Industrial Tribunals Northern Ireland Decisions

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Cite as: [2014] NIIT 01045_13IT, [2014] NIIT 1045_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1045/13

CLAIMANT: Beverley McKeag

RESPONDENT: Balloo Inns Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was not constructively dismissed, but resigned. Her claim of unfair dismissal is dismissed.

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Members: Mrs E Gilmartin

Mr J Barbour

Appearances:

The claimant was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons Solicitors.

The respondent was represented by Mr P Bloch of the Engineering Employers Federation.

1. ISSUES

1.1 At the outset of the hearing there were three claims for the tribunal to consider: First, constructive dismissal;

Secondly, whether the claimant had been subjected to less favourable treatment in comparison to her full-time Chef colleagues by reason of her alleged or perceived status as a part-time worker;

Thirdly, whether there had been a substantial change in the claimant’s terms and conditions of employment to her material detriment under Regulation 4(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

1.2 After hearing the evidence, the claimant's representative formally withdrew the claim in relation to the claimant’s part-time working status and the claim in relation to an alleged breach of contract under the Transfer of Undertakings (Protection of Employment) Regulations 2006. Accordingly, the remaining issue is a claim of constructive dismissal.

1.3 The main issues for the tribunal to consider were therefore as follows:-

(1) Did the respondent’s proposed change to the claimant’s working conditions, i.e., a reduction in her working hours and a change in her usual place of work from Lisbarnett House, Lisbane to either The Parson’s Nose, Hillsborough or Balloo House Restaurants, constitute a fundamental and repudiatory breach of the claimant’s terms and conditions of employment?

(2) If so, was the breach of contract actual or anticipatory?

(3) If the breach of contract was anticipatory, did the respondent cure the breach prior to the claimant’s resignation on 8 April 2013?

(4) Did the respondent’s behaviour towards the claimant and in particular the manner in which they dealt with the claimant’s grievance regarding the proposed changes constitute a breach of the implied duty of trust and confidence as between employer and employee?

(5) Was the implied duty of trust and confidence irretrievably damaged or destroyed by the respondent’s alleged conduct?

(6) If so, did the claimant resign in response to the alleged breach of her contract?

(7) If the claimant was constructively dismissed, was the dismissal unfair?

2. FACTS

2.1 The tribunal received witness statements and heard evidence from the claimant and from Mr Chris McWilliams, former Executive Head Chef at the claimant’s premises at Lisbarnett House, Mr Ronan Sweeney, Managing Director of the respondent and Mrs Jennie Sweeney. Numerous documents were also opened to us in the course of the hearing. On the basis of the evidence heard and the documents opened to us we make the following findings of fact.

2.2 The claimant was employed as a sous-chef at the respondent’s premises at Lisbarnett House, Lisbane, Co Down. She had been employed in this capacity since 1 July 1988 and had worked for a number of owners of the business. In September 2012, the business, then owned by North Down Leisure Ltd, was acquired by the respondent.

2.3 At the time of the takeover by the respondent, the claimant worked alongside the Head Chef at Lisbarnett House, Sean McCabe. At that stage they worked on a rota where the claimant usually worked three shifts per week and Mr McCabe was willing to work five shifts per week, which covered any time when the claimant was not available. The respondents proposed to move to a pattern of shift working where each full-time chef would be required to work four full shifts of 10-12 hours per week to cover 20 shifts. Due to a growth in the business, they increased the number of chefs at Lisbarnett House to five. Mr McCabe left the business in November 2012, which meant that at that stage they had no one willing to cover the claimant’s fourth shift, which would have made-up, (in the respondent’s mind) the claimant’s four shifts. The claimant indicated that she had never been asked to move to work four shifts per week. She agreed that she had been approached by Chris McWilliams, the Executive Head Chef who was looking after Lisbarnett House and The Parson’s Nose, as to whether she would be interested in the position as a Pastry Chef, but she had understood that that was likely to run from January 2013 and she had simply offered to think about it. The matter had not been discussed subsequently.

2.4 According to the evidence given by Mr Sweeney, the fact that the claimant usually worked three shifts per week put the respondent in some difficulty in covering the fourth shift which they would have expected the claimant to cover had she been working full-time. No specific discussion took place with the claimant about this. It was Mr McWilliams’ evidence that he and Danny Millar, one of the Directors of Balloo Inns, usually covered any additional shifts which needed to be covered in the autumn of 2012. In a discussion between Mr Sweeney and Mr Millar in January 2013, they made the decision that they would move the claimant from her established workplace at Lisbarnett House to cover two full shifts at The Parson’s Nose at Hillsborough, some 20 miles from Lisbarnett House. The claimant lived a very short distance from Lisbarnett House so it was a particularly convenient workplace for her. The respondent also owned a restaurant at Balloo House, approximately three miles from the claimant’s home. The Parson’s Nose however is in Hillsborough and was approximately 20 miles or half an hour’s drive from the claimant’s home.

2.5 On 25 January 2013, during her shift, the claimant was approached by Chris McWilliams and told that from the following rota week she would be moving to The Parson’s Nose in Hillsborough and would work two full shifts at the weekend, i.e., approximately 24 hours. The claimant had normally been working 30 to 35 hours per week and she was very unhappy at the proposed changes. She asked why, and Mr McWilliams said that there were no part-time hours at Lisbarnett House, they needed full-time people. She asked to discuss this with Danny Millar, but was told that this was not feasible. Mr McWilliams gave evidence that he had indicated to Mr Millar that he thought the claimant would not be happy to move. He confirmed that after the meeting with her, he had spoken to Mr Millar and told him that he thought the claimant was not going to be happy to move. He said Mr Millar’s response was that that was the way it was going to be.

2.6 Under the terms and conditions of employment which the claimant had while working for North Down Leisure Ltd (and which had not been changed once the respondents took over the business), the contract states:-

“Your normal place of work is Lisbarnett House, but you may be required to work at any of North Down Leisure’s other locations as the company may from time to time require.”

The claimant agreed in cross-examination that North Down Leisure could have moved her to any of their other restaurants, some of which were up to an hour’s drive from Lisbane. She did not dispute their entitlement to do so.

2.7 In relation to hours of work, the contract states:-

“Your normal hours of work are as per the rota, which will be notified to you on a weekly basis and will involve day, night and weekend working.

In addition to these hours, you will be required to work a reasonable amount of additional hours when necessary. You are entitled to payment for additional hours at your normal rate of pay.

Every attempt will be made to ensure your continuing employment in the event that North Down Leisure is faced with a shortage of work or is unable to provide you with work for any other reason. This could include temporarily placing you in short-time working or laying you off from work; in these circumstances you will be paid for those hours worked, or in accordance with the statutory guarantee pay provisions.

North Down Leisure reserves the right to change these shift patterns/hours according to the needs of the business. North Down Leisure will provide you with a reasonable amount of notice regarding any such changes.”

2.8 The claimant worked over the weekend but on Monday, 28 January, she went to see her General Practitioner who certified her as sick. The claimant then sent a letter of grievance to the respondent dated 30 January 2013. In the letter, she pointed out that she worked on average 35 hours per week and that as such she was not a part-time worker. She objected to the reduction in her hours and the fact that she was being moved from a location within walking distance of her home to The Parson’s Nose at Hillsborough, some twenty miles away.

2.9 The following day, Mr Sweeney replied indicating that he would be happy to discuss her grievance. He suggested a date of 13 February 2013, after the claimant’s two weeks’ sick leave would be at an end and advised her of her right to be accompanied.

2.10 Following this, the grievance meeting was rearranged for 22 February 2013. Notes of that meeting were produced to us and it was noted that the minutes were “purely indicative and are incomplete”. At that meeting, however, it was noted that the two main grievances to be discussed were the proposed reduction in the claimant’s hours and the change in her place of work. At the meeting, Mr Sweeney put it to the claimant that she had been offered a four shift arrangement within Lisbarnett House which the claimant denied. She also indicated that after Sean McCabe had left she had been asked if she would “cover for Sean” while Mr McWilliams was on holiday but denied that she had been asked to work on a “full-time basis”. In the course of that meeting, Mr Sweeney indicated that there was no role at Lisbarnett House but that he could offer the claimant a 35 hours per week post at another location. On two or three occasions during the meeting, Mr Sweeney emphasised that there would not be a role at Lisbarnett House for the claimant. He confirmed that he would offer the claimant a 35 hour week at Balloo House, three miles from her home. He indicated however that it was likely that the hours would fluctuate. He indicated that there would be hours for the claimant at Balloo House for the foreseeable future adding, “However this cannot be guaranteed long-term”. He indicated as well that there was an opening for 35 hours per week at The Parson’s Nose. He emphasised that the claimant's terms and conditions would remain the same. He subsequently wrote to the claimant that afternoon, setting out the offer of employment at Balloo House in Killinchy or The Parson’s Nose in Hillsborough. In cross-examination, Mr Sweeney was unclear as to whether he had spoken to Mr McWilliams before writing to the claimant with the outcome of the grievance meeting but he indicated that he had spoken to Mr McWilliams at some stage. Mr Sweeney referred to the discussion between the claimant and Mr McWilliams as “a misunderstanding” indicating that Mr McWilliams understood the claimant would prefer a reduction in her working hours. The letter sent to the claimant also set out her right to appeal.

2.11 On 25 February, the claimant wrote to Mr Sweeney setting out some inaccuracies she referred to in the grievance. In particular, she disputed the account of the conversations with Chris McWilliams and complained of the lack of consultation with her regarding working hours or a complete change in her place of work. She also asserted that she had also always worked in excess of 30 hours per week at Lisbarnett House and that this was deemed to be full-time. She raised the issue of whether her post at Lisbarnett House had been made redundant. Towards the end of her letter, she said:-

“I believe that by accepting either of the positions offered, leave [sic] me exposed to a reduction in my hours and/or increase in my shift patterns, this may make my position economically unviable to such a degree that it would be untenable forcing me to leave a career spanning some 25 years, in certain circles this may be considered as a form of constructive dismissal.”

She went on to say that she would be happy to meet for an appeal meeting. Mr Sweeney replied to her letter on 1 March, reiterating the claimant’s right to appeal the outcome of the grievance and asking that she give in writing the reasons for her continued grievance. He confirmed the offer to reinstate the claimant immediately to her former status of working around 30 hours a week. He also confirmed the offers of positions at Balloo House and The Parson’s Nose, adding:-

“The roles in Balloo House and The Parson’s Nose are the same roles you currently have, reflecting exactly the same hours and exactly the same rate of pay in responsibility.”

He also emphasised that her post was not redundant as the offer of continued employment in two different venues was to avoid the need for redundancy. The letter set out an extension of the time-limit for the claimant’s appeal and reminded her that they would be addressing the two grievances originally raised by her.

2.12 On 2 March, the claimant wrote to Mr Sweeney indicating that she did not accept the outcome because he was implying that her post was part-time and that:-

“It is your view that provided I am offered work within your group this is deemed to be continuance.”

In that letter the claimant referred to her contract of employment which stated that she was employed at Lisbarnett House with time to time working as required elsewhere. She again raised the issue of redundancy. The claimant wrote again to Mr Sweeney on 5 March noting that she recognised that he had now reinstated her former status of working around 30 hours per week. She disputed, however, the decision to remove her from Lisbarnett House on the basis that “there is no
part-time position available in the kitchen” and said she wished to address this in her appeal. She again disputed that working 35 hours a week put her in the category of part-time workers.

2.13 She stated in that letter that she did not wish to leave Lisbarnett House and therefore she did not wish to accept either the offers of employment at The Parson’s Nose or at Balloo House.

2.14 On 6 March 2013, Mr Sweeney wrote to the claimant suggesting a venue for the appeal meeting and indicating that this would be dealt with by his wife, Jennie Sweeney, another director of Balloo Inns Ltd. He indicated that this was
“to ensure impartiality”.

2.15 Mr Sweeney told us that the reason he had dealt with the grievance in the first instance was because he was familiar with the running of kitchens and the issue of rota’ing of staff while his wife was not. He seems not to have considered the possibility of asking Mr Millar, who was the Executive Head Chef, a Director of the company, and who was familiar with the staffing issues throughout the restaurants owned by the respondent to deal with the grievance.

2.16 The appeal meeting took place on 11 March 2013 and the claimant attended with her sister, Ms Weir. Mrs Sweeney’s evidence was that prior to the grievance appeal she had reviewed all the correspondence and notes of the grievance meeting. She had also seen a “briefing note” which Mr Sweeney had prepared. This noted that, contrary to the claimant’s assertions, no additional chefs had joined the kitchen since the proposed redeployment of the claimant. It was agreed in evidence that some personnel had changed, but the overall staffing level remained five chefs. It was noted that Corey Hamilton had been transferred from The Parson’s Nose to Lisbarnett House as sous-chef after Sean McCabe left in October. Mr Sweeney indicated that the claimant’s duties were being carried out by other staff. These notes indicated that there was no position for the claimant in accordance with the “profile” of her shifts. The notes indicated that there was a position at Balloo House for the claimant. The notes also state:-

“It is not feasible or productive to consult every employee on policy decisions made with regard to staffing levels in our different outlets. These decisions are arrived at after consultation with the department managers involved. If these decisions were going to lead to redundancies we would endeavour to consult with the employees with regard to their future.”

2.18 Mrs Sweeney gave evidence that prior to the appeal meeting, she had gone to speak to Danny Millar to ask him to consider whether there were any other positions available for the claimant given her reluctance to move from Balloo House.

2.19 The notes of the meeting were opened to us. Mrs Sweeney told the claimant at the meeting that she was keen to reach a resolution and asked her to clarify why the offers made to her were not acceptable. Mrs Sweeney acknowledged that the claimant had not been spoken to properly about the proposed changes and apologised for the way in which the matter had been dealt with. She emphasised that the respondent was keen to keep the claimant and that the issue regarding Lisbarnett House was “purely a rota problem”. She explained that four full day shifts were required of each chef. Mrs Sweeney specifically asked the claimant whether four full shifts were feasible for her, as if not then there was no problem. The claimant and her sister took a break to consider this, but the claimant refused to answer Mrs Sweeney as to whether or not this was a possibility. Further discussion followed, and Mrs Sweeney assured the claimant that they were not trying to move her out of the company as they were not in the business of losing experienced kitchen staff. She repeated the offer of work at Balloo House as she had been aware that the claimant had previously worked there on a part-time basis. She asked the claimant if she would be able to answer the question about the position at Balloo House. At this point, the claimant’s sister indicated to the claimant that she should not answer the question and the claimant then did not answer the specific point. The claimant indicated in her evidence that she was upset, she had taken medication before going to the meeting and indicated that she was not thinking straight. Mrs Sweeney at that stage indicated that she did not want to upset the claimant any further and was happy to discuss on another occasion if the claimant wished to get in touch. It was confirmed that the claimant wished to terminate the meeting and the meeting ended at that point.

2.20 Two days later on 13 March, Mrs Sweeney wrote to the claimant. She pointed out that at the meeting there had been two possibilities put to the claimant: either working at Lisbarnett House within the shift pattern required by the employer, or moving to Balloo House. She indicated that the claimant had not replied to these offers. The letter continued:-

“I appreciate that this process can be stressful and we do not wish to contribute further to your illness, however the premature termination of the meeting meant that I did not get the opportunity to hear the basis of your objection to the resolution proposed, and so unfortunately I am unable to change the outcome of the first grievance meeting.”

The letter went on to say that the grievance procedure was complete. In the last paragraph Mrs Sweeney indicated that although the formal grievance procedure was complete:-

“We are still keen to come to a mutually acceptable arrangement to facilitate your return to work and so and [sic] I am available to you, should you wish to discuss anything further.”

2.21 The claimant remained on sick leave for the next three weeks and subsequently wrote to Mrs Sweeney on 8 April 2013 tendering her resignation with immediate effect. In that letter she indicated that she believed she had been forced from her job without justification or consultation. She rejected the offers of employment at Lisbarnett House and Balloo House. She went on to say:-

“I feel that my grievance has not be [sic] satisfactorily addressed and in light of how I have been treated from 25 Jan 2013 I believe that the company does not want me to work in Lisbarnett House and has no genuine desire to facilitate my return to work there.”

2.22 On 11 April, Mrs Sweeney replied to the letter, expressing her disappointment that the claimant had resigned without discussing the resolution offers extended in the meeting of 11 March. She clarified a number of issues and explained again the offers of employment which had been put to the claimant. The claimant was in receipt of Jobseeker's Allowance from the date of her resignation until she found new employment in July 2013 working at The Secret Garden Restaurant in Dundonald.

3. RELEVANT LAW

3.1 The relevant law in relation to constructive dismissal is to be found at Article 127 of the Employment Rights (Northern Ireland) Order 1996 which provides as follows:-

“127 (1) For the purpose of this Part an employee is dismissed by his employer 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.”

3.2 Harvey on Industrial Relations in Employment Law (“Harvey”) states at Division D1, Paragraph 403 as follows:-

“In order for the employee to be able to claim constructive dismissal five conditions must be met:-

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

2. That breach must be sufficiently important to justify the employee resigning, whereas it must be the last in a series of incidents which justify his leaving.

3. A genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

4. He must leave in response to the breach and not for some other, unconnected, reason.

5. He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he will be deemed to have waived the breach and agreed to bury the contract.”

3.3 The conduct relied upon to constitute a breach of contract must be a repudiatory breach of contract and not simply unreasonable behaviour on the part of the employer. In Brown v Merchant Ferries Ltd [1998] IRLR 682 NICA, the Court of Appeal in Northern Ireland indicated that, although the correct approach to constructive dismissal is to ask whether the employer was in breach of contract and not whether the employer acted unreasonably, if the employer’s conduct is seriously unreasonable this may provide sufficient evidence that there has been a breach of contract. In this case, there are two main allegations of breach of contract. One is the proposed change in the claimant’s working conditions, namely her change of work location and a reduction in her hours which, if established, may be a breach of the expressed terms of the contract, whether written or oral. The claimant has also claimed that there has been a breach of the implied duty of trust and confidence by the employer, in respect of the way that her grievance was addressed by the employer. 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] IRLR 606 in the following terms:-

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

3.4 However, it is important to note that the test for breach of the implied duty of trust and confidence is an objective one. The House of Lords noted that the duty of trust and confidence may be undermined even if the conduct in question is not specifically directed at the employee. The duty of trust and confidence may be broken indeed even if an employee’s own trust and confidence is not undermined. Similarly, their Lordships pointed out that it followed that there would be no breach simply because the employee subjectively feels that such a breach had occurred, no matter how genuinely this view is held.

3.5 The case law also emphasises that the breach of contract complained of must be repudiatory in nature. It must be sufficiently important to justify the employee resigning or it must be the last in a series of incidents which justify his leaving. Harvey comments that where the alleged breach of the implied term of trust and confidence constitutes a series of acts, the essential ingredient of the final act is that it is an act in a series, the cumulative effect of which amounts to the breach. It follows that although the final act may not be significantly blameworthy or unreasonable, it must contribute something to the breach even if it was relatively insignificant.

3.6 The question also arises as to what happens if an employer has indicated a clear intention not to fulfil the terms of the contract in the future and the employee accepts that intention to commit a breach is bringing the contract to an end. It is clear that what is a repudiatory breach of contract depends on the facts in each case. In Financial Techniques v Hughes [1981] IRLR 32, the Court of Appeal held that in that particular situation, matters had not reached a stage where the employer was unequivocally refusing to be bound by the contract and so they did not consider that his conduct was a repudiatory breach. There was a difference of opinion in that case between the employer and the employee as to the amount of a bonus to which the employee was entitled on leaving employment, but no final decision had been made by the employer as to whether or not he was willing to pay the amount claimed by the employee.

3.7 It is also significant that an employer will have the opportunity to change its position and withdraw the threat of a breach of contract at any time up until the employee accepts a repudiation. If an employee resigns after the employer has withdrawn his threat to breach the contract, there will be no constructive dismissal (see Harrison v Norwest Holst Group Administration Ltd [1985] ICR 668.

3.8 By contrast if there had been an actual breach of contract, whether of an express or implied term of the contract, the Court of Appeal in England and Wales has found that once the breach has been committed, it is for the wronged party to decide how to respond. In Buckland v Bournemouth University [2010] IRLR 445 CA, the Court of Appeal found that once a breach of contract had been committed, it was for the wronged party to decide how to respond:-

“The defaulting party cannot choose to retreat. What it can do is invite affirmation by making amends.”

If the claimant rejects the offer, he or she can still resign and claim constructive dismissal. Sedley L J noted that employment law in this regard forms an integral part of the general law of contract where no doctrine of cure applies. He considered whether there was good and sufficient reason to introduce such a doctrine into employment law alone. While he could see the attraction of this, he ultimately rejected the idea saying:-

“Albeit with some reluctance, I accept that if we were to introduce into employment law the doctrine that a fundamental breach, if curable and if cured, takes away the innocent party’s option of acceptance, it could only be on grounds that were capable of extension to other contracts and for reasons I have given I do not consider that we would be justified in doing it. This does not mean, however, that tribunals of fact cannot take a reasonably robust approach to affirmation; a wronged party, particularly if it fails to make its position entirely clear at the outset, cannot ordinarily expect to continue with the contract for very long without losing the option of termination, at least where the other party has offered to make suitable amends.”

4.0 REASONS AND DECISION

4.1 There are two main allegations made by the claimant in relation to actions which she says constitute repudiatory breaches of the contract. The first relates to the respondent’s instruction that she was to change location and shifts with approximately one week’s notice, and without any consultation. The second matter relates to the claimant’s main complaints in relation to the way her grievance was dealt with in that there was no consultation or discussion before she was spoken to by Mr McWilliams and she found this stressful and annoying. She found the respondent cold and factual with her in the grievance procedure.

4.2 It is correct that the tribunal must be satisfied that the alleged breach of contract on the part of the respondent is a repudiatory breach of contract. That is to say it must go to the heart of the contract and be a fundamental breach of it. To be clear about the proposed move of the claimant, this was proposed by the respondent and the claimant was told that it was going to happen but it did not in fact occur, because of the fact that the claimant went on sick leave and lodged a grievance in relation to the matter. On considering the matter therefore it seems to us that this was an anticipatory breach of contract which was not actually implemented by the respondent. The respondent indicated that the claimant agreed her employers were entitled to move her to any other location and indeed the claimant did agree this in her evidence. On reviewing the contract however we are conscious that the contract states, “Your normal place of work is Lisbarnett House, but you may be required to work at any of North Down Leisure’s other locations as the company may from time-to-time to require”. Arguably, this indicates the claimant’s usual place of work should be Lisbarnett House and working at any other location would be a temporary measure unless specifically agreed with the claimant. This was not the claimant’s case as she agreed that the respondent was entitled to move her to another location.

4.3 As regards her hours of work, it was clear from payslips which were produced to us that the claimant had indeed usually worked between 30 and 35 hours per week. This indicates to us that these were her normal hours of work, although they were not fixed and the claimant did not necessarily work the same hours each week. We also acknowledged that the respondent showed a degree of flexibility with her. Mr McWilliams said in his evidence, – and it was not disputed by the claimant - that she had specifically asked not to work on Friday nights in the month of December 2012 and that this had been facilitated. This seems to us an extremely accommodating approach on the part of the employer, given that Friday evenings in December in the restaurant business are likely to be exceptionally busy.

4.4 Although the parties did not specifically refer us to it, the contract of employment which the claimant had with North Down Leisure (and which remained unamended after the business was taken over by the respondent), specifically refers to the fact that North Down Leisure reserved the right to change shift patterns and hours according to the needs of the business. The clause goes on to say that North Down Leisure will provide staff with a reasonable amount of notice regarding any such changes. The respondent, having taken over the business, was entitled to rely on this clause.

4.5 The main issue which seems to have arisen in relation to the claimant’s case is that she was not consulted about the proposed change in any way. Mr McWilliams appears to have formed the impression that the claimant did not want to work more than 30 hours per week, but he did not sit down and discuss this with her, nor did Mr Millar. At no time prior to the grievance process did anyone sit down with the claimant, discuss the proposed changes in relation to rotas and specifically ask her if she was willing to work four shifts per week, which would have given her additional hours and the opportunity to remain at Lisbarnett House. This is clearly a failure on the part of the respondent and contrary to good industrial relations practice.

4.6 That said, once the claimant had lodged a grievance, it was addressed promptly by the respondent. We do not agree with Mr Sweeney’s decision that he was the best person to deal with the grievance, because he was aware of rotas, especially as he also initially intended to deal with the appeal. We also note that having his wife as a fellow company director deal with the appeal may well give an impression that there is no impartiality in the appeal process.

4.7 However, at the grievance Mr Sweeney clearly made an effort to try and accommodate the claimant’s concerns. He offered her a job at Balloo House which was reasonably close to her home and would have offered her the same hours she had previously been working. The claimant seems to have “focused” on Mr Sweeney’s comment that the hours would be “for the foreseeable future” suggesting that there was some doubt as to whether these hours would continue. She was well aware however from her working in Lisbarnett House that the hours could vary from week-to-week, and Mr Sweeney made it clear that this was what he meant. The claimant then appealed and at the appeal stage, Mrs Sweeney, in our view, made genuine attempts to try and resolve this issue. She went to speak to Danny Millar and the head chef at Balloo House. She put two possible solutions to the claimant. One was the job at Balloo House previously offered (or the Parson’s Nose, if the claimant wished). She also advised the claimant that she could return to Lisbarnett House working a four shift rota along with her previous colleagues. This appears to offer the claimant effectively what she wanted, that is a return to Lisbarnett House on the same terms and conditions as before, albeit that she would be working an extra shift each week. However, the claimant noted in her evidence that on occasion she worked four shifts in any event. The claimant did not give a clear response to either of these offers at the appeal meeting, which is unfortunate to say the least. She appears to have been discouraged from making any response by her sister who was present at the meeting. The claimant made no further contact with Mrs Sweeney following the meeting, and Mrs Sweeney then wrote to her two days later repeating the offers of the two posts at Lisbarnett House and Balloo House. She also indicated that while she could not overturn the original decision in relation to the grievance, she was happy to discuss matters further.

4.8 The claimant did not dispute that Mrs Sweeney had told her at the appeal meeting that they were not in the business of losing experienced kitchen staff and that she was keen to reach a resolution in the matter. In our view, the claimant should have taken some confidence from this, and from the fact that the respondent had made the effort to research two possible alternatives for her in relation to her employment. The claimant at this stage seems to have taken the view that the offers made to her were “a sham”. We are not of this view. We accept from the way that the appeal process was organised, Mrs Sweeney made genuine attempts to try to resolve the matter. We are of the view that both offers which were put to the claimant were genuine and reasonable offers. Accordingly, it is our view that the offers made by the respondent at the appeal stage, which effectively reversed the decision to move the claimant, without consultation, constituted a withdrawal of any anticipatory breach of contract and that therefore the breach was cured.

4.9 The next matter to consider is whether the way in which the respondent dealt with the proposed move and the grievance procedure was a breach of the implied duty of trust and confidence between employer and employee. The claimant also complained about the way that the grievance procedure was handled and she was clearly not happy with the outcome.

4.10 We are of the view that these matters could have been handled better by the respondent. It would have been appropriate to discuss with the claimant the proposed change in her hours and place of work, and to see if an agreement could be reached, rather than presenting the claimant with a decision due to be implemented the following week. However the respondent is contractually entitled to change shift patterns according to the needs of the business. The question of the workplace should in our view have been discussed with the claimant before being announced to her, but again there was no clarity as to whether the proposed move was going to be temporary or permanent, and the employer was entitled to move her to another location “as the company may from time to time require”.

4.11 In relation to the way that the grievance was conducted, we consider that this was not dealt with well by the respondent, and the fact that offers were put to the claimant which were reasonable and proper offers to resolve the matter was more by good luck than by design. Neither party opened to us the staff hand book, and we have not read it. We were not told what the respondent’s policy or procedure was in relation to grievances, and Mr Sweeney appears to have dealt with this in the way that he thought best. He advised us that he had considerable experience in human resources’ matters, but this was not evident. The idea that a grievance should in the first instance be dealt with the Managing Director of the company, rather than someone at a lower level of responsibility seems to us highly unusual. Mr Sweeney made this choice knowing that the other people who might then deal with an appeal were his wife (whose impartiality could be questioned) or Mr Millar. Initially he indicated to the claimant that he (Mr Sweeney) would also deal with the appeal and then changed his view on this, appointing Mrs Sweeney to deal with the appeal on the basis that she would be impartial. He then went on to prepare a briefing note for Mrs Sweeney which displays a lack of understanding as to best practice in human resources matters. While we can understand that the company would take a policy decision in relation to staffing levels, it seems entirely appropriate to us to discuss staffing matters and in particular rotas with staff before they are introduced to ensure that staff are “on board” in relation to changes in advance rather than presenting them with a fait accompli.

In spite of Mr Sweeney’s best efforts however, we find that the appeal was dealt with in an appropriate manner. There was no suggestion from the claimant that Mrs Sweeney was anything other than courteous, and she certainly appears to have done her homework, putting to the claimant two reasonable offers in relation to her employment. She also allowed a break in the meeting to allow the claimant to consult with her sister and ended the meeting when it appeared to be distressing for the claimant, although making it clear that she was leaving the door open to any further discussions.

4.12 The claimant’s complaint was effectively that the grievance did not work out as she had hoped and that she felt that a grievance did not address the concerns that she raised. However, her grievance raised initially two concerns, one was a change in location and the other was the reduction in her hours. These were addressed by the respondents. The claimant complained that she was distressed and annoyed, and we can understand that she was by these events. However she accessed the grievance procedure and the grievance procedure and appeal produced two reasonable and viable options for her to consider. The fact that she decided not to accept these is regrettable. It is our view that the way that these matters were dealt with by the respondent does not constitute a fundamental breach of contract. They are entitled to rearrange staffing rotas and to move staff from location to location as required. The manner in which they did this was unfortunate and it could have been handled better by them. This entire matter could have been avoided in our view, had the respondent handled the whole matter of the claimant’s redeployment more sensitively. We are not however persuaded that their behaviour constitutes a fundamental breach of contract when it is viewed objectively.

4.13 Accordingly, we find that the respondent has not breached the implied duty of trust and confidence and accordingly we do not need to consider whether the claimant resigned in response to the breach of contract or whether the three week delay until she resigned constitutes affirmation of her contract. For these reasons her claim will be dismissed.

Chairman:

Date and place of hearing: 20-22 January 2014, Belfast.

Date decision recorded in register and issued to parties: