Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS:   1362/12

1364/12

169/14

 

 

 

CLAIMANTS:                    1. Rachel Maguire

2. Mairead Bradley

 

 

RESPONDENT:                Samdec Ltd

                                       

 

DECISION

 

The decision of the tribunal is that the claimants were not unfairly dismissed by the respondent.  The decision of the tribunal is that it is not just and equitable to extend time for the bringing of a claim for sex discrimination.

 

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge Oliver

 

 

Members:                        Professor D Boyd

Mr J Law

 

 

 

Appearances

 

The claimants were represented by Mr Aidan Sands, Barrister-at-Law, instructed by
Messrs Brolly Jameson Solicitors.

 

The respondent was represented by Mr Pat Moore of MCL Associates Ltd.

 

 

CLAIMS

 

1.       The claimants each lodged a claim for unfair dismissal on 18 July 2012 claiming that they had been constructively dismissed by the respondent on 23 April 2012.  The respondent contended in his response that he had not dismissed either employee.

 

2.       The claims came on for hearing on Thursday 9 May 2013 and the tribunal heard evidence from one of the claimants, Rachel Maguire.  Towards the end of her cross- examination, Rachel Maguire asked for a recess.  After a short recess, Rachel Maguire’s representative informed the tribunal that Rachel Maguire had just informed him that she had been subject to a number of sexual assaults committed by Mr Cheshire during the course of her employment.  It was agreed that the case would be adjourned to enable Rachel Maguire to bring the matter of the alleged assaults to the attention of the PSNI.

 

3.       Rachel Maguire lodged a claim alleging sex discrimination on the grounds of harassment on 21 January 2014.

 

4.       During the course of a CMD on Monday 10 February, Rachel Maguire’s representative confirmed that Rachel Maguire does not intend to make any complaint to the PSNI regarding the alleged sexual assaults.

 

5.       The respondent denies the allegations of sexual assault and resists the claim for sex discrimination.

 

LEGAL ISSUES

 

6.       The legal issues to be determined by the tribunal were as follows:

 

Time Limit and Jurisdictional Issues – Discrimination

 

7.       Whether in all the circumstances it is just and equitable for the tribunal to entertain the complaint of sex discrimination even though it was made out-of-time.

 

8.       The tribunal determined at the outset of the hearing that it was in the interests of justice that the tribunal should not deal with the jurisdictional matters as a preliminary issue but should hear the entire evidence in the case before reaching its conclusions.

 

Constructive Dismissal

         

9.       Did the termination of the contract of employment amount to a dismissal or did the claimants leave their employment for some other reason.

 

10.     In the case of each claimant, if there was a dismissal, was any contractual breach on the part of the respondent an effective cause or did it play a part in the dismissal of the claimant?  If so:

 

(a)            Whether any such breach was repudiatory so as to have entitled the claimant to have treated herself as dismissed pursuant to Article 127(1)(c) of the Employment Rights (NI) Order 1996 and contrary to Article 126 of the 1996 Order;

 

(b)            Did the claimant affirm her contract or waive any breach?

 

(c)           Whether the dismissal of the claimant was also unfair having regard to the provisions of Article 130 of the 1996 Order, and if so

 

(d)           What if any compensation the tribunal should in those circumstances award to the claimant having regard to those factors set out in Articles 152-161 of the 1996 Order (including any reduction to be applied by reason of the contributory fault of the claimant; and

 

(e)           Whether it is just and equitable for compensation to be adjusted because of the claimant’s failure to comply with the LRA Code of Practice on Disciplinary Procedures, and if so, by what percentage (subject to a maximum of 50%).

 

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

 

Sex Discrimination

 

11.     Was the first named claimant Rachel Maguire subjected to harassment related to her sex by the respondents contrary to Article 6A of the 1976 Order?

 

EVIDENCE

 

12.     The tribunal considered the witness statements and oral evidence of the claimants, and the witness statements and oral evidence of Mrs Maggie Cheshire and
Mr Martin Cheshire, directors of the respondent company.  The tribunal also took into account documentation to which it was referred during the course of the hearing.

 

13.     The tribunal found all witnesses to be evasive and we did not find the evidence of any witness to be entirely credible.  The claimant Rachel Maguire put forward two different versions of events for the period surrounding the termination of the contracts of employment.  The first version was contained in the claimants’ ET1 and confirmed by Rachel Maguire’s evidence on the first day of hearing.  Rachel Maguire then changed her story and put forward another version of events which were contained in her second ET1 and in her evidence at the reconvened hearing.  The respondent put forward another version of events.  The tribunal came to the conclusion that none of the versions of events was credible and we believe that the tribunal has been deliberately kept in the dark as to the true position by both the claimants and the respondent.  We believe that none of the witnesses was entirely truthful. 

 

14.     The tribunal was provided with a series of e-mails and texts and correspondence from around the time of termination.  The content of these documents was ambiguous and did not assist the tribunal in reaching a decision.

 

FINDINGS OF FACT

 

15.     The tribunal found the following relevant facts to be proven on a balance of probabilities:-

 

          (1)      The claimants commenced work for the respondent on 1 September 2009.  The claimants had previously provided administration services for the respondent through its own company ATAP Services.  Throughout their period of employment the claimants continued to operate their own company, ATAP Services, from the offices of the respondent.

 

          (2)      The claimants’ two daughters, Rebecca Maguire and Niamh Bradley were probably employed at some time by the respondent, possibly during the summer of 2009 just prior to the claimants commencing employment in September 2009.

 

          (3)      Rebecca Maguire continued to be paid a substantial amount of money long after the summer of 2009 and long after she had worked for the respondent.  The tribunal came to the conclusion that the amounts of money being paid into her account were not linked to work she did and far exceeded what it would have been appropriate to pay her for casual work.  Rachel Maguire indicated first that the payments to her daughter were actually for work done but after cross-examination revealed that this was completely implausible, she changed her story.  In her second ET1 and at the reconvened hearing Rachel Maguire stated that this money was paid into her account by
Mr Cheshire as he had been sexually assaulting her and it was a means of paying her for the assaults.  Rachel Maguire also indicated in her statement that when questioned by her daughter as to why money was being paid into her account, she told her daughter that it was to keep her bonuses right.  Rachel Maguire in her statement also indicated that Mr Cheshire had told her that he told his wife that the payments to Rebecca Maguire were being made as Rachel Maguire was entitled to a higher wage than Mairead Bradley but if Rachel Maguire was paid substantially more than Mairead Bradley that this would cause friction between the two employees if Mairead Bradley got to hear of it.   

 

          (4)      Mr Cheshire maintained that Rachel Maguire told him that the money was being paid into Rebecca’s account as Dermot Maguire, the husband of Rachel Maguire and father of Rebecca was employed by the respondent company but as he was also claiming benefits he could not be seen to be earning.  This would have ruled him out of the benefits he was claiming.  Mr Cheshire maintained that this was a fraud by Rachel Maguire on the accounts of the company as he did not sanction this manner of paying Mr Dermot Maguire.

 

(5)      We were unable to reach a conclusion as to why money was being paid into Rebecca Maguire’s account.  It is quite possible that the money was paid for some other reason than those advanced by the parties or for a combination of some of the reasons above.  We were however convinced that the money was not for work done by Rebecca Maguire.

 

(6)      Mr Dermot Maguire was an employee of the respondent company for a number of years.  No-one provided details of how Mr Maguire was paid for the work he did.

 

          (7)      During the course of the claimants’ employment from September 2009 to April 2012, a period of approximately two and a half years, the workplace appeared to operate in a manageable manner, with some volatile periods.   Both claimants worked part time for the respondent and appeared to have been granted appropriate sick leave and compassionate leave. 

 

(8)      We believe that we were not given the true picture of the relationship between Martin Cheshire and Rachel Maguire.  Suffice it to say that by April 2012, the relationship between the two was not good and the working relationship came to an end sometime in April/ May 2012.   The tribunal had hoped that by investigating the relationship between the employees and employers prior to the incident on 17 April 2012 that we may have been able to form a picture of what happened at that time and so reach a conclusion on the question of why the employment relationship came to an end.  Unfortunately due to the level of subterfuge employed by both parties, this was not possible.  We could not reach a conclusion as to why the working relationship ended so we concentrated on finding what facts we could to make sense of what later transpired.

 

(9)      We find that the employment relationship had endured over a period of two and half years and that the employees had been providing administrative services to the employer for some years prior to that.  We did not find that the employment relationship over the two years had been untenable and we did not accept that what happened on 17 April 2012 was the final straw in a series of events.

 

          (10)    The tribunal focused on the events of Tuesday 17 April 2012.  We accept that an issue arose between the parties sometime after 3.00 pm. which resulted in the employees walking out at 3.40 pm.  The employees did not drive home in the company vehicle which was their normal procedure.  We accept that Mairead Bradley said she was leaving, hugged Maggie Cheshire, said she was “sorry for your troubles” and walked out.

 

          (11)    We did not accept the explanation given by the employees that this all arose over an argument about the dismissal of another employee.  This did not have a ring of truth.  On the other hand, we did not accept the respondent’s explanation that the altercation arose solely because Martin Cheshire confronted the employees about the payments to their daughters, although this may have been referred to.

 

          (12)    On 18 April 2012, the employees sent an e-mail to Martin Cheshire stating that they were on sick leave but that they wished to resolve the matter and return to work when medically fit and to return to an improved atmosphere and better working conditions.

 

(13)    On 18 April 2012, Martin Cheshire changed the password on the computer and changed the locks on the door which would suggest that he thought the employees had left for good.  There is also a reference in a text sent by Rachel Maguire on 18 April 2012 to the fact that they didn’t say they were leaving which is obviously a response to Martin Cheshire’s indicating that as far as he was concerned, they had left on 17 April 2012 when they walked out.

 

          (14)    The employees did not return to work for the respondent after they left the premises on 17 April 2012.

 

          (15)    A series of e-mails and text messages followed from which it was clear that neither party was sure of the current employment status of Rachel Maguire and Mairead Bradley.  At one stage Martin Cheshire indicated that the employees had been suspended pending further investigation whereas the employees continued to suggest that they wished to return to work.

 

(16)    Things finally came to a head on 3 May 2012 when Maggie Cheshire sent an e-mail stating that the employees had walked out on 17 April 2012. Thereafter the issues were resolved through legal representatives.

 

          (17)    Very late in the date and after considerable prompting and examination from the tribunal, an agreed Schedule of Loss for Mairead Bradley was produced confirming that her claim amounted to £810.00.  The Schedule of Loss for Rachel Maguire was not properly proved and we believe that this claimant failed to mitigate her loss during the period from 20 April 2012 to 7 January 2013.  Her evidence was contradictory as to whether she was actually looking for employment during this time.  In any event, we believe her claim would have been in the region of £1500.00.

 

LAW

 

Time limits in discrimination cases

 

16.     Article 76(1) of the Sex Discrimination (Northern Ireland) Order 1976 (hereinafter referred to as the “The 1976 Order”) provides that:-

 

                    “An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal “before the end of the period of three months beginning when the act complained of was done.” 

 

Article 76(5) of the 1976 Order provides:

 

                    “A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

 

 

Unfair Constructive Dismissal

 

An employee has the right not to be unfairly dismissed pursuant to Article 126 of the Employment Rights (NI) Order 1996 (as amended).  The circumstances in which an employee is dismissed is set out in Article 127(1) of the 1996 Order which provides that:-

 

                    “For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2) ... only if -

 

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

 

This is commonly known as constructive dismissal.

 

Harvey on Industrial Relations and Employment Law (“Harvey”) states at Division D1 Paragraph 403 as follows:

 

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

          

(a)           There must be a breach of contract by the employer, either and actual or anticipatory breach.

 

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

 

(c)           The employee must leave in response to the breach and not for some other unconnected reason.

 

(d)           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 vary the contract”.

 

CONCLUSIONS

 

Time Limitation and Jurisdictional Issues

 

17.     The tribunal considered whether it was just and equitable to extend time for the bringing of the claim for sexual harassment.  The tribunal was surprised by the approach taken by the claimant in this regard.  The first time any allegation of sexual harassment was made was at the hearing on 9 May 2013.  The tribunal was under the impression that the claimant intended to report the matter to the PSNI and the tribunal was adjourned with this in mind.  A CMD was convened on 10 December 2013 for the claimant to inform the tribunal of the position and at the CMD the claimant’s barrister informed the tribunal that the claimant did not intend to report the matter to the PSNI and had in fact lodged an ET1 claiming sex discrimination on the previous day.  In fact this was incorrect and the ET1 was not actually lodged until 21 January 2014.  The reason given for the delay between 9 May 2013 and 21 January 2014 was that the claimant was suffering from serious and disabling mental health injuries.   At that time, the claimant had actually spoken to her legal representatives of the allegations, she knew that the tribunal and Mr and Mrs Cheshire were aware of her allegations and the tribunal felt that she should have been in a position to lodge a claim.  There was some suggestion that the claimant would be providing medical evidence to substantiate her mental health problems at the time in question but in fact no medical evidence was provided dealing with this time period.  In all the circumstances of this case including the long period during which the allegations were in the public domain, the tribunal did not consider it just and equitable to extend time for the bringing of the claim for sex discrimination and this claim therefore fails.

Unfair dismissal

 

18.     The claimants maintained that they were dismissed by the respondent on
23 April 2012 as the behavior of Martin Cheshire made it impossible for them to continue in a position of employment.  The difficulty with this assertion is that the claimants continued to maintain that they wished to return to work with Mr Cheshire.  It was therefore difficult to come to the conclusion that Mr Cheshire had behaved in such a way that the employees were justified in resigning.

 

19.     If there was a breach of contract by the respondent on 17 April 2012, the employees affirmed the breach by conducting themselves in the way they did.  They confirmed by their actions that they were prepared to continue working for the respondent.

 

20.     There was correspondence after 23 April 2012 which indicated that at this stage the employees would have been prepared to continue with the employment relationship.  The employees maintained throughout that they had never resigned from their job.  However, nor did they assert that the respondent had actually dismissed them.  Perhaps, because to do so would have forced them to provide a reason for why the respondent may have dismissed them.  It was the flawed evidence from the claimants which ultimately led the tribunal to the conclusion that they had not been unfairly constructively dismissed.

 

21.     The case put forward by the respondent was that the claimants had walked out on 17 April 2012 in circumstances where they made it clear that they did not intend to return.  There is evidence which supports this proposition.  There is the fact that they did not take the van to go home as they usually did.  There is the behavior of both claimants in how they dealt with Maggie Cheshire.  There is the fact that Martin Cheshire changed the locks and the password and there is evidence that he immediately made arrangements to have payroll sorted himself that week despite the fact that that was normally carried out by the claimants.  The evidence favours the view that the claimants walked out of their job on 17 April 2012 for reasons which were not clear to the tribunal despite our best endeavours to unearth the truth.  We did not believe that the claimants left in response to Mr Cheshire’s behaviours.  It is possible that they left in response to an allegation.

 

22.     We considered the fact that in this claim the onus was on the claimants to prove that they had been constructively dismissed.  We did not find the evidence from the claimants to be consistent or credible.  We did not find that they had proved that they had been constructively dismissed.

 

23.     The claimant’s claims are therefore dismissed in their entirety.

 

 

 

 

 

Employment Judge:      

 

Date and place of hearing:  9 May 2013 and 8-11 September 2014, Belfast.   

 

Date decision recorded in register and issued to parties: