Industrial Tribunals Northern Ireland Decisions

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Cite as: [2014] NIIT 404_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 404/13

520/13

1603/13

CLAIMANT: Kieron Fitzsimons

RESPONDENTS: 1. Youth Justice Agency of Northern Ireland

2. Cathy Heaney

3. Michael Heaney

4. Department of Justice

DECISION

The unanimous decision of the tribunal is that the claimant’s claims of unfair constructive dismissal and discrimination by way of victimisation contrary to Section 55 of the Disability Discrimination Act 1995 as amended are dismissed.

Constitution of Tribunal:

Chairman: Ms J Knight

Panel Members: Mrs T Madden

Mr F Murtagh

Appearances:

The claimant was represented by Mr S Doherty, Barrister-at-Law, instructed by Worthingtons Solicitors.

The respondent was represented by Mr M McEvoy, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

Issues

1. The claimant lodged his originating claim with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 19 February 2013 in which he complained that he had been unfairly constructively dismissed; and that on grounds of his disability, he had been subjected to less favourable treatment and harassment contrary to Sections 5 and 38 of the Disability Discrimination Act 1995; and further that he had been unlawfully victimised contrary to Section 55 of the Disability Discrimination Act 1995 (the “DDA”).

2. The tribunal dismissed the claimant’s complaints pursuant to Sections 5 and 38 of the DDA following their withdrawal by the claimant without objection from the respondent. It was further confirmed that the first named respondent is the correct respondent and therefore the second third and fourth named respondents were dismissed as parties from the proceedings.

3. The following legal issues, agreed between the parties, remained to be determined by the tribunal:

(i) Did the respondent commit a fundamental and repudiatory breach of the claimant’s contract of employment resulting in the claimant’s resignation on
8 February 2013 and did the actions and/or inactions of the respondent destroy the implied term of trust and confidence within the employment contract contrary to the provisions of the Employment Rights (Northern Ireland) Order 1996 as amended?

(ii) Did the first named respondent breach the claimant’s contract of employment by substantively altering the duties of his post of Activities Learning Manager?

(iii) If the answer to (ii) is yes, did this breach constitute a fundamental and repudiatory breach of his contract?

(iv) Did the respondent unlawfully victimise the claimant contrary to Section 55 of the Disability Discrimination Act as amended when its solicitor wrote to the claimant’s new employer seeking?

(v) If either or both of the claimant’s claims are well founded, what is the appropriate remedy and should this be increased if the tribunal finds that the respondent did not comply with the Labour Relations Code of Practice for dealing with Grievances in the workplace?

Evidence

4. The tribunal heard oral evidence from the claimant, Mr Kieron Fitzsimons, on his own behalf and from Ms Lisa Hoy, Full Time NIPSA representative in the Department of Justice. For the respondent the tribunal heard oral evidence from
Ms Mary Brannigan, Director of Youth Services, Ms Valerie Faulkner, Human Resources Department, Mr Michael Heaney, Assistant Director Community Services, the claimant’s line manager and Ms Cathy Heaney, Head of Human Resources. The tribunal also considered documents to which it was referred during the hearing.

Findings of Fact

5. The tribunal made the following findings of relevant fact to be proven on a balance of probabilities.

6. The claimant commenced employment on 2 September 1996 as Activities Manager, a member of the middle management team, in Lisnevin School, then a facility for young offenders. The now dissolved Juvenile Justice Board had responsibility for Lisnevin School and was the claimant’s employer at the time. The claimant was issued with a statement of the terms and conditions of his employment and a job description. His responsibilities as set out in his job description included the delivery to the young people detained in Lisnevin, of an agreed range of recreational and character building activities, the introduction and development of a Lisnevin based Duke of Edinburgh Award Scheme and the direct supervision of selected elements of recreation and Duke of Edinburgh programmes such as hill walking, kayaking and adventure type activities and expeditions. This was work that he very much enjoyed. The claimant line managed Mr John McAvennie, the Outdoor Pursuits Instructor.

7. The claimant has a Level 4 coaching qualification in open boat and kayak accredited by the British Canoe Union System and holds other qualifications including hill walking and an advanced leadership award. In order to maintain his coaching status he is required to update his qualifications with the accrediting body every three years and has to demonstrate the ability to perform in those type of sports and to be able to pass on skills to others. He is an accredited assessor and trainer in the Duke of Edinburgh Award scheme at Gold level.

8. On 1 April 2003 the claimant’s employment transferred to the Northern Ireland Civil Service as a consequence of the dissolution of the Juvenile Justice Board and the transfer of its responsibilities to the newly created Youth Justice Agency.

9. The claimant was notified in advance of the arrangement made for the transfer of his employment by letter dated the 24 March 2003 from the personnel service of the Northern Ireland Office. He was appointed to the Department of Finance and Personnel and seconded to the Northern Ireland Office. There was no material change to his working arrangements as at the 1April 2003. He was paid at the same level as a manager on a mobile grade. The arrangement was agreed with staff representatives and the claimant’s employment became subject to Northern Ireland Civil Service terms and conditions of employment as contained in the Northern Ireland Civil Service HR Handbook.

10. The HR handbook contains the HR policies including a policy on redeployment at Section 2.06. The policy sets out arrangements for the redeployment of all permanent NICS staff who for whatever reason, become surplus to a department’s requirement. The primary aim is to ensure the absorption of surplus staff by means of redeployment either to other suitable posts in the same department or to another department. The employing department is initially responsible to make every effort to absorb its own surplus staff or place them in other departments and only when these measures have been exhausted can a formal surplus be declared. Civil servants on mobile grades will only be declared redundant in situations where there is no suitable post available anywhere in the Northern Ireland Civil Service. If in a non-mobile grade civil servants will only be declared redundant if there is no suitable post available within reasonable daily travelling distance of that person’s home either in the same or another department.

11. Lisnevin School closed as a young offender’s facility in October 2003. The claimant’s post necessarily moved into the community with the closure of Lisnevin and he managed the recently established Adventure Learning Project (“ALP”) and was line managed by Mr Michael Heaney, Assistant Director of Community Services. His job title around this time changed to Adventure Learning Project Manager and Mr McAvennie was designated Outdoor Learning Instructor. The claimant remained Mr McAvennie’s Line Manager.

12. In 2007 a review was carried out of education provision within the Youth Justice Agency. It was only realised afterwards by both the claimant and the respondent that the review had inadvertently included adventure learning provision. Neither the claimant, Mr McAvennie, nor their trade union representative was consulted during the course of the review. The Education Review recommended that the respondent should discontinue ALP. The Youth Justice Agency Board agreed to commission a further independent review of the Adventure Learning Project in view of a flawed process.

13. In May/June 2008 a further review was carried out by Mr Ciaran Traynor. The main findings of the report, which was submitted to the Youth Justice Agency Board in June 2008, were that ALP was not sufficiently integrated with other interventions offered by Community Services, did not focus specifically enough on factors associated with offending behaviour, that ALP services were not cost effective and that similar services could be provided more cost effectively by external providers. The Youth Justice Agency Board accepted the main findings of the report and recommended that ALP should be restructured to ensure more efficient and cost effective delivery of services.

14. An implementation plan was agreed, following consultation with Community Services staff, including the claimant and Mr McAvennie. This provided that ALP should be audited after twelve months to establish whether the restructuring had achieved its goal of making the service more cost effective and efficient. Guidance for practice was developed to help implement the restructuring and change in practice. The claimant’s working week was restructured and he provided three days adventure learning activities as before and two days setting up and supervising of outdoor based reparative placements for young offenders, referred to the Agency either by the Youth Court or the Public Prosecutions Service. The restructured ALP service was monitored throughout the period. Mr Heaney carried out an audit during which he requested feedback from both the claimant and
Mr McAvennie and the users of the ALP services which was included in his report completed in October 2009. Mr Heaney concluded that the ALP services were still not cost effective in terms of working with enough young people, were not sufficiently integrated with other community services and the ALP was not sufficiently focused on factors related to offending.

15. The Board of the Youth Justice Agency considered the audit report in October 2009 and decided to discontinue the ALP and to outsource these services. The tribunal accepts that this was an unsettling period for the claimant and he was anxious about his future role within the Youth Justice Agency. He went on sick leave on the 23October 2009 due to “stress at work” and returned to work on the
6January 2010.

16. He was unable to return to the duties he had been carrying out prior to sick leave due to the closure of the ALP. Negotiations took place over the next few months between the claimant and Mr Heaney concerning his redeployment and although the claimant was reluctant, it was agreed that he would be seconded to work for Challenge for Youth (“CFY”) for an initial three month trial period. Mr Heaney considered that this was a good solution as the claimant was able to continue doing the work he enjoyed and in return for his services, the Youth Justice Agency would be able to access other personal development programmes provided by CFY.
Mr McAvennie was seconded to the Belfast Activity Centre.

17. The claimant was happy with the placement. During the secondment period
Mr Heaney had regular meetings with and continued as the claimant’s line manager. He continued to be paid by the respondent. His claims for time off in lieu of notice were verified by CFY staff.

18. On 12 April 2010 police and justice functions transferred to the new Department of Justice (“DOJ”) at devolution. The Youth Justice Agency and its employees, including the claimant, transferred to the Department of Justice on that date. All affected employees retained their Northern Ireland Civil Service status. The claimant’s terms and conditions and continuity of employment were protected in the transfer.

19. The DOJ’s procurement policy and procedures, which now applied to the Youth Justice Agency, required open competitive tender. It was realised that this posed a problem for the claimant’s placement as it was effectively a single tender action which contravened the procurement policy.

20. Mr Heaney met with the claimant on 10February 2011 to discuss the future of his secondment to CFY. Mr Heaney explained the financial situation of the Youth Justice Agency and that there was a need to review services and contracts. The Youth Justice Agency Board was to discuss the future of the secondment of the claimant and Mr McAvennie to Challenge for Youth and Belfast Activity centre respectively. It was agreed that a further meeting would be arranged when future plans for the Challenge for Youth were clearer. Mr Heaney advised the claimant about the competitive tendering requirement and the implications for the claimant’s placement with CFY.

21. Mr Heaney and the claimant met again on 16 May 2011. Mr Heaney advised that the secondment through the current arrangement would finish at the end of
June 2011. He informed the claimant that it was anticipated that CFY would probably bid to provide activity learning services on the basis that the claimant’s secondment would continue as a means of payment from the Youth Justice Agency. Mr Heaney advised that this would not be possible due to the procurement rules. He informed the claimant that he was likely to be offered a position supervising reparative placements or working as a care worker in Woodlands. The claimant indicated that he was not keen on the Woodlands option but would consider the reparative role depending on how it was set up. The claimant told the tribunal that it was important to him that the role was set up to meet his needs.
Mr Heaney’s view was that the Agency’s requirement for adventure and activity based learning had diminished whereas there was a greater need for supervised reparative placements. Around this time Mr Heaney drafted a job description for Reparation Placement Supervisor, although this was not shared with the claimant at this stage.

22. Mr Heaney met again with the claimant on 6September 2011. He informed the claimant that the secondment with CFY would finish at the end of September 2011. He informed the claimant that the Youth Justice Agency was exploring the option that he could set up and supervise adventure learning related reparative placements but it was still not clear if HR would consider this to be a viable proposal. He confirmed that the care worker post in the Juvenile Justice Centre was available but the claimant was least keen on this option. The claimant’s preferred option was to remain on placement with CFY. Mr Heaney suggested it would be useful for the claimant to meet with Ms Cathy Heaney of Human Resources to discuss his further options.

23. The claimant met again with Mr Heaney on 18October 2011 and confirmed that he had had a discussion with Ms Heaney and had “felt heard”. He understood that his preference to remain on secondment with CFY was not possible. The claimant was informed that his secondment with CFY would continue until the end of
December 2011. It was agreed that Mr Heaney would email Ms Heaney to remind her about a possible meeting with the Director of the Juvenile Justice Centre to arrange a visit to Woodlands and to remind her that it was the claimant’s hope to be notified of his options in good time. However, this meeting was not arranged as the claimant was not interested in this option.

24. On 18 November 2011, Mr Heaney sent an amended version of the job description of Reparation Placement Supervisor to Ms Heaney. The intention was that the claimant would be asked to fill this role and that he would be based in the North Belfast office. The role involved helping to set up and monitor community based reparative placements and supervising young people involved in community based reparative placements in the greater Belfast area with the purpose and objectives the reduction of offending and to the repair of harm cause by offending.

25. A meeting took place on 6 December 2011 arranged by Ms Heaney to discuss the claimant taking up the Reparation Placement supervisor role. Mr Michael Heaney was also present and the claimant was accompanied by his full time Union Official, Mr Bryan Milford. Unfortunately there was no written record of this HR meeting. The tribunal accepted Mr Heaney’s evidence that two documents were discussed with the claimant at the meeting, namely the proposal and the job description for the post. Mr Heaney’s understanding at the end of the meeting was that the claimant had reluctantly agreed to take up the post and that he was due to report to North Belfast the following day.

26. However on 7 December 2011 the claimant went on sick leave again. He attended with his GP on 8 December 2011 with flu like illness and a chest infection. He subsequently was diagnosed with shingles which the claimant suggested may have been caused by work related stress, although there was no medical evidence to support this contention. Mr Heaney tried to contact the claimant over the next couple of months but when he rang his phone was always switched off. The claimant rang Mr Heaney following receipt of a letter from HR on 15 February 2012 advising him that his pay had been stopped as he had not been submitting any sick lines. This issue was resolved.

27. On 30 April 2012 Ms Valerie Faulkner of Human Resources wrote to the claimant to inform him that his long term sickness absence would now be managed in accordance with the Youth Justice Agency and Northern Ireland Civil Service Inefficiency Sickness Absence Policy. In accordance with this policy the claimant was referred for examination by an Independent Occupation Health Consultant,
Dr Glasgow on 18April 2012. He was reviewed by Dr Glasgow in July 2012 who confirmed that the claimant was medically unfit to return to work. The claimant attended a meeting with Ms Faulkner on 16July 2012 to discuss his sickness absence and to explore any reasonable adjustments to facilitate his early return to work. During that meeting the claimant expressed a concern that there was no post to which he could return. Ms Faulkner wrote to the claimant on 17 July to advise that she had spoken with Ms Heaney who confirmed that it has already been discussed with the claimant that he would be based in North Belfast setting up and managing outdoor based reparative activities. She further advised that there would be a further referral to Dr Glasgow and “you should be aware that should you continue to be deemed unfit after this referral it will not be possible to hold your post open indefinitely and we may have to consider possible ill health retirement or dismissal on grounds of efficiency if an early return to work cannot be expected”.

28. Dr Glasgow examined the claimant on 26 September 2012 and again on
16 November 2012. He was provided with the job description of Reparation Placement Supervisor. By the latter date Dr Glasgow advised that the claimant had sufficiently recovered to enable him to return to work from 3 December 2012.
Dr Glasgow recommended a phased return to work so that by mid January the claimant would have reached a stage where he would be fit to undertake the full range of duties. His view was that driving would still be particularly tiring for the claimant and he stated that excessive driving within any job would be difficult for the claimant to achieve. The claimant was provided with a copy of Dr Glasgow’s report and he wrote to the respondent to request a copy of the job description.

29. On 26November 2012 the claimant attended a meeting in Waring Street Belfast to discuss Dr Glasgow’s report and the arrangements for his anticipated return to work on 3 December. The claimant was accompanied by his trade union representative Lisa Hoy. The first part of the meeting was conducted by Ms Faulkner. The claimant contended that he had not previously been made aware of what the job had entailed and had not been provided with a copy of the job description which
Ms Faulkner had given him. He enquired whether the new post could be located in the Newtownards Office and was informed by Ms Faulkner that there was no room in the Newtownards Office for another member of staff and that the bulk of the work would be in and around Belfast. The claimant queried why his secondment had ended whereas Mr McAvennie’s secondment had been extended. He expressed concerns that by taking up this post he would lose his skills and qualifications and that he had not been required to transport young people in his previous post. Ms Faulkner informed the claimant that there had been many changes within the Agency recently and that his former post no longer existed. The claimant confirmed he would return to work on Monday 3 December and discuss the post further with
Mr Heaney. The meeting with Ms Faulkner ended at this point.

30. Mr Heaney who was in Waring Street came in to speak to the claimant afterwards. The claimant expressed concerns that the job description did not allow him to be involved enough with adventure learning activities which were the jobs that he wished to do and is qualified to do and that the role would not permit him to keep up to date his adventure learning qualifications. Mr Heaney explained that the respondent was keen to develop activity based reparative placements for young people who need or enjoy more active placements and that the role that the Agency had available for the claimant was more about reparation and less about adventure learning. He suggested that adventure learning could be a medium through which the service to the community is delivered. He asked the claimant to consider and propose ideas as to how he might be able to use adventure learning skills to provide outdoor based reparative activities. If his ideas were to fit with Agency expectations there may be a basis to move forward but if not then other options would have to be considered by the Agency and HR, the claimant and his union. It was agreed that the claimant would attend at CFY on the 3 December 2012 to finish off there and would give Mr Heaney his proposal that day at the North Belfast Office. It was agreed that the claimant would have a phased return to work if he agreed to take up this role. A provisional meeting was arranged between the claimant and Mr Heaney for 10 December to progress matters.

31. On 27 November 2012 the claimant emailed his response to the job description for Reparation Placement Supervisor to Mr Heaney, copying in Paula Jacks, Mary Brannigan and Martin Gunning. He made a number of points about the process and complained that he had been in a “limbo situation” since 2007. He reiterated that he had not been provided with a copy of the job description until it was requested by him after his visit to the Occupational Health meeting with Dr Glasgow on 16 November 2012. His stated concerns were that the job description would not permit him to deliver outdoor activities and therefore he would not be able to continue to hold and update qualifications, he would no longer be involved in the Duke of Edinburgh Award Scheme at any level even though his original job description states that it is one of his responsibilities that he is a Duke of Edinburgh Award, Assessor and Trainer to gold level, that he had been treated unequally and unfairly in comparison to Mr McAvennie in that his secondment with CFY had been terminated; and, that the job title of Reparation Placement Supervisor and the job description as a whole was not similar to the work he was originally employed to do, did not encompass any of his skills and qualifications and diminished his status as a manager. He proposed that the job title should remain “Activities Manager as per contract of employment” and that the role should deliver the BCU foundation safety and rescue training course with follow up activities for the young people involved in the course. Mr Heaney phoned the claimant to confirm that he would discuss his proposal which contained some promising ideas although his view was that the focus needed to change to reparative placements. At the tribunal hearing the claimant accepted that there had been an ongoing discussion and process of dialogue with Mr Heaney but for him it was not a positive one.

32. On 4 December 2012 the claimant, who was at that point on annual leave, wrote to the Chief Executive of the Agency, Ms Paula Jacks in almost exactly the same terms contending that the process had been handled very badly from the beginning and that the Agency had ignored his needs in terms of his role and that, with regards to his health and medical condition, was failing in his duty of care towards him.

33. Ms Heaney convened a further meeting with the claimant on 18 January 2013 to address the arrangements for him to return to work in North Belfast as a reparation supervisor. Michael Heaney was also present and the claimant was accompanied by Ms Hoy. The claimant stated that he was unhappy at how his post had changed and evolved, that he wished to do the job he had been recruited to do and that he was unwilling to take up the post of reparation supervisor. He objected to the title. Ms Heaney confirmed that the title would be changed to manager. The claimant viewed this as a cosmetic change. Mr Heaney told the claimant that the job was comparable to his previous post and as the outdoor pursuits service within the Agency no longer existed, it was reasonable to post the claimant to this position. The claimant raised the issue of deskilling and that he would lose skills he had built up through lack of use. Both Ms Heaney and Mr Heaney urged him to view this as an opportunity to re-skill. Mr Heaney also confirmed that there may be some opportunities for the claimant to become more interactive with various parts of the projects. Ms Heaney summarised the position of HR as follows;

· The post of Reparation Placement Manager was comparable to the post previously held by the claimant.

· The claimant would be expected to take up this post.

· He would receive a full performance agreement and personal development plan to help with his transition.

· The post would offer him the opportunity to develop himself in the service.

· There was no other post available for the claimant.

The claimant asked Ms Heaney if there was any alternative and she confirmed that there was not and also made clear that there was no possibility of redundancy. The claimant added that he was being treated differently to Mr McAvennie. Ms Heaney declined to discuss Mr McAvennie’s position as she did not regard him as a comparator. Ms Heaney asked the claimant to confirm in due course whether he would be taking up the post of Reparation Placement Manager in North Belfast and when he would be returning to work. Ms Hoy and the claimant discussed the position after the meeting. Ms Hoy’s own view was that the claimant should accept the post. Her note of the meeting was that “failure to accept the post would result in Kieron no longer being an employee of the Agency”. The union’s position was to preserve the claimant’s employment. The claimant informed Ms Hoy that as far as he was concerned this was no a comparable post and in his view his position was redundant. However he agreed to consider the post and advise Ms Heaney and Ms Hoy of his decision the following week.

34. On 24 January 2013 the claimant applied for the position of Outdoor Youth Development Worker with CFY with young people not in employment or education. His application was successful and he accepted an offer of the position on
25 February 2013 to take up the post on 8 March 2013. This involved the claimant being based at the CFY which is situated in Upper Donegall Street on the north side of Belfast city centre. This post involved the claimant undertaking driving duties.

35. On 30 January 2013 the claimant raised a formal grievance by email sent to
Cathy Heaney and Michael Heaney and copied in Ms Hoy. He repeated the matters already raised by him in his previous correspondence and complaining that the Agency was attempting unilaterally to vary his terms and conditions of employment without meaningful consultation and discussion. He stated that he did not accept the new duties as outlined by the Agency in the draft job description for Reparation Placement Supervisor and that he believed that his post of Activities Manager was possibly redundant and that he should be placed at risk of redundancy and the redundancy process invoked. He stated that “any other post including the recreational supervisor post should be offered to me by way of suitable alternative employment as opposed to a fait accompli”. He alleged that he had been bullied and harassed by Ms Heaney. He stated that he was willing to negotiate on the job duties of the new post however he would not accept the duties as they stand. He contended that he was a disabled person within the meaning of the Disability Discrimination Act and that he had been treated less favourably than Mr McAvennie in the termination of his secondment post. He requested as a reasonable adjustment that the Agency enters into negotiations to reach an agreement. He contended that the respondent had ignored Dr Glasgow’s recommendations concerning his difficulty in driving for excessive periods of time and suggested that the respondent had unreasonably failed to adhere to the Labour Relations Agency Code of Practice 2011 by not treating his email of
27November 2012 as a grievance.

36. Upon receipt of this email the respondent sought advice internally as to whether this complaint should be investigated under the Dignity at Work policy or the Grievance Policy. The view taken was that this did not fall under the Dignity at Work policy and the complaint was passed to Ms Mary Brannigan to deal with under paragraph 5.42 of the Grievance Policy.

37. Ms Heaney responded by email to the claimant on 31January 2013 asking him to report to Human Resources Branch on 5 February 2013 at 9am. She wrote, “You have stated that you are not accepting the post of reparation manager. As explained to you at our meeting on the 18^th January there are no alternate posts available. Can I ask that you confirm by return email that you are resigning from the Youth Justice Agency.” The claimant responded that he was not resigning but was prepared to negotiate the duties of the post.

38. The claimant attended and was accompanied to the meeting on 5 February 2013 by
Ms Hoy. Ms Heaney conducted the first part of the meeting to welcome the claimant back to work and to the role of Reparation Placement Manager.
Ms Heaney told the tribunal in order to clear up any doubt this was the claimant’s post she issued him with a management instruction that he should take up the post in North Belfast. The claimant did not raise any objection. Immediately afterwards Mr Michael Heaney met with the claimant. Mr Heaney clarified that the claimant would be taking up the duties of Reparation Placement Supervisor but that the job description would be amended to Reparative Placement Manager. Mr Heaney confirmed that the claimant would be based in North Belfast covering central Belfast, Lisburn, Newtownards areas and that his role would be to set up and supervise outdoor based reparative placements. He acknowledged that some outdoor activities may also be adventure learning activities but the primary focus must always be on reparation. The claimant did not raise any objections to the practicalities that were being put in place for him to take up the post. Mr Heaney discussed the arrangements for the induction process and the same afternoon the claimant received training in the Youth Justice Agency headquarters on how to use the Oasis system and the respondent’s intranet so as to familiarise himself with the respondent’s structure, policies and procedures. It was agreed that the claimant would meet with Mr Heaney and meet with his Line Manager and colleagues at the North Belfast Office on Thursday 7 February 2013. The tribunal accepted the evidence of Mr Heaney and Ms Heaney that the claimant on this occasion by his demeanour and actions in participating in the induction training, gave the impression that he was taking up the post.

39. However, on 7 February 2013 the claimant did not appear at the North Belfast Office as arranged. Mr Heaney telephoned the claimant who advised him that he was in the Newtownards Office picking up some things. When Mr Heaney asked why he was not in North Belfast the claimant responded that he was not aware he was supposed to be in North Belfast. Mr Heaney asked him to come up to the North Belfast Office as soon as possible. Mr Heaney was irritated by the claimant’s response and the tribunal accepted his evidence that he was a bit abrupt with the claimant when he spoke to him on the phone. Mr Heaney had requested that a message be sent to the claimant to confirm the time of the meeting in North Belfast at 9.00 am. He only subsequently learned that the claimant did not get that message. Mr Heaney subsequently apologised to the claimant for his abruptness. However the tribunal accepts that even though the claimant had not received the information about the time of the meeting he was well aware that he was to attend at the North Belfast Office that day. Mr Heaney was not present when the claimant arrived at the North Belfast office and he was shown around by Ms Patricia Muldoon, the Assistant Director of North Belfast, who introduced to other staff members. Mr Heaney later joined the claimant and Ms Muldoon to carry out an induction of the claimant into his new post of Reparation Placement Manager. The claimant informed Mr Heaney that he had not yet accepted the post and that he thought the meeting was to agree a general induction into the Agency in North Belfast. He referred to his grievance and was informed by Mr Heaney that this was being addressed separately and outside the induction process. The claimant repeated that he had not agreed to the arrangement made for him to come to North Belfast to undertake the role of Reparation Placement Manager. Mr Heaney stated that in his view he had agreed. Mr Heaney stopped the meeting at this point and left to seek telephone advice from Ms Heaney. She advised Mr Heaney to inform the claimant that he was instructing the claimant to take up his post and that he was not negotiating about whether or not he wishes to do so. Ms Heaney advised
Mr Heaney to invoke the disciplinary procedures if the claimant refused to take up his post. When the meeting resumed Mr Heaney informed the claimant that
Ms Heaney was clear that the claimant had been instructed to take up the post of Reparation Placement Provider and he planned to resume the meeting with Ms Muldoon on that basis. Mr Heaney informed the claimant that he was not seeking his agreement but was telling him as his manager that this was his post and that they were going to begin the process of inducting him into it. Mr Heaney confirmed the role was not negotiable but it was possible to negotiate some of the ways the claimant might go about it. The tribunal did not accept the claimant’s evidence that Mr Heaney was angry, threatening and aggressive or that he told him several times “Stop, stop I feel very ill now”. The claimant stated that he was not well enough to have this type of conversation although he confirmed that he was well enough to work. Mr Heaney responded if he was well enough to be in work then they needed to have this conversation. The claimant stated that he was unwell and accused
Mr Heaney of badgering him and that he was going home. He left the office. The claimant told the tribunal that this was the “end of the line” for him because he felt the respondent was trying to railroad him into taking the post.

40. On 8 February 2013 the claimant sent an email to Ms Heaney, copying in
Mr Heaney in which he gave four weeks’ notice of his intention to resign in the following terms: “I believe that the Agency’s variation of my duties amounts to breach of contract; that the duties of a Reparation Manager/Supervisor are completely distinct from my post as Adventure Learning Manager. It appears that my old post is in fact redundant and for whatever reason the Agency is unwilling to make me redundant. Cathy Heaney confirmed that my post no longer existed in the meeting on the 18^th January 2013. The whole process has caused me serious stress and anxiety and I am off again sick as a result. The Agency have not taken my health into consideration despite me bringing it to their attention on numerous occasions previously. I feel the persistence of the Agency to force me into taking this new role of Reparation Manager/Supervisor has made my position untenable. The actions of the Agency and Cathy and Michael Heaney have also destroyed my trust in confidence in the Agency as my employer”. Ms Heaney replied to the claimant on 12 February 2013 accepting his resignation. She expressed regret at his resignation and that he had felt unable to accept the role of Reparations Manager. His last day of service was the 7 March 2013. He was required to submit sick lines as usual during the notice period. She confirmed that
Mary Brannigan would proceed to the handling of the grievance.

41. During his notice period the claimant was referred for further assessment by
Dr Glasgow for consideration of medical retirement and with regard to disability assessment. The referral was made by the respondent in accordance with the absence management policy because the claimant was still an employee at that time submitting sick lines and the respondent was required to consider all options. Dr Glasgow’s opinion was that he regarded him as being fit for attending work and saw no role for medical intervention in the current dispute which Dr Glasgow categorised as a management rather than a health dispute.

42. The claimant lodged his originating claim with the Office of the Tribunals on
19 February 2013. On 25 February 2013 the claimant accepted an offer of a post of Outdoor Youth Development Worker with Challenge for Youth.

43. Ms Brannigan met with the claimant who was accompanied by Ms Hoy on
27 February 2013. The claimant agreed a summary prepared by Ms Brannigan of nine points raised in his grievance email of the 30January 2013 as the basis of their discussion, with two additional points, namely that no consideration was given to his stated difficulty in driving for excessive periods of time and also that for much of the last six years since the initial review of adventure learning in 2007 he had felt ignored and in a “limbo” situation. On 7 March 2013 Ms Brannigan sent the claimant, and Ms Hoy, a summary record of the grievance investigation and her findings. She did not uphold any of his grievances. The claimant did not appeal against her findings.

44. The claimant made a claim for payment from the respondent in respect of time in lieu of notice accrued by but not taken him by 7 March 2013. On the 8April 2013 Human Resources wrote to CFY requesting a record of attendance for the claimant during his secondment. They also requested information as to how the claimant had accumulated 84 hours in lieu of notice recently claimed by the claimant together with a record of hours signed off by a senior member of staff for audit purposes. CFY did not respond to this letter and on 7 June 2013 the respondent’s solicitor wrote to CFY requesting discovery of documents stating that these were required “for the purpose of these proceedings”. No response was received to this letter.

45. The respondent’s solicitor then applied to the tribunal for and obtained an Order to compel the attendance of Janet Shaw of CFY for the production of documents in relation to the offer and the claimant’s acceptance of employment with CFY to include a job description for the post and their records of his attendance and hours worked while on secondment to the Youth Justice Agency. Mrs Heaney stated that she had requested that her solicitor write to Challenge for Youth because she had genuine concerns in the absence of a response that there may be a discrepancy in the number of hours claimed by the claimant (which was in fact borne out by information subsequently provided by CFY) and because the claimant had taken a considerable amount of sick leave from both CFY and the Agency and she wished to establish whether and how such an amount of TOIL had accrued. The claimant’s case was that this caused unnecessary distress to himself and inconvenience to other CFY staff who had to deal with the respondent’s request for information. The claimant’s case was this was done solely to cause him embarrassment with his new employer and this amounted to victimisation because he had lodged proceedings with the Industrial Tribunal.

The Law

46. A termination of the contract by an employee will constitute a dismissal pursuant to the provisions of the Employment Rights (NI) Order 1996, if he is entitled to so to terminate it because of the employer's conduct. This is colloquially and widely known as a 'constructive dismissal'. The Court of Appeal made clear in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27, [1978] ICR 221, it is not enough for the employee to leave merely because the employer has acted unreasonably; his conduct must amount to a breach of the contract of employment.

47. In order for an employee to establish constructive dismissal, four conditions must be met:

(i) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

(ii) 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.

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

(iv) The employee 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.

48. If the employee leaves in circumstances where these conditions are not met, he will be held to have resigned and there will be no dismissal within the meaning of the legislation at all. [Harvey Division D1.3 paragraphs 401-404.]

49. The case of Mahmud v Bank of Credit and Commerce International SA [1997] 3All ER 1 established that there is an implied term that an employer “will not without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.

50. In Baldwin v Brighton and Hove Albion City Council [2007] IRLR 232 the EAT clarified that the use of the word “and” instead of “or” was an error and was not intended; and that in order to establish a breach of the implied term it is sufficient for a claimant to show conduct by a respondent which, if objectively considered is likely seriously to undermine the necessary trust and confidence in the employment relationship.

51. Examples of conduct of an employer which may in law amount to a breach of contract are given in Harvey Division I at paragraph [425.01] which include unilaterally changing his job duties. The claimant referred the tribunal specifically on this point to the case of Land Securities Trillium Ltd v Thornley [2005] IRLR 765 EAT.

52. The tribunal took into account the following authorities to which it was referred by Counsel for the parties when considering whether the claimant was unfairly constructively dismissed: Mahmud v Bank of Credit and Commerce International SA [1997] IRLR 462 HL, Land Securities Trillium Ltd v Thornley [2005] IRLR 765 EAT, Brown v Merchant Ferries Ltd [1988] IRLR 682 NICA and Tullett Prebon PLC & Ors v BGC Brokers LP and Ors [2011] IRLR 420

Victimisation

53. The relevant legislation is contained in Section 55 of the Disability Discrimination Act 1995 (as amended) and reads as follows:-

“55(1) For the purposes of Part II or Part 3, a person (“A”) discriminates against another person (“B”) if —

(a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s; and

(b) he does so for a reason mentioned in
subsection (2).

(2) The reasons are that —

(a) B has -

(i) Brought proceedings against A or any other person under this Act......”

54. The tribunal must apply the burden of proof contained in S17A of the Disability Discrimination Act 2005 (Amendment) Regulations 2003 which provides:

“(1C) Where, on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.”

55. The tribunal applied the guidance on the application of the burden of proof contained in Wong v Igen Limited and others [2005] 3All ER812. The tribunal also considered the following further authorities to which it was referred when considering whether the claimant was unlawfully victimised: Laing v Manchester City Council [2006] IRLR 748; Madarassy v Nomura International Plc 2007 IRLR 264; Stephen William Nelson v Newry and Mourne District Council [2009] and Northern Ireland Fire and Rescue Service and Colin Lammey v
Eugene McNally [2012] NICA.

Conclusions

Unfair Constructive Dismissal.

56. The tribunal concludes that the facts do not support the claimant’s contention that the respondent has unilaterally changed or sought to change the claimant’s terms and conditions of employment or the duties of his post. The Thornley case makes it clear that cases in this area of the law are fact sensitive, depending on the duties of the employee, the terms and conditions of the particular contract and the context in which the contract was agreed.

57. The tribunal considers any suggestion that the claimant’s duties remained static and unchanged since the issue of his job description in 1996 to be fallacious when the facts show that this was clearly not the case.

58. The claimant’s Northern Ireland Civil Service Terms and Conditions of employment, collectively agreed, remained unchanged. The claimant’s job title and duties changed when he became the Adventure Learning Project Manager following the closure of Lisnevin. The tribunal is of the view that far from breaching the claimant’s terms and conditions of employment, the respondent has sought to apply the arrangements outlined in Section 2.06 of the HR Handbook for the redeployment of the claimant, whose old role became surplus to requirements when the respondent decided to outsource adventure learning activities. The arrangements were designed, with the support of the trade union, to avoid redundancy and to preserve employment by means of redeployment to another suitable post. The tribunal concluded in the circumstances of this case, the claimant was not in fact redundant.

59. The tribunal is of the view that the role of Reparation Placement Manager was in fact a suitable alternative post for the claimant. It was at the same managerial grade as his previous post and he had the skills, experience and qualifications for the role. The tribunal rejects the claimant’s contention that it was completely different from his previous post. The claimant had been supervising reparative placements two days a week in his role of Adventure Learning Manager. The tribunal took into account that there was still an opportunity for the claimant to be involved in AL activities and to develop the role provided that the focus was on the delivery of reparative placements. The tribunal considered that the respondent acted reasonably in that it consulted with the claimant about his position and tried to accommodate his concerns. The tribunal did not consider that the respondent acted unreasonably in deciding that it was not possible to keep the claimant in a role simply to ensure he could maintain his qualifications.

60. By contrast the tribunal considered that the claimant displayed an obstructive and unreasonable attitude and that he did not genuinely engage in the process. The tribunal noted that the claimant’s stated objections as to the suitability of the Reparations Placement Manager post, namely the location and the driving requirements, did not also render the position with CFY, for which he applied and accepted, equally unsuitable. The tribunal concluded that in this context whether the claimant was on a mobile grade or not was an irrelevant consideration.

61. The claimant’s case was that the respondent engaged in conduct calculated or likely to breach the implied duty of confidence in instructing the claimant to accept the Reparations Placement Manager role. The tribunal agreed with the submission that when objectively assessed the intention of the respondent was not to attack but to strengthen the employment relationship and therefore concludes that the respondent acted neither in breach of contract nor unreasonably in this regard. The tribunal did not agree that the respondent could be criticised for failing to treat the claimant’s emails of 27 November 2012 and 4 December 2012 as a grievance so that it was in breach of the LRA Code of Practice. The emails were clearly entitled “Response to Job Description of Reparation Placement Supervisor” and produced in the context of Mr Heaney’s request that the claimant put forward his own proposals in relation to the role. The tribunal took into account that when the claimant did specifically invoke the grievance procedure the respondent took action to have this investigated by Ms Brannigan.

62. The tribunal concluded that the claimant has not proven on a balance of probabilities that the respondent has fundamentally breached a contractual term of his contract and his unfair constructive dismissal claim must fail.

Victimisation

63. The tribunal is satisfied that the claimant has not proved facts from which it could infer that the he was victimised because he had lodged a complaint of unlawful disability discrimination with the tribunal. This is because the view of the tribunal is that the claimant has not shown that he has suffered a detriment.

64. Applying the reasoning of the Northern Ireland Court of Appeal in the case of the Northern Ireland Fire and Rescue Service and Colin Lammey v
Eugene McNally [cited above], the tribunal is satisfied that the respondent’s solicitor wrote to CFY not to embarrass the claimant but which was honestly and reasonably requested in defence of the claimant’s claims of unlawful disability discrimination, which he subsequently withdrew. The tribunal accepts that the subject matter of claimant’s claims to the tribunal did not include a breach of contract claim for payment of TOIL. However the tribunal did consider that the information requested was relevant to the issue of whether the claimant had a disability within the meaning of the DDA and touched on the credibility of the claimant.

65. The claimant’s evidence was that the fact of disclosure to CFY that he had proceedings before the tribunal caused him distress and there was inconvenience caused to CFY staff because they were put to the trouble of verifying his TOIL. The tribunal did not consider that the claimant’s distress was objectively reasonable as there was no evidence before the tribunal to show that CFY thought any the less of the claimant for having brought proceedings against the respondent and verification of the claimant’s TOIL was something CFY was required to do under the terms of the secondment.

66. The claimant’s claim of victimisation is therefore also dismissed.

Chairman:

Date and place of hearing: 21-24 October 2013, Belfast.

Date decision recorded in register and issued to parties: