that most members of staff did not avail of membership, the tribunal considers it significantly more likely than not that a salary freeze had been required of the claimant as a condition of membership. On that basis, this therefore seems to involve an effective and continuing contribution by the claimant in the form of diminished pay. The tribunal therefore concludes, on the balance of probabilities, that there was a contractual entitlement to a pension contribution as claimed by the claimant.
20. The tribunal, again in the absence of any paperwork to the contrary, cannot see why such a contractual right would only take effect at the end of each financial year. If effective contributions had been made by the claimant, or indeed by other members of the scheme, in the form of a continuing reduced salary, up to the date of termination, it is difficult to see why a pro rata payment up to that point would not be part of the contractual package.
21. The tribunal therefore awards £2,010.00 as the undisputed figure in respect of the claimed pro rata pension contribution.
Age discrimination
22. The claim form was very vague in relation to this head of claim. It formed part of a general allegation that Mr Andrew McCartney and Mr Peter McCartney engaged in a sustained campaign from August 2010 to January 2013 to make the claimant’s continued employment intolerable. As a sub-heading under that general allegation, which appeared to relate more to constructive unfair dismissal than to anything else, the claimant included:-
“Discriminating against me on the grounds of age by favouring younger and more junior, less qualified or experienced staff, in many aspects of work (July 2011).”
23. The allegation was therefore fixed to one period of time, ie July 2011, and this does not appear to have been amended. A statutory tribunal can only deal with statutory claims that have properly been made before it, ie those claims which are properly within its jurisdiction. In the absence of an amendment which has been properly approved, a statutory tribunal is restricted to the original statutory claim.
24. In any event, the respondents, unsurprisingly, sought further particulars of this age discrimination allegation on 5 June 2013 in Paragraph 23 of their Notice for Particulars. The claimant replied to that Notice on 25 June 2013. Those replies do not contain clear numbered paragraphs which would relate directly to each of the separate questions put to the claimant. It is therefore more difficult than it should be to identify the proper answer given by the claimant to individual requests for particulars including the individual request for particulars of the alleged age discrimination which was alleged to have occurred in July 2011.
25. However, under the heading ’12 – 26’ which obviously includes a reply to Paragraph 23 of the Notice, the claimant refers to an incident in May/June 2011 when the claimant designed a brochure entitled ‘Accountants for Agriculture’ which was for the Limavady Agriculture Show on 9 July 2011. The substance of her complaint was that she had not been invited to attend the show. Ms Nichola Patton appears to have been her comparator. Ms Nichola Patton had been invited to attend and had attended with Ms Deborah Smyth.
26. The replies go onto allege that Ms Nichola Patton had been asked to contact a Mr Buchanan and to tender for certain work for which she had been promised a bonus of 70% of the first year fees. That was a significant increase from the normal practice of a bonus of 50% of the first year fees where new business had been introduced by an employee.
The claimant accepts that she was on holiday in the week before and after the show and that the show was held at the weekend. The claimant also accepts that she had no evidence of the alleged offer of 70% bonus of the first year’s fees. This alleged offer had been denied by Ms Nichola Patton and by Mr Peter McCartney. She had simply heard it from an unspecified source in the office. That is quite a specific, and in the context, quite a serious allegation to make without proper evidence.
27. The tribunal therefore concludes that there was no evidence that the claimant was treated unfairly or differently on the grounds of age in this regard. It accepts the clear evidence of Ms Nichola Patton and Mr Peter McCartney that the claimant was already on holidays, that Ms Nichola Patton had been approached by Mr Buchanan, that Mr Buchanan had not mentioned the claimant, and that there was no discussion of a 70% bonus.
28. The claimant has proceeded, in the course of her replies, and in her witness statement, to make other allegations of unlawful age discrimination in comparison with Ms Nichola Patton. As indicated above, these fall outside the scope of the claim of age discrimination which is properly before this tribunal and which had been specifically restricted to July 2011. However, for the sake of completeness, and to the extent that the allegations might also form part of the constructive unfair dismissal claim, this decision will deal with them.
29. The claimant next referred to an incident in which the claimant, a manager, criticised the work of Ms Nichola Patton, another manager. It is unclear why the claimant, who was not a senior manager but was of the same grade as Ms Nichola Patton, would have done so. In any event, nothing in this matter, even taking the allegations at their height, would allow a tribunal to reasonably infer unlawful discrimination in terms of age.
30. The claimant next raised the question of giving courses or presentations to other staff. The claimant alleged that she had not done so and had not been allowed to do so. She alleged that in contrast Ms Nichola Patton had done so. The clear evidence of the witnesses for the respondents was that the claimant did give staff presentations. She had not produced any independent evidence to the contrary. The claimant states, however, that she did not give staff presentations. It is, nevertheless, clear that in relation to at least one possible presentation which the claimant had proposed in December 2012, she had been told to delay the presentation to January or February to allow for the tax deadline to pass and for the Christmas holidays. She had not been told, even on the claimant’s evidence, not to make such a presentation. Furthermore, the claimant had attended 25 hours of CPD courses in her last year of employment. Those courses had been paid for by the respondents. That is significantly in excess of the professional requirement of 20 hours. If there had been a pattern of unlawful discrimination or any form of campaign against her in this regard, one would have expected a different position. The claimant had also been in charge of a workshop on charities which had been held under the auspices of Limavady Borough Council. At that presentation she had been allowed centre stage and given, what appears to the tribunal, to have been full and proper credit. The claimant’s name appeared above that of Mr Peter McCartney on the relevant literature. There is nothing here which would allow a tribunal, even if it had jurisdiction, to properly infer unlawful age discrimination.
31. The claimant alleged that she had not been appropriate credit for a farming newsletter, an Accountancy for Agriculture brochure and for the Limavady Borough Council charity workshop. The tribunal has already dealt with the latter and accepts that the attendance of a partner at that event was in support of the claimant. There is no evidence that the attendance of a partner was intended to diminish or undermine the role of the claimant or that it could have done so. There was also no evidence of excessive or inordinate credit ever having been given to Ms Nichola Patton in respect of any event or contribution.
32. Even if the claimant did not receive full credit for the first two items, and even if the tribunal had jurisdiction, there is no evidence of differential treatment on the grounds of age and therefore no evidence upon which a reasonable inference of unlawful discrimination could properly be drawn.
33. The claimant then complains that Ms Nichola Patton, who was due to go on maternity leave, was promised that on her return from maternity leave she would resume working for her biggest client. This seems to be an entirely normal situation for somebody leaving work to go on maternity leave. There is no evidence that this was done on the ground of Ms Nichola Patton’s age or that the removal of other clients from the claimant was on the ground of her age. Again, leaving aside the question of jurisdiction, there is no evidence on which a proper inference of unlawful discrimination would be drawn.
34. The claimant next complains that she was checked for being late back from lunch on one occasion. It emerged in evidence and the tribunal accepts, that Ms Nichola Patton was also checked on three separate occasions for timekeeping. The alleged incident in relation to the claimant was conducted privately and properly by Mr Peter McCartney and had only occurred on one occasion. Even if the tribunal had jurisdiction, there is no evidence of any incorrect treatment, or any differential treatment and no evidence that any treatment was on the ground of age.
35. The claimant next makes a complaint that she was asked by Mr Andrew McCartney not to take her coffee break at reception but to take it in the kitchen. It is difficult to understand the basis of this complaint or its relevance to the tribunal’s statutory jurisdiction.
36. The claimant next alleged that she was accused by Mr Peter McCartney of charging time incorrectly, or as she alleges at one point ‘fraudulently’. It does not appear that any ‘accusation’ was made or that it had ever been suggested that the claimant had ever acted fraudulently. This was a simple matter of checking timesheets. The role of checking timesheets properly fell to Mr Peter McCartney. He checked the timesheets of other employees and indeed the timesheets of Mr Andrew McCartney. He checked some 600 timesheets and this was the only occasion on which he queried a timesheet from the claimant. That is in itself surprising if there was, as the claimant alleges, a continuing pattern of age discrimination and a “sustained and nasty” campaign to drive the claimant out of employment. It is also clear that the entry in the timesheets was itself unusual involving a claim in respect of a bank holiday. It emerged in the course of a brief telephone call with Mr Peter McCartney that the claimant had indeed already raised the matter some weeks earlier and the issue was immediately cleared up. Mr Peter McCartney had simply forgotten the earlier conversation. The claimant seemed to actively resent the possibility of any oversight of her activities by Mr Peter McCartney.
In any event, again even if there was jurisdiction, there is nothing to support a proper inference of unlawful discrimination.
37. The claimant next complained of a practice where, if she complained of errors by other staff, presumably not her own staff, Mr Peter McCartney would tell those staff that he had identified those errors. The tribunal accepts Mr Peter McCartney’s explanation that he did so to avoid placing the claimant in a difficult position in a small office. While this practice might be a bit paternalistic, the practice was hardly unlawful or discriminatory.
38. The claimant next complained that she was forced to move out of her ‘prestigious office’ and that she was the only member of staff being forced out. Building work for a new board room meant that her move was necessary. She was offered the choice of two alternative offices. She refused both. Mr Peter McCartney, who was then the managing partner, moved out of his office to another office and gave the claimant, a manager, his office. It is difficult to comprehend how the claimant regarded any of this as unlawful or discriminatory.
39. In the claimant’s witness statement, ie in her evidence-in-chief, the claimant named Ms Nichola Patton as her only comparator in relation to the discrimination claim.
Whether these allegations are considered singly or jointly, there is absolutely nothing here on which a tribunal could properly or reasonably infer unlawful discrimination and therefore the claim of unlawful age discrimination is dismissed.
Constructive unfair dismissal
40. The claimant’s case in this respect was that she had been, in effect, senior manager in the firm up to August 2010 but that she had been demoted and her status had been diminished with the arrival of Mr Peter McCartney as senior manager with a view to becoming a partner. Important work had been taken off her to facilitate Mr Peter McCartney’s arrival. Her role within the firm had been diminished and there was a ‘sustained and nasty’ campaign thereafter to drive her out of employment. That campaign culminated in the appointment of a Ms Catherine McIlwaine as senior manager in 2013. She had been due to start on or about April 2013. The claimant states she was told that work for the Longs Group, including the audit for Longs Supermarket, would be transferred to Ms Catherine McIlwaine. She states she resigned because of this and that the respondents had, in any event, wanted to dismiss her or drive her out of employment because of Ms Catherine McIlwaine’s recruitment.
41. It is clear that the claimant regarded herself as having been a higher ranking employee than Ms Nichola Patton. However, both were chartered accountants and both were managers. The claimant was undoubtedly more experienced and had longer service than Ms Nichola Patton. However, before August 2010, both reported directly to Mr Andrew McCartney. After August 2010, they continued to do so, even though Mr Peter McCartney had initially had a role described as ‘senior manager’. There was no reason for the claimant at any point to have assumed this role as the effective ‘boss’ in the office subject only to Mr Andrew McCartney. It is also notable that this specific allegation of her status as ‘boss’ emerged only in the course of the tribunal hearing. The tribunal prefers the clear evidence on behalf of the respondents and concludes that the claimant had never been a senior manager and therefore had never been demoted in breach of her contract. She had been a manager and remained a manager with the same hours and pay and she reported to the owner or owners of the business.
42. Mr Andrew McCartney had suffered a heart attack and was, in any event, planning to retire in 2014. The owner of a business is entitled to plan for his own succession and is entitled to pass ownership of the business to a family member or to whoever he wants. He was not in any way obliged to pass the business to any employee, no matter how long that employee had been employed. The tribunal has considered the claimant’s evidence and her responses during cross-examination. It is clear that she resented the introduction of Mr Peter McCartney into the business and his eventual role as managing partner. She resented, in particular, any role he properly had in checking timesheets or in allocating clients between employees.
43. When Mr Peter McCartney arrived in the firm in August 2010, the claimant had to pass the Fleming Group clients to Mr Peter McCartney. She took particular exception to this but did not lodge a grievance or a tribunal case at the time. She appears to have remained busy thereafter. Her pay remained the same and her status as manager remained the same. Certainly the records of the claimant’s non-billable hours fell after Mr Peter McCartney’s arrival and the claimant frequently reported being busy.
There is nothing in any of this which can be regarded as a breach of a specified or implied term of the employment contract.
44. The claimant alleged, in particular, that she was asked in 2010 by Mr Andrew McCartney whether she wanted to reduce her hours to take care of her mother. This was a suggestion made once and immediately rejected by the claimant. It was not repeated by Mr McCartney and was not insisted upon. She was never required to reduce her working hours. It is perhaps notable that the claimant had, in any event, already been on reduced hours at her own request for several years, initially for childcare purposes, and that even when that need had passed, the claimant was never asked or required to alter that position. Only someone who was extraordinary sensitive, and who was inclined to believe that what she perceived to be her special position within the firm was under threat, would have seen anything wrong in a normal and friendly offer made once and immediately rejected. It was not a repudiatory breach of contract.
45. It is also important to remember that there was nothing wrong or illegal in Mr Andrew McCartney introducing his son as someone to take over the business in due course. There is equally nothing wrong or illegal in the owner of a business or a senior manager determining which employee should deal with which client. Mr Fleming, the general manager of Fleming Engineering Ltd, gave evidence to the effect that at the end of 2010, a trusted financial and strategic adviser had died. In that position he wished to have Mr Peter McCartney work more closely with Fleming Engineering Ltd to fill that void. Again, there is nothing in any of this which suggests a deliberate or sustained campaign to drive out someone who retained their salary, their hours, the bulk of their clients and who kept busy.
46. The claimant also sought to rely on the termination of an 81 year old typist, Mrs Buchanan, to further her case. It is difficult to see what her argument was in this respect. Mrs Buchanan was engaged in a different type of work from the claimant. There was unrebutted evidence from Mr Andrew McCartney and Mr Peter McCartney to the effect that the administrative side of the office had been overstaffed and Mrs Buchanan had remained in employment for some 16 years after retirement age.
47. Many of the points raised by the claimant as a basis for the allegation of a sustained campaign between August 2010 and January 2013 simply repeated those allegations which had already been made in relation to the allegation of age discrimination and which have been dealt with above.
There was no evidence of any improper treatment in this regard. Certainly there was no evidence of any matter which could properly be viewed as conduct calculated to or likely to destroy or seriously damage the employment relationship. The claimant was not prevented from giving presentations. Equally, there is no record of her ever having raised a grievance or complaint in this regard. She was sent to more, rather than less, courses than her profession required. She was given proper credit for the Limavady Borough Council workshop where she was given centre stage and where her name in the literature appeared above the name of the managing partner. That managing partner even moved office and gave up his own office to facilitate her. She retained her hours, pay, status and had sufficient work. None of this is consistent with an employer running a ‘sustained and nasty’ campaign to drive someone out of employment.
48. The claimant stated that the campaign had culminated in the appointment of Ms Catherine McIlwaine as senior manager which again diminished the claimant’s role. It is, however, clear that again her salary and hours were still to remain unchanged. While much of the work in relation to Longs Group was to move to Ms McIlwaine, she would still be assisting with the relevant tax work. She took particular exception to the proposal that she would ‘assist’ Ms Catherine McIlwaine in this regard. She was also given the choice of Ms Nichola Patton’s work during her absence on maternity care. This was an offer for one manager to cover for another manager who was on maternity leave. It is not in any way exceptional or objectionable. Furthermore, it was made plain to the claimant that Mr Andrew McCartney was winding down and was due to retire. Further work would be released at that point. In any event, she regarded all of this as something of a comedown.
49. It is clear that the claimant had previously been involved in a senior position in the audit of Longs Supermarket for a period in excess of 10 years. It is equally clear that as part of the professional ethical standards relating to chartered accountants and as a fraud prevention measure, such work should be rotated every 10 years at least. The respondent company had recently been reminded of this obligation by the professional body.
50. There was a conflict in the relevant evidence. The claimant says that she was happy for the audit of Longs Supermarket to be rotated but was pushing for the remaining work relating to the Longs Group to be retained by her. The respondents, particularly Mr Andrew McCartney, were absolutely clear that the claimant had positively insisted on continuing with the audit of Longs Supermarket and that she had resigned in direct response to the refusal by Mr Andrew McCartney to breach ethical standards by permitting her to do so.
51. The tribunal accepts Mr Andrew McCartney’s evidence in this regard. His evidence was clear and consistent. He was obviously still angry with the matter even after all these months and appeared to be telling the truth. The tribunal also notes the exchange of letters which followed shortly after the relevant meeting on 7 January 2013. Mr Andrew McCartney, on 27 February 2013, made it absolutely plain that his view was that the claimant had insisted on continuing with the audit function and had resigned when he had refused on ethical grounds to permit this to continue. There could have been no reasonable misunderstanding of Mr Andrew McCartney’s position. However, the claimant replied some three weeks later on 18 March 2013 and stated:-
“The Longs audit was the last straw, as you well know.”
The claimant did not say, as she now attempts to say, that she was content for the audit itself to be rotated but not content for the other work related to the Longs Group to be allocated to another employee. She did not seek to correct what she now suggests was a misunderstanding of the position by Mr Andrew McCartney.
52. The tribunal therefore concludes that the claimant was not constructively dismissed. She resigned in response to the appointment of Mr Peter McCartney and the appointment of Ms Catherine McIlwaine. Her pay, hours of work, and the provision of sufficient clients had not been changed. She did not own any of the clients and was not entitled as a matter of contract of implied contract to insist on the retention of any particular client on any particular set of terms. A rotation of clients or a change of clients between employees was not a breach of any real of implied term of the claimant’s contract. There had been no campaign to drive her out of employment.
The claim of constructive unfair dismissal is therefore dismissed.
53. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Vice President:
Date and place of hearing: 18 – 21 November 2013, Belfast
Date decision recorded in register and issued to parties: