Industrial Tribunals Northern Ireland Decisions
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Cite as: [2014] NIIT 1789_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1789/13
CLAIMANT: Barbara Huey
RESPONDENT: Santander UK Plc
DECISION
The unanimous decision of the tribunal is that the claimant’s claims of constructive dismissal and breach of contract/unlawful deduction of wages, are dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Crothers
Members: Miss M Bailey
Mr B Heaney
Appearances:
The claimant was represented by Miss R Best, Barrister-at-Law, instructed by Fergusons Solicitors.
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Carson McDowell Solicitors.
THE CLAIM
1. The claimant claimed that she had been constructively dismissed by the respondent. She has also claimed that she was due an amount in respect of breach of contract/unlawful deduction from wages. It had been previously indicated at a Case Management Discussion held on 6 December 2013 that the issue of holiday pay had been resolved.
THE ISSUES
2. The issue before the tribunal was whether the claimant had been constructively dismissed by the respondent, and whether she was entitled to an amount in respect of breach of contract/unlawful deduction of wages.
SOURCES OF EVIDENCE
3. The tribunal heard evidence from the claimant and, on behalf of the respondent, from Lee Mallon (Regional Manager), Sharon Heffron (Regional Mortgage Manager at the material time), Brian Martin (Customer Service Manager, Multi-channel Manufacturing), and Nicola Niblock (Chartered Accountant of ASM Chartered Accountants). The tribunal was also presented with bundles of documentation and considered only the documentation referred to it in the course of evidence. The tribunal was also assisted by an agreed chronology which is appended to this decision. It also considered a report prepared by Nicola Niblock together with a medical report by the claimant’s General Practitioner, Dr Cathcart.
FINDINGS OF FACT
4. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-
(i) The claimant was employed by the respondent and its predecessor, Abbey National Building Society, from 30 June 1980 until her resignation on 19 September 2013. At all material times, the claimant was employed as a Service and Control Manager responsible for risk, control and compliance within the Enniskillen Branch of Santander. She was also responsible for ensuring compliance with security, procedural processes and policy and, as line manager, was also responsible for coaching and developing her team.
(ii) The Branch Manager (Katrina McSwiggan), went on maternity leave on 16 February 2012. This meant that the branch was without a Branch Manager until Clodagh Gavin assumed responsibility for the branch on 12 March 2012, as temporary Branch Manager. During this interim period Clodagh Gavin had been absent for 18 days attending training courses. However, Lee Mallon (as Regional Manger), and Liz Doherty (Regional Manufacturing Territorial Unit) (“MTU”) Manager provided support to the branch. The tribunal accepts that between 16 February 2012 and 12 March 2012, the claimant was not responsible for any Branch Manager duties. As appears from paragraph (xxiii) below, the claimant’s grievance appeal hearing held on 13 April 2013, partly upheld a complaint by her relating to lack of support during this period.
(iii) On 3 and 4 May 2012 a “spot check” audit was carried out in the respondent’s Enniskillen branch. Lee Mallon was unaware of this audit as they are carried out without prior notice being given either to the Regional Manager or the branch concerned. Should a branch fail to reach a score of 70% it is placed into what is termed “escalation”. This means that the Branch Manager and the Service and Control Manager (“SCM”), have to ensure, with the necessary support, that the branch returns to a stable position and achieves the 70% pass mark during the next audit. Such audits are randomly carried out at least once per quarter. The branch score on this occasion was 60%. Lee Mallon received advice from Human Resources to carry out an investigation into the branch’s failings. She, together with Liz Doherty, held two investigatory meetings with Gareth Jones (CSA of the Enniskillen Branch) into allegations that proper procedures had not been followed (the second after the claimant had been interviewed). Clodagh Gavin was interviewed separately.
(iv) Liz Doherty and Lee Mallon also met with the claimant on 14 May 2012 regarding allegations of failure to follow proper procedures. During her evidence, the claimant conceded that she had breached procedures but sought to justify and explain her actions. Her explanations were not challenged by the respondent, nor was her honesty. On 14 May, the claimant was given a letter signed by Lee Mallon informing her of allegations that had been raised against her. The tribunal considers it appropriate to set out this correspondence as follows:-
“Dear Barbara
Investigation Ref 344202
Employee No E00663221
As you are aware we are investigating allegations that have been made against you which are
On 27 April you were the vault manager. Gareth Jones had a cash error of £80 which was found and he then completed a balance. At that point as vault manager you should have input[ed] a final balance of the branch. The central browse shows that it was Gareth Jones E1137395 who input[ed] the balance. On investigating this with Gareth he has stated that he did not input this final balance personally. It appears that you input the balance while using Gareth’s system.
On Monday 30 April, Liz Doherty, RM MTU manager telephoned you to advise you of a misposted balance and you confirmed that Clodagh Gavin had a till difference of £400 (undeclared). Liz advised you to declare the till difference immediately. On Tuesday 1st May you advised Liz that you had telephoned Clodagh Gavin and obtained her E number along with her password and that you had input the till difference using her logon and password details [when] she was not present in the branch.
During the branch checklist and subsequent holistic visits, 4 brown envelopes containing various Northern Irish banknotes were found beside the security camera. These notes were in an extremely poor and unusable condition and the actual amount could not be determined. A member of staff confirmed that they belonged to you.
£7.81 of various coinage was found in your SCM drawer. The purpose of this money is unknown.
100 foreign cheques Non MICR line were found in a brown sealed envelope with your initials and dated 2.3.12 in the bottom drawer of the large safe. These cheques had not been booked into stock or declared to the RM MTU during the visit.
On 10th May a customer rang the branch asking to speak to you personally. When asked if anyone else could help he stated that he wished to transfer money to the Irish Republic. The customer stated that you always complete this transaction for him and was extremely upset that no-one else in the branch would carry out this transaction without him being present in the branch. When questioned, the staff member confirmed that “this is common practice”.
Staff confirmed to the RM MTU (unprompted) that you are aware of all their E numbers and passwords. Staff have advised the RM MTU that they feel pressurised and uncomfortable when you ask them to leave their systems unlocked while they are on lunch or taking a break.
As part of the investigation we may need to hold a further meeting with you to discuss this allegation and give you an opportunity to respond to it and give your views before a decision is reached on whether any formal disciplinary hearing may be required. If this is the case we will let you know.
During this time please contact me if you wish to provide any additional information you believe should be considered as part of the investigation.
When the investigation is complete I will [write] to you again to confirm what will happen next which may include
· Taking no further action
· Taking informal action eg providing you with extra coaching, training or support
· Holding a formal disciplinary hearing. If this is required we will write to you to confirm the level at which the hearing will be held and agree the date, time and venue. We will also provide you with any relevant paperwork.
If a formal disciplinary hearing is required you will have the right to be accompanied. This can be a representative from one of the recognised unions, a work colleague or another accredited trade union representative.
At this time I would ask that you maintain confidentiality and do not discuss this matter with anyone other than myself.
Remember that employees can seek support from the Santander Employee Assistance Programme on 0800 032 3720, which is an independent telephone helpline which provides expert guidance and advice to help resolve a wide range of issues.
The HR Advance and Consultancy Team (HR ACT) is also available on 0800 028 3803. This is a confidential, internal source of support on company policy guidance and interpretation.
Please let me know if you have any questions about the above.
Yours sincerely
Lee Mallon
Regional Manager
N I Counties
Cc HR Service Centre”
(v) In the course of the meeting held on 14 May 2012, the claimant raised concerns regarding the manner in which Liz Doherty had allegedly conducted herself during the audit and the manner in which she delivered the audit’s findings. Liz Doherty had also claimed that she was very upset by the claimant’s reaction when given the results of the audit and alleged that she had felt threatened and bullied by the claimant’s aggressive reaction. She also alleged that the claimant had been defensive. For her part, the claimant alleged that Liz Doherty’s attitude to her was hostile during the audit and that she had, in her presence, called for Gareth Jones and advised the claimant that she wanted all keys to be given to him. She then suggested that she and the claimant “needed a cup of tea and a chat”. The claimant also alleged that Liz Doherty had said that “this is not going to be a hatchet job”. The claimant was clearly upset by the fact that the keys had been taken from her.
(vi) The tribunal accepts that the claimant received a telephone call from Nick Rowsome (Client Relationship Manager in Enniskillen) towards the end of the morning of 5 May 2012 advising her of “gossip” in the Omagh office that Liz Doherty had gone to the Enniskillen Branch to deliver “three disciplinaries”. The claimant then confronted Liz Doherty about this situation, who, according to the claimant, remarked that “Lee must have been talking out of school”. The claimant believed this to be a reference to Lee Mallon.
(vii) The tribunal is satisfied that there was, at the very least, a personality clash between the claimant and Liz Doherty. Furthermore, a bad atmosphere had developed between them, bordering on hostility.
(viii) The claimant was shocked by the findings of the audit and, that after some 33 years of quite exemplary service, she found herself in this situation. She referred in her evidence to what she described as an “animus” against her at a high level of management and alleged that her competence and abilities were under very severe scrutiny. She also claimed in her evidence that she was being “managed out”. However, as against this, the respondent was perfectly entitled, in the interests of its own business, to conduct such an audit and to highlight failings within the branch. It was a theme of the claimant’s case that she ought to have received proper outcome letters from this and the subsequent audit to effectively clear her name and restore her reputation. This was further addressed by Mr Martin at the grievance appeal stage (infra).
(ix) On 31 May 2012, Lee Mallon held a further informal meeting with the claimant at the Enniskillen Branch. Roberta Barbour, the Advance Union Representative, and Clodagh Gavin were also in attendance. Liz Doherty was on annual leave at this time. The purpose of the meeting, which was also attended by Susanne Cochrane, as note taker, was to agree a way forward following the concerns raised by the claimant in relation to Liz Doherty. The claimant made it clear in her evidence before the tribunal that she had felt shocked and disgusted by the seven allegations referred to in the correspondence of 14 May which, she alleged, did not relate to the audit carried out on 3 and 4 May. She asserted that the allegations were “relatively trivial”, that some were factually incorrect and that none of them had been given in any context.
(x) It is clear to the tribunal that, at the meeting on 31 May, Clodagh Gavin wished to move things forward. She stated that there had been fault on behalf of both the claimant and Liz Doherty. Lee Mallon however, found herself apologising to the claimant. She informed the claimant that she was sorry if she felt that the manner in which the feedback was delivered had hurt her feelings. The tribunal is satisfied that at the end of this meeting the claimant still felt aggrieved. Roberta Barbour remained behind to speak to other members of the team on an individual basis concerning the audit and relationships with the claimant. Liz Doherty had advised Lee Mallon that other members of staff had felt bullied and fearful of the claimant and felt compelled to comply with what she asked them to do.
(xi) After this meeting, Lee Mallon decided, pursuant to a discussion she had held with Tracy Bryant of Human Resources between the failed audit and the subsequent investigatory meetings, to “draw a line in the sand”.
(xii) This “line in the sand” correspondence dated 30 June 2012 directed to the manager and staff of the Enniskillen Branch, reads as follows:-
“Dear team
I am writing to confirm that following the investigations in the branch after the MTU checklist visit, I have decided to take no formal action. The reasons for this are
A training and development need for all staff in the branch was identified and a decision was taken to follow a plan of refresher training and in branch learning regarding risk and control policies and procedures.
Following this programme has resulted in all staff reaching an acceptable level of knowledge and skill to enable them to comply with laid down policies and procedures and also carry out the various delegated tasks with competence.
I will however have a zero tolerance approach to any further breaches in policy and procedures and will instigate disciplinary action against anyone breaching these risk and control procedures.
A copy of this letter will be kept on the branch file.
Please let me know if you have any questions about this.
Remember that employees can seek support from the Santander Employee Assistance Programme on 0800 032 3720 which is an independent telephone helpline which provides expert support guidance and advice to help resolve a wide range of issues.
The
HR Advice and Consultancy Team (HR ACT) is also available on
0800 028 3803. This is a confidential, internal source of support on company
policy guidance and interpretation.
Yours sincerely
Lee Mallon
Regional Manager
NI Counties”
(xiii) The above correspondence dated 30 June 2012, refers to taking “no formal action”. The claimant however insisted that she did not regard this correspondence as in any way representing an outcome letter drawing a line in the sand for her personally.
(xiv) The tribunal is at a loss to understand why a simple, clear letter directed to the claimant personally could not have been issued. Lee Mallon did accept, under cross examination, that a personal letter ought to have been issued to the claimant, reflecting the seven points referred to in the correspondence of 14 May 2012. The rationale for ‘the line in the sand’ correspondence, as explained by Lee Mallon in her evidence, was that it was addressed to the entire branch team thus alleviating the claimant of accountability. Lee Mallon attended the branch on 1 August 2012 and, having read the letter to the team, placed it on the notice board for everyone to see. The claimant also attended this meeting, and was aware that no formal action was being taken either against herself or other members of the team. Moreover, there is no evidence that the claimant raised any issue at this meeting. She appears not to have specifically raised the ‘personal letter’ issue directly until the Grievance Appeal hearing.
(xv) Despite the “zero tolerance approach” referred to in the correspondence of 30 June 2012, further failings were discovered in the branch as a result of another audit conducted on 18 July 2012 by Lesley Burke (MTU Manager). On this occasion, the score was reduced from 60%, as in May, to 35.09%.
(xvi) One procedural failure highlighted by the second audit related to the processing of an international CHAPS payment. Lee Mallon had been advised that a CHAPS payment requested by a customer had not been properly processed by the branch in June 2012. Following investigation, it was established on 19 July 2012 - the day after the claimant received feedback that the branch had failed the audit, that she had failed to follow the “customer not present” procedure and released funds without the customer being present at the branch. The tribunal accepts that it is the responsibility of the Checker in releasing such funds and ultimately the claimant, as Service and Control Manager, to ensure that the procedures are adhered to. The respondent’s case was that procedures must be followed precisely in relation to CHAPS payments due to the fact that, normally, high values of funds are transferred and, once transferred, cannot be retrieved, thereby potentially disadvantaging a customer and the bank should a fraudulent or erroneous transfer be made.
(xvii) Human Resources advised Lee Mallon to carry out an investigation with all parties involved in this transaction. On 28 August 2012, the claimant was informed by Lee Mallon that she would be conducting an investigation into the audit findings in July.
(xviii) Correspondence to the claimant dated 28 August 2012 (received by the claimant on 29 August) states as follows:-
“As you are aware we are investigating allegations that have been made against you which are
Procedural non compliance when processing, authorising and releasing CHAPS/ET payments for a Mr P K O’Regan on two occasions.
On 6 June you authorised a payment for £102,443.59 which differed from the amount on the typed note signed by the customer. The ownership ID type and reference is shown on the control sheet as statement however the Pay No Pay is shown as passbook.
It appears that the customer was not present in the branch on 6th June when the transfer took place and the procedure for “customer not present” were not followed.
On 5th July another transfer was processed by Clodagh Gavin and authorised by Gareth Jones for the same customer however the monies were not released yet the wall charts were passed by you on 3rd July, despite this.
On 19th July there is CHAPS/ET control sheet showing the transfer of funds for Mr O’Regan which appears to be the transfer which should have been effected on 5 July (when authorised by Gareth) You are the authoriser. The ID is shown on this sheet as passbook. It appears that as the withdrawal form is not signed by the customer and the receipt is still on file that the customer was not present when this transfer was done.
Part of the feedback from Lesley Burke and Liz Doherty on 18th July, was specific detail on procedures to be followed when the customer is not present, these do not appear to have been followed.
There is a delay of 17 days from customer request (2.7.12) to release of funds on 19.7.12 however this was not picked up on the daily foreign payments browse as the funds are showing as pending release.
The wall chart check on 20th July (the day after the delayed release of these funds) shows as passed by you.
As part of the investigation we may need to hold a further meeting with you to discuss these allegations and to give you an opportunity to respond to them and give your views before a decision is reached on whether any formal disciplinary hearing may be required. If this is the case we will let you know.
During this time please contact me if you wish to provide any additional information you believe should be considered as part of the investigation.
When the investigation is complete I will write to you again to confirm what will happen next which may include
· Taking no further action
· Taking informal action eg providing you with extra coaching, training or support
· Holding a formal disciplinary hearing. If this is required we will write to you to confirm the level at which the hearing will be held and agree the date, time and venue. We will also provide you with any relevant paperwork.
If a formal disciplinary hearing is required you will have the right to be accompanied. This can be a representative from one of the recognised unions, a work colleague or another accredited trade union representative.
At this time I would ask that you maintain confidentiality and do not discuss this matter with anyone other than myself.
Remember that employees can seek support from the Santander Employee Assistance Programme on 0800 032 3720 which is an independent telephone helpline which provides expert guidance and advice to help resolve a wide range of issues.
The HR Advice and Consultancy team (HR ACT) is also available on 0800 028 3803. This is a confidential internal source of support on company policy guidance and interpretation.
Please let me know if you have any questions about the above.
Yours sincerely
Lee Mallon
Regional Manager
NI Counties
cc. HR service Centre”
(xix) An investigatory meeting was held with the claimant on 29 August 2012. The tribunal carefully considered the evidence both oral and documentary surrounding this investigation meeting. A separate investigation meeting was also held on 29 August between Lee Mallon and Gareth Jones with Susanne Cochrane as notetaker. Lee Mallon had discovered that on two occasions the customer concerned had transferred the funds and that the correct procedures governing the situation when a customer is not present had not been followed by the processors or those checking the appropriate paperwork. The tribunal accepts that, ultimately, it is the Service and Control Manager’s responsibility to ensure that the paperwork is correct, that wall charts confirming that transfers have been released correctly are accurately updated, and that procedures are followed as laid down in the relevant manual. As with the allegations referred to in the correspondence of 14 May 2012, the claimant acknowledged that procedures had been breached but again sought to justify and explain her actions. Her explanations were not challenged by the respondent nor was her honesty impugned. Lee Mallon, however, could not complete her investigation as she was on leave. The claimant went on sick leave from 18 September 2012 and submitted sick notes from 18 September 2012 until 18 September 2013. She resigned with effect from 19 September 2013.
(xx) The claimant submitted a formal grievance on 17 December 2012 which was investigated by Sharon Heffron (Regional Mortgage Manager). The claimant, having referred to events on specific dates from 15 February 2012 to 29 May 2012, describes the essence of her then current concerns in the concluding paragraphs of the grievance letter as follows:-
“Since all of the above I had continued to work trying to put this behind me waiting for the outcome of my allegations but nothing came out of it – I even tried to resolve some of the allegations myself that I know was not correct and advise Lee Mallon but felt she was not interested – eventually Mrs Doherty and Lee Mallon arrived at the branch to [advise] that a ‘Line in the sand’ was drawn and from that time on all policy and procedures lapses was not to be [tolerated].
To date I have not discussed these first allegations with anyone from management – does that mean the line in the sand included these – really not sure and after receiving ... further allegations in August regarding a Chaps payment I am totally confused as to [where] I stand with these.
During my thirty three years with Abbey/Santander I have never had any allegations made against me in [relation] to my working abilities in any role I have held, by any Manager, Auditor or colleague. All of the issues currently outstanding have never been in question prior to this audit, and come as a total shock and disappointment to me who was totally dedicated and committed to my Branch and colleagues. I feel that my honesty and [integrity] have been called into question within the branch and this has greatly affected my working relationship with my colleagues which up until this incident was issue free and unblemished.
For my peace of mind and sanity I require to know what allegations still hang over me and would be grateful for a reply or an opportunity to meet and discuss further.
Yours sincerely
Barbara Huey, SCM, Enniskillen
N.B
I have requested the hand written notes from my meeting with Katrina and Clodagh on 16th November 2012 but to date have only received [a] letter covering details of our meeting together with [a] medical consent form. This confirmation letter in my opinion does not reflect the conversation on that date and does not contain any reference to the issues covered regarding my feelings of hurt, humiliation, from events since May 2012.
At this moment I am reluctant to sign the Medical Confirmation until I receive the actual Hand Written Notes from our meeting, in order that all issues can be reflected in (a) Formal Absence confirmation letter.
Yours sincerely
Barbara Huey
SCM Enniskillen”
(xxi) The tribunal carefully considered relevant correspondence referred to it from 18 September 2012 until the claimant’s resignation. The grievance outcome letter of 28 February 2013 (following the hearing held on 4 February 2013) summarises the grievance, and particularises various matters which were considered under the following headings:-
1. Inappropriate actions by the RTUM Liz Doherty during Enniskillen Branch audit resulting in personal feelings of hurt and injury to your pride.
2. Lack of obvious support in the days and weeks following the audit which left you confused and upset on the possible outcomes which the visit would produce.
3. Confusion over the 2nd investigation allegation letter on 28th August 2012 following a previous letter and meeting with Lee Mallon on 30th June 2012 and the outcome being no formal action/Your need to ensure that there are no allegations currently hanging over you which may prevent you from returning to work.
In relation to point 3, Sharon Heffron concludes the grievance outcome letter by stating:-
“However, due to the seriousness of such issues and the responsibilities within your job as a Service and Control Manager, in order to ensure that the Branch is maintained at high auditory standards, any further breaches of the Procedural Non Compliance policy will result in disciplinary action going forward.
It is clear that you have great pride in your work and that you are eager to return to work and be able to get back on the same standing as before [you] left and I am delighted that you feel strong enough to return to work. My recommendations will ensure that your return is made with all appropriate reasonable adjustments considered in order to support your return to work.”
Recommendations are then specified as follows:-
“— One week of intensive retraining by spending one full week observing other Service and Control Manager(s), divided time between Sharon Doherty and Evelyn Savage – both Service and Control Managers in the Region.
— Following this week of intensive training where you have reviewed the recent Workshop material, reviewed all relevant manuals, especially the Procedural Non Compliance documentation; there will be a structured and planned internal audit of your Branch by Jennifer Donnelly, SCM Dungannon Branch. This will be over and above that which is planned by the Regional risk team.
— Clodagh Gavin has progressed over the last number of months in the role of Service and Control Manager and on your return to work Clodagh will be acting up Branch Manager. This support [will/should] be of great benefit to you.
I hope you understand why I have made this decision.
I hope that the outcome of the grievance allows you the opportunity to return to work without any delay, pending the sign off from your doctor as fit for work.
I wish you all the very best on your return.
However, you do have the right to appeal, within 14 calendar days of receiving this letter, by writing to...”
(xxii) The claimant’s grievance was not upheld. She appealed the outcome in correspondence dated 13 March 2013 in which she sets out “a short summary of what I consider the most glaring omissions and misrepresentations”. This is followed by further correspondence from the claimant dated 4 April 2013 in which she adds “a number of observations and offer what I believe to be an accurate summary of the events that propelled this unfortunate series of developments”. She concludes the correspondence by stating:-
“It is worth also pointing out that Lee Mallon apologised to me for the actions of Liz Doherty, had I been in the complete wrong as suggested by Liz then I wonder why Lee would have apologised to me in the first place.
As stated in my last letter it is a matter of continuing regret that I feel the need to write this letter at all, I have served Santander and Abbey to the best of my ability and my longevity surely indicates that I have carried this out in a professional and complete manner, to be treated like this and to have to defend myself as such much sadder that it is unexpected”.
(xxiii) The grievance appeal hearing held on 22 April 2013 was conducted by Brian Martin (Customer Services Manager). The claimant was accompanied by Roberta Barbour (Advance Union Representative). The tribunal was referred to documentation, including extensive minutes of this appeal hearing. The tribunal is satisfied that Mr Martin conducted a thorough, fair and exhaustive hearing. His extensive outcome letter dated 11 June 2013, contains the following conclusion section:-
“In respect of the areas stated within the Grievance outcome letter of 28th February having carried out my investigations my conclusions are as follows –
1. Perceived inappropriate actions by the RTUM Liz Doherty during the Branch audit of Enniskillen Branch resulting in personal feelings of hurt and injury to pride.
I uphold the original decision made by Sharon Heffron.
2. Lack of support which you confirmed in the days and weeks following the audit which left you confused and upset.
I uphold the decision made by Sharon in part.
It is my reasonable belief that during the period of no Branch Manager being in place in the branch and given the period Clodagh was attending the Academy it would have assisted you had a documented plan of support been put in place which gives a commitment to specific BMs/SCMs with allocated dates.
It is my reasonable belief that there was sufficient support offered during the period after the May audit.
3. Confusion over whether the letter of investigation dated 28th August surrounding a subsequent audit was still valid.
I believe outcome letters should be issued for both meetings that were held in respect of the letters dated 14th May and 28th August and follow the course of actions outlined in Sharon’s recommendations contained within the outcome letter.
4. You expressed a concern relating to the bias on behalf of your Manager, Katrina O’Neil with regards to your religion point 9 above from your letter dated 4th April if you feel this remains a concern it should be discussed with Lee who will progress the matter as required.
5. During the Appeal Hearings it was stated that you did not have a half year Review and your End of Year is outstanding. I have discussed this matter with Lee who agreed that these will be discussed and agreed on your return to work or if possible during discussions regarding your return to work.
From my investigations it is my view that there is some learning for the business from this case which I will discuss with those concerned as required.
It is clear that there were a number of changes going on within the area and a number of issues being managed within Enniskillen Branch.
Sharon has stated in her outcome letter that you have great pride in your work and there is no doubt in mind that Lee and Liz share this opinion. You have been described as a supportive and loyal SCM. Lee and Liz are both keen for you to return to work in your SCM role and are eager for this to be as soon as possible. You have also stated you desire to return to work however with some reservations. I really believe the proposals outlined above will bring this about successfully if you all work together to achieve this.
I believe that as soon as you feel comfortable meeting Lee and Liz to discuss and agree a way forward the better you will feel and I wish you well.
I hope you understand why I have made each of the above decisions. My decision is final and brings to a close the internal appeals process.
Remember that employees can seek support from the Santander Employee Assistance Programme on 0800 032 3720 which is an independent telephone helpline which provides expert support, guidance and advise to help resolve a wide range of issues.
The HR Advice & Consultancy Team (HR ACT) is also available on 0800 028 3802. This is a confidential internal source of support on company policy guidance and interpretation.
Yours sincerely
Brian Martin
Customer Service Manager
Multi-Channel – Manufacturing”
The tribunal accepts that it was the respondent’s wish for the claimant to return to work, and that she also had expressed a desire to do so as early as the initial grievance hearing held on 4 February 2013.
(xxiv) A meeting was held by way of telephone conference on 2 July 2013 involving Clodagh Gavin, Lee Mallon, Roberta Barbour (the claimant’s Union representative), the notetaker Hazel Green, and the claimant. The tribunal was also shown notes of this meeting which was clearly aimed at facilitating the claimant’s return to work. The tribunal is satisfied that the claimant was disposed towards returning to work, and there is no indication given by her that she was contemplating resignation. As referred to previously, Brian Martin’s grievance appeal outcome letter relating to the hearing held on 22 April 2012, and referred to at paragraph (xxiii) above, states:-
“You have also stated [your] desire to return to work however with some reservations. I really believe the proposals outlined above will bring this about successfully if you all work together to achieve this”.
(xxv) Lee Mallon met with the claimant on 19 July 2013 to discuss her possible return to work. The claimant was handed undated correspondence signed by Lee Mallon which states:-
“Private and Confidential
Mrs Barbara Huey
Enniskillen Branch
Dear Barbara
End of Investigation - CHAPS procedural non-compliance
Employee Number E00663221
I am writing to confirm that the informal investigation dated 28th August 2012, into the above allegations made against you has ended and I have decided to take no formal action. The reasons for this are
Delays in completing the investigation due to holiday leave
Recommendation of Sharon Heffron - chair of grievance hearing
A copy of this letter and a record of the investigation will be kept on your personnel file.
Please let me know if you have any questions about this.
Remember that employees can seek support from the Santander Employee Assistance Programme on 0800 0323720 which is an independent telephone helpline which provides expert support, guidance and advice to help resolve a wide range of issues.
The HR Advice and Consultancy Team (HR ACT) is also available on 0800 028 3803. This is a confidential internal source of support on company policy guidance and interpretation.
Yours sincerely
Lee Mallon
Regional Manager
N I Counties
cc H R Service Centre”
(xxvi) The tribunal was satisfied that, at this stage, the claimant still felt aggrieved, and, having rehearsed the various issues, expressed her disappointment with all who were involved in the various processes and how matters had been handled. She had also requested during a meeting held on 2 July 2013, that the period of sickness leave from April 2013 should be treated as garden leave and that she should be compensated by, in effect, receiving full pay instead of half pay for this period.
(xxvii) The tribunal considers it essential to set out in full the correspondence to the claimant dated 29 July 2013 from Lee Mallon as follows:-
“Dear Barbara
Thank you for meeting with me in Enniskillen on the 19th July 2013. At the meeting you raised some points to be taken forward which I have completed by way of arranging a conference call between representatives from HR and myself and I am now in a position to respond to these.
Whilst I appreciate your disappointment with regards to your issues raised, you have had the opportunity to raise these at the Formal Grievance meeting and the Grievance Appeal Meeting held. A thorough investigation has taken place and at those meetings you had the opportunity to raise any further issues. The outcome letters confirm actions and recommendations which had now been put in place; you have therefore now exhausted the internal process.
I would like to apologise if the timeframes were outside your expectations, however it was necessary for Brian to complete a thorough investigation in order to cover everything in detail and conclude on his findings.
I have liaised with HR and I can confirm that your request for your sickness absence to be treated as garden leave whilst your Formal Grievance was being investigated is not something the business can support, as you were signed off by your Doctor during this time and Fit Notes have been received.
You advised me at the meeting that you felt the EAP were not supporting you with counselling sessions and Louise Moore, HR Consultant has advised me that Clodagh has arranged with Occupational Health for you to have some pre authorised counselling sessions that you are attending weekly. I hope these sessions will be helpful for you going forward.
In your Grievance Appeal Meeting you advised Brian Martin that you would like to return to work as soon as possible, therefore I would now like to support you back to work with any necessary reasonable adjustments and phased return to work too.
You did confirm at our meeting that you carried out the role for 33 years and I would like you to be able to return to your role and do the job you do well. In order to further support your return to work I would agree with you a documented structured training plan which we can agree at our next meeting. We can also make any additional necessary adjustments you feel will facilitate you back into the role.
I look forward to hearing from you with a convenient day for us to meet to discuss your return to work. If I can be of any further assistance please contact me.
Kind regards
Lee Mallon
Regional Manager
NI Counties
Cc HR admin”
(xxviii) The claimant did not respond to this letter and continued to submit sickness certificates until her resignation letter was received, dated 19 September 2013, which states as follows:-
“Dear Madam
It is with great regret that I am writing this letter in order to tender my resignation from my employment with immediate effect. In light of the actions of the company I have no option but to treat my contract of employment as being repudiated.
The continual failures on behalf of the Company over the previous few years in relation to my employment has led to a complete breakdown in the mutual trust and confidence that existed between us as employer and employee.
I have been an exemplary employee with 33 years of service. Despite this, unfounded allegations were made against me by members of management. When I challenged these allegations, no investigation took place and despite repeatedly indicating the fact that these allegations were left “hanging” over me were having a detrimental effect on my health and wellbeing this was ignored.
Subsequent to this I was then blamed for the errors of others. The details of which I have already provided in my grievance to the company.
As a direct result of the company’s failures I have now been off on sick leave for almost one year. The failure of the company to deal in any way adequately with my grievance or my concerns has exacerbated the situation.
The manner and way I have been treated and the false allegations levied against me have led me to treat my contract as repudiated.
Yours sincerely
Barbara Huey (Staff Number E00663221)
Cc Regional Manager, Lee Mallon
Cc HR Administration/Personnel”
(xxix) The tribunal is satisfied that the respondent provided a reasonable explanation for the delay in dealing with the claimant’s grievance raised by her on 17 November 2012 and dealt with by Sharon Heffron on 4 February 2013. The letter had in fact been delivered to the Branch Manager who was off on extended leave due to a bereavement. The correspondence was not opened until her return from leave. The respondent’s policy states that normally a grievance will be heard within 14 days after being received. The claimant appealed against the grievance outcome on 13 March 2013. The appeal request was acknowledged by the respondent on 22 March 2013 and was followed by further correspondence from the claimant dated 4 April 2013 already referred to in this decision. The correspondence inviting her to the grievance appeal meeting was dated 16 April 2013 and the appeal meeting took place on 22 April 2013. The tribunal does not accept that in the overall circumstances, there was an undue delay in dealing with the appeal.
(xxx) In his appeal outcome letter dated 11 June 2013, Brian Martin fairly states that:-
“From my investigations it is my view that there is some learning for the business from this case which I will discuss with those concerned as required”.
(xxxi) However, notwithstanding references to “disciplinaries”, a “Stage 3 investigation” and in the note of a meeting of a conference call held on 29 July 2013 to “Stage 3 pending”, there is insufficient evidence before the tribunal to enable it to make a finding that the claimant was subjected to any formal investigation, disciplinary procedures, or disciplinary sanctions at any time prior to her resignation. Furthermore at all material times the claimant’s honesty and good previous record were not called in question. She was obviously disappointed in not having obtained full pay from April 2013 onwards and in having failed to have a period of sick leave treated as garden leave. The tribunal is satisfied that the claimant had absolutely no express or implied contractual entitlement to either of these and therefore finds that the respondent’s response to such requests was reasonable.
(xxxii) The tribunal also accepts, in light of her previous good record, that the claimant was shocked, distressed, and upset, by the train of events emanating from the two audits. She acknowledged that breaches had occurred but sought to explain and justify her actions. She was also anxious to secure some form of apology and exoneration. Instead of a personalised version of the “line in the sand letter” dated 30 June 2012 (received by the claimant after the grievance appeal outcome in June 2013), the meritorious suggestion made by Brian Martin in his evidence that he probably would have made some reference in any personal outcome letter to the claimant, to the seven allegations referred to in the correspondence to the claimant of 14 May 2012, may have assuaged her concerns, if issued on 30 June 2012. The second undated outcome letter referring to the second audit could have been sent to the claimant well in advance of 19 July 2013.
(xxxiii) The personalised version of the 30 June 2012 correspondence received by the claimant in June 2013 was followed by discussions between the respondent and the claimant aimed towards her return to work. In reality, it is difficult to envisage how the respondent, (apart from issuing a more personalised letter relating to the May 2012 audit, and providing such a letter more expeditiously in relation to the July 2012 audit), could have advanced the matter further - at least from 2 July 2013 until her resignation. The meeting held on 2 July 2013 does not appear to have referred to personal outcome letters at all. The focus of all concerned, including the claimant, was upon her return to work. In the course of this meeting she raised the issue of garden leave and sick pay.
(xxiiv) It was not disputed that the claimant had access to Union assistance at all material times.
(xxxv) The tribunal considered Dr Cathcart’s medical report dated 28 February 2014 together with the claimant’s alleged loss and evidence in relation to mitigation of loss. It also considered the report prepared by Nicola Niblock and her oral evidence before the tribunal, in relation to the claimant’s alleged loss.
THE LAW
5. (i) Article 127 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) states as follows:-
“127. – (1) for the purposes of this Part an employee is dismissed by his employer if … - (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.
(ii) Article 156(2) of the Order states as follows:-
“Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly”.
(iii) The Order further states at Article 157(6) as follows:-
“Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding”.
(iv) Harvey on Industrial Relations and Employment Law (“Harvey”) states at Division D1 at 403 as follows:-
“In order for the employee to be able to claim constructive dismissal, four conditions must be met:
(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.
(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.
(3) He must leave in response to the breach and not for some other, unconnected reason.
(4) He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract”.
(See also Western Excavating (ECC) Limited v Sharp 1978 IRLR 27).
(v) Harvey continues:-
“(b) The duty of co-operation
[461] More recently the EAT has specifically followed the Post Office case on this point (Woods v WM Car Services (Peterborough) Ltd 1981] IRLR 347, [1981] ICR 666). The Tribunal emphasised the significance of this duty for employers not to conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of mutual confidence and trust. As it pointed out, it enables an employee who is ‘squeezed out’ of the company by the wholly unreasonable conduct of the employer to leave and claim that he has been dismissed even though he cannot point to any specific major breach of contract by the employer.
[462] This duty not to undermine the trust and confidence in the employment relationship can be subsumed under a wider contractual duty which is imposed on the employer, to co-operate with the employee.”
(vi) Once a tribunal has established that a relevant contractual term exists and that a breach has occurred, it must then consider whether the breach is fundamental. Where an employer breaches the implied term of trust and confidence, the breach is inevitably fundamental (Morrow v Safeway Stores plc 2002 IRLR 9, EAT). A key factor to be taken into account in assessing whether the breach is fundamental is the effect that the breach has on the employee concerned.
(vii) It is also possible for a tribunal to make a finding of contributory conduct in a constructive dismissal case in the event of there being a connection between the employee’s conduct and the fundamental breach by the employer. As was pointed out in the Northern Ireland Court of Appeal case of Morrison v Amalgamated Transport and General Workers Union (1989) IRLR 361 NICA, since it was open to a tribunal to declare a constructive dismissal fair, there could be no inconsistency in its holding that the employee contributed to the dismissal in the first place. All that is required is that the action of the employee to some extent contributed to the dismissal. Once a tribunal has found on the evidence that an employee has to some extent caused or contributed to his or her dismissal it shall reduce the compensatory award.
(viii) Unlike an anticipatory breach of contract, an actual breach of contract cannot be retrieved by the employer offering to make amends before the employee leaves. Once the breach has been committed it is for the wronged party to decide how to respond (Buckland v Bournemouth University [2010] IRLR 445 CA).
(ix) In Mahmud and Malik v Bank of Credit and Commerce International SA [1997] IRLR 606, (‘Malik’) the duty of implied trust and confidence was affirmed by the House of Lords in the following terms:-
“The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.”
Lord Steyn stated that:-
“The implied obligation as formulated is apt to cover the great diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.”
(x) The test for breach of the implied duty of trust and confidence is an objective one. The duty of trust and confidence may be undermined even if the conduct in question is not directed specifically at the employee. The duty may be broken even if an employee’s trust and confidence is not undermined. It also follows that there will be no breach simply because an employee subjectively feels that such a breach has occurred, no matter how genuinely this view is held.
(xi) The range of reasonable responses test is not applicable to constructive dismissal per se. However it is open to the employer to show that such a dismissal was for a potentially fair reason in which case the range of reasonable responses test becomes relevant.
(xii) The breach of contract must be “sufficiently important” to justify the employee resigning or it must be the last in a series of incidents which justify his leaving. It must go to the heart of the contractual relationship between the parties. Harvey comments that where the alleged breach of the implied term of trust and confidence constitutes a series of acts, the essential ingredient of the final act is that it is an act in a series, the cumulative effect of which amounts to the breach. It follows that although the final act may not be blameworthy or unreasonable, it must contribute something to the breach even if it was relatively insignificant (Harvey Division D, paragraph 481.01). See Omilaju v Waltham Forest London Borough Council [2005] IRLR 35.
(xiii) The employee must resign in response to the breach. In the recent EAT case of Wright v North Ayrshire Council [2014] IRLR 4, (“Wright”) Mr Justice Langstaff (President) states at paragraph 20 of his judgment that:-
“Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause.”
(xiv) In Western Excavating (ECC) Ltd v Sharp (1978) IRLR 27 CA, it was pointed out that an employee must make up his mind regarding resignation soon after the conduct of which he complains. Should he continue any length of time without leaving, he will lose his right to treat himself as discharged from the contract. However, where there is no fixed period of time within which the employee must make up his mind, a reasonable period is allowed. This period will depend on the circumstances of the case including the employee’s length of service, and whether the employee has protested against any breach of contract.
(xv) The tribunal also considered the recent case of Chindove v William Morrison Supermarkets Ltd (“Chindove”) UKEAT10201113 (26 June 2014, unreported).
SUBMISSIONS
6. The tribunal carefully considered the helpful written and oral submissions made by both counsel. The written submissions are appended to this decision. These include, at the tribunal’s request, further written submissions in light of the recent case of Chindove. Miss Best, for the claimant, stated that she was no longer relying on paragraph 2.26 of her written submissions.
CONCLUSIONS
7. The tribunal carefully considered the law relating to constructive dismissal and the conditions which must be met in order for the claimant to be able to claim constructive dismissal. Having applied the relevant principles of law to the findings of fact, the tribunal concludes as follows:-
(1) Notwithstanding unsatisfactory aspects of the respondent’s handling of the matter, reflected in confusion as to whether the formal stages of the disciplinary policy were engaged, the failure to issue a clear, simple, personal outcome letter especially relating to the first audit and the respondent’s need to apologise to the claimant at certain stages throughout the process, the tribunal is not persuaded that the respondent without reasonable and proper cause conducted itself in a manner calculated and likely to destroy or serious damage the relationship of trust and confidence between itself and the claimant.
(2) As Lord Steyn stated in Malik:-
“A balance has to be struck between the employer’s interest in managing its
business as he sees fit, and the employer’s interest in not being unfairly and
improperly exploited”
(3) The test for breach of the implied duty of trust and confidence is an objective test. There will be no breach simply because an employee subjectively feels that such a breach has occurred, no matter how genuinely this view is held. The tribunal is in no doubt that the claimant was an honest employee who worked hard for some 33 years, first of all for Abbey National, and then for the respondent. She obviously felt shocked, hurt and distressed when allegations were made against her in correspondence of 14 May 2012, following the first audit, and again, following the second audit. She did accept, however, that breaches of procedure had occurred (which merited investigation involving herself), into apparent breaches of the risk and compliance procedures for which she had personal and professional responsibility under her contract of employment. The claimant at all times sought to justify and explain her actions. Her explanations were not challenged by the respondent, nor was her honesty. The tribunal has considerable sympathy for the claimant in the circumstances in which she found herself.
(4) The fact that the claimant expressed a desire to return to work at the initial grievance hearing on 4 February 2013 and, albeit with some reservations, during the grievance appeal hearing held on 22 April 2013, and again following the more personal “line in the sand” letter during the meeting on 2 July 2013, points away from a repudiatory breach of contract. The correspondence of 29 July 2013 from Lee Mallon to the claimant also shows that a return to work was discussed during their meeting on 19 July. No correspondence was received from the claimant after this meeting until her resignation letter, the contents of which flow against the trend of developments up to that point. She had given clear indications of a return to work and the respondent had shown a willingness to facilitate such a return.
(5) Thus, in light of its findings of fact, when considered against its analysis of the relevant legal principles the tribunal is not satisfied that the claimant has established a repudiatory breach or breaches of contract which is/are sufficiently important to justify her resignation.
(6) The claimant’s claim of constructive dismissal must therefore be dismissed. Furthermore her claim for breach of contract/unlawful deduction of wages relating to the period from April 2013 is dismissed.
Employment Judge:
Date and place of hearing: 27-29 May 2014 and 2 July 2014, Belfast.
Date decision recorded in register and issued to parties:
