Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

    

                                                            CASE REFS:  1381/13

1559/13

 

 

CLAIMANT:                      Gary Luney 

 

 

RESPONDENTS:              1.       Charles Hurst Ltd

                                        2.       Adrian Devitt

                                        3.       Philip Sandford

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant was unfairly constructively dismissed, did not suffer victimisation on the ground of his disability, nor did he suffer a detriment or dismissal arising from his withdrawal from the opt-out under the Working Time Regulations.

 

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge Greene

 

Members:                        Mr A Burnside

                                        Mr J Norney

 

 

Appearances:

 

The claimant was represented by Mr Oisin Friel, of counsel, instructed by Donnelly and Kinder Solicitors.

 

The respondents were represented by Mr P Bloch of EEF Northern Ireland.

 

 

The Sources of Evidence

 

1.               The tribunal heard evidence from the claimant and on behalf of the respondents from Adrian Devitt (the second respondent) and Philip Sandford (the third respondent).  By consent the parties did not call three witnesses Edward Leitch, on behalf of the claimant and John Rankin and Richard Stinson on behalf of the respondents.  However their witness statements were admitted in evidence without challenge.  The tribunal also received two bundles of documents amounting to 339 pages approximately, a Schedule of Loss in which the mathematical calculations were largely agreed, a submission from the claimant and some legal authorities and comment from the respondents. 

 

The Claim and the Defence

 

2.               The claimant claimed that; he was unfairly constructively dismissed; was discriminated indirectly by reason of his disability; he was victimised by reason of his disability; the respondents had failed to make reasonable adjustments for him in view of his disability; he had suffered a detriment by reason of foregoing a right conferred on him under the Working Time Regulations (Northern Ireland) 1998.  The respondents denied the claimant’s claims in their entirety.

 

The Issues

 

3.       The agreed issues were as follows.

 

(1)            Legal Issues

 

          Unfair Dismissal

 

(a)            Whether the claimant has been unfairly dismissed by way of constructive dismissal, contrary to Articles 126 and 127(1)(c) of The Employment Rights (Northern Ireland) Order 1996 as amended?

 

Disability Discrimination

 

(b)            Were the respondents aware of the claimant’s disability?

 

(c)            Whether the following provisions, criteria, practices or arrangements placed the claimant at a substantial disadvantage, by virtue of the claimant’s alleged disability:

 

(i)              The requirement to work increased hours with effect from January 2013?

 

(ii)             The requirement to work alternate Saturday mornings with effect from 10 May 2013?

 

(d)            Whether the following are reasonable adjustments which could have been made and whether the respondents failed to make the same, as defined by Section 3A(2) and contrary to Section 4A of the Disability Discrimination Act 1995 as amended in respect of the following:

 

(i)              A reduction or alternative to the proposed change in hours?

 

(e)            Whether the claimant has been victimised as defined by Section 55 and contrary to Section 4(2) of the Disability Discrimination Act 1995 as amended, in comparison with a hypothetical comparator, in respect of the following:

 

(i)              The decision by Mr Devitt to make the claimant work alternate Saturdays with effect from 10 May 2013;

 

(ii)             The handling of the claimant’s long service award;

 

(iii)            The decision taken in and around April 2013 not to award the claimant a bonus/profit share entitlement;

 

(iv)           The handling by Mr Devitt and Mr Sandford of the claimant’s request for annual leave made in and around 22 April 2013;

 

(v)             The raising of an issue by Mr Sandford in respect of the claimant’s lunch breaks in and around 26 April 2013;

 

(vi)           The decision by Mr Sandford to suspend the claimant in and around 30 May 2013;

 

(vii)          The allegation of fraud/theft made against the claimant in and around 30 May 2013; and

 

(viii)         The claimant’s dismissal?

(f)              Do the following amount to protected acts:

 

(i)              The complaint of disability discrimination made by the claimant during a meeting which took place on 27 February 2013?

 

(ii)             The claimant’s letter dated 14 April 2013?

 

(iii)            The claimant’s letter dated 28 April 2013;

 

(iv)           The claimant’s letter dated 11 May 2013.

 

Working Time Regulations

 

(g)            Whether the claimant has been subjected to a detriment contrary to Article 68A(1)(b) and/or dismissal contrary to Article 132A(1)(b) of The Employment Rights (Northern Ireland) Order 1996 as amended for having refused to forego a right conferred on him by the Working Time Regulations (Northern Ireland) 1998 in respect of the following:

 

(i)       The decision to suspend the claimant in and around 30 May 2013;

 

(ii)             The allegations of fraud/theft made against the claimant in and around 30 May 2013; and

 

(iii)            The claimant’s dismissal?

 

General

 

(h)            Whether the respondents have complied with the LRA Code of Practice in respect of length of time taken to deal with the claimant’s grievance?  Whether there was a delay in the grievance procedure and if so who is the delay attributable to?

 

(i)              Has the claimant suffered financial loss and injury to feelings as a result of the alleged acts and omissions of the respondents?

 

 

 

 

(2)      Factual Issues

 

(a)            Why did the respondents propose a change to the claimant’s hours upon his return to work in January 2013?

 

(b)            Was the respondents’ insistence on changing his hours reasonable?

 

(c)            Why did the respondents ask the claimant to work alternate Saturdays?

 

(d)            Was this a reasonable request?

 

(e)            Did all other Service Managers work Saturdays?

 

(f)              How relevant were the hours worked by the claimant to the alleged under performance of the Service Department?

 

(g)            Why did the respondents raise an issue with the claimant in respect of his lunch breaks in and around April 2013?

 

(h)            What was the claimant’s lunch break entitlement?

 

(i)              Was the claimant given his long service award in the normal way?

 

(j)              Why did the claimant not receive a bonus/profit share entitlement?

 

(k)            Was the claimant’s bonus/profit share entitlement changed in and around April 2013 and if so, why?

 

(l)              Was the claimant’s request for annual leave made in and around 22 April 2013 handled in an appropriate manner?

 

(m)          Did the respondents address the claimant’s letter of 28 April 2013?

 

(n)            Why did the respondents suspend the claimant?

 

(o)            Did the respondents have any grounds upon which to substantiate an allegation of fraud/theft against the claimant?

 

(3)      At the outset of the hearing the following were agreed:-

 

(a)      The respondents accepted that the claimant was suffering from a disability for the purposes of the Disability Discrimination Act 1995;

 

(b)      The claimant abandoned his claims for indirect discrimination and failure to make reasonable adjustments under the Disability Discrimination Act 1995 i.e. paragraph 3(1) (c) and (d) above;

 

(c)      That the decision would deal with liability only with a remedy hearing to be arranged later, if necessary;

 

(d)      In his final submissions, on behalf of the respondents, Mr Bloch accepted that all the acts mentioned at paragraph 3. (1) (f) above constituted protected acts for the purpose of the Disability Discrimination Act 1995, as amended.

 

Findings of Fact

 

4.       (1)      The first respondent employed the claimant from 15 September 1986 until 4 July 2013 when his resignation became effective.  The second respondent is the general manager of the first respondent.  The third respondent was the claimant’s immediate line manager from December 2012.

 

          (2)      On 10 June 2005, the claimant was appointed to the position of service manager at Charles Hurst Toyota, Boucher Road, Belfast.  Among the terms of his contract, as set out in his letter of appointment, were the following:-

 

                            “Salary

 

                            Your salary in this position will be £29,000 per annum payable monthly in arrears.

 

                            In addition, you are eligible for bonus  earnings opportunities, the details of which will be provided to you by your manager.

 

                            Overtime

 

                            You may be required to work additional hours to meet the needs of the business and the Company will provide you with as much notice as it can of such a requirement.

 

                            There is no provision for overtime payments.

 

                            Hours of Work

 

                            Your hours of work will normally be within those specified under the Working Time Regulations.  However, you are required to work the hours necessary to ensure the efficient operation of the department and as such you are asked to give your agreement to opting out of the working time regulations.

 

                            Changes to Terms and Conditions

 

                            The Company reserves the right to amend your terms and conditions.  Any changes to your terms and conditions of employment will be notified to you in accordance with the provisions set down in the Employee Handbook.”

 

                    The claimant agreed to opt out of the Working Time Regulations limit on the number of hours worked.

 

          (3)      Prior to the claimant’s appointment as the service manager, he worked from 9.00 am to 5.00 pm, Monday to Friday, with an hour for lunch i.e. 35 hours per week.  He never worked weekends.  When he started as Toyota Lexus Manager, he continued to work those hours.

 

          (4)      Arising from pressure from his then line manager, Mr Gordon Henning, and discussions with the second respondent, the claimant’s working hours were changed by agreement to 8.30 am to 5.00 pm.  Although the claimant alleges he had been told that he could leave at 4.30pm this is disputed and throughout the hearing the claimant asserted his amended hours were 8.30 am until 5.00 pm i.e. 37.5 hours.

 

          (5)      The company handbook sets out a number of matters that are pertinent to this claim as follows:-

 

                            “3.2.4    HOURS OF WORK

 

                            The normal working hours expected each week are specified on an individual basis within an employee’s contract of employment.  These represent the minimum number of hours per week, which the Company is required to provide and the employee is required to work and are in line with the Working Time Regulations.

 

                            3.2.9   ALTERATIONS TO HOURS

 

                            The Company reserves the right to vary the start and finishing times of a member of staff in line with business requirements.  This may be on a temporary or permanent basis but staff would be consulted with prior to any changes being made.  The Company expects reasonable flexibility from staff in providing additional cover, for example when colleagues are absent or during busy trading periods.

 

                            3.2.10   BONUSES AND COMMISSION

 

                            The Company supports the principles of profit sharing and reward for effort.  Where employees are entitled to participate in bonus and/or commission schemes, this will be stated in their contract of employment, however this is no guarantee that a payment will be made. 

 

                            The Company reserves the right to alter bonuses and commission structures in light of trading circumstances.  The Company also reserves the right to terminate any bonus scheme it offers to staff by giving 28 days notice and to decide whether or not to replace it”.

 

          (6)      In the company handbook the grievance procedure is set out.

 

                            “16.2   FORMAL GRIEVANCE PROCEDURE

                             

                            The purpose of the grievance procedure is to ensure that staff have an opportunity to raise formally with management any grievances relating to their job or complaints regarding the Company or any of its employees.  The Company’s aim is to ensure that the grievances or complaints are dealt with promptly and fairly by the appropriate level of management”.

 

          (7)      In the company handbook the first respondent has a stress policy which is set out at Section 27 as follows:-

 

                            “27.1     INTRODUCTION

 

                            The Company wishes to provide long-term and rewarding work for its employees and to ensure that in carrying out their duties employees are not affected detrimentally in any way.  The Company believes that employees will work best when they are working at a level for which their talents in training equips them and are doing a job which they enjoy.

 

                            Consequently the Company is committed to developing a working environment that promotes the health and wellbeing of the organisation and its employees.  The Company recognises that occupational stress may pose a risk and it is important, therefore, to meet this challenge by putting in place appropriate mechanisms for reducing and managing the risk.”

 

          (8)      In July 2012 the claimant was experiencing difficulties with his hearing and arranged a private consultation with an ENT surgeon.  He was also on annual leave during July.  He eventually attended with his general practitioner on 31 July 2012 when he was given a sick line for two weeks and was advised that he was suffering from work-related stress.  His two week sick line was renewed for a further two weeks.

 

          (9)      The claimant indicated that during this time he was finding it difficult to function and carry out normal day-to-day activities and had removed himself from friends and family and could not be bothered to do anything.  He found it hard to talk to his children and would be sharp with them for very little.  The pressure was such that even doing simple tasks was difficult.  He felt that he was struggling to keep on top of everything and forgetting or getting confused about simple things.

 

          (10)    In or around September 2012 the claimant was in receipt of counselling arranged through his general practitioner.  In September 2012, his general practitioner prescribed fluoxetine, as his health was not improving and he was suffering from depression. 

 

          (11)    The claimant continued to be off work by reason of his depression and was invited by the second respondent to attend a meeting with him on 24 September 2012 in his office to discuss his health.  The second respondent decided not to tell the claimant that he intended to raise a potential disciplinary matter during the discussion.

 

          (12)    At the meeting, the second respondent discussed with the claimant his health and also the first respondent’s desire that he attend with its occupational health doctor.  At the meeting, the second respondent then raised matters about the claimant’s involvement with a business called Shakefit, which was owned by the claimant’s wife, and at which the

 

 

 

claimant’s car had been seen during his sick absence, as he had a concern that the claimant was working at Shakefit while off work sick.  It is accepted that although this was a company car the claimant’s wife was at liberty and quite properly able to drive the car through an arrangement with the first respondent.  It is perhaps not surprising that the claimant’s wife was availing of this arrangement, at this time as the claimant was off work sick.  The second respondent seemed to have the view that there was an issue as to whether the claimant was working for Shakefit.

 

          (13)    The claimant objected to the raising of this matter and believed that he had been invited to the meeting without a full disclosure of the topics for discussion.

 

          (14)    The tribunal accepts that, given the claimant’s ill health and his objections to the  matter of his company car being seen at the premises of Shakefit being raised at a meeting arranged by the second respondent to discuss the claimant’s health and its work implications, it was inappropriate for the second respondent to continue with that enquiry at that time.  The second respondent was unable to give an explanation as to why he raised this matter without warning to the claimant and persisted with it despite the claimant’s objections.  This matter was never raised again with the claimant.

 

          (15)    In or about Halloween 2012, the claimant, while on sick leave, attended at his office. Subsequent to that attendance, the second respondent telephoned him to ask him had he removed items from the office.  The claimant indicated he had removed his Christmas presents for his children whereas the second respondent said he had removed company property i.e. safety boots and a clock.

 

          (16)    On 7 November 2012, the claimant attended with Dr K Sarangi, the first respondent’s occupational health physician.  At the meeting, the claimant related his concerns about work-related stress.

 

          (17)    In his report, Dr Sarangi stated that apart from a phased return to work, the first respondent should seek to address the perceived work-related stressors, as far as possible, as that was likely to have the greatest impact on the claimant’s sustained recovery.

 

          (18)    A meeting was arranged for 22 November 2012 between the claimant and the second respondent to discuss his absence and the occupational health report.  At the meeting, the claimant’s health was discussed and his medication and treatment.  During the meeting the claimant indicated that part of his problem was a lack of support from the second respondent.  He articulated his belief that he did not think he had a good working relationship with him.  The company budget and staffing changes were also discussed and generally the more difficult economic climate in which the business was operating.

 

          (19)    Around November 2012, the claimant applied for a job as a franchise after- sales manager for Toyota and Lexus.  He was unsuccessful in his application and was not shortlisted.  At some stage during the recruitment process the second respondent telephoned the claimant to inform him about the job but he had already applied.  The second respondent did the shortlisting though applications were initially sent to the first respondent’s HR Department in Manchester.

 

          (20)    In October 2012, the third respondent applied for two positions with the first respondent, as general manager and service manager.  He was unsuccessful in both applications.  However, subsequent to the recruitment process he received a telephone call from the second respondent and was appointed to a different job as franchise after-sales manager.  This was the position for which the claimant had unsuccessfully applied.  The third respondent took up his position on 1 December 2012 and became the claimant’s line manager.

 

          (21)    Subsequent to a discussion with his general practitioner in December 2012, the claimant agreed to a phased return to work over the following weeks and he resumed his employment on 7 January 2013.

 

          (22)    On his return to work on 7 January 2013, the claimant had a meeting with the second respondent.  During the meeting, the second respondent explained the budget difficulties faced by the first respondent, that there had been a downturn in warranty work and car sales and therefore an effort was being made to promote the service department’s work.  In that regard, he wanted the claimant to increase his hours to 8.00 am to 6.00 pm, Monday to Friday, and to work Saturday 9.00 am to 1.00 pm every second weekend.  The second respondent maintained that the other managers in the first respondent’s business worked these hours.  The second respondent also discussed with the claimant all other staffing changes that had been made.

 

          (23)    The claimant was off work from 8 to 13 January 2013 with flu.

 

          (24)    On 24 January 2013, the claimant met with the third respondent.  The discussion centred on the claimant working on a Saturday morning and how, in the third respondent’s view, this would improve his standing with his fellow workers or in his department where there was some antipathy expressed towards him.  The claimant explained that he had never worked on a Saturday.

 

          (25)    On 29 January 2013, the second respondent enquired from the claimant how things were going in relation to the budget but the claimant advised him that he did not have a set of accounts as yet and would let him know in due course.

 

          (26)     On 30 January 2013, the second respondent had a conversation with the claimant in which he wished to make certain changes to the daily processes following the changes made by the third respondent.  Those changes were, the third respondent said, designed to improve the customer satisfaction rating because it was on the assessment of that that a bonus could be earned by the company which would have a significant impact on its profitability.

 

          (27)    On 31 January 2013, the second respondent indicated to the claimant that he needed him to work every second Saturday from 9.00 am until 1.00 pm beginning on 2 February 2013.  He further explained that the third respondent worked the alternate Saturday mornings and indeed had been covering for the claimant’s absence during his illness.  The seond respondent further explained it was believed that this would generate £11,000.00 of labour sales a year which would help to improve the budget within the company.  The second respondent was also of the view that as the other service managers, within the first respondent company, worked these hours then the claimant should do likewise.  The claimant was resistant to this change and felt that it would interfere with his lifestyle and family life.

 

          (28)    It appears that a Mr Danny Gillen, manager of a satellite site of the first respondent worked different hours that is from 8.30 am until 5.15 pm or 5.30 pm.

 

          (29)    On 13 February 2013, Mr Michael Sidebottom the Human Relations Advisor, following a discussion with the second respondent concerning the claimant, advised the second respondent to consider the claimant’s objections to doing increased hours to see if an agreement could be reached with him.  He further queried why the first respondent was seeking to increase the claimant’s working hours by 11 per week without increasing his salary or offering other compensation.  The second respondent had made the case to Mr Sidebottom that the first respondent was entitled to change the claimant’s hours under his contract of employment.

 

          (30)     By letter of 15 February 2013, the second respondent proposed to the claimant that going forward his core working hours would be Monday to Thursday 8.00 am to 6.00 pm, Friday 8.00 am to 5.00 pm, and 9.00 am to 1.00 pm every second Saturday i.e. an average of 46 hours per week.  He explained, in the letter, that the reason for the change in hours was because; the service department was performing behind budget; the claimant, as service manager, needed to be present to manage the service advisors during their core working hours, which included Saturday mornings; and to enable the service department to improve its customer satisfaction score which, in the first respondent’s view, also required the service manager to be in attendance during the core working hours.  The second respondent also reminded the claimant that his contract of employment required him to work the hours necessary to ensure the efficient operation of the department and therefore the first respondent considered the change of his hours a reasonable request.  The second respondent acknowledged the claimant’s reluctance to change his hours particularly to work a Saturday morning and invited his comments on the proposal.  He also proposed a consultation meeting at which the claimant could be accompanied by a colleague or a trade union representative.

 

          (31)    On 27 February 2013, the claimant met with the second respondent to discuss the proposed changes to his hours.  Mrs Chapman was in attendance to take notes.  Again the claimant outlined his objection to changing his hours, on the basis that it would interfere with his work-life balance and family life, particularly were he to work on a Saturday, and he pointed out the health difficulties from which he was suffering.  He doubted whether the increased hours  would have the significance, in terms of the budget, that the second respondent alleged.  The second respondent indicated that the hours were necessary, in the first respondent’s view, to deal with the under-performance within the service department and also to increase customer satisfaction.  The second respondent also pointed out that all the other managers in the complex were doing the hours that they were seeking the claimant to do.  During the course of the meeting the claimant raised the issue of compensation/additional payment for additional hours.  The second respondent made it clear that there would be no additional payment.  The additional hours proposed by the second respondent without renumeration amounted to 10½ hours per week which was stated on behalf of the claimant to be a 28% increase which the respondents did not challenge.

 

          (32)     By letter of 14 March 2013, the second respondent confirmed the necessity of the proposed changes to the claimant’s hours and that no payment would be made to the claimant for doing the additional hours.

 

          (33)    The claimant was asked on 11 April 2013 by the second respondent to work on Saturday 13 April 2013 and thereafter every second Saturday.  The claimant explained that he could not do so.  He subsequently received a letter of the same date 11 April 2013, giving him 28 days notice of the requirement to work Saturday morning from 11 May 2013, on alternate Saturdays.

 

          (34)    By letter of 12 April 2013, the claimant was informed that he would not be receiving a share bonus by reason of a change to the method of calculating the bonus within the department and that the department had not made a profit that would justify the payment of a bonus.

 

          (35)    By letter of 14 April 2013, the claimant wrote to the second respondent objecting to the proposed change of hours and making an alternative proposal which included working additional hours and suggesting it be implemented for a trial period.  He also raised the issue of his 25 year
long-service award.

 

          (36)    The second respondent explained by letter of 25 April 2013 that the long- service award had not been made because it had been overlooked.  He also indicated that as the claimant had been absent for a long period of time and that the profit sharing was based on performance that he would not be entitled to it.  He stated that he could not accommodate the claimant’s proposal.  He also apparently accepted a complaint about taking accrued holiday leave.

 

          (37)    On 22 April 2013, the claimant requested that his holidays be changed from July to December 2013.

 

          (38)    The claimant continued to attend with his general practitioner, and be prescribed fluoxetine and he continued to suffer from depression.  He felt his condition was deteriorating.

 

          (39)     On 26 April 2013, the third respondent approached the claimant about leaving the building at lunchtime.  The claimant wrote to the third respondent, by e-mail of the same date, explaining that he was away from the building at lunch in line with the recommendations from his general practitioner.  He also stated that if it were the third respondent’s wish that he did not take his lunch break away from his desk to let him know, and secondly, that at times he did not get his lunch break.

 

          (40)    By e-mail of 28 April 2013, the claimant contacted Mr A Bruce, managing director of the parent group Lookers Plc, in which he set out his issues and concerns and asked for his assistance. His concerns related to his ongoing depression; being referred to the occupational doctor faster than he believed was normal; the second respondent’s accusation that while off sick he had removed property from the first respondent’s premises; the accusation that the claimant’s department was under performing; that his hours of work were being changed; that the second respondent did not like him and tended to overlook and ignore him; that the second respondent was punishing him for being off work; that the second respondent was managing him out of the business with the help of the third respondent; that the second respondent had poisoned the mind of other senior managers, Ken and Colin McNabb about why he was off work; that the second respondent was annoyed with him because he was off with a mental illness and not something physical; and that despite being flexible about extending his hours to do particular tasks the second respondent still had it in for him.  Mr Bruce replied by e-mail of 29 April 2013 enquiring if the claimant wished to raise a grievance.  Mr Bruce also forwarded the e-mail to Colin McNabb, group operational director.  The claimant did not want to raise a formal grievance at that time.  He just wanted some help from the first respondent.

 

          (41)    The third respondent wrote to the claimant by e-mail of 30 April 2013, in which he accepted the claimant’s right to have a lunch break.  He erroneously believed the claimant was only entitled to 30 minutes when in fact he was entitled to one hour.  He believed that the claimant’s absence at lunchtime was leading to him suffering disrespect from other employees who were themselves not getting a lunch break.  He also felt that this adversely affected the claimant’s leadership responsibilities in his team.  He did not provide any explanation as to why he, the claimant’s line manager, did not know the clamant’s lunch-time entitlement.

 

          (42)    On 7 May 2013, the third respondent asked the claimant to speak to the second respondent about his holiday request.  The third respondent wished this matter referred to the second respondent as the claimant was looking for three weeks instead of the normal two and he was seeking to have his holidays in December which is the end of the company’s financial year and usually a busy time.

 

          (43)     The claimant also spoke to the second respondent about his holiday request.  He did not get an answer from him as according to his evidence to the tribunal he had left the matter with the third respondent, whereas the third respondent felt that it was a matter for the second respondent to decide.  The result was that despite following the normal procedure to apply for holidays and speaking to whom he was directed he did not get an answer to his request. 

 

          (44)    The claimant attended at work as directed on Saturday 11 May 2013.  He informed the second respondent, by letter of the same date, that he did not accept the changes to the hours that he was being required to work.  He stated that he regarded this requirement as a fundamental breach of his contract and he was doing it under protest and seeking to reserve his rights.  He also intimated that this included a breach, in his view, of the mutual trust and confidence requirement.  He further indicated to the second respondent that he was terminating his agreement to opt out of the Working Time Regulations and giving three months’ notice in writing as required from 11 May 2013.  On receipt of this letter, the second respondent decided to consult with the first respondent’s HR Department and take advice on the matter.

 

          (45)    The claimant challenged the rationale of the Saturday work and did not feel it was required or justified.  The second respondent believed that the Saturday work was an opportunity to have a greater throughput of work with the company.  He replied to the claimant by letter of 16 May 2013.  In that letter, he acknowledged the claimant’s objections to the proposed changes to his hours.  He also indicated that, in the first respondent’s view, the service department was underperforming and was causing a serious concern to the first respondent and needed to be addressed.  Part of dealing with that matter was the presence of the claimant as manager on Saturdays.  The second respondent reminded the claimant that his contract of employment indicated that he was required to work the hours necessary to ensure the efficient operation of the department and that other Boucher Road service managers worked the hours proposed for the claimant without receiving additional payment.  He also said that he was sorry if the claimant perceived the proposed changes to his hours as a breach of his contract and damaging to the trust and confidence between the claimant and his employer.  He stated his belief that the Saturday working would ease the pressure on the department which he believed would ease the pressure on the claimant.  The second respondent acknowledged the claimant’s withdrawal from the opt-out in the Working Time Regulations and indicated that a 48 hour working week for him would come into operation from 11 August 2013 and he also proposed a timetable that would enable the 48 hours work per week to be done.  The proposed timetable amounted to the changes the first respondent had been seeking.  The claimant continued to refuse to work the hours proposed by the second respondent.

 

            (46)     The third respondent required the claimant to attend a meeting on 30 May 2013.  The claimant was not told beforehand the agenda for the meeting.  The third respondent explained to the claimant that following a report from a technician he was concerned that a job was carried out in the workshop to a van belonging to Edward Leitch and that the technician had been told not to clock the job. It was not invoiced until a later date, 29 April 2013 and it was invoiced at a labour rate of £12.95 per hour.  He enquired from the claimant if there was any reason for the low labour rate.  The claimant explained that he thought the job had taken too long and that he had later discounted the job by 100%.  He further explained to the third respondent that he had discounted the job as he knew the customer and the claimant had paid for the parts for the customer’s vehicle and the customer would pay for the labour.  It was because he wanted the bill down and the customer was in Scotland, the claimant explained.

 

          (47)    The third respondent then raised a second matter in relation to a Toyota Avensis estate car brought in to the workshop on 11 April 2013.  Apparently neither a job nor invoice card had been prepared for this vehicle at all.  The technicians informed the third respondent that they had been instructed to carry out repairs to the vehicle.  The claimant intimated that he had not been working on the day that the car was left in and therefore could not be of any assistance.  When the third respondent indicated that both matters would require a full and fair investigation and that the claimant would be suspended while this was going on the claimant agreed.  The third respondent was inaccurate and uncertain about some of the details of the incidents.  The third respondent later informed the claimant that there were other people from whom he would require to take statements.  The third respondent did not suspend any  other members of staff.

 

          (48)    The claimant was notified by letter of 31 May 2013 of his suspension and that the suspension was not a disciplinary act nor a finding of misconduct on his part but that it was to enable a proper investigation to take place.

 

          (49)    By letter, dated 4 June 2013, the claimant tendered his resignation to the Lookers Plc.  In his letter of resignation he set out his belief that he had been constructively dismissed, that his contract of employment had been breached, including the implied term of mutual trust and confidence, and that it had been breached by a series of acts and omissions on the first respondent’s part.  He indicated that he had no option but to resign.  He described his suspension by the third respondent as the last straw.  He stated that he believed the suspension was itself an unfair act. He further set out his belief that he had been victimised by reason of his ill health.

 

          (50)    Mrs Alex Dambrogio, the first respondent’s HR adviser, replied to the claimant by letter of 10 June 2013 accepting his resignation, confirming his last day of employment as 4 July 2013 and intimating that this was the first formal complaints made by the claimant and that the first respondent would initiate the company grievance procedure in order to deal with his complaints.  In the letter she also invited him to a meeting on 17 June 2013 to discuss his grievance.

 

          (51)    The grievance meeting was held on 17 June 2013.  In attendance was the claimant, accompanied by Maurice Cunningham from Unite, John Rankin and Rosemary Chapman to take notes.

 

          (52)    Mr Rankin spoke to a number of other employees of the first respondent including the second and third respondents and Michelle Hunter.  He concluded that the claimant’s grievances should not be upheld.  A subsequent appeal was heard by Mr Stinson and he affirmed the decision not to uphold the claimant’s grievances.

 

          (53)    The first respondent accepts that the claimant has a disability for the purposes of the Disability Discrimination Act 1995 as amended and that he is suffering from depression.

 

          (54)    The claimant set out his belief in his letter of resignation that the pressure to change his working hours was one of the major factors in his decision to resign.  He also alluded to other issues; the matter of his lunch breaks which were raised in April 2013; and how the first respondent dealt with his decision to opt-out of the exclusion clause in the Working Time Regulations therefore requiring him to work an average of 48 hours per week. He felt the second respondent was trying to make life as difficult for him as possible and this manifested itself with the problems with his booking of annual leave.  He further referred to the 25 year long-service award which he had not been given once 25 years had been completed.  He described the allegations of theft/fraud against him as shocking and upsetting and stated his determination to fight any specific allegations made against him.

 

 

The Law

 

Express variation clauses in a contract

 

5.       (1)      Harvey on Industrial Relations and Employment Law in Volume 1, A11, [87-91] considered variations of a contract of employment where there were express variation clauses.  It commented:-

 

                    “[87]   What is the legal status of a clause in the contract which purports to give the employer a power to vary some, or all, of the terms unilaterally?  On the one hand such a clause contradicts the usual requirement that a variation needs consent by the employee, but on the other hand, the clause itself constitutes an express term which the employee has accepted.  The case law here is not extensive.  It tends to suggest that if the variation clause ... is fairly precise and restricted (eg to one particular matter) and is not perceived by the court or tribunal to be oppressive, then it may well be valid and enforceable ...

 

                    [88]    Would this apply to a more generalised and unrestricted attempt by an employer to reserve to itself an overarching power of unilateral variation?  This point arose obiter in Wandsworth LBC v Da Silva [1998] IRLR 193, CA because of a secondary argument by the employers, that if they had lost on the non-contractual point, there were other provisions in the contracts giving them a right of unilateral variation of any term...  Although it was not necessary to decide the point Lord Woolf MR gave guidance on it at para 31:

 

                              ‘The general position is that contracts of employment can only be varied by agreement.  However, in the employment field an employer or for that matter an employee can reserve the ability to change a particular aspect of the contract unilaterally by notifying the other party as part of the contract that this is the situation.  However, clear language is required to reserve to one party an unusual power of this sort.  In addition, the court is unlikely to favour an interpretation which does more than enable a party to vary contractual provisions with which that party is required to comply.  If, therefore, the provisions of the code which the council were seeking to amend in this case were of a contractual nature, then they could well be capable of unilateral variation as counsel contends.  In relation to the provisions as to appeals the position would be likely to be different.  To apply a power of unilateral variation to the rights which the employee is given under this part of the code could produce an unreasonable result and the courts in construing a contract of employment will seek to avoid such a result’.

 

                    While the reference to differences between substantive and procedural provisions and rights may be a little puzzling in the abstract (as opposed to their application to the facts of the case), the clear indication is that a variation clause capable of having unreasonable results is likely to be subject to restrictive interpretation by the courts”.

 

                    Harvey in Volume 1 A II at paragraph [89] gives a number of examples of situations in which the courts have construed wide variation clauses in a more restricted fashion.  It then adds:-

 

                            “... On the other hand, in Bateman v Asda Stores Limited [2010] IRLR 370, the EAT, applying the ... approach in the Wandsworth case, upheld the right of the employer to make unilateral variations to major terms and conditions ...  on the basis that the contracts were made by reference to the company handbook which contained the provision that the employer “reserved the right to review, revise, amend or replace the contents of this handbook, and introduce new policies from time to time reflecting the changing needs of the business ...”.

 

                            This was held to be unambiguous, not to be countered by a restrictive interpretation, and (most significantly perhaps) not to be confined to the unilateral amendment of terms or policies other than major employment rights such as pay and working conditions.  Thus, the usual need for express or implied agreement to such fundamental contractual changes did not apply. 

 

                            [90]   Apart from the Bateman case ... these have tended to be strong shots across the employer bow and may mean that in many cases a court or tribunal will have the means to strike-down unconciousnable variations by the employer.  However, the ‘interpretation’ approach does leave open the fundamental question – what if there was an unambiguous variation power, clearly covering the case in question, but having harsh results? ...  prima facie the contract orthodoxy would apply (as Lord Woolf accepted at the beginning of the passage set out in paragraph [88] above), unless some contrary contractual principle could be prayed in aid ... if it could be shown for an employee that what is being challenged is not the nature of the clause itself but the harsh and oppressive way it has been used, then it might be possible to argue that that constitutes a breach of the implied term of trust and respect; ... There was mention of this possible limitation in Bateman itself, but on the facts it had not been relied on before the tribunal and so could not be raised on the appeal; ....”

 

          (2)            In Chitty on Contracts Volume 1 General Principle 31^st edition at
chapter 14-009 the learned author states:-

 

                                  “Construction contra proferentem.  This principle of construction embraces two differing, but closely related, principles.  First, since the party seeking to rely upon an exemption clause bears the burden of proving that the case falls within its provisions, any doubt or ambiguity will be resolved against him and in favour of the other party.  Secondly, as in the case of any other written document in situations of ambiguity the words of the document are to be construed more strongly against the party who made the document and who now seeks to rely on them ...”

 

          (3)            In the Bateman case the debate was whether a general power to amend the company handbook covers policy or contractual terms and conditions and the EAT held that as the handbook covered both so the power to amend related to both.  The EAT supported with approval the comments in the Wandsworth case.  According to the head note it states:-

 

                                  “According to the comments of the Court of Appeal in Wandsworth an employer can reserve the ability to change a particular aspect of the contract unilaterally, although clear language was required to do so.  Such a right should be exercised in a way that does not breach the implied term of trust and confidence.”

 

          (4)            The EAT also accepted that wherever there were ambiguities the contra proferentem principle applied. 

 

                          In his commentary on that the editor of the Industrial Relations Law Reports, Michael Rubinstein stated in the preface to the issue of May 2010:-

 

                                  “In contrast, in Bateman v Asda Stores Limited, the EAT (Mr Justice Silber presiding) holds that the provisions of a staff handbook, which stated that the employers “reserved the right to review, revise, amend or replace the contents of this handbook, and introduce new policies from time to time reflecting the changing needs of the business”, were incorporated into the claimants’ contracts of employment and allowed the employers to make changes to pay and conditions without obtaining the further consent of the employees.  This was the case even though at least one employee suffered financial loss as a result of the changes.  This is the first authoritive judgement to uphold such an open ended variation clause, but note that a change that was to an employee’s substantial detriment might well be held to be in breach of the implied duty of trust and confidence.”

 

          Constructive Dismissal

         

          (5)      A breach of contract arises when the employer breaches any term of the claimant’s contract of employment whether that term is an express term or an implied term or arises by operation of law.

 

          (6)      To establish a constructive dismissal that is unfair the claimant must prove that:-

 

                    (a)      there was a breach of his contract of employment, and

 

                    (b)      the breach went to the core of the contract, and

 

                    (c)      the breach was the reason or principle reason for his resignation, and

 

                    (d)      he did not delay in resigning after the breach occurred, and

 

                    (e)      in all the circumstances the employer acted unreasonably.

 

          (7)      The breach of contract can be a breach of an express term of the contract or a breach of an implied term or both.

 

          (8)      Implied terms of the contract include:-

 

                    (a)      a breach of the duty of trust and confidence;

 

                    (b)      a breach of the duty of co-operation and/or support;

 

                    (c)      a breach of the duty promptly to address grievances; and

 

                    (d)      a breach of the duty to provide a suitable working environment.

 

                    (Harvey on Industrial Relations and Employment Law D1 [429] to [479]).

 

          (9)      A breach of the implied term of trust and confidence can be by a single act of the employer or a course of conduct by the employer over a period of time.

 

          (10)    Where a course of conduct is relied upon it is not necessary that any single act itself amounts to the breach of the implied term of trust and confidence but the course of conduct, cumulatively, must amount to the breach of the implied term.

 

          (11)    Where a constructive dismissal claim arises from an alleged breach of the implied term of trust and confidence where the employee leaves in response to conduct carried out over a period of time the particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against the background of such instances it may be considered sufficient by the court to warrant their treating the resignation as constructive dismissal.  It may be the “last straw” which causes the employee to terminate a deteriorating relationship.  (Harvey on Industrial Relations and Employment Law D1, [480].

 

          (12)    However, in Omilaju v Waltham Forest London Borough Council [2005] IRLR 35 the Court of Appeal held at paragraphs 19 and 20:-

 

                            “... A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence.  The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term.  I do not use the phrase ‘an act in a series’ in a precise or technical sense.  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 on which the employee relies, it amounts to a breach of the implied term of trust and confidence.  It must contribute something to that breach, although what it adds may be relatively insignificant. 

 

                            I see no need to characterise the final straw as ‘ unreasonable’ or ‘blameworthy’ conduct.  It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence would usually be unreasonable and, perhaps even blameworthy.  But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy.  Nor do I see any reason why it should be.  The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer.  The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence.  Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred”.

 

          (13)    In the EAT decision of JV Strong and Co Limited v MG Hamill EAT/1179/99 MAA His Honour Judge Altman when considering what constituted a final straw in relation to the appeal that was before the EAT summarised the decision of the tribunal as follows:-

 

                            “... To put our understanding of the majority decision in our own words, at the end of this sequence of events they found that the respondent was left vulnerable in his own mind to anything that may come next knowing that his management would not support him, or at least feeling that there was a risk that that would happen.”

 

          (14)    There is no fixed period within which the employee must make up his mind.  A reasonable period is allowed. It depends upon all the circumstances  including the employee’s length of service ..., the nature of the breach, and whether the employee has protested at the change.  Mere protests will not, however, prevent an inference that the employee has waived the breach, although a clear reservation of right might do so .... (Harvey on Industrial Relations and Employment Law D1 [524]).

 

          Victimisation

 

          (15)    A person “A” discriminates against another person “B” if he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s and he does so for any of the following reasons:-

 

                    (a)      because B has brought proceedings against A or any other person under the Disability Discrimination Act; or

 

                    (b)      because B gave evidence or information in connection with such  proceedings brought by any person; or

 

                    (c)      because B otherwise did anything under or by reference to the Disability Discrimination Act in relation to A or any other persons; or

 

                    (d)      because B alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or

 

                    (e)      A believes or suspects that B has done or intends to do any of those things (Section 55 Disability Discrimination Act 1995 (as amended)).

 

          (16)    Lord Nicholls commented in Chief Constable of the West Yorkshire Police v Khan [2001] IRLR 830, at paragraph 16:-

 

                              “The primary object of the victimisation provisions ... is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory rights or intend to do so”.

 

          (17)    Tolley’s Employment Handbook in the 27th edition 2013 states at paragraph 10.38:-

 

                              “Victimisation

In the United States, this form of discrimination is sometimes known as ‘retaliation’, a word which perhaps more accurately captures its essence than our own term ‘victimisation’.”

 

          (18)    A victimisation claim requires:-

 

                    (a)      the protected act being relied upon;

 

                    (b)      the correct comparator;

 

                    (c)      less favourable treatment;

 

                    (d)      the reason for the treatment;

 

                    (e)      any defence; and

 

                    (f)       the burden of proof

                   

(Harvey on Industrial Relations and Employment Law L [468]).

 

          The Correct Comparator

 

          (19)    “There is no single ‘right’ answer when it comes to defining the proper comparator, but it would appear that this should not be a difficult hurdle for the complainant to surmount.  Where the complaint of victimisation is based on a dismissal, for example, the proper comparator is simply another employee in the same employment who has not been dismissed. ... It is not right to require the comparator have specific characteristics which make his case and that of the complainant closely similar; see Chief Constable of West Yorkshire Police v Khan, in which Lord Nicholls stated (at paragraph [27]):-

 

                              ‘The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act’”.

 

                    (Harvey on Industrial Relations and Employment Law L [475.01]).

 

          Less Favourable Treatment

 

          (20)    “The question what amounts to ‘less favourable treatment’ will frequently be a straightforward question.  It is proper to draw an analogy with discrimination provisions which require a claimant to show a ‘detriment’, which must be examined from the point of view of the alleged victim – see MOD v Jermiah [1970] IRLR 436 [1980] ICR 13, CA where it was said that a detriment exists ‘if a reasonable worker would take the view that the treatment was to his detriment’.  The need however to show that any alleged detriment must be capable of being objectively regarded as such was emphasised by HL in Saint Helen’s Metropolitan Borough Council v Derbyshire [2007] UKHL 16 [2007] IRLR 540 [2007] ICR 841 applying Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] IRLR 284, [2003] ICR 337, where it was held (paragraph 35) that ‘an unjustified sense of grievance cannot amount to ‘detriment’.” (Harvey on Industrial Relations and Employment Law L [476]).

 

 

 

 

          The Reason for the Treatment

 

          (21)    “The House of Lords, in two decisions (Nagarajan and Khan), considering the elements of victimisation under the STA 1975 and RRA 1976 ..., ruled that while it must in all cases be shown that less favourable treatment of the person victimised was by reason of him having done a protected act, a simple ‘but for’ test was not appropriate.  There is however no need to show that the doing of the protected act was the legal cause of victimisation, nor that the alleged discriminator was consciously motivated by a wish to treat someone badly, either because of their sex or race, or because they have engaged in a protected conduct. Of course, in most cases where victimisation is established this will be the case, but not in all. Where, for example a person is victimised because of the unconscious or sub-conscious sexual (or racial) prejudice, that person will be entitled to say that the action taken was on the ground of sex (or race).  To put it another way the respondent will not be able to escape liability by showing an absence of intention to discriminate, provided that the necessary link in the mind of the discriminator between the doing of the acts and the less favourable treatment can be shown to exist.

 

          (22)    The importance of establishing a causative link can be seen in cases such as Khan itself, where it is accepted that ‘a protected act’ has occurred and there is no dispute over the ‘less favourable treatment’ but the dispute centres on the reason for that treatment ... The key issue ... will be the tribunal’s understanding of the motivation (conscious or unconscious) behind the act by the employer which is said to amount to victimisation ...”

 

                    (Harvey on Industrial Relations and Employment Law L [488]).

 

          (23)    It is for the claimant who complains of disability discrimination to prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has acted in a way which is unlawful by virtue of Part II of the Disability Discrimination Act 1995, as amended, or is to be treated as having committed such an act of discrimination against the claimant by virtue of Section 57 or 58 of the Act (Section 17A(1C) the Disability Discrimination Act 1995).

 

          Working Time Regulations

 

          (24)    A worker has the right not to be subjected to any detriment by any act or failure to act by his employer on the ground that the worker refused (or proposed to refuse) to forgo a right conferred by the Working Time Regulations (Northern Ireland) 1998 (Article 68A(1)(b) The Employment Rights (Northern Ireland) Order 1996).

 

          (25)    An employee dismissed shall be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee refused (or proposed to refuse) to forgo a right conferred on him by the Working Time Regulations (Northern Ireland) 1998 (Article 132A(1)(b) The Employment Rights (Northern Ireland) Order 1996).

 

          (26)    In the LRA Code of Practice on Disciplinary and Grievance Procedures it states:-

 

                    “78 Employers should arrange for a formal meeting to be held without unreasonable delay after a grievance is received.

 

                    ...

 

                    82      Following the meeting, the employer should decide on what action, if any, to take.  The decision, and a full explanation of how the decision was reached, should be communicated to the employee, in writing, without unreasonable delay ...”.

 

6.       Application of the Law and the Findings of Fact to the Issues

 

          Variation of contractual terms

 

          (1)      The claimant’s terms and conditions in his letter of appointment and the first respondent’s company handbook contain provisions in relation to varying or amending the terms and conditions of the claimant’s employment contract.

 

          (2)      The respondents rely on a number of statements in the claimant’s letter of appointment and the company handbook to justify its decision to change the claimant’s terms and conditions in a significant way.

 

          (3)      It is clear from the authorities that a unilateral power to change a contractual term must be unambiguous and clear in order to be legally effective.  Where such a term is ambiguous it must be construed contra proferentem.

 

          (4)      The tribunal was referred specifically to three paragraphs in the claimant’s letter of appointment, Overtime, Hours of Work and Changes to Terms and Conditions (see paragraph 4(2) above) and to the company handbook at paragraphs 3.2.4 and 3.2.9 (see paragraph 4(5) above) to justify the first respondent’s changes to the claimant’s contract of employment.

 

          (5)      Turning to each of the clauses relied on by the first respondent in turn:-

 

(a)        Overtime

 

This clause is unambiguous and, as its title suggests, it refers to overtime, ie, additional time over the normal contractual hours.  It is therefore not authority to create new contractual hours increasing the working week by 10.5 hours, nor the creation of a new ‘normal hours of work’.  If it were authority to create new normal hours of work it should have stated so clearly and there could not be a concept of overtime because once overtime was done the hours of the contract would be amended.

 

Alternatively, if it is ambiguous, as referring to overtime per se or effectively a change in the normal working hours, which the tribunal does not accept, then it must be construed contra proferentem which means the interpretation less detrimental to the claimant must be preferred ie that it refers to the occasional doing of extra hours and not a change to the number of contractual hours worked.

 

 

 

(b)       Hours of work

 

If this clause is deemed to be unambiguous it must be construed as stating that normal working hours will be within the limit provided by the Working Time Regulations.  It invites the employee to opt out in case the Working Time Regulations are breached which following the logic of the clause would be abnormal.  It does not justify, nor authorise, in the tribunal’s view, the establishment of new normal working hours in breach of the limit imposed by the Working Time Regulations, as the respondents contend.  Similarly the provision that the normal working hours will be less than the limit imposed by the Working Time Regulations does not mean an employee is required to work to the limit of what the Working Time Regulations permit.

 

However if this clause is deemed to be ambiguous ie, permitting the construction the respondents seek to put on it, then it must be construed contra proferentem, ie, against the respondents and therefore in a way that is less detrimental to the claimant’s interests.  In the present case that means that an employee working hours in excess of the Working Time Regulations would be exceptional and not normal. 

 

(c)        Changes to terms and conditions

 

The respondents put a lot of weight on this provision to justify them requiring the claimant to work 10.5 hours extra per week for no additional payment or other recompense. 

 

If this clause is deemed unambiguous it is, as the respondents contend, unlimited.  They argue that it authorises them to require the claimant to increase his working week by 10.5 hours or 28% and thereby significantly to reduce his salary.  If this construction were correct the first respondent could reduce the claimant’s  salary to the minimum wage, for example, or require him to work seven days per week.  The tribunal does not accept this unlimited construction, advocated by the respondents is correct. 

 

Patently it cannot be correct as the first respondent cannot exclude those terms and conditions imposed in contracts of employment by statute or operation of law. 

 

In addition, in the tribunal’s view, it falls foul of the guidance given by Lord Woolf in the Wandsworth case in several respects:-

 

(i)          The reserved ability to change does not apply to a particular aspect of the contract on the current wording.  On the face of it, it purports to be authority to change every aspect of the contract.

 

(ii)         It does not have clear language, ie, that this power applies to every aspect of the claimant’s contract of employment.

 

(iii)        As it is being proposed to be used by the respondents, in the instant claim, it is not about varying a contractual provision with which a party is required to comply eg the variation of some procedural aspect of a task which the claimant is already required to undertake, but is adding additional hours and a day of work and effectively reducing his rate of pay.

 

(iv)       It produces, in the tribunal’s view, an unreasonable result in that the claimant would be required to increase his work by 28% for no additional pay or recompense, effectively a significant reduction in pay.  Support for this view is implicit in the email, of the first respondent’s HR Advisory Michael Sidebottom of 13 February 2013, in which he advised trying to obtain agreement from the claimant in relation to the proposed changes to the claimant’s hours despite the second respondent’s assertion to him that the contract justified such changes and questioned why the claimant was being asked to increase his working hours by 11 per week without an increase of salary or other recompense. 

 

 

This provision cannot therefore be construed as being unambiguous and therefore must be construed contra proferentem, ie, as not authorising the changes the respondents wished to impose on the claimant.

 

(d)       3.2.4 Hours of work

 

This clause, clearly can be read in a way, that is unambiguous thereby meaning that it is abnormal to have to work different hours to those specified in the employee’s contract.  The claimant’s written contract is silent on the number of hours to be worked by him but he worked for 35 hours per week until he agreed to change that to 37.5 hours per week.  It also could refer to when the hours are done.  The reference to the minimum hours is in relation to the minimum hours the first respondent is required to provide and the claimant is required to work as contained in his contract of employment, initially 35 and later 37.5 hours per week.  The clause does not authorise a change to the claimant’s contract by 10.5 hours per week. 

 

If this clause were deemed ambiguous it would have to be construed contra proferentem, ie, the narrower construction above as opposed to the significant increase in hours advocated by the respondents.

 

(e)    3.2.9  Alteration to hours

 

        Similarly this clause can be construed in an unambiguous way ie as referring to the claimant’s starting and finishing times.  The clause does not authorise nor refer to extending the length of time between the starting and finishing times.  Alternatively if it were deemed to be ambiguous and permitting an extension of the length of the days worked, as an alternative to merely varying the starting and finishing times, it would have to be construed contra proferentem and thereby follow the more restrictive construction. 

 

(6)      The tribunal therefore concludes that none of the provisions in the claimant’s contract of employment, as set out in his letter of appointment or in the company handbook, relied on by the respondents, permit the first respondent to change the claimant’s terms and conditions as the respondents sought to do. 

 

          Constructive Dismissal

 

          (7)      The claimant relies on the breach of the implied term of trust and confidence in support of his claim for constructive dismissal.

 

          (8)      In his submission Mr Friel relied on 11 events or incidents from 24 September 2012 to the dismissal (constructive) of the claimant on 4 July 2013.  In his written submission Mr Friel set them out as follows:-

 

                    (a)    The conduct of the second respondent during a meeting which took place on 24 September 2012;

 

                    (b)    The handling of the franchise after-sales manager vacancy;

 

                    (c)    The decision and handling of the proposal to increase the claimant’s hours;

 

                    (d)    The decision and procedure to make the claimant work alternate Saturdays;

 

                    (e)    The handling of the claimant’s long-service award;

 

                    (f)     The decision in and around April 2012 not to award a bonus/profit share;

 

                    (g)    The handling of the claimant’s annual leave request;

 

                    (h)    The raising of the issue of lunch breaks by the third respondent;

 

                    (i)     The decision by the third respondent to unnecessarily investigate the claimant;

 

                    (j)     The decision of the third respondent to unnecessarily suspend the claimant; and

 

                    (k)    The dismissal of the claimant.

 

          (9)      The tribunal is satisfied that the respondents breached the implied term of trust and confidence that must exist between the first respondent and the claimant.  In so concluding the tribunal had regard to the following matters:-

 

(a)        The raising of a potential disciplinary matter on 24 September 2014 at a meeting, called by the second respondent to consider the claimant’s sickness and absence record, when without warning a potential disciplinary issue was raised and despite the claimant’s objections the second respondent persisted in discussing the disciplinary matter.

 

(b)        The proposal to increase the claimant’s hours and days of work as being authorised by the terms and conditions of the claimant’s contract of employment, when the increase was not so authorised.  This issue persisted from 7 January 2013 right down until the claimant’s resignation and is a major element in the breach of trust and confidence. 

 

(c)        The failure by the respondents to mark the claimant’s 25 year
long-service, when they had such a practice, does not seem to us to be a serious matter but none the less an aggravating factor. 

 

(d)        The failure by the second and third respondents to give an answer to the claimant’s request for annual leave seems to the tribunal to be a factor which contributed to the breach of trust and confidence.  The second and third respondents did not make a decision.  The claimant did not know what his situation was in relation to making preparations or arrangements and no compelling reason or explanation was advanced for the delay in providing the claimant with an answer. 

 

(e)        The tribunal also considers that the discussion between the claimant and the respondents in relation to his lunch breaks was a factor in the breach of trust and confidence in that pressure was exerted on the claimant in relation to his lunch break by the third respondent based on a wrong view as to the claimant’s lunch-time entitlement.  One of the reasons advanced, that other employees within the claimant’s department did not get a lunch break does not mean that the claimant should not get his lunch break or is not entitled to do so.  The respondents’ approach seemed to be that if the other employees were not getting a lunch break nor should the claimant instead of ensuring that all employees got their lunch break entitlement. 

 

(f)         The two incidents alleged to have occurred in April of 2013 in relation to work done on two vehicles without proper paperwork or charging are matters about which the respondents are entitled to be concerned as they do indeed raise the possibility of misconduct.  However there are concerning aspects in relation to how the third respondent dealt with them.  When the third respondent spoke to the claimant on
30 May 2013 he regarded this a potential disciplinary matter and indeed described it as serious, manifesting that belief by asking the claimant if he wished to be accompanied.  He then went on to raise the matters which give rise to his concern. 

 

(g)        It is somewhat surprising, given that the third respondent deemed this a serious meeting that gave rise to a potential disciplinary offence, that the third respondent had not taken statements from the persons making the complaints or who had raised information about which the respondents were concerned.  It seems somewhat unusual that an investigation would therefore be initiated, with a formal meeting with the alleged perpetrator of the misconduct, before full and precise details of the alleged misconduct had been recorded by the third respondent.

 

(h)        Whereas the tribunal accepts that suspension might well be justified it seems perhaps that it was somewhat premature to suspend the claimant at this stage before precise details of the allegations were recorded from those making the allegations, complaints or from whom the information was originally obtained.  The tribunal is therefore satisfied that this contributed to the breach of trust and confidence.  This investigation therefore can constitute a “last straw” which led to the claimant’s resignation.

 

(i)          The tribunal does not regard the handling of the franchise after-sales vacancy nor the changing of how the first respondent awarded its bonus, about which it had a discretion, as factors contributing to the breach of trust and confidence.

 

(10)    The tribunal is satisfied that the breach of trust and confident went to the core of the contract.

 

(11)    The tribunal is satisfied that the principal reason for the claimant’s resignation was the breach of the implied term of trust and confidence by the first respondent.  This is clear from the claimant’s letter of resignation.  It was not suggested that there was some other reason, nor that this was not the principal reason, for his resignation.

 

(12)    The tribunal is not satisfied that there was a delay in his resignation as after the last straw, on 30 May, the claimant resigned on 4 June 2013. 

 

(13)    The tribunal is satisfied, based on what is set out above, that the respondents acted unreasonably.  The tribunal is therefore satisfied that the claimant suffered an unfair constructive dismissal. 

 

          Victimisation

 

          The Protected Act Being Relied Upon

 

          (14)    The respondents accept that the four acts of which the claimant complains, viz the complaint of disability discrimination made by the claimant during a meeting on 27 February 2013; the claimant’s letter of 14 April 2013; the claimant’s letter dated 28 April 2013; and the claimant’s letter dated 11 May 2013, are protected acts for the purposes of the Disability Discrimination Act as amended. 

 

          (15)    The claimant therefore has established that he has done a protected act.

 

          The Correct Comparator

 

          (16)    The claimant did not seek to rely on an actual comparator and contends that the correct comparator is a hypothetical comparator.  Mr Friel submitted that the hypothetical compactor is someone who had not carried out the protected acts.  For the purposes of this claim the tribunal will assume that the claimant has established the correct comparator.

 

          Less Favourable Treatment

 

          (17)    The tribunal is satisfied that a number of the matters, on which the claimant relies in relation to the constructive dismissal claim occurring from
27 February 2013, are capable of amounting to less favourable treatment for the purposes of the claimant’s victimisation claim on the ground of his disability. 

 

 

          The Reason for the Treatment

 

          (18)    In order that the claimant succeed in his claim for discrimination by way of victimisation he has to show that the reason for the less favourable treatment was that he had done a protected act, following the approach of the House of Lords in the Khan case.

 

          (19)    As the respondents had made the proposal to change the claimant’s hours from 7 January 2013, prior to the earliest protected act on 27 February 2013, then the proposal to change the claimant’s hours cannot have been the result of the claimant having done a protected act.  It must therefore be disregarded as an incident of less favourable treatment in the claimant’s victimisation claim. 

 

          (20)    Insofar as the letter of 14 April 2013 deals with the respondents’ proposals to change his hours it is irrelevant to a claim for victimisation as it occurred prior to the first protected act.  The remaining elements in the letter are a proposal for a change of hours by the claimant on a trial basis; a question of unused holiday leave; the profit share issue and when he would be paid it and the 25 year long-service award.  In his letter of 25 April 2014 the second respondent rejected the claimant’s proposal in relation to a variation of hours.  The holiday leave issue was apparently accepted by the second respondent and was not mentioned again. 

 

          (21)    In relation to the claimant’s letter of 28 April 2013 to Mr A Bruce, as the change of hours proposal predated any of the protected acts it cannot be as a result of the protected acts and must be disregarded.  The other issues mentioned there are not relied on by the claimant as constituting the less favourable treatment of which the claimant complains.  Indeed the claimant sought to rely on the same matters, set out above in support of his constructive dismissal claim, as constituting the less favourable treatment for the purposes of his victimisation claim. 

 

          (22)    In the claimant’s letter of 11 May 2013 he again refers to the change of hours and as it predated the first of the protected acts then that cannot have been the result of the doing of the protected acts.

 

          (23)    When the claimant gave the respondents notice of withdrawing his opt-out from the requirements of the Working Time Regulations in relation to hours worked the first respondent accepted that and therefore the withdrawal of his opting out itself from the Working Time Regulations cannot have been an element of less favourable treatment for the purposes of his claim for victimisation.  Indeed in the submissions to the tribunal Mr Friel did not rely on that as being one of the factors constituting the less favourable treatment.

 

          (24)    The tribunal does not have regard to the new timetable proposed by the respondents to the claimant, following his withdrawal from the opt-out of the Working Time Regulations, as a factor in deciding the reason for the victimisation as neither party alluded to this or made any argument about it. 

         

(25)    Therefore the tribunal is not persuaded that the reason for any of the elements of the less favourable treatment on which the claimant relies which occurred from 27 February 2013 were done by reason of the claimant having done a protected act as there has not been any persuasive evidence of a connection between the protected acts and the less favourable treatment.

 

          Any Defence

 

          (26)    It is unnecessary to consider whether there is a defence open to the respondents as without the doing of the protected act being the reason for the less favourable treatment the claimant cannot succeed in a claim of victimisation.

 

          Burden of Proof

 

          (27)    Section 17A(1)(C) the Disability Discrimination Act 1995 as amended, causes the burden to shift where the employee has a prima facie case that he has been treated less favourably on the prohibited ground.

 

          (28)    In the instant claim the claimant has to show that the reason for his less favourable treatment is that he had done a protected act.  As the tribunal has concluded that the claimant has not shown that the reason for the less favourable treatment was that he had done a protected act then the claimant cannot establish, to a prima facie level, that the ground for his less favourable treatment is having done the protected act and therefore he cannot benefit from the shift of burden under Section 17A(1)(C) the Disability Discrimination Act 1995 as amended.

 

          (29)    Accordingly the claimant has not established the necessary ingredients to persuade the tribunal that he has been discriminated by way of victimisation on the ground of his disability.  His claim for victimisation is therefore dismissed.

 

          Working Time Regulations

 

          (30)    There was not any evidence before the tribunal that would enable it to conclude that the decision by the claimant to withdraw his op-out from the Working Time Regulations caused him to be suspended in May 2013 or allegations of fraud and theft to be made against him or to be dismissed.  Accordingly that element of his claim is dismissed.

         

Grievance

 

          (31)    There was neither evidence nor submission that the respondents did not comply with the LRA Code of Practice in relation to the limit for dealing with the claimant’s grievance.  This matter therefore cannot contribute to any of the claimant’s claims.

 

          (32)    The claim will be relisted to consider remedy.

 

Employment Judge:      

 

 

Date and place of hearing:  23,24,25,26 and 27 June 2014, Belfast.     

 

 

Date decision recorded in register and issued to parties: