Industrial Tribunals Northern Ireland Decisions

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Cite as: [2014] NIIT 494_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 494/13

CLAIMANT: Angela McGuckin

RESPONDENTS: 1. Shelter (Campaign for the Homeless)

Northern Ireland Ltd

2. Ray Cashell

3. Tony McQuillan

DECISION

The unanimous decision of the tribunal is that:-

1.(a) The claimant was not unfairly constructively dismissed by the first respondent.

(b) The claimant was not unlawfully discriminated against and/or harassed and/or victimised, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 by the respondents or either of them.

(c) The claimant did not suffer any breach of her contract of employment and/or unauthorised deduction of wages and/or breach of the Working Time Regulations (Northern Ireland) 1998, as amended, by the first respondent and is not entitled to any sums and/or payments in lieu in respect of holiday and/or time of in lieu (TOIL) outstanding at the termination of her contract of employment..

2. The claimant’s said claims are therefore dismissed.

Constitution of Tribunal:

Employment Judge: Employment Judge N Drennan QC

Members: Mrs T Hughes

Mr D Walls

Appearances:

The claimant was represented by Mr J McLaughlin.

The respondents were represented by Mr N Phillips, Barrister-at-Law, instructed by Worthingtons, Solicitors.

Reasons

1.1 The claimant presented her claim form to the tribunal on 6 March 2013 and the respondents presented a response to the tribunal on 12 April 2013, in which each denied liability for the claimant’s said claims.

1.2 In accordance with the tribunal’s normal procedures, a Discrimination Case Management Discussion was held on 10 June 2013 to identify, inter alia, the precise issues which the tribunal would be required to consider and determine.

As set out in the Record of Proceedings dated 12 June 2013, the following issues, as agreed, were identified by the representatives of the parties, namely:-

“Legal Issues :

(1) Was the claimant constructively unfairly dismissed on 8 December [2012] contrary to Article 127(c) of the Employment Rights (Northern Ireland) Order 1996?

(2) Was the claimant subjected to less favourable treatment by any of the three named respondents on the grounds of her sex contrary to Article 3 of the Sex Discrimination (Northern Ireland) Order 1976 (‘the 1976 Order’)?

(3) Was the claimant subjected to harassment related to her sex by any of the three named respondents contrary to Article 6A of the 1976 Order?

(4) Whether, having regard to all the circumstances, including the perception of the claimant, it is reasonable for the conduct complained to have the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her?

(5) Was the claimant subjected to unlawful victimisation contrary to Article 6 of the 1976 Order?

(6) Whether the allegations of discrimination prior to 6 December 2012 have been submitted outside the statutory time-limit of three months or whether the claimant was subjected to continuing acts of discrimination from November 2010?

(7) Whether the claimant has suffered a breach of contract, unlawful deduction from wages and/or breach of the Working Time Regulations (Northern Ireland) 1998 in relation to alleged arrears of pay, TOIL [time off in lieu] and holiday pay?

Factual Issues :

(1) Did the named respondents act in any of the ways alleged by the claimant in her ET1 form?

(2) If so, do those actions amount to less favourable treatment, harassment or victimisation under the 1976 Order as alleged and who is/are the claimant’s relevant comparator(s)?

(3) If so, was the claimant entitled to terminate her contract of employment on 8 December 2012 by reason of the respondents’ alleged conduct and consider herself constructively unfairly dismissed?

(4) Was the grievance process in relation to the claimant’s grievance duly completed and if not, what was the reason for same?

(5) What was the reason for subjecting the claimant to disciplinary suspension pending investigation on 6 December 2012?

(6) What is the protected act for the purposes of the claimant’s victimisation complaint?

(7) Was the claimant subjected to less favourable treatment by the third-named respondent by reason of the protected act above?

(8) Was the claimant afforded the opportunity to have the female member of the Board form part of the panel to deal with her complaints?

(9) Why was the third grievance panel member unable to participate in the grievance meetings and was it reasonable for the respondents to proceed on this basis?

(10) Why was the third-named respondent permitted to submit a written response to the claimant’s grievances as opposed to attending an interview with the grievance panel and was it reasonable for the respondents to proceed on this basis?

(11) Was the re-employment of Glena McDowell-Khan as a relief worker intended to prevent the claimant from returning to work and if not, did it have this effect upon the claimant?

(12) Did the respondents fabricate and/or corrupt the evidence of the witness, Miriam McAnea, as alleged or at all?

(13) Did the respondents conduct a reasonable investigation of the claimant’s grievances?

(14) Did the first and/or second-named respondents fail to consider relevant evidence in reaching its findings in relation to the claimant’s grievances?

(15) Did the first respondent as the claimant’s employer deal with the claimant’s grievances in a reasonable manner?

(16) In relation to allegations dating back to November 2010, has the claimant waived any potential of breach of contract in continuing her employment until 8 December 2012?

(17) Is the claimant entitled to a backdated salary increase and if so how much?

(18) Is the claimant entitled to TOIL and Bank Holiday annual leave payments and if so how much?

1.3 At the commencement of the hearing, the said issues, as set out above, were further considered by the tribunal and the representatives. The tribunal, in accordance with the orders/directions made at the Case Management Discussion held on 10 June 2013, as set out in the Record of Proceedings, prior to the commencement of the hearing, had read the witness statements prepared and exchanged between the parties and had had sight of the agreed trial bundles prepared by the parties; but it was concerned that the witness statements referred to matters and/or the bundles included documents, which were not relevant to and/or were not the subject of the issues which had been previously identified by the parties, as set out above. In addition, as a consequence, it appeared to the tribunal the orders/directions made by the tribunal in relation to the word-limit of witness statements and the page-limit of the bundles had not been complied with in many respects by the parties. There had been no application by either party to the tribunal, prior to the commencement of the hearing, for a Case Management Discussion to consider any of these matters and/or to amend the case-management directions/orders previously made by the tribunal at the said Case Management Discussion. Further, in replies by the claimant’s representative to a Notice for Additional Information by the respondent, which had been provided to the respondent shortly before the commencement of the hearing, issues had been raised, which had not been referred to in the statement of issues, as set out above, or indeed in the claim form.

1.4 The tribunal reminded the representatives of the terms of the overriding objective, as set out in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and, in particular, the requirement for them to assist the tribunal to further the overriding objective which includes, in particular, ‘dealing with the case in ways which are proportionate to the complexity or importance of the issues’, ‘ensuring it is dealt with expeditiously and fairly’ and ‘saving expense’. (See further Veitch v Red Sky Group Ltd [2010] NICA 39 Paragraph 21.)

The tribunal emphasised to the representatives the importance of proper identification of the actual issues which the tribunal would be required to determine before the substantive hearing commenced and the concern of the tribunal that such identification had not yet taken place and that it was necessary, in the judgment of the tribunal, for this to occur before the substantive hearing could take place (see further the judgement of Carnwath LJ in Price v Surrey CC and Another [2011] UKEAT/04500 and the judgment of Underhill J in Wilcox v Birmingham CAB Services Ltd [2011] UKEAT/0293). In Parekh v The London Borough of Brent [2012] EWCA Civ 1630, Mummery LJ said at Paragraph 31:-

“ ... the Employment Tribunal is not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence.”

The tribunal then gave the representatives an opportunity to consider their position in light of the foregoing.

1.5 After the representatives had consulted with their respective clients and after each had made submissions the following issues, to be determined by the tribunal, were identified to the tribunal, as set out below:-

“(i) The claimant was making a claim of direct sex discrimination, pursuant to the Sex Discrimination (Northern Ireland) Order 1976, on the sole ground that the claimant’s grievance was determined by an all male panel; but the claimant was no longer making a claim of indirect sex discrimination, pursuant to the 1978 Order.

(ii) The claimant was making a claim of sexual harassment, pursuant to the Sex Discrimination (Northern Ireland) Order 1976, on the ground that some of the employees of the respondent, for whom she was the line manager, bullied her by shouting at her and used obscene language and, despite the claimant reporting these matters to the management of the respondent, the management allowed the matters to continue from in or about 2010.

(iii) The claimant was making a claim of discrimination by way of victimisation, pursuant to the Sex Discrimination (Northern Ireland) Order 1976, when the respondent took disciplinary procedures against her. The ‘protected act’, under the said Order, for the purposes of this claim was the taking of the grievance by the claimant referred to in (i) above.

(iv) The claimant initially had sought to bring a claim of breach of contract by the respondent, arising out of the failure of management of the respondent to protect the claimant under the Health & Safety at Work legislation. The claimant’s representative accepted such a claim had not been included in the claim form, albeit it had been referred to in the recent replies, provided by the claimant to the respondents’ Notice for Additional Information. He accepted to bring such a claim would require to be the subject of an application for an order for leave to amend the claimant’s claim. After obtaining further instructions, the claimant’s representative informed the tribunal the claimant was no longer pursing this claim and he would not therefore be making such an amended application.

(v) The claimant was making a claim of unfair constructive dismissal, pursuant to the Employment Rights (Northern Ireland) Order 1996 arising out of the intolerable conditions which had been imposed on her, causing her ill-health, which had not been investigated by the respondent and she had then been the subject of disciplinary procedures brought against her by the respondent

(vi) The claimant was bringing claims for breach of contract and/or unauthorised deductions of wages and/or breach of the Working Time Regulations (Northern Ireland) 1998, as amended, arising out of her claim for payments for TOIL (Time off in Lieu) and/or sums due for bank holidays and/or annual leave payments.

(vii) The tribunal would have to determine whether it had jurisdiction to hear the claimant’s said claims of unlawful discrimination prior to 6 December 2012, on the ground that these had been submitted outside the statutory time-limit of three months and it was not just and equitable to extend time; or, whether the claimant was subjected to continuing acts of discrimination from in or about November 2010 and any such claims were therefore in time.

(viii) The claimant, in relation to her claims of discrimination, was not seeking damages for personal injury but only compensation for injury to feelings. In relation to same, she was not relying upon any medical evidence, other than the medical certificates provided by her doctor and supplied to the respondent.”

1.6 Having identified the issues, as set out above, it became readily apparent, as acknowledged by both representatives, that the witness statements and/or the ‘trial bundle’ contained many matters which were now irrelevant. Having heard further submissions by both representatives, the tribunal, after taking full account of the respondent’s objections decided that, having regard to the terms of the overriding objective and its general case-management powers, pursuant to Rules 10, 14 and 59 of the Industrial Tribunals Rules of Procedure 2005, it should revoke the tribunal’s previous orders/directions relating to the giving of evidence by way of witness statement and made an order that the evidence in this case would now be given orally by each party and their witnesses. The tribunal also emphasised that it would have no regard to those documents contained in the ‘trial bundle’ which were no longer relevant to the issues, as now identified as set out above.

1.7 At the commencement of the hearing, the claimant’s representative confirmed that, if the tribunal found the claimant’s dismissal was unfair, she wished to obtain by way of remedy an award of compensation; and therefore she was not seeking an Order of Reinstatement and/or Re-engagement. He also confirmed the claimant had obtained employment in July 2013, with Hostelling International as a manager, but at a reduced salary from her salary with the respondent and had thereby incurred a continuing financial loss.

1.8 It was not disputed by the respondents’ representative that, at all material times, the first respondent was vicariously liable for the acts of the employees of the first respondent, including, in particular, the second and third respondents, which were done in the course of their employment (see further Article 42 and 43 of the Sex Discrimination (Northern Ireland) Order 1976).

2.1 The tribunal heard oral evidence from the claimant; and also from the second and third respondents on behalf of the respondents.

Having considered the evidence given to the tribunal by the parties and their witnesses, as referred to above, the documents contained in the ‘trial bundle’, as amended, to which the tribunal was referred during the course of the hearing, together with the oral and/or written submissions of the representatives, the tribunal made the following findings of fact, as set out in the following sub-paragraphs, insofar as necessary and relevant for the determination of the claimant’s said claims, as identified, made against the respondents and each of them.

2.2 It was not disputed the claimant was employed by the first respondent (Shelter) from on or about 11 February 2003 until the termination of her employment on or about 11 December 2013, following her letter of resignation dated 8 December 2012. She was initially employed as a senior support worker but by the time of the events, the subject-matter of this claim, she was, effectively, the support service manager (Project Manager) for the Sleight Project (SL-8 Project), which was a project run by Shelter for young people who are homeless or at risk of homelessness.

2.3 At the time of her resignation it was not disputed she received £1,965.67 gross per month and £1,743.29 net per month. It was further agreed that, in respect of the claimant’s claim for holiday pay, she was entitled to £80.46 net per day. It became apparent during the hearing that many of the issues to be determined by the tribunal and the sequence of events arising in connection therewith were to be found in the voluminous correspondence/e-mail chain that took place between the main participants. In these circumstances, as can be seen later in this decision, it has been necessary to quote extensively from the correspondence/e-mail chain between the parties.

2.4 On or about 27 October 2011 the claimant wrote to the third respondent, which was received on 28 October 2011. At the relevant time he was the Director of Shelter. In the letter she raised a grievance against DM, one of the support workers for the SL-eight Project (SL-8) who reported to the claimant following a return to work interview conducted by the claimant after DM had been off sick for a period for stress and was pregnant at this time. During the interview DM accused the claimant of causing the stress. In her grievance the claimant accused DM, in essence, of ongoing bullying of her. It must be noted there was no allegation of sex discrimination made by the claimant contained in the said grievance.

2.5 The third respondent (the Director) on 4 November 2011 acknowledged receipt of the grievance from the claimant and her request for an investigation under the grievance procedure and concluded by saying:-

“I will come back to you as soon as possible.”

2.6 Insofar as relevant and material, the Shelter’s grievance procedure provides as follows:-

“17.0 First Stage : The Manager

17.1 Staff members should put their grievance, in writing, to their immediate line manager. The manager should invite the staff member to attend a hearing in order to discuss the grievance and should inform the staff member of his or her statutory right to be accompanied depending on the nature of the grievance.

17.2 The manager should respond in writing to the grievance within 10 working days of the hearing or, where no hearing has taken place, within 10 working days of receiving notice of the grievance. Where the grievance is against the line manager the matter should be raised with the Director as a second stage grievance.

18.0 Second Stage : The Director

18.1 If the matter is not resolved at Stage 1, within 10 days the staff member may appeal this decision by raising the matter in writing with the Director. The Director should arrange to hear the grievance within 10 working days and should inform the staff member of the right to be accompanied. Following the hearing the Director should, where possible, respond to the grievance within 10 working days.

19.0 Third Stage : The Management Committee

19.1 Where the matter cannot be resolved at Stage 2, within 10 working days, the staff member may appeal the latest decision to their grievance in writing with the Management Committee. Staff should present their case at a hearing and should be informed of their statutory right to be accompanied.

19.2 Present at the Management Committee meeting (which may be a sub-committee) will be the staff member (and if he/she wishes, a representative, and the Director).

At the Chairman’s invitation, the Director will outline the details of the complaint, the parties involved, the procedures applied and the decision so far reached.

19.3 Both the member of staff and the Director will then in turn be given the opportunity to present a case to the MC and to ask questions of one another. The MC members may also put questions to both parties.

19.4 All staff members will then withdraw. The MC members will then discuss the grievance and reach their decision that will be confirmed in writing within 10 working days and this decision will be final.

The Director

20.1 Where the grievance is against the Director, the grievance will be heard by the Management Committee Office Bearers. Staff will be informed of their right to be accompanied. Staff will present their case and the MC will confirm their response in writing within 10 working days.

20.2 If staff are not satisfied with this response, an appeal may be made to the Management Committee who will establish an Appeal Panel to hear an appeal. The staff will be informed of his/her right to be accompanied. The Appeal Panel will hear the staff case and the Officer Bearer’s rationale for their decision. The Appeal Panel will inform the staff member within 10 working days of the end of the hearing. This decision will be final.”

2.7 By letter dated 22 November 2011, the claimant wrote to the Director stating:-

“I write further to my grievance dated the 28 October 2011. I feel that reasonable time has now been given to the deal with my grievance and I would therefore request that my grievance is heard at the next stage of the grievance procedure. The ongoing events that I have informally [tribunal’s emphasis] reported to you over the past year and more recently my formal grievance [tribunal’s emphasis] has caused psychological injury to me. This injury was as a result of performing my duties for Shelter NI. I would therefore inform you the delay in dealing with my grievance and no offer of support has caused further injury to me not to mention the negative impact it is having on the SL-eight project.

I would be grateful if you could forwards all documentation in relation to my grievance to the next stage for immediate investigation.”

2.8 On 22 November 2011, the Director had a detailed meeting with DM as part of his investigation under the said procedures into the claimant’s grievance against DM.

2.9 In light of the claimant’s letter of 22 November 2011, the Director sent the claimant a letter dated 24 November 2011, I which he stated, inter alia:-

“Further to my letter of 4 November, I have completed my initial investigations and I am in a position to invite you to a formal hearing to consider the substance of your grievance.

You have reported that your grievance be progressed without a hearing to the next stage. I am therefore passing your request to the Chairman [second respondent] for his consideration. I am sorry if you feel that there has been an unreasonable delay, however I have to be conscious of the health and well-being of all personnel. Additionally your grievance is unusual in that it involves a senior staff member taking a grievance against a junior staff member. In order to progress matters, I wrote to [DM] seeking a date to interview her as part of the investigation. That interview took place on Tuesday.

In your last e-mail, you have identified you need support. While I usually provide support as your line manager, in the present circumstances, you may prefer to speak to someone in complete confidence who is entirely independent and who is there to support your personally in this matter ... .”

The Director then referred to a new telephone helpline arranged by Shelter NI with an outside body to provide counselling/advice on a 24 hour basis and he agreed to forward details of same to her.

2.10 Following the above exchange of correspondence, the claimant sent an e-mail dated 24 November 2011, in which she referred to a telephone conversation with the Director and stated:-

“ ... I would like to record the issues I raised. I raised my concern in relation to the interview you held with [DM]. I requested information on who attended the interview, you informed me that you and [DM] were in attendance.

I relayed to you that I felt this interview was held prematurely and not in line with the organisation’s grievance procedure as any grievance was never heard. You stated ‘that is your opinion’ and reminded me that I have requested that the grievance is heard at the next stage.

I have been present at two grievance meetings within the organisation and both have held initial hearing before investigations.”

2.11 The Director, on 25 November 2011, wrote to the second respondent (the Chairman):-

“ ... For the record it is interesting that Angela questions the format of the interview I had with [DM]. Her letter to [DM] describes [DM’s] concerns as a ‘grievance’. Perhaps Angela thought I was conducting a formal grievance with [DM]. The grievance procedure does not actually say in what order events should be conducted, in fact it is silent in this point of procedure. Because of my concerns as to whether this constituted a grievance, as you know I forwarded all the documents to ELAS and their advice was that I should interview [DM] before seeing Angela. The grievance procedure also does not have a target time for holding the hearing just for the response after the hearing.

Angela also remarked ‘Tony, I had more faith in you’ and indicated that she expected to have her hearing before following the investigation up until [DM], I told her there was no suggestion she would not have a hearing and then I reminded her that she had asked for the grievance to be sent up to the next stage. She repeated that she felt that she should have had the hearing first and I made the comment that was her opinion ... .”

2.12 The claimant then went off sick for work-related stress, anxiety and depression. By e-mail dated 28 November 2011 the Chairman wrote to the claimant:--

“ ... Tony has contacted me to tell me that you have reported sick and will be off for 4 weeks. I am sorry to hear this. The most important thing at the moment is your own well being and health, so I do not want to do anything to interfere with that. At the end of last week Tony had forwarded me your correspondence regarding a grievance you had lodged and were asking to be referred to the committee. I had been on the point of responding to you, to clarify the procedures. Normally, I would not proceed with any formal activity like that while an employee is on sick leave, unless doing so actively contributes to recovery. In this instance I would not propose to act on the grievance until you return to work, unless you specifically want me to act sooner. I have not looked at any of the details of your grievance, except your letter asking for it to be referred to the committee ... .”

2.13 By e-mail dated 19 December 2011, the Director sent to the claimant details of the telephone helpline, referred to previously; apologising for the delay as it had taken a while for the system to go into operation. The Director sent an e-mail to the claimant on 22 December 2011, wishing her the compliments of the season but also stating:-

“ ... I do hope that you are feeling better but I understand it takes time to recover. The most important thing is to concentrate on getting well. If there is anything you can think of that I could do to help, please let me know ... .”

The claimant returned to work on 9 January 2012.

2.14 On 9 January 2012, the claimant wrote by e-mail to the Chairman, in which she stated, inter alia:-

“I have returned to work today Monday 9^th January 2012. I would welcome the opportunity to meet to discuss my grievance and the surrounding issues that have impacted on my health resulting in my time off work.

Over the past year I have attempted on several occasions to raise my concerns with the Director, however I feel that these concerns have been disregarded. Within an eight month period, during which necessary charges were required to be implemented within the SL-eight Project. I have had five complaints directed towards me from support staff. Two of these complaints were reported to the NIHE (SP) which resulted in an unannounced visit by our founders. I strongly feel that I was being mobbed by staff as a result of these charges that were unfavourable to them. I have reported to the Director the level of bullying and the complaints that I have been subject to and the detrimental impact this had on my health my personal life and the SL-eight project. These reports were completely ignored and as a final cry for help I raised a grievance only to be further ignored and completed undermined by the Director.

I feel that I have the most emotionally and intellectually demanding role of all employees within the organisation and I have carried out that role with next to no support from the Director. During my time on leave I became very aware that the negative events of the past year were never addressed, the perpetrators were rewarded and given preference and no form of discipline. I was informed by the Director that it was all part of management and to stand strong to the strong wind that was blowing against me. I don’t believe that any human being could have understood the bullying, the complaints, the lack of support and finally the deliberate failure by the Director to intervene and protect me. This failure suggests added indirect bullying.

I would therefore request that this further grievance [tribunal’s emphasis] is heard alongside my grievance dated 28 October 2011 as both are linked.

If possible I would also request that Siobhán Curley is in attendance at the hearing as I as I would like a female present and to my knowledge she is the only female on the Shelter NI Board ... .”

2.15 The Chairman, by an e-mail dated 10 January 2012, to the claimant, confirmed he had received receipt of her e-mail of 9 January 2012 and she was making a new grievance against the Director to be considered in conjunction with the previous grievance. He also stated:-

“I note your request that Siobhán Curley be involved in the hearing of this grievance. I am keen to ensure that procedure is followed properly and that in dealing with this matter, I do not compromise the capacity of the organisation to offer an appeal mechanism should you not be satisfied with the initial outcome. I will reply in more detail later today.”

2.16 The Chairman formally replied to the claimant in a letter dated 10 January 2012, which it is necessary to set out ‘in extenso’, in light of the issues to be determined by the tribunal in this matter:-

“I am writing in response to your e-mail received today; which refers to your grievance and my response just before you went on sick leave in December.

I also note that you are describing both behaviours as bullying and refer to several further incidents by an unidentified member of staff as also being bullying. Finally, I note with concern that you attribute your recent absence due to ill health to these actions.

In your e-mail invoking the grievance procedure you ask that Siobhán Curley as a female member of the Board be included in the grievance interview.

I am very keen to deal with these matters sympathetically and procedurally correct. This presents me with some initial problems which I must outline to you. I would hope that we can move forward without delay based on the clear understanding of the procedures being used, and the consequences for the way that I will be heading the investigation.

Shelter NI has two procedural policies that could apply to this situation; the grievance procedure (2011) and the harassment policy/procedure (2005) ... .

Under the grievance procedure, there are two ways in which the Board can be involved; one where there is an appeal against an earlier action by the Director and a different process where there is a grievance against the Director. In the first situation, which is the situation as it appeared to be in December, it would be the whole Committee, or an agreed sub-committee, not me individually, that would consider the matter and there would be no further appeal. That would not be a particularly satisfactory process, and would require the calling of a Board meeting to agree on the personnel to take part. In the second situation, where there is a grievance against the Director, as is now the case, the first stage must be the Office-Bearers with an appeal to other members of the Board. The officer-bearers are myself, Michael and Dave, and by implication the appeal panel would be Siobhán, Hugh, Richard and Austin. There would be no correct process for me as Chairman individually to decide otherwise and a Board meeting would be necessary to agree any other line-up.

However, the harassment procedures specify a different range of options; although the procedure misleadingly refers to complaining under the grievance procedures, it then goes on to detail a different handling procedure. Because of the nature of bullying and harassment it is not unusual for there to be a different more flexible way of investigating. Under that, at the formal stage, the matter is dealt with by one ‘senior manager’ and a ‘management representative’ and there is an option to engage an external investigator where circumstances merit. This procedure also, unlike the grievance procedure, specifies sequence of interviews and other protective steps to be considered.

As you are complain about bullying, which is a form of harassment, I think it could be valid to use this procedure instead of the grievance procedure, but you would have to confirm you agree with this approach and all that involves, before we start. If you agree, then it would be procedurally possible for Siobhán to be involved from the outset, should she be available to do so.

The procedure (investigation para 4) requires consideration of avoiding contact between the complainant and the alleged harasser(s). You have named the Director as practising indirect bullying, but have not named the other perpetrators, who are accused of direct and persistent bullying, other than that they are among your SL-eight team. I therefore have to address the question of avoiding contact, or at least removing potential for further incidents, and am particularly keen to do so in the context of your linking the bullying to your ill health. I understand that, since your return to work, you have confirmed to the Director that normal scheduled meetings involving the two of you can go ahead, but I have no indication, other than that one member of your team is on maternity leave, whether there is any issue between you and your staff that required protective intervention. This would need to be established immediately as the procedure does not allow me to notify the alleged harassers until that matter has been addressed and measures put in place. This would be best done if we could speak directly by phone as soon as possible. Obviously, to do this effectively, I also need to know the identify of all the staff involved in the behaviour you have described.

You will note that while the grievance procedure does not specify any sequence for meetings and investigation, the harassment procedure does specify a meeting with the complainant as the first step, and if we are to follow this procedure, I would want that meeting to take place at the first viable opportunity. That would in practice, if Siobhán is available and willing to participate, be best achieved by meeting in Derry. There is potential for some delay later in the process as those accused have the right to reasonable time to consider the allegations and prepare responses.

...

In short the immediate issues are:

1. I need your decision on whether you want the matter dealt with under Grievance or Harassment procedure.

2. I need them to consider what, if any, protective or preventive measures need to be put in place while the matters are investigated; and put any agreed measures in place.

3. I need to agree the composition of the investigating and decision-making team as appropriate to the agreed procedure.

4. I need the names of all the staff involved who may be considered as perpetrators and therefore need to be notified of this action and questioned about it.

... .”

2.17 The claimant by e-mail dated 10 January 2012 replied as follows:-

“I wish for the matter to be dealt with under the grievance procedure. I understand the board members position and I am content to proceed [tribunal’s emphasis] with the hearing without Siobhán in attendance. The staff involved were [GK], [MC] and [DM]. As [G] and [M] have since left the organisation and [DM] is now on maternity leave I feel that the risk of further bullying/complaints have been greatly minimised. I do however have slight concerns that [EW] has also been named through issues that are documented in my first grievance. Whilst I am not accusing [E] of any wrong doing towards me I was beginning to feel that there was some attempt to form an alliance with her against me.”

2.18 The claimant, even though this would have allowed her to have a female panel member to determine the issues to be determined, decided not to take up the Chairman’s suggestion of the use of the harassment policy, as she did not consider it would be able to deal with her principal complaints against the Director of failing to give her support against the alleged bullying of the support staff against her and did not take her reports of such bullying seriously.

2.19 The grievance interview with the claimant was held on 17 January 2012. It was conducted by an all male panel, made up of the Chairman, Dave McCallum, the Treasurer. There was formally a third member of the panel, Michael Fenton, a member of the Management Committee; but he sent his apologies and he did not attend the interview albeit he was cc’d to all subsequent correspondence by the Chairman in relation to the grievance process. At the relevant time, all the members of the Management Committee/Office Bearers were male. They were the relevant persons to conduct this hearing under the grievance procedure, in particular Paragraph 20.1, as referred to previously.

2.20 Following the said meeting of the panel with the claimant on 17 January 2012, a copy of the notes of the meeting was prepared, which included comments made by the claimant after the meeting to clarify what she had said at the meeting. By e-mail dated 31 January 2012, the Chairman updated the claimant on progress, confirming the said notes had been sent to the Director as a statement of the claimant’s grievance against him to enable him to make his response. It is apparent from a series of e-mails at this time that, initially, the panel had intended to have a formal meeting with the Director at or about end of January 2012 in relation to his response. However, as explained, in particular, in a series of e-mails on 31 January 2012 from the Chairman to the claimant, this meeting was delayed due to a family bereavement for the Director but also because the Director wished to have further time to consider the said notes and to be accompanied by his trade union representative at any such meeting, which required to be organised for a mutually convenient date. Copy of the notes of the meeting held by the Director with DM on 22 November 2012, as referred to previously, were sent to her, via the Director, to revise/review, which she did. These were returned to the panel on or about 22 February 2012. The Director wrote to the Chairman on 22 February 2013, by e-mail, in which, inter alia, he provided an annotated response to said notes of the meeting with the claimant for the panel’s assistance. He did this at the request of the Chairman.

Also, the Director sought clarity about the stage in the process the panel had reached in respect of the claimant’s grievance against him and the claimant’s original grievance with DM. He suggested that there was no need for a meeting in relation to the grievance against him, in the absence of specific charges by the claimant ‘except the generic claim of undermining her and lack of support for her?’

2.21 In an e-mail to the claimant on 25 February 2012 to update her on progress, and acknowledging that the matter was taking longer than had been wished and the additional strain this could create, the Chairman noted that he had discussed with the claimant on more than one occasion, whether in view of the ongoing delay special arrangements for working practices should be arranged but she had refused and he had respected that response; but he made it clear such an offer was open and, if she considered her health was at risk, to take steps to prevent such an outcome.

In particular, the Chairman stated the present position to be:-

“I have had several exchanges of correspondence with Tony but still been unable to get an early date for a meeting which would include his NIPSA representative. As a result, at my request, he has given me a written response and asked us to proceed with that, without delaying for an interview. I met Dave on Thursday to review this and all the information we have to date. As a result I have asked Tony for one minor additional piece of information which may assist us but is not central to the assessment.

Dave and I have agreed that where there are conflicting accounts or perspectives of events, it would not be appropriate or possible to continue questioning to attempt to prove accounts beyond doubt. Instead we are going to meet again to reach a conclusion. I am writing up all the notes over this weekend and will be sending them to Dave. We will then have a discussion to confirm agreement on our conclusions. I would hope this will be early in the coming week. Because of our own commitments this will be some evening during the week. As you know, Michael has not been able to participate in this process, but has been included in all paperwork, and may wish to comment at this stage, so I am including him in this e-mail [tribunal’s emphasis].

In short, I am aiming to have a formal conclusion on this matter agreed by the panel and ready for issue by Monday 5 March.

Once again I must emphasise that if you find that working under the circumstances is having an adverse effect of your health, you should act in the best interests of your health. If this means taking time off, I am happy to approve compassionate leave that would not count against either annual or sick leave entitlement. In making this offer I am aware that you already have a considerable backlog of untaken leave and TOIL (Time off in lieu) but am not suggesting you use that ... .”

2.22 In an e-mail in response, dated 28 February 2012, the claimant acknowledged, inter alia, that she had been offered the opportunity to benefit from protective arrangements, which she had declined and she concluded by saying that ‘speedy actions and precise responses to the current situations is all that is required as a protective arrangement in order to minimise stress levels and ensure that a positive work environment is regained’. It must be noted that at no time did the claimant bring any proceedings pursuant to the Disability Discrimination Act 1995

2.23 On 6 March 2012, the Chairman wrote to the claimant and the Director in relation to stage which had been reached by the panel in relation to the claimant’s grievance:-

“There are two separate grievance issues we have been addressing; the original grievance relating to the actions of support staff in SL-eight, and the grievance relating to Tony’s response to Angela’s requests. On the second aspect the panel has now concluded its consideration and I am finalising the level of our conclusion for confirmation by the panel, with the hope of issuing that today or tomorrow. I will be issuing it simultaneously to both of you. I would also be happy to meet each of you to discuss any issues or questions that may arise from the report. I had hoped that I would also have been able to finalise and issue our conclusion on the other component at the same time and had drafted that report. However, yesterday, I was contacted by one of the former employees named in that grievance. She has provided me with some initial information regarding the matter, namely a copy of the information she had sent Supporting People, which led to the visit made to SL-eight. She has asked to be allowed to respond to any allegations made against her in the grievance statement. I have agreed she should be allowed that opportunity, and I am preparing an edited statement for the grievance relating only to matters where she is named as a participant. I do not know if this will change the panel’s conclusion but I believe we have to give consideration to any response she makes. I will be time limiting her opportunity to respond and would hope the panel can still conclude the report next week. I know the impact this is having on you both, which is why I am proposing to release the partial report separately rather than waiting for this to be concluded before releasing anything ... .”

2.24 In a further e-mail dated 7 March 2012 to the claimant, the Chairman confirmed, inter alia, the grievance against the Director would be issued, following finalisation of an agreed text with Mr McCallum, the other panel member. However in relation to the other grievance against DM, he stated:-

“On the question of the original grievance and your most recent comment that it was only in relation to [DM] and not any other comment or ex employee, I have been going back over all the paperwork. It had been very clear from your first referral of the matter to me, and from the formal interview, that whatever had happened arising from the return to work interview with [DM] was in the context of a continuing atmosphere in which you believe you were being subjected to bullying by the support staff more generally. In your original referral letter to Tony dated 26 October 2011 you had stated ‘I have reported to you previously that I had felt harassed by staff and I believe that this is continuing’. In your e-mail to me on 10 January you named the staff involved in this.

I have reread all the paperwork that has been given to me as being part of the original submission you made to Tony, in which you ask him to investigate the matter of [DM’s] accusations. In your letter to [DM], you conclude by stating you reserve the option to call on [G] and others as witnesses to the issues involved.

[G] and [M] had left Shelter employment at that time, it would not be procedurally possible to initiate a grievance against them, so obviously the formal grievance is against [DM] alone. However, the view we as a panel might take on the issues raised do depend substantially on the context, and all of our considerations do date have been on the basis of viewing what might otherwise be minor issues as being more serious because they were part of a pattern, possibly even an original pattern of bullying behaviour ... .”

The Chairman stated this caused a dilemma for the panel whether to consider the grievance only on the basis of the original submissions to the Director and therefore only looking at the documented actions of DM or to consider her actions were more significant and part of a process of bullying by her and others. Since this latter issue had been how the panel approached the matter to date, he indicated the panel could find itself in difficulty if he chose to draw a conclusion without accepting any offer of information from others involved. He emphasised that the panel had not contacted either G or M and had not the authority to require them to co-operate; but, given the offer of statements, the panel had to be very clear why such an offer would be declined. He explained it was a genuine dilemma for the panel and ‘because of the nature of the issues and the stress arising from them, we need to reach a fair and proper conclusion that is open to scrutiny and can be accepted by all current staff who will have to work with the consequences’. He indicated his willingness to have the claimant’s views on the matter and the potential for him to seek formal advice from ELAS, to ensure a fair and credible outcome to the process.

2.25 The report from the grievance panel was headed ‘Consideration of a Grievance lodged by Angela McGuckin, Project Manager; SL-eight, regarding lack of support from her line manager, Shelter Director Tony McQuillan. Grievances received formally on 9 January 2012, after an informal referral of related matters on 22 November 2011.

In the introduction it is stated:-

“Under Shelter NI Procedures the Grievance Panel consists of the Shelter NI Board Officers; Ray Cashell; David McCallum; Michael Fenton. MF was unable to participate in the meetings but has been kept informed of the process and has had the opportunity to comment on the papers.”

The report made clear it related only to the grievance lodged against the Director and not the prior grievance lodged with the Director relating to actions by other staff, which it was stated would be dealt with in a follow-up report.

In the course of the report it was noted, in particular:-

“The panel strongly believe that the issues raised indicate a stressed set of staff working relationships, and the real risk that the issue of this further report could lead to further stress in those relationships. The panel therefore very strongly recommend there should be one or more facilitated staff meetings to discuss this report, to establish any changes of practice that may be appropriate and to seek to resolve any outstanding matters. The panel urge the staff affected to consider this report fully and carefully; and to this end the panel would wish to meet each employee separately to discuss the report as soon as possible after it is issued.”

2.26 In relation to the complaint against the Director for failing to support the claimant and undermining her position the panel concluded:-

“The Panel acknowledge that there appears to be a difference of perspective between the Manager and the Director as to what ‘support’ should consist of. There does appear to have been a level of support on the handling of staffing and other issues, but also an expectation of more. However, on the basis of such evidence as we have seen, and the statement of the two staff involved, the panel considers that there was as supervisory arrangement in place, it was being used by both staff to discuss issues of concern and advice and direct support were being given, even if that was not in the form Angela expected.

On the material provided in this issue, the panel cannot adjudicate on whether there has been more generally an appropriate level of support nor do the panel feel it is our place to decide what that should be. We consider there needs to be (if there has not already been) SMT discussion of the optimum processes for Director-Manager support, for defining managers’ responsibilities and levels of ‘autonomy’ and Directors’ intervention responsibilities. There should be a framework document to set broad parameters for how senior line management should work, so that diverging expectations do not develop.

While we would suggest processes should be reviewed we do not believe there are grounds to uphold the complaint that the Director was not providing support.

We also consider that the Director and Managers in a more general context, would benefit from mentoring arrangement as a form of support. This may merit further discussion.”

2.27 The report also dealt with the specific issue relating to the Directors’ response to the grievance lodged by the claimant about DM and, in particular, issues relating to delay the Director’s decision to interview DM before discussing the grievance with the claimant herself.

On these issues the panel concluded:-

“The Director was correct in his decision to seek formal advice from ELAS before taking any action and in following their advice in seeking to interview [DM] as a first investigative step. However, his choice to minimise contact with Angela on the subject pending the interview, while strictly correct, because of the time lapsed, did give rise to legitimate concerns on Angela’s part and this could have been avoided by giving her a short response outlining how he was proposing to proceed.

We do not consider that interviewing [DM] first, or without advance notice to Angela constituted undermining her position.”

2.28 The panel concluded, in summary:-

“... While the panel would like to see procedures reviewed and documented, and would recommend the introduction of ‘off-line’ mentoring for all management staff, we do not uphold the complaint that there was an absence of support, nor that the Director’s actions undermined the Project Manager’s position. We do however recognise that the delay in processing the complaint did add to the Project Manager’s feeling of stress.

As noted, the Panel would wish to discuss this conclusion with the staff involved at the earliest opportunity, once each has had time to consider it ... .”

2.29 In relation to the grievance raised by the claimant in respect of DM there was ongoing e-mail correspondence in March 2012 between the claimant and the Chairman, in relation to the issue previously raised with her by him, namely, whether the investigation should be restricted to the specifics contained in the original complaint or should be of wider scope involving the actions of other support staff. Arising from this there was a meeting between the claimant and the Chairman and Mr McCallum on 21 March 2012 to discuss the procedures being used and to clarify the terms/ scope of the complaint to be investigated.

In the course of that meeting, in a summary prepared by the Chairman, which was drawn up for the purposes of record and to minimise any future risk of confusion of purpose, it is stated, in respect of the decision of the panel in respect of the claimant’s grievance against the Director:-

“The section of the grievance relating to Director Tony McQ is now ‘concluded’ and the panel should not discuss it further with Angela. Angela’s recourse would be to lodge on appeal. Her intention of doing this is noted and Ray advised her that she should submit a short declaration of appeal. Ray will ensure that, because the second section of the grievance has not been concluded, there will be no question of procedurally ruling out any lodged appeal on time grounds until all matters have been adjudicated. It would be a matter for the appeal panel to decide how and when it would proceed with any appeal. The appeal panel would consist of those members of the Committee who were not involved in this stage and who were available to hear the appeal.”

2.30 Elsewhere in the summary, it is noted the claimant had indicated she wished the investigation of her other grievance to be confined to her complaint against DM, in relation to the statements made by her to the claimant at the back to work interview, which caused her stress and this should be considered as a single action and not as a part of any wider sequence involving others. It is apparent from the summary that the panel intended to proceed to consider this grievance on the said restricted basis; but, however, subsequently, by e-mail dated 23 March 2012, the claimant asked the panel to consider DM’s actions as part of a process of bullying by her and other named support staff and she therefore now agreed to the panel investigating the grievance on this wider basis and to interviewing all these named support staff, as necessary.

2.31 By e-mail dated 23 March 2012, the claimant informed the Chairman that she wished to appeal the panel’s conclusion on the grievance brought by her on 9 January 2012 in relation to the Director. In the event, no appeal was ever heard in relation to the outcome by the grievance panel of this said grievance.

2.32 On 26 March 2012 the claimant went on sick leave. On 17 April 2012 the Chairman wrote to the claimant to set out how he intended to proceed, in light of the above circumstances.

In the letter he stated, inter alia:-

“ ... As a result your current absence would be managed under the normal sick leave and sick pay arrangements. I understand that under these arrangements you would very soon use up your full pay entitlement and your pay would reduce to half pay then statutory sick pay.

Although your medical certification does not directly link your illness or stress to the current grievance process it does relate to work more generally. At our last meeting we discussed the question of the additional stress arising from working during the grievance investigation or while the grievance remained unresolved.

In this context in the interests of your own well being and the resolution of the grievance you have raised, I have concluded that the best arrangement is for you to remain on leave until the grievance process has been fully concluded, both in terms of the ongoing investigation and your appeal relating to the decision issued already. This absence will be on full pay and will not count against your sick pay entitlement. However, during this time, to ensure there is no action taken by us to impede your return to good health, we will ask you to continue to provide medical certification as normal.

We would only set up an appeal hearing relating to the decision on your grievance against the Director and a meeting to discuss the preliminary findings of the investigation into staff bullying once you are certified well enough to fully participate in those proceedings. Alternatively, as discussed, you may wish to appoint a representative to deal with some of these matters.

If you remain on special leave from normal duties, but would be expected to make yourself available for any meetings relating to or arising from the grievance process, once your medical certification indicates you are fit to do so.

This special leave arrangement will be subject to review on a monthly basis ... .”

In a further letter dated 3 July 2012, to the claimant, the Chairman noted the claimant was still not well enough to return to work and that the arrangement for continued absence on full pay was subject to monthly review. He reported the grievance panel had completed the investigation of the grievances and had prepared a draft report and planned to give her a copy of the draft report and to allow her time to consult any adviser and to make any response before it was finalised. However he added:-

“To allow you full opportunity to consider the report, you would remain on garden leave on full pay for a reasonable period; but would be expected to be available for any meetings or discussions with me relating to the report and its consequences. You would also be expected to engage in discussions to plan your return to work.”

He also stated that in order not to compromise the claimant’s return to full good health there would be no further progress with the grievance until there was notification of certification indicating the fitness to return to work of the claimant.

He also notified the claimant in the said letter that, given the duration of her ill-health, Shelter NI could not continue to pay full pay outside the terms of the sick pay scheme, so that, following the expiry of the current certificate, she would return to payment under the sick pay scheme, namely 15 July 2012.

2.33 In subsequent correspondence, the claimant was informed of her relevant entitlement under the sick pay scheme. It was made clear, in a letter dated 11 July 2012 from the Director:-

“This does not affect any holiday or bank holiday entitlement which you have accrued from last year (2011/12) or this year (2012/2013) which you have been unable to take due to illness. These will be arranged with you once you are fit and able to return to work.”

2.34 The claimant provided a certificate of fitness indicating a phased return to work from 13 August 2012 and her pay went back to full pay from that date. In the event, she never went onto statutory sick pay; but she did not resume work and remained on garden leave pending the conclusion of the matters relating to the grievance, as had been previously indicated by the Chairman in correspondence to her. In an e-mail dated 13 September 2012 he confirmed the report was ready in draft for issue to her and, following issue, the claimant would have the option to meet to discuss any matters of factual inaccuracy, if she wanted to do so. He also stated that, following same, the report would be issued formally and the claimant would have the opportunity to appeal. The claimant was informed, in the absence of an appeal, DM and the Director would be notified, and, in the event of an appeal, they would be informed the matter had been concluded, but subject to appeal.

2.35 The draft report, dated 12 September 2012, was issued on or about 13 September 2012. In the introduction, the panel set out the basis of the investigation and, in particular, that the grievance, as expressed, was against DM, Support Worker on the SL-8 team but also makes wider reference, following agreement with the claimant, to the actions of certain named current and former support workers on the project, as part of an allegation of a wider pattern of harassment against the claimant. It made clear that it did not investigate alleged actions against a certain new employee, EW, who was not named in the original grievance, as issues sought to be raised in relation to her occurred after the grievance was lodged. Again it was said, as with the report in relation to the grievance by the claimant against the Director, the grievance panel was the Chairman, David McCallum the Treasurer; but also Michael Fenton, the Vice Chairman. However it pointed out, as before, Mr Fenton was not available to participate in hearings or interviews but had been consulted on key stages of the procedure.

2.36 The panel concluded, inter alia:-

“On the basis of the evidence presented, that [DM] was justified in stating at her return to work meeting that she felt under stress due to the action taken by Angela in the preceding months. This is not to say that Angela’s actions were either wrong or motivated by any intent to bully; merely that their impact was to cause stress to some extent.”

Further the panel considered:-

“[DM] was within her rights to raise her concern at the 20 October meeting and that her statement was not unreasonable. Between July 2011 and her illness on 7^th September she was subject to a number of stressful events arising from Angela’s management actions, and this could well have contributed to her stress levels and illness. We find no indication that her statement was malicious or intended to cause stress.”

Further, in relation to the complaint of organised bullying by staff, including DM, the panel again did not uphold the complaint. In particular, it concluded:-

“ ... We have certainly been offered a picture of a very poor working relationship between Angela and the support workers who are in post prior to Summer 2011. However we have not heard enough to convince us that this constituted a ganging up, or bullying campaign by those staff; it can equally be explained by speculating that those staff were frightened and defensive.

Regardless of the causes and reasons for this problem, the panel recognises that it would be difficult and stressful for all concerned, including those not directly caught up in it.

We recognise that working under stress, whatever the cause leads to conflict where there is disagreement, and can lead to incidents of short term aggression that should it happen.

We believe this has to be addressed effectively and urgently in SL-eight, but we do not believe we have sufficient ground to agree that the problem arises from a ganging up bullying or harassing action by support staff.”

2.37 The claimant was given an opportunity to meet with the panel and subsequently, in writing, provide details of any factual inaccuracies in the draft report but not to challenge the conclusions reached by the panel. It had been intended both the Chairman and Mr McCallum would be at the meeting arranged at the end of September 2012 but the latter was unavailable. It proceeded, in his absence, with the Chairman. Subsequently Mr McCallum was provided with a copy of the claimant’s references to inaccuracies she considered were contained in the draft report. These matters were not dealt with by the panel as quickly as had been intended due to the illness of the Chairman in October 2012; and she was so informed by the Chairman in an e-mail on 6 November 2012 on his return to work.

2.38 The final report was issued on 26 November 2012, after taking into account some errors identified by the claimant and comments made by her; but the panel decided against including material that was substantially new, not previously raised and which could only be tested by re-opening the investigation. Subject to the foregoing, in essence, the conclusions of the panel set out in the draft report were confirmed in the final report and it is not therefore necessary to repeat them, for the purposes of this decision.

2.39 By e-mail dated 6 December 2012 (at 19.48 pm), the claimant gave to the Director, as Company Secretary, notification of Appeal by her of the grievance panel’s report and conclusions into staff bullying and was informed by e-mail of 7 December 2012 (at 11.04 am), by the Director, the Management Committee would be informed and the appeal process commenced.

2.40 The claimant was sent by e-mail on 6 December 2012 (at 11.12 am) a letter dated 6 December 2012 by the Director. At this time, it must be recalled, the claimant had not returned to work and remained on garden leave as set out previously. This letter made a number of serious allegations against the claimant. She had no prior notification of same.

The letter stated, inter alia:-

“It has been alleged you have been in breach of your duty as follows:-

Creating an atmosphere of victimisation and bullying within the SL-eight office including one of whom would be a senior employee from another office of Shelter NI. In the event of alleged particular gross misconduct, Shelter NI may decide to employ an independent investigator with specific expertise in situations where criminality might be suspected, such as allegations of fraud Shelter NI will involve the PSNI ...

· Harassing staff leading to them taking off periods of absence of work related stress and making their work a place to experience fear.

· Placing staff under duress to commit fraud.

· Developing a campaign of attrition against relief staff who refused to commit a fraud causing stress for the individual and financially penalising the individual by significantly favour less experienced relief staff in allocating available work.

· Creating a false impression of poor or inappropriate staff performance leading to a call for dismissal of a staff member following their probation hearing.

· Using disciplinary and probation procedures maliciously to support harassment of staff.

· Intimidating staff so that they declined to appeal a verbal warning and signed supervision notes with which they did not agree for few of escalation of victimisation.

· Refusing to authorise a legitimate claim for business travel.

· Forcing staff to act insubordinately towards the Director.

· Speaking disrespectively to staff at residents meetings and on another occasion, speaking dismissively and degrading to staff.

Bringing the organisation into disrepute by

· Providing false documents to Supporting People as part of the QAF2 submission including rewriting minutes of residents meetings.

· Creating an image problem for the Project because of the high attrition rate of staff.

· Undermining the organisation to staff through regular and deliberate verbal abuse of the Director and speaking aloud disrespectively about others who might visit the project.

· Smoking cigarettes on the premises in breach of the law.

The letter also referred to significant concerns about the claimant’s ability as manager of the project and that she had fallen below the high standards expected of a manager in respect of carrying out her duties in an objective and professional manner and outlined a number of specific allegations in relation to same.

The letter concluded:-

“In line with Shelter NI’s Disciplinary and Grievance Procedures there will be a thorough independent investigation of these matters to establish the facts. These are serious matters and if verified could be regarded as gross misconduct.

Following these investigations a report or reports will be completed in due course and you will be given the opportunity to add your comments if you wish.

In these circumstances, you are suspended from work on full pay while investigations take place.

Please note that suspension is a standard procedure in matters of this nature and does not indicate guilt in any way. Suspension does not constitute disciplinary action.

...

A member of the Management Committee, who has had no previous involvement with any ongoing procedure, will be delegated to conduct the investigation.

... .”

2.41 By letter dated 8 December 2012 the claimant wrote to the Director, stating:-

“This correspondence is to inform you that, as of today, I have resigned from the post of Support Services Manager. This resignation is due to my ongoing illness which is work related. It is also due to what I perceive as neglect, intimidation, and threat by management during the ongoing grievance process. This has resulted in increasing my feelings of distress and anxiety which have prolonged my illness. As a consequence of these actions and their successful intent to intimidate and dissuade me from taking the action I was entitled to I have been forced to resign without giving notice.

... .”

The Director replied by letter dated 17 December 2012 in which he stated, inter alia:-

“ ... You advised me on 7 December that you were appealing the decision of the Officer Panel which had just concluded the grievances you had initiated. The Management Committee had appointed a panel for that appeal to be heard. However your decision to resign without due notice frustrates that process.

You were suspended from work on full pay on 6^th December 2012 pending an investigation. We had expected to have had the benefit of your contribution to this investigation which we were just initiating. ... The investigation will proceed with or without your involvement. You should note that if the investigation identifies matters of fraud where you are responsible, for example, you will be held accountable ... .”

2.42 In a letter dated 29 January 2013 the claimant set out, inter alia, details of the reasons for her said resignation:-

“On the 7 of December 2012 I received an e-mail from Tony McQuillan detailing that I was the subject of a disciplinary investigation. This e-mail was sent ahead of the timescale to request an appeal into staff bullying and also ahead of the appeal outstanding into bullying by Tony McQuillan. I received a copy of this via post on the 9 December 2012. I immediately returned an e-mail to Tony McQuillan requesting my appeal. (This procedure to request an appeal via Tony was instructed by Ray Cashell.) This turn of events and the serious allegations detailed within affirmed my thoughts and knowledge of the corruption and collusion that was predominant throughout the processes of both grievances. Subsequently this resulted in the forced resignation on the 8^th of December 2012 as a result of the ongoing bullying, neglect, threat and intimidation which has caused me serious ill health ... .”

2.43 In or about July 2012, the Director became aware from a member of staff RF of serious allegations made by her in relation to actions she alleged had taken place involving the claimant and which, if correct, had the potential to amount to fraud. A relevant factor in not taking any formal action at that stage was, at the time, the claimant was on sick leave and unable to be spoken to about these allegations. In addition, the Director had asked RF if she could obtain more firm evidence to support her allegations. The Director was also aware of issues arising in respect of the claimant’s actions as a manager from a probationary process in respect of another member of staff EW. In addition at this time other members of staff had also made serious allegations to the Director against the claimant. The Director was very aware that the grievance processes by the claimant against the members of staff and himself had also not been completed. However, the tribunal is satisfied that, given the seriousness of the allegations, the Director could not ignore them and that as Director he had no alternative but to have them investigated further under the Shelter’s Disciplinary and Grievance Policy and Procedure (see further Paragraph 2.45 of this decision). He sought advice from ELAS (well-known and respected employment consultants, used by many employers in the United Kingdom). He decided that pursuant to Paragraph 3.4 of the said disciplinary procedure that an independent investigation would be required of the allegations to establish the facts. He properly appreciated, given the ongoing grievance procedures and the serious nature of the allegations, that any such investigation should be carried out by an external person. Indeed he had agreed that a Chief Executive of another charitable organisation would carry out the investigation, although precise availability and fees had still to be finalised. The tribunal is satisfied that, if the involvement of an outside person had been made clear in the letter of 6 December 2012 (see Paragraph 2.40 of this decision) this might have given the claimant more confidence in the independence of the investigation. ELAS also advised the Director on the wording of the letter. The tribunal is satisfied the letter of 6 December 2012 required to be sent to the claimant, pending the investigation, in order to make her aware of the allegations made against her. The tribunal further accepts that, given the nature of the allegations, the investigation could not be further delayed, as recognised by the Director, as such allegations of potential fraud, had potential consequences for the future funding, by relevant bodies of Shelter, and he was therefore entitled to commence the investigation, by sending out the letter of 6 December 2012 to the claimant. To have awaited any longer would have had potential risks to the financial stability of Shelter. Further, the tribunal is satisfied that the Director, having been made aware of the serious allegations by the members of staff, decided to commence the investigation in his role as Director and line manager of the claimant because of the nature of the allegations and was in no way related to the ongoing grievance process brought by the claimant against the Director and was still the subject of an appeal. The tribunal is satisfied that, regardless of the said grievance process, the Director would have taken the same decision to instigate the process. It has to be emphasised that these were allegations, as set out in the letter of 6 December 2012, and not proven facts, which is something the tribunal considers was not fully and properly appreciated by the claimant, on receipt of the said letter or even at the time of the tribunal hearing. As the claimant’s line manager and also as Director, it was normal, under the said procedures, for a letter, such as 6 December 2012, to be sent by the Director. However, with hindsight and, given the grievance procedure brought by the claimant against the Director had not been completed and was the subject of appeal, in the judgment of the tribunal, it would have been more appropriate, in the circumstances, if the Director had not sent the letter, and it had been sent, for example, by the Chairman. As set out above, the tribunal is satisfied the Director was not going to carry out the independent investigation and, if the letter had also been sent by the Chairman, the tribunal considers many of the difficulties that arose, on receipt of the letter, might have been avoided. It also has to be noted that, although the appeal was outstanding, the grievance had not been upheld at first instance.

The tribunal further accepts that the Director, on the advice of ELAS, felt that it was necessary, pending the investigation, to suspend the claimant, in light of the serious nature of the allegations to be investigated; but also because these involved allegations by members of staff and he believed, correctly in the tribunal’s view, that to allow the claimant to return to work at this time, pending the outcome of the investigation, would make staff relationships even more difficult than they already were. In this context, it must be remembered that the grievance procedure brought by the claimant in relation to the staff was also under appeal. The tribunal is satisfied that in suspending the claimant, the Director had carefully considered the matter and to do so was not a ‘knee jerk’ reaction by him. In addition, the tribunal is satisfied he did not do so because the claimant had instigated a grievance against her. The Director ensured, on the advice of ELAS, that the letter made clear that:-

“ ... suspension does not indicate guilt in any way. Suspension does not constitute disciplinary action ... ”.

Further, under Paragraph 4.3 of the said disciplinary procedure (see Paragraph 2.45 of this decision) it is provided suspension on full pay may be required for a time until the investigation is complete, where serious allegations require to be investigated.

2.44 The claimant obtained employment on 16 July 2013 with Hostelling International Ltd as a Youth Hostel Manager. Her remuneration was set at £1,416.67 gross per month and she was paid £1,262.89 approximately net per month.

2.45 In the Disciplinary Policy of Shelter the following provisions are to be found, insofar as relevant to these proceedings:-

“General Principles

....

3.4 No disciplinary action shall be taken until there has been an investigation into an alleged incident. In the event of alleged serious or gross misconduct, an independent investigation may be determined necessary. This would be carried out by one or two people.”

4.0 Investigative Procedure

4.1 In the event of an alleged breach of organisation rules, the line manager will make the necessary arrangements to establish the fact as quickly as possible.

4.2 Irrespective of who is carrying out the initial investigation, the staff member should be interviewed as part of the fact finding process. This is not a disciplinary meeting, but the line manager should advise the member of staff that it could lead to the discipline process being invoked.

4.3 Depending on the seriousness of the situation, or for other reasons such as expediting the investigation, a member of staff may be suspended on full pay for a time until the investigation in complete.

4.4 Once this information is made available, the manager will decide to take no action if thee is no case to answer, to deal with the incident informally or to take formal action.

2.46 The tribunal was satisfied that during the course of the claimant’s employment with Shelter that it operated a flexible system whereby it allowed the claimant ‘time off in lieu’ (TOIL) instead of Shelter paying her overtime for additional hours worked. Such TOIL had to be authorised by management. However, significantly, for the purposes of these proceedings, there was no express or implied term of the contract of employment for the payment of monies to the claimant for any unused TOIL and, in particular, at the termination of her employment. The tribunal is concerned that this system of TOIL was not properly monitored and supervised by management and, in particular, the Director, who seemed to be unaware of the large amount of extra hours the claimant was working at any given time and, in particular, on the SL8 Project. There did not appear to be a proper system of record-keeping and/or authorisation and/or review by the Director, even though on or about 11 March 2011 at a meeting with the claimant, the Director was aware that the claimant was stating she had earned 350 hours TOIL, which does not appear to have been disputed by the Director. Since then the claimant has claimed she had earned, up until the termination of her contract of employment, a further 386 extra hours to which she was entitled to TOIL. In the event, the tribunal did not require to determine whether or not in fact those hours actually were worked by the claimant. However, if it had been required to do so, it would have found she did work such hours.

It is clear she has a full record relating to same and the Director, in the absence of any proper record system relating to TOIL held by him, was unable to properly dispute that the claimant did work those hours. In essence, the Director had allowed a system to develop, by custom and practice, whereby the claimant was, in effect, allowed to self-record any additional hours worked by her with no proper checks or supervision by the Director. Inevitably, such a system of recording will cause difficulties in the event of a dispute.

2.47 During the course of the hearing, the claimant’s claim for payments in lieu, in respect of holiday pay for holidays not taken by her by the date of the termination of her employment significantly altered and reduced. Indeed, by the time of submissions to the tribunal, the claimant’s representative reduced his said claim to seeking a payment in lieu of the eight days’ holiday, which had not been taken by her, at the date of termination of her employment. Indeed, during the course of submissions, it was agreed by both representatives that any such payment would only be payable if the claimant was entitled to carry over the said eight days. In this context, it was not disputed by the representatives that the claimant had obtained her full entitlement, having regard to the four weeks’ annual leave allowed pursuant to Regulation 13 of the Working Time Regulations (Northern Ireland) 1998; and that she was only entitled to the payment in lieu in respect of these additional eight days, which had arisen pursuant to Regulation 13A of the said Regulations, if these could be carried over.

In light of the foregoing it was not necessary for the tribunal to make any other findings of fact in relation to this issue.

3.1 Relevant legislation and law

Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides:-

Article 126 of the 1996 Order:-

“(1) An employee has the right not to be unfairly dismissed by his employer.”

Article 127 of the 1996 Order:-

“(1) For the purposes of this Part an employee is dismissed by his employer if ...

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

3.2 Sex Discrimination (Northern Ireland) Order 1976 (‘the 1976 Order’) provides:-

Article 3 of the 1976 Order:-

“(1) In any circumstances relevant for the purposes of any provision of this Order ..., a person discriminates against a woman if –

(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man ... .”

Article 6 of the 1976 Order:-

“(1) A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purpose of any provision of this Order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the persons victimised has –

(a) brought proceedings against the discriminator or any other person under this Order ...

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Order ...

(c) otherwise done anything under or by reference to this Order ... in relation to the discriminator or any other person, or

(d) alleged that the discriminator or any other person has committed an act (whether or not the allegation so states) would amount to a contravention of this Order ...

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.

(2) Paragraph (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

... “

Article 6A of the 1976 Order:-

“(1) For the purposes of this Order a person subjects a woman to harassment if –

(a) he engages in unwanted conduct that is related to her sex with that of another person and has the purpose or effect –

(i) of violating her dignity, or

(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,

(b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect –

(i) of violating her dignity, or

(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,

(c) on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in sub-paragraph (a) or (b) he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct.

(2) Conduct shall be regarded as having the effect mentioned in Paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, should reasonably be considered as having that effect.

... .”

Article 8 of the 1976 Order:-

“ ...

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her –

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her, or subjecting her to any other detriment.

(2A) It is unlawful for an employer, in relation to employment by him at an establishment in Northern Ireland, to subject to harassment –

(a) a woman whom he employs, or

... .”

Article 63A:-

“(1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III, or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act.”

3.3 As stated in Harvey on Industrial Relations and Employment Law, Volume 2, Section D1, at Paragraph 403, it has long been held that:-

“In order for an 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 him 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 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 further Western Excavating v Sharp [1978] QB 761.)

3.4 It should also be noted, in the above context, that a constructive dismissal is not necessarily unfair and it is normal for a tribunal, in order to make a finding of unfair constructive dismissal, to find the reason for the dismissal and whether the employer has acted reasonably in all the circumstances (Stevenson & Company (Oxford) Ltd v Austin [1990] ICR 609).

3.5 Even if an employee cannot establish a breach of an express term of a contract, it has also been recognised that a contract of employment includes an implied obligation that an employer would not, without reasonable and proper cause, act in a manner calculated to or likely to destroy or seriously damage the relationship of trust and confidence between an employer and employee. This is often referred to as the Malik term (see Malik v Bank of Credit & Commerce International SA [1997] UKHL 23 and Baldwin v Brighton & Hove CC [2007] IRLR 232).

3.6 As seen in Amnesty International v Ahmed [2009] ICR 1450 and Ministry of Justice v Sarfraz [UKEAT/0578/10] the phrases ‘without reasonable and proper cause’ and ‘destroy or seriously damage’ must be given their full weight. As Lord Steyn stated in Malik, the term is there to protect ‘the employee’s interest in not being unfairly and improperly exploited’; the conduct must, objectively speaking, if not destroy then seriously damage trust and confidence – mere damage is not enough.

In Abbey National PLc v Fairbrother [2007] IRLR 320 the Employment Appeal Tribunal set out the following useful guidance:-

“(30) ... conduct calculated to destroy or seriously damage the trust and confidence inherent in the employer/employee relationship may not amount to a breach of the implied term; it will not do so if the employer had reasonable and proper cause for the conduct in question. Accordingly, the questions that require to be asked in a constructive dismissal case appear to us to be:-

1. What was the conduct of the employer that is complained of?

2. Did the employer have reasonable and proper cause for that conduct?

If he did have such cause then that is an end of it. The employee cannot claim that he has been constructively dismissed.

3. Was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?”

A failure to hold a proper appeal may be a significant breach of the implied term of trust and confidence.

In the recent decision of the Employment Appeal Tribunal, Blackburn v Aldi Stores Ltd [2013] IRLR 846, it was held, following Malik, that a failure to adhere to a grievance procedure is capable of amounting to or contributing to such a breach of the implied term of trust and confidence:-

“Whether in any particular case it does so is a matter for the tribunal to assess. Breaches of grievance procedures come in all shapes and sizes. On the one hand, it is not uncommon for grievance procedures to lay down quite short timetables. The fact that such a timetable is not met will not necessarily contribute to, still less amount to, a breach of the term of trust and confidence. On the other hand there may be a wholesale failure to respond to a grievance. It is not difficult to see that such a breach of may amount to a or contribute to a breach of the implied term of trust and confidence. Where such an allegation is made the tribunal’s task is to assess what occurred against the Malik test. In the present case, the grievance procedure was here to have been read as though it were an Act of Parliament; it should have been given its normal meaning in the employment context. The ACAS Code was a reliable indication of the employment context. Against that background there was no doubt that the grievance procedure provided for the appeal to be notified to the next level of management because it envisaged that the appointment of a manager to hear the appeal would have been made by the next level of management so that the appeal would have been dealt with impartially and by a manager who had not previously been involved in the case. The right to an appeal in respect of a grievance had been important both as a feature of Aldi’s grievance procedure and of the ACAS Code. It is a significant right in the employment context. It was not easy to see why an organisation the size of Aldi would have been unable to make provision for an important hearing by a manager not previously involved. What had occurred at the appeal meeting had been a matter that the tribunal should have assessed and, having make findings of fact, it should have considered whether there had been a breach of the implied term of trust and confidence.”

In Northern Ireland, the Code of Practice on Disciplinary and Grievance Procedures would be in similar terms to the ACAS Code referred to in Aldi providing for an appeal for a grievance and for it to be dealt with impartially and wherever possible [tribunal’s emphasis] by a manager not previously involved in the case (Paragraphs 83 – 87).

3.7 The above authorities established it is an implied term, which is descriptive of conduct, viewed objectively, that is repudiatory in nature. In assessing whether or not there has been a breach, what is significant is the impact of the employer’s conduct on the employee, objectively tested, rather than what, if anything, the employer intended (see further Woods v WM Car Services Peterborough [1981] IRLR 3) and the Malik decision. In the more recent decision of Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, the Court of Appeal emphasised that a tribunal should determine the matter by reference to the law of contract and not by reference to the fairness and/or merits of the case:-

“the range of reasonable responses test is not appropriate to establish whether an employer has committed a repudiatory breach of contract entitling an employee to claim constructive dismissal”;

and thereby confirming the test for establishing constructive dismissal remains objective (see Western Excavating v Sharp [1978] ICR 221). In the case of Tullett Prebon PLc v BGC Brokers LP [2011] IRLR 420, it was confirmed that the test for determining whether there was a repudiatory breach of the implied term of trust and confidence had to be determined objectively, ie from the perspective of the reasonable person in the position of the innocent party.

In the decision of the Court of Appeal in the case of Nottingham County Council v Meikle [2005] ICR 1.

Keane LJ held:-

“It has long been held by the EAT in Jones v Sirl & Son (Furnishers) Ltd [1997] IRLR 493 that in constructive dismissal cases the repudiatory breach of the employer need not be the sole cause of the employee’s resignation. The EAT there pointed out that there may well be concurrent causes operating on the mind of an employee whose employer has committed fundamental breaches of control and that the employee may leave because of both those breaches and another factor such as the availability of another job. It suggested the test to be applied was whether the breach or breaches were the ‘effective cause’ of the resignation. I see the attractions of that approach but there are dangers in getting drawn too far into questions about the employee’s motives. It must be remembered that we are dealing here with a contractual relationship and constructive dismissal is a form of termination of contract by a repudiation by one party which is accepted by the other; see the Western Excavating case. The proper approach therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract as at an end. It must be in response to the repudiation but the fact that the employee also objected to other actions or inactions of the employer not amounting to a breach of contract would not vitiate the acceptance of the repudiation … Once it is clear the employer was in fundamental breach ... the only question is whether [the employee] resigned in response to the conduct which constituted that breach.”

This dicta was followed by Elias J, as he then was, in the case of Abbeycars (West Horndon) Ltd v Ford [UKEAT/0472/07], when he stated:-

“On that analysis it appears that the crucial question is whether the repudiatory breach played a part in the dismissal … “

and

“It follows that once a repudiatory breach is established if the employee leaves and even if he may have done so for a whole list of reasons, he can claim that he has been constructively dismissed if the repudiatory breach is one of the factors relied upon.”

and also was followed in the case of Logan v Celyn Home Ltd [UKEAT/0069/12] where HHJ Shanks stated:-

“ … It should have asked itself whether the breach of contract involved in failing to pay the sick pay [the relevant breach] was a reason for the resignation not whether it was the principal reason.”

This approach was again recently confirmed and followed by Langstaff P in the case of Wright v North Ayrshire Council [EATS/0017/13] where he emphasised that it is an error of law for a tribunal, where there is more than one cause, to look for the effective cause in the sense of the predominant, principal, major or main cause and in doing so he raised concerns how the relevant law is expressed in Paragraph 521 of Harvey on Industrial Relations and Employment Law, Volume 1, Section D1.

In the ‘summary head note’, Langstaff P stated:-

“In order to determine a claim for constructive dismissal, a tribunal had applied to a test, referred to in Harvey, whether the contractual breach by the employer was ‘the effective’ cause ‘of an employee’s resignation’. It was now time to scotch any idea that this approach is correct if it implies ranking reasons which have all played a part in the resignation in a hierarchy so as to exclude all but the principal, main, predominant, cause from consideration. The definite article ‘the’ is capable of being misleading. The search is not for one cause which predominates over others, or which on its own would be sufficient but to ask (as Elias J put it in Abbey Cars v Ford) whether the repudiatory breach ‘played a part in the dismissal’. This is required on first principles and by Court of Appeal authority (Meikle). The tribunal here appeared to seek for ‘the’ cause rather than ‘a’ cause ... .”

3.8 As has long been recognised (see further Paragraphs 480 – 481.01 in Harvey on Industrial Relations and Employment Law, Section D1), many constructive dismissal cases which arise from the undermining of trust and confidence, can involve the employee contending that he left in response to a course of conduct carried on over a period of time, but the particular instance which caused the employee to leave may in itself be insufficient to justify his taking that action; but nevertheless, when viewed against a background of such incidents, it may be considered sufficient by the courts to warrant treating the resignation as a constructive dismissal (‘the last straw’ doctrine). As was made clear in the case of London Borough of Waltham Forest v Omilaju [2005] IRLR 35, in order to result in a breach of the implied term of trust and confidence, a ‘final straw’ which is not itself a breach of contract, must be an act in a series of earlier acts which taken together amount to a breach of the implied term. The Court of Appeal held in particular:-

“The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts upon which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant so long as it is not utterly trivial. Thus, if an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence but the employee does not resign and affirms the contract, he cannot rely on those acts to justify a constructive dismissal if the ‘final straw’ is entirely innocuous and not capable of contributing to that series of earlier acts. The ‘final straw’, viewed in isolation, need not be unreasonable or blameworthy conduct. … Moreover an entirely innocuous act on the part of the employer cannot be a ‘final straw’, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in the employer. The test of whether the employee’s trust and confidence has been undermined is objective.”

(See further Pan v Portigon AG London Branch [2013] UKEAT/0116 where the tribunal followed the guidance of Omilaju and found a return to work letter sent by the respondent to the claimant as ‘innocuous’, insofar as it was relied upon by the claimant, as the last straw entitling him to regard himself as discharged from further performance.)

3.9 As stated previously, the claimant 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 (or more technically affirmed the contract). In the Pan case the Employment Appeal Tribunal accepted that, in the context of constructive dismissal, the concepts of waiver and affirmation amounted to a distinction without a difference. In a recent decision of the Employment Appeal Tribunal, in the case of Hadji v St Luke’s Plymouth [UKEAT/0095/12], the Employment Appeal Tribunal, in the course of its judgment, set out the essential principles from the case law, in relation to the issue of affirmation in the field of employment contracts in constructive dismissal. These principles, as set out by the Employment Appeal Tribunal, are as follows:-

“(i) The employee must make up his [her] mind whether or not to resign soon after the conduct of which he complains. If he does not do so he may be regarded as having elected to affirm the contract or as having lost his right to treat himself as dismissed ...

(ii) Mere delay of itself, unaccompanied by express or implied affirmation of the contract, is not enough to constitute affirmation; but it is open to the employment tribunal to infer implied affirmation from prolonged delay ...

(iii) If the employee calls on the employer to perform its obligations under the contract or otherwise indicates an intention to continue the contract, the employment tribunal may conclude that there has been affirmation ... there is no fixed time-limit in which the employee must make up its mind; the issue of affirmation is one which, subject to these principles, the tribunal must decide on the facts; affirmation cases are fact-sensitive ... .”

3.10 In relation to the burden of proof provisions set out in Article 63A of the 1976 Order, the English Court of Appeal in the case of Igen v Wong [2005] IRLR 258, considered similar provisions, applicable under the legislation applying in Great Britain and, approved, with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong [2005] IRLR 258 and the said two-stage process to be used in relation to the burden of proof (see further Brigid McDonagh & Others v Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 1 and other decisions referred to below.) The decision in Igen v Wong [2005] IRLR 258 has been the subject of a number of further decisions in Great Britain, including Madarassy v Nomura International PLc [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006[ IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive & Another [2007] NICA 25. (See further the recent Supreme Court decision in the case of Hewage v Grampian Health Board [2012] UKSC 37, in which the Supreme Court approved the guidance in Igen and followed in subsequent case law, such as Madarassy [see below].) It did not consider any further guidance was necessary. It also emphasised it was not necessary to make too much of the role of the burden of proof provisions; they required careful attention where there was room for debate as to the facts necessary to establish discrimination but they had nothing to offer where the Tribunal was in a position to make positive findings on the evidence one way or the other.

In Madarassy v Nomura International PLC [2007] IRLR 246 the Court of Appeal held, inter alia, that:-

“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more [tribunal’s emphasis], sufficient material from which a Tribunal could conclude that on the balance of probabilities the respondent had committed an unlawful act of discrimination – could conclude in Section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude from all the evidence before it. This would include evidence adduced by the claimant in support of the allegation of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject to the statutory absence of an adequate explanation at this stage the Tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence to whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3) and available evidence for the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong. Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the Tribunal at the first stage, from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing or rebutting the claimant’s evidence of discrimination … .”

3.11 In relation to what is to be included by the expression ‘something more’ – guidance is to be found in the judgment of Elias J in The Law Society v Bahl [2003] IRLR 640, which judgment was approved by the Court of Appeal (see [2004] IRLR 799). In the recent decision in the case of The Solicitors Regulation Authority v Mitchell [2014] UKEAT/0497/12, this guidance was summarised in the following way (Paragraph 46):-

“(i) In appropriate circumstances the ‘something more’ can be an explanation proffered by the respondent for the less favourable treatment that is rejected by the Employment Tribunal.

(ii) If the respondent puts forward a false reason for the treatment but the Employment Tribunal is able on the facts to find another non-discriminatory reason, it cannot make a finding of discrimination.”

In particular, in Paragraph 101 of Elias J’s judgment explained that unreasonable conduct is not necessarily irrelevant and may provide a basis for rejecting an explanation given by the alleged discriminator but then added these words of caution:-

“The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation, given that it would if the treatment were reasonable. In short, it goes to credibility. If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination. But it will depend upon why it has rejected the reason he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct. Persons who have not discriminated on the proscribed grounds may nonetheless give a false reason for the behaviour. They may rightly consider, for example, that the true reason costs then in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the tribunal suggest there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support finding of unlawful discrimination itself.”

Elias J also made clear at Paragraph 220:-

“An inadequate or unjustified explanation does not of itself amount to a discriminatory one.”

At Paragraph 94 of his judgment, Elias J emphasised that unreasonable treatment is not of itself a reason for drawing an inference of unlawful discrimination when he stated:-

“94. It is however a wholly unacceptable leap to conclude that whenever the victim of such conduct is black or a woman that it is legitimate to infer that our unreasonable treatment was because the person was black or a woman. All unlawful discriminatory treatment is unreasonable, but not all unreasonable discriminatory treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour. In order to establish unlawful discrimination it is necessary to show that the particular employer’s reason for acting was one of the proscribed grounds. Simply to say that the conduct was unreasonable tells us nothing about the grounds for acting in that way. The fact that the victim is black or a woman does no more than raise the possibility that the employer could have been influenced by unlawful discriminatory consideration. Absent some independent evidence supporting the conclusion that this was indeed the reason, no finding of discrimination can possibly be made.”

Determining when the burden of proof is reversed can be difficult and controversial as illustrated in the following decisions. In Maksymiuk v Bar Roma Partnership [UKEATS/0017/12], when Langstaff P at Paragraph 28 said:-

“The guidance in Igen v Wong has been carefully refined. It is an important template for decision-making. As Laing and Madarassy have pointed out however, a tribunal is not required to force the facts into a constrained cordon where in the circumstances of the particular case they do not fit it. That would not to be apply the words of the statute appropriately. Intelligent application of the guidance, rather than slavish obedience where it would require contorted logic, is what is required.”

Further, in Birmingham City Council v Millwood [2012] UKEAT/0564, Langstaff P stated:-

“26 What is more problematic is the situation where there is an explanation that is not necessarily found to be a lie but which is rejected as opposed to one that is simply not regarded as sufficiently adequate.

Realistically, it seems to us that, in any case in which an employer justifies treatment that has a detrimental effect as between a person of one race and a person or persons of another by putting forward a number of inconsistent explanations which are disbelieved (as opposed to not being fully accepted) there is sufficient to justify a shift of the burden of proof. Exactly that evidential position would have arisen in the days in which King v Great Britain – China Centre [1992] ICR 516 was the leading authority in relation to the approach should take to claims of discrimination. Although a tribunal must by statute ignore whether there is any adequate explanation in stage one of its logical analysis of the facts, that does not mean, in our view, to say that it can and should ignore an explanation that is frankly inadequate and in particular are that is disbelieved.

27 ... to prefer one conclusion rather than another is not, as it seems to us, the same as rejecting a reason put as being simply wrong. In essence, the tribunal in the present case appeared not to believe at least two of the explanations that were being advanced to it, and there were, we accept from what Mr Swanson has said, some three inconsistent explanations put forward for the difference in treatment that constituted the alleged discriminatory conduct.”

On the facts of the case, in the Solicitors Regulation Authority case, it was found that a false explanation for the treatment was given by the respondent’s witness, which was found to lack credibility and could therefore constitute the ‘something more’; and the tribunal, having reversed the burden of proof, in the circumstances, was able to properly infer discrimination:-

“The tribunal asked the reason why the claimant had been treated as she was. It was not simply a question of the respondent putting forward no explanation but having given a false explanation. This was clearly capable of being ‘something more’ ... .”

This issue again arose in a further recent decision by the Employment Appeal Tribunal in the case of Veolia Environmental Services UK v Gumbs [UKEAT/0487/12] where it held, as set out in the Head note, it did not accept that Madarassy and Hewage supported the submission that an employer should not have the burden of proof reversed and be required to give a non-discriminatory explanation for its conduct in demoting an employee or denying the employee an opportunity to qualify to do different work where inconsistent explanations for the reason for the demotion had been given and an unacceptable account of knowledge of the ambition to qualify had been given could not be accepted. Whilst the substance of the explanation should be excluded from consideration when deciding whether the burden of proof should be reversed the fact that explanations had been given which were inconsistent could be taken into account. When an account of lack of knowledge as to the employee’s ambition to qualify for different work had been contradicted by other evidence that was a factor to be considered in deciding whether the burden of proof had shifted.

3.12 In the case of Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8, the Northern Ireland Court of Appeal approved the judgement of Elias LJ in Laing, which was also referred to with approval by Campbell LJ in the Arthur case, that it was not obligatory for a tribunal to go through the steps set out in Igen in each case; and also referred to the opinion of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 147, where he observed at paragraph 8 of his opinion, as follows:-

“Sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue”.

Lord Nicholl’s opinion in the Shamoon case made clear the normal two step approach of Tribunals in considering, firstly, whether the claimant received less favourable treatment than the appropriate comparator, which can include an actual or hypothetical comparator, and then, secondly whether the less favourable treatment was on the proscribed ground, can often be avoided by concentrating on why the claimant was treated as he/she was; and was it for the proscribed reason or for some other reason. If the latter, the application fails. If the former, there would normally be no difficulty in deciding whether the less favourable treatment, afforded to the claimant on the proscribed ground was less favourable than was or would have been afforded to others (see further Paragraph 11 of Lord Nicholls’ opinion). Indeed, Lord Nicholls’ opinion emphasised that the question whether there had been less favourable treatment and whether the treatment was on the grounds of [sex] are in fact two sides of the same coin.

3.13 In Nelson v Newry and Mourne District Council [2009] NICA 24, Girvan LJ referred approvingly to the decisions in Madarassy and Laing and also held that the words ‘could conclude’ are not to be read as equivalent to ‘might possibly conclude’. He said “the facts must lead to the inference of discrimination”. He also stated:-

“24. This approach makes clear that the complainants allegation of unlawful discrimination cannot be used in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could probably conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable the Police Service of Northern Ireland and Another [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63 A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

3.14 Coghlin LJ, in the case of Curley, also referred to the well known dicta of Carswell LCJ, as he then was, in the Sergeant A case, which also emphasised the necessity for the tribunal to look at the matter, in the light of all the facts as found:-

“3. Discrepancies in evidence, weaknesses and procedures, poor record keeping, failure to follow established administrative processes or a satisfactory explanation from an employer may all constitute material from which an influence of religious discrimination may legitimately be drawn. But Tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination, especially where other evidence shows such a conclusion is improbable on the facts.”

Although, both the Curley and Sergeant A cases were dealing with issues of religious discrimination, the dicta is also relevant, in the judgment of the tribunal, to determination of claims of discrimination pursuant to the Sex Discrimination (Northern Ireland) Order 1976, as amended and the other discrimination legislation and the interpretation of the relevant provisions relating to the burden of proof provisions, in the case law, referred to above, from the Employment Appeal Tribunal and the Court of Appeal of England and Wales .

3.15 In the case of Richmond Pharmacology v Dhaliwal [2009] IRLR 336, Underhill P, in a case brought under Section 3A of the Race Relations Act 1976, which is in similar terms to the 1976 Order in Northern Ireland, made observations concerning the approach to be taken by tribunals when considering claims of harassment under the 1976 Act and the equivalent provisions in the legislation relevant to other forms of discrimination:-

“10. As a matter of formal analysis, it is not difficult to breakdown the necessary elements of liability under Section 3A. They can be expressed as threefold:-

(1) The unwanted conduct

Did the respondent engage in unwanted conduct?

(2) The purpose or effect of that conduct

Did the conduct in question either:-

(a) have the purpose; or

(b) have the effect of either –

(i) violating the claimant’s dignity; or

(ii) creating an adverse environment for her?

(We were referred to (i) and (ii) as ‘the proscribed consequences’.)

(3) The grounds for the conduct.

Was that conduct on the grounds of the claimant’s race (or ethnic or national origins)?

11. But that formal breakdown conceals the fact that there are – or will at least in some cases be – substantial overlaps between the questions that arise in relation to each element. To take one obvious example, the question of whether the conduct complained of was ‘unwanted’ will overlap with the question of whether it creates an adverse environment for the claimant. There is also evidently a considerable overlap between the two defined proscribed consequences, notwithstanding that they are expressed as alternatives : many or most acts which are found to create an adverse environment for an employee will also violate her dignity (though it might be less general for the reverse to apply). The tribunal’s eventual decision may often depend on what are, in practice, undifferentiated factual issues which cover more than one element in the analysis. Nevertheless, it would be a healthy discipline for a tribunal in any case brought under this Section (or its equivalent in the other discrimination legislation) specifically to address it in its reasons each of the elements which we have identified, in order to establish whether any issue arises in relation to it and to ensure that clear factual findings are made on each element in relation to which issue arises.

12. We make four other points which we hope may be of assistance to tribunals seeking to apply Section 3A.

13. First, such case law as there was in relation to ‘harassment’ as a variety of discrimination prior to the implementation of the Directive is unlikely to be helpful. We did not say there may not be some general observations to be found in that case law which are equally applicable to claims under the new legislation. But the old law was constructed somewhat uncomfortably out of the general statutory definitions of discrimination. The new law, by contrast, derives from discrete statutory provisions with a completely different provenance, and reading across from one to the other is likely to hinder more than it helps. Still less is assistance likely to be gained from the entirely separate provisions of the Protection from Harassment Act 1997 and the associated cases …

14. Secondly, it is important the formal breakdown of ‘Element (2)’ in to two alternative basis of liability – ‘purpose’ and ‘effect’. That means that a respondent may be held liable on the basis that the effect of his conduct has been to produce the proscribed consequences even if that was not his purpose; and, conversely, that he may be liable if he acted for the purposes of producing the proscribed consequences but did not in fact do so (or in any event has not to have been shown to have done so). It might be thought that successful claims of the latter kind will be rare since in a case where the respondent has intended to bring about the proscribed consequences, and his conduct had a significant impact on the claimant for her to bring proceedings, it will be prima facie surprising if the tribunal were not to find that those consequences had occurred. For that reason we suspect that in most cases the primary focus will be on the effect of the unwanted conduct rather than on the respondent’s purpose (though that does not necessarily exclude consideration of the respondent’s mental processes because of ‘Element (3)’, as discussed below.

15. Thirdly, although the proviso in Sub-section (2) is rather clumsily expressed, its core thrust seems to us to be clear. The respondent should not be held liable merely because his conduct has the effect of producing a proscribed consequence : it should be reasonable that that consequence has occurred. That, as Mr Majumdar rightly submitted to us, creates an objective standard. However, he suggested that that being so the phrase ‘having regard to … the perception of that other person’ was liable to cause confusion and to lead tribunals to apply a ‘subjective’ test by the back door. We do not believe that there is a real difficulty here. The proscribed consequences are, of their nature, concerned with the feelings of the punitive victim : that is, the victim must have felt or perceived, her dignity was being violated or an adverse environment to have been created. That can, if you like, be described as introducing a ‘subjective’ objective; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then if she did genuinely feel her dignity to have been violated, there would have been no harassment within the meaning of the Section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially, a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or precisely to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. See also our observations at Paragraph 22 below.

16. Fourthly, ‘Element (3)’ involves an enquiry which will be very familiar to tribunals for other types of discrimination claims. There is ample case law in the nature of the enquiry required by the ‘interchangeable’ statutory phrases (‘on the grounds of’ or ‘by reason that’ – see classically the speeches of Lord Nicholls in Nagarajan v London Regional Transport [2000] 1 AC 501 at Pages 510 – 513, … and Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 at Paragraph 29 (Page 1072) …) … the inquiry into the perpetrators grounds for acting as he did – or to use Lord Nicholls’ phrase ‘the reason why he acted’ – is logically distinct from any issue which may arise for the purpose of ‘element (2)’ about whether he intended to produce the proscribed consequences : a perpetrator may intend to violate a claimant’s dignity for reasons other than her race (or indeed any of the other reasons proscribed by discrimination legislation).

…

In some cases the ‘ground’ of the action complained of is inherently racial. The best known example in the case law … is the decision of the House of Lords in James v Eastleigh BC [1990] 2 AC 751) … Where the nature of the conduct complained of consists, for example, of overtly racial abuse the respondent can be found to be acting on racial grounds without troubling to consider his mental processes.”

It is also relevant to have regard to the observations of Underhill P at Paragraph 22 of his judgment in the above Richmond Pharmacology case, when he stated:-

“Dignity is not necessary violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. Whilst it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the Cognate Legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity where the imposition of legal liability in respect of every unfortunate phrase … .”

(See further Paragraphs 94 and 101 of judgment of Elias J in Bahl, referred to previously.)

3.16 The said reverse burden of proof provisions also apply to cases of victimisation (see further Rice v McEvoy [2011] NICA 9). Further, the House of Lords made clear in the decision in the case of Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, victimisation occurs when in any circumstances relevant for the purposes of the provisions of this Act, a person is treated less favourably than others because he/she has done one of the protected acts. Thus, in order to make the necessary comparison it is necessary to compare the treatment afforded to the claimant who has done a protected act and the treatment which was or would be afforded to other employees, who had done the protected act. This may involve comparison with an actual or hypothetical comparator. In the Rice case, Lord Justice Girvan at Paragraph 33 of his judgment, when considering ‘the reason why issue’ stated:-

“In determining the reason why issue, it is necessary for the tribunal to consider the employer’s mental processes, conscious and unconscious. If on such consideration it appears that the protected act had a significant influence on the outcome, victimisation is established (see Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 at 575, 576), the question is why did the allege discriminator act as he did? What consciously or unconsciously was his reason? Unlike causation this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact (per Lord Nicholls in Chief Constable of West Yorkshire v Khan [2001] IRLR 830 at Paragraph 24).”

Lord Scott in the Khan case referred to establishing the ‘real reason’, ‘the core reason’ and ‘the motive’ for the treatment complained of.

As Higgins LJ stated in the Northern Ireland Fire & Rescue Service and Another v McNally [NICA Unreported 29 June 2012] Paragraph 23 of this judgment:-

“The primary object of the victimisation provisions is to ensure that employers who have taken steps to exercise their statutory rights (under the 1998 Order) are not penalised for doing so (see Lord Nicholls in Khan v Chief Constable of West Yorkshire Police [2001] UKHL 48 at Paragraph 16).”

In relation to whether the ‘protected act’ had a significance influence on the outcome, as referred to Lord Nicholls in Nagarajan, that expression was interpreted as an influence more than trivial. In Villalba v Merrill Lynch & Co [2006] IRLR 43, Elias J, as he then was, held that, if in relation to any particular decision where a discriminatory influence was not a material inference or factor then it was trivial and therefore according to the dicta in Igen v Wong is insufficient to break the principal of equal treatment.

3.17 In order to qualify as a ‘detriment’, for the purposes of the discrimination legislation, it was held in Shamoon by the House of Lords that a tribunal must find that, by reason of the act or acts complained of, a reasonable worker would or might take the view that he had thereby been disadvantaged in the sense where he thereafter had to work. It further held an unjustified sense of grievance could not amount to a detriment (see further Northern Ireland Fire & Rescue Service and Another v McNally [NICA Unreported 29 June 2012]).

3.18 The Court of Appeal in England and Wales in the recent decision of Crawford v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138, has confirmed that, depending on the particular facts, a suspension could amount to a detriment for the purposes of the discrimination legislation. In a footnote to the judgment, Elias LJ, obiter, (Paragraph 71) raised particular concerns about suspending employees for alleged gross misconduct and referring the allegation to the police; and indicated, in such a case, suspension “should not be a ‘knee-jerk’ reaction and it will be a breach of the duty of trust and confidence towards the employee if it is”. He also stated that, even where there is evidence supporting an investigation, it does not mean that suspension is automatically justified. He referred to the feelings of demoralisation and the psychological effect of suspension where there is exclusion from work and enforced removal from colleagues. Of course, such matters, in an appropriate case, may be relevant to issues of remedy and injury to feelings.

Similarly, Elias J also made it clear that, when considering whether to refer a matter to the police, it is important for an employer, whilst taking into account the necessity for transparency and not to conceal wrongdoing, to remember that it is a heavy burden for an employee to be under the cloud of possible criminal proceedings. Therefore he suggested, in an appropriate case, employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet ‘criminal’ being applied to the employee’s conduct. On the facts, it was found the decision to suspend was not such a ‘knee jerk reaction’.

3.19 The issue of holiday leave and, in particular, the ability for an employee to obtain a payment in lieu for holiday pay not used in a relevant year on termination of employment, was identified, as set out elsewhere in this decision, to be an issue which required to be determined by the tribunal. This issue has become complex, following the Working Time Regulations (Northern Ireland) 1998, as amended, and relevant legal authority in relation to the proper interpretation of the relevant statutory provisions and the impact of European Law.

3.20 Under Regulation 13 of the Working Time Regulations (Northern Ireland) 1998, as amended (‘the 1998 Regulations) it is provided, insofar as relevant and material for the purposes of this decision:-

“(1) ... a worker is entitled to four weeks’ annual leave in each leave year ...

...

(9) leave to which a worker is entitled under this Regulation may be taken in instalments, but –

(a) it may be only taken in the leave year in respect of which it is due; and

(b) it may not be replaced by a payment in lieu except where the workers’ employment is terminated.”

Regulation 13A of the 1998 Regulations, which came into force on 1 October 2007, was introduced to address a longstanding criticism of the statutory holiday provision that permitted an employer to count bank holidays towards the four week entitlement.

By Regulation 13A of the 1998 Regulations workers were granted an extra 1.6 weeks, 8 days, per year. However, significantly, as shall be seen later, this amending provision is a domestic UK provision rather then a measure imposed by the European Union.

Regulation 13A(7) provides:-

“A relevant agreement may provide for any leave to which a worker is entitled under this Regulation to be carried forward into the leave year immediately following the leave year in respect of which it is due.”

Regulation 14 of the 1998 Regulations provides as follows:-

“(1) This Regulation applies where –

(a) a worker’s employment is terminated during the course of his leave year; and

(b) on the date on which the termination takes effect (‘the termination date’), the proportion he has taken of the leave to which he is entitled in the leave year under Regulation 13 and Regulation 13A differs from the proportion of the leave year which has expired.

(2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave, in accordance with Paragraph (3) ... .”

Regulation 14 took advantage of the exception set out in Article 7(2) of the Working Time Directive (2003/88) which said article provides:-

“(1) Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

(2) The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.”

Following a series of decisions, now known as Stringer v HMRC [2008] IRLR 214, it has been established, in summary, that:-

“(1) Annual leave still accrues during a period of sickness.

(2) If a worker does not take a holiday during sick leave and was unable to take holiday pay before the end of the period due to sick leave, he must be allowed to carry that leave over into the next year – and perhaps later (see further KHS AG v Schulte [2012] IRLR 156 and Neidel v Stadt Frankfurt am Main [2012] IRLR 607 – where it seems less than a year will not be sufficient and a period of 15 months is probably sufficient).

(3) Article 7(2) of the Working Time Directive requires, that upon termination of the employment relationship, employers must make payments in lieu of any leave accrued but which has not been taken during a period of sickness absence, even if the employee is absent throughout the relevant period.

(4) A sick person cannot be forced to take annual leave in a period of sickness unless he/she wishes to do so (see Pereda v Madrid Movilidad SA [2009] IRLR 959).”

Regulation 15 of the 1998 Regulations provides for a worker to give relevant notice, as set therein, to his employer, where he/she wishes to take leave to which he/she is entitled under Regulation 13 and Regulation 13A. The recent decision of the Court of Appeal, in the case of NHS Leeds v Larner [2012] IRLR 825, to which further reference will be made later, held, inter alia, that a sick employee does not require to make a request to carry over annual leave to which he/she is so entitled and the right to do so applies whether or not a requirement has been made. (This was contrary to the dicta of Underhill J in Fraser v SW London St Georges Mental Trust and its reference to ‘use it or lose it’.) However, where sickness is not relevant, Regulation 15 will still require to be followed where such a carry over is attempted.

Further, the Court of Appeal in Larner held that, subject to what is set out below, if a worker’s contract is terminated then the worker is entitled to be paid in lieu for the holidays they could not take. Further, following Stringer, the Court of Appeal, considered whether Regulation 13(9)(a) required to be amended, having regard to the terms of Article 7 of the Directive. The Court of Appeal not only held that the Directive had direct effect, it went on to determine that the Regulations could be construed to give effect to and to be compatible with the Directive by re-writing the said Regulations in the following way, namely:-

“First, in relation to the carrying forward of unused annual leave, Regulation 13(9) would be construed to read as follows ‘leave to which a worker is entitled under this Regulation may be taken in instalments but –

(a) it may only be taken in the leave year in respect of which it is due, save where the worker was unable or unwilling to take it because he was on sick leave and as a consequence did not exercise his right to annual leave [words ‘added’ underlined]

Secondly, in relation to payment on termination of employment, Regulation 14 would be read and interpreted to include the following insertion : (5) where a worker’s employment is terminated and on the termination date he remains entitled to leave in respect of any previous leave year which carried over under Regulation 13(9)(a) because of sick leave, the employer shall make him a payment in lieu equal to the sum due under Regulation 16 for the period of untaken leave.” (words ‘added’ underlined)

3.21 However, unfortunately, confirming the comment of Mummery LJ in Larner, “the unfolding law on paid annual leave is not in a complete stage”, there remained the issue how much could be carried over, and as set out elsewhere in this decision, this issue was of particular relevance to the claimant’s claim before this tribunal. The Directive provides for only 20 days of holiday. As set out above, under the 1998 Regulations, as amended by Regulation 13A, the additional 1.6 weeks (8 days) was introduced. Larner effectively left open what was the position in relation to the eight additional days provided for under UK law; but not as a consequence of the Directive.

The decision in Stringer, referred to above, is a decision based on European Law. In Neidel v Stadt Frankfurt am Main [2012] IRLR 607 which involved a fire-fighter who retired and claimed pay in lieu of holiday which he had not been able to take over a period of three years, the European Court of Justice held that it had not been necessary for German law to have provided that Mr Neidel be paid in lieu in respect of any annual leave apart from the minimum period of four weeks, despite his annual entitlement having been greater. He confirmed that where Member States chose to grant more than the minimum four weeks’ paid annual leave required by EU Law, it is for the Member State to provide for payment in lieu if a person cannot take that additional leave due to sickness. Similarly in Dominguez v Centre Informatique due Centre oust Atlantique [2012] IRLR 321, the European Court of Justice confirmed that any additional leave granted by Member States over and above the basic four week entitlement is not subject to the principles laid down by Stringer in the European Court of Justice.

In a recent decision, in the case of Sood Enterprises Ltd v Healey [2013] IRLR 865, the Employment Appeal Tribunal, followed Larner and confirmed that the 1998 Regulations have to be read so as to be compatible with the Working Time Directive, even where litigants are private individuals or companies, as Mummery LJ had suggested in his judgment. However, following Neidel, it was held that the additional leave of eight days could not be carried over (unlike the 20 days) as there was no agreement providing for such a carry over pursuant to Regulation 13A(7):-

“In the Regulations before Regulations 13A and 26A were introduced Parliament provided that leave could be taken only in the leave year in respect of which it was due. That was construed so as to allow a worker who was prevented from taking his leave by illness to carry leave forward (see NHS Leeds v Larner). If they did not return to work due to illness they were then entitled to holiday pay in respect of leave which had accrued. By introducing Regulation 13A Parliament increased the leave to which workers are entitled to 28 days. Regulation 13A(7) provides that a relevant agreement may provide for any of that additional leave to which the worker is entitled to be carried forward into the leave year immediately following the leave year in respect of which it is due. By introducing Regulation 26A Parliament provided for recognition of an agreement between employer and employee that additional leave be allowed and has provided that such additional leave may not be carried forward into a leave year other than which immediately follows the leave year in respect of which the leave is due. Neidel is authority for the proposition that it is for national law set such requirements as it thinks fit for additional leave. Regulation 13A does so and must be given effect.”

On the particular facts of the case, there was no finding of fact there was any relevant agreement between the parties, with the consequence that the claimant was entitled to payment in lieu for holiday not taken when he was off work ill for 20 days per annum rather than the 28 days.

In the absence of any relevant decisions of the Court of Appeal in Northern Ireland, the tribunal considered it was appropriate to follow the decisions in Larner and Sood, albeit they were only of persuasive authority in this jurisdiction.

4.1 In light of the facts as found by the tribunal and after applying the guidance set out in the legal authorities referred to in the previous paragraphs of this decision, the tribunal reached the following conclusions, as set out in the following sub-paragraphs.

4.2 In the judgment of the tribunal, Shelter clearly requires to review its procedures and practices in relation to TOIL, to ensure disputes as to TOIL do not arise in future because of inadequate record-keeping by any employee and/or Shelter and/or because of lack of supervision or monitoring of any procedure and practice adopted by Shelter in future. However, since it was not a term of the contract of employment for the respondent to pay to the claimant monies for ‘unused’ TOIL hours, outstanding at the termination of the claimant’s employment, the tribunal concluded the claimant was not entitled to any monies in respect of any outstanding TOIL hours; and, in particular, in respect of the said 368 hours claimed by her, and which the tribunal would have found, if necessary, had been worked by the claimant, at the termination of her employment.

4.3 In relation to the claimant’s claim for payments in lieu, in respect of holiday pay and, in particular, the eight days’ holiday, which had not been taken by her at the date of the termination of her employment, for the reasons set out in Paragraph 3.18 – 3.20 of this decision and the relevant legal authorities set out therein, the tribunal reached the following conclusion. Since entitlement to these eight days’ holiday had arisen, pursuant to Regulation 13A of the 1998 Regulations, as amended, these days’ holidays could not be ‘carried over’ and therefore the claimant was not entitled to payment in lieu of same.

4.4 In relation to the claimant’s claim of sex discrimination, it was made by the claimant on the sole ground that the claimant’s grievance was determined by an all male panel. The tribunal is satisfied that the relevant grievance procedures provided for the said grievance to be heard by the office bearers, who at the relevant time were all male, and that this was the reason why the grievance had to be heard, in the circumstances by an all male panel. It is unfortunate, as was recognised by the Chairman in evidence, Shelter’s procedures did not give some flexibility/discretion in the matter. Indeed the tribunal is hopeful such discretion/flexibility as to the composition of any grievance panel may be included in a review of the Shelter’s grievance procedures, which the Chairman indicated would take place in the near future. In the context of the case, it is to be noted that, in the event of an appeal, there would have been able to be included on any appeal panel, a female member of the Board of Shelter, of which there was one at the relevant time. The tribunal also noted that the Chairman, whist he found himself constrained by the procedures to have an all male panel, was clearly not unsympathetic to the claimant’s request for a female to hear her grievance and suggested to her use of Shelter’s Harassment Policy, which allowed for more flexibility in the gender make-up of a panel. However this was rejected by the claimant. Indeed, in her e-mail dated 10 January 2012 to the Chairman, the claimant stated:-

“ ... I wish for the matter to be dealt with under the grievance procedure. I understand the Board’s position and I am content to proceed with the hearing without Siobhán in attendance ... .”

In the circumstances, the tribunal was satisfied, given the reason for the said gender make-up for the panel, there was not any evidence from which the tribunal could conclude the claimant was directly discriminated on the grounds of her sex.

4.5 As found by the tribunal, the claimant’s grievances, upon which she relied for the purposes of her claim of victimisation, contained no allegation of sex discrimination and therefore, in the tribunal’s judgment, could not be the basis for the ‘protected act’ for the purposes of Article 6 of the Sex Discrimination (Northern Ireland) Order 1976.

Therefore the tribunal was not satisfied the claimant had been victimised for the purposes of the 1976 Order. Even if it had found the claimant’s grievances were a protected act for the purposes of the 1976 Act, the tribunal was satisfied the reason for the respondent commencing disciplinary proceedings against her by the sending of the letter of 6 December 2012 and her said suspension was not related in any way to the taking of the said grievances by the claimant but rather the serious allegations made by the claimant’s fellow employees, which required to be investigated under Shelter’s disciplinary procedures (see later).

4.6 There was no doubt that there was a very difficult working relationship between the claimant and those employees for whom, at the material times, she was the line manager.

However, on the evidence before it, and as confirmed in the findings of the grievance panel, the tribunal was not convinced, as the claimant had alleged, these members of staff had bullied the claimant, by shouting at her and/or by using obscene language towards her. Indeed, the tribunal believed the claimant sought to exaggerate in her evidence what had taken place and seemed totally unaware, or prepared to accept, there could be anything wrong with her management style, which was clearly not liked by those members of staff for whom she was responsible.

If the tribunal is wrong, and the claimant was bullied by the members of staff shouting at her and/or using obscene language towards her, then the tribunal would have found it was unwanted conduct and done for the purpose or effect of violating her dignity or creating an adverse environment for her (see further Richmond Pharmacology v Dhaliwal [2009] IRLR 336).

However, all the said members of staff against whom the claimant has made the allegations were female, as is the claimant. In the circumstances, ‘without more’, the tribunal could not conclude any such conduct was on the grounds of the claimant’s sex. There was no other evidence to support a claim that the claimant, a female, had been sexually harassed by the other female members of staff on the grounds of her sex. Therefore, in the judgment of the tribunal, the claimant’s claim of sexual harassment must fail.

5.1 Further, the tribunal reached the following conclusions. In relation to the claimant’s claim of unfair constructive dismissal, as set out in the following sub-paragraphs.

5.2 The tribunal accepts that, under Shelter’s grievance procedures and, in particular, Paragraph 17 there is a timetable referred to therein for actions to be taken. However the tribunal is satisfied the reference to the said ’10 day timetable’ in the said paragraph is not an absolute, given the use of ‘should’ and not ‘must’; and is more in the nature of an indicative timetable. As with so many similar procedures used by many employers, it appears to be designed to allow a certain amount of flexibility where circumstances require it. Certainly there was some minor delay by the Director in light of the above indicative timetable. Further, as found subsequently by the grievance panel, who determined the claimant’s grievance, the Director should have kept the claimant better informed in the circumstances; and, in particular, that he was meeting with DM before conducting a hearing with the claimant. The tribunal also noted he had only done so, after seeking advice from ELAS, which clearly accounted for some of the delay. In the circumstances, the tribunal is not satisfied that the actions of the Director amounted to a breach of the grievance procedures. It is correct that a failure to adhere to a grievance procedure is capable of amounting to or contributing to a breach of the implied term of trust of confidence (see Blackburn v Aldi Stores Ltd [2013] IRLR 846). However, even if the said actions of the Director amounted to a breach of the procedures, in the judgment of the tribunal, it was not such a breach which would have justified the claimant resigning her employment. In any event, the claimant decided herself to refer her grievance to the grievance panel made up of relevant office-bearers; and not to await any further actions by the Director. This grievance, initially started out as a grievance about DM but, as seen on the facts found by the tribunal, it was also required to determine the claimant’s grievances against other members of staff, for whom she had line management responsibility. It was a difficult and complex task which was made more difficult by the various changes of mind of the claimant in relation to what she wanted to be included in the grievance. A further complication was this panel also had to determine the grievance made by the claimant against the Director. Subject to certain matters referred to below, the tribunal was impressed by the work carried out by the panel and, in particular, the Chairman, and in the procedures followed by the panel and in the conclusions reached by it. This was clearly illustrated by the detailed reports of the grievance panel and the correspondence between the claimant and the Chairman, referred to earlier in this decision. Considerable care was taken by the panel to explore every issue before reaching their respective conclusions to each grievance. It did so, being very aware of the need to manage the claimant’s ongoing sick absence whilst these outstanding grievances were determined. Clearly, the claimant disagreed with the decisions of the grievance panel, as she demonstrated by immediately seeking to appeal the findings made by the panel in respect of the said grievances. However the mere fact of disagreement is not enough to establish a claim of constructive dismissal. Michael Fenton, as a member of the Management Committee, was a member of the said grievance panel who determined these said grievances. However, although he appears to have been copied into all relevant findings, he did not appear to have attended any relevant meetings or hearings. As the Chairman recognised in the course of his evidence, this was unsatisfactory. He accepted, as part of a future review of procedures, , as referred to previously, this situation would require to be addressed. In the tribunal’s view, this was a breach of the procedure to allow Mr Fenton to act as a member of the grievance panel ‘in abstentia’; albeit the claimant was told of his absence. However, the tribunal is satisfied that, given his absence and non-participation in the grievance process, even when copied into the correspondence, it made no difference to the outcome of either grievance. In these circumstances, the tribunal was not satisfied this breach of the procedures amounted to a breach of the implied term of trust and confidence which would have justified the claimant resigning her employment. As the Chairman accepted, in evidence, it would have been better if the grievance panel had had a formal meeting with the Director in relation to the claimant’s grievance against him. In the judgment of the tribunal, it was not required to do so under the procedures – which allowed the panel considerable flexibility how it determined any grievance. In any event, the panel did obtain the Director’s written response to the somewhat vague allegations made against the Director by the claimant that ‘he had undermined her/lack of support’. Again, whilst the claimant may disagree with the panel’s conclusions, the tribunal was not satisfied there was any breach of procedure amounting to a breach of the implied term of trust and confidence, which would have justified the claimant resigning.

5.3 It is apparent that the appeal procedure had been instigated, following the claimant’s rejection of the decisions made by the grievance panel and the claimant had been so informed. So, at the time of the claimant’s resignation from her employment, these appeals were pending. It is not for the tribunal to speculate what would have been the outcome of those appeals, if the claimant had remained in employment. There was no evidence to suggest that, in the absence of the claimant’s resignation, these appeals would not have proceeded.

The tribunal has no doubt the claimant decided to resign, following receipt of the letter of 6 December 2012, which informed her of her suspension, pending the investigation of the serious allegations made against her, as set out in the said letter. For the reasons set out in Paragraph 2.43 of this decision, the tribunal is not satisfied there was any express breach of the claimant’s contract of employment or, indeed, any breach of the implied term of trust and confidence by these actions. In essence, the Director was entitled, in the circumstances, under Shelter’s procedures, to suspend the claimant and to have an independent investigation carried out into them. In particular, the tribunal was satisfied, as set out before, that the claimant was not suspended because she had brought the grievance against the Director, or indeed any other grievance. Further, at all material times the Director acted upon the advice of ELAS. Although with hindsight, given the pending appeal of the claimant’s grievance, against the Director, the tribunal has no doubt it would have been more appropriate, in these circumstances, if the Director had not sent the letter and it had been sent, for example, by the Chairman. However, it was not satisfied the sending of the letter by the Director in such circumstances gave rise to any breach of the implied trust and confidence.

Even if the tribunal is wrong, the action of the Director, in writing the letter was not as such calculated to or likely to destroy or seriously damage the relationship of trust and confidence between the claimant and her employer (‘the Malik term’). Further, although the letter, as set out above, played a part in the dismissal in the circumstances, it was not a repudiatory breach, in the judgment of the tribunal (Abbey Cars v Ford). It was a procedural letter, which set out the serious allegations, which the claimant had to be informed of under the procedures, the nature of the investigation to be carried out and the procedural matters in relation to her suspension. Further, in light of the conclusions made by the tribunal in the previous sub-paragraphs, the tribunal was not satisfied the sending of the letter of 6 December 2011, could be considered to be ‘the final straw’, which taken with these matters referred to in those sub-paragraphs, amounted to a breach of the implied term of trust and confidence (see Omilaju). In particular, the appeals were proceeding. The letter of 6 December 2012 was a necessary procedural letter which required to be sent to commence the separate relevant procedures to enable the investigation of the serious allegations made against the claimant.

5.4 The tribunal therefore was not satisfied the claimant was unfairly constructively dismissed.

6.1 The claimant’s claims must therefore be dismissed.

Employment Judge

Date and place of hearing: 14 – 18 October 2013, Belfast

Date decision recorded in register and issued to parties: