Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 510/15

 

 

 

CLAIMANT: Joanne Breen

 

 

RESPONDENT: Simon Community Northern Ireland

 

 

 

DECISION

The unanimous decision of the tribunal is that the claim of constructive unfair dismissal is dismissed.

 

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr C McIlwaine

Ms M-J McReynolds

 

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Ms R Best, Barrister-at-Law, instructed by Worthingtons, Solicitors.

 

Background

 

1. The respondent is a charity which provides accommodation for homeless and vulnerable people.

 

2. The claimant had been employed by the respondent for approximately eight years as an Accommodation and Community Support Worker.

 

3. The claimant resigned from her employment on 19 December 2014.

 

4. The claimant alleged that, as a result of several events and several practices, she had been constructively and unfairly dismissed from her employment for the purposes of the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order').

 

Procedure

 

5. This case had been case-managed in advance of the hearing. With one exception, witnesses had exchanged their evidence-in-chief as witness statements in advance of the hearing. Those witnesses sworn or affirmed to tell the truth, adopted their witness statements as their entire evidence-in-chief, and moved immediately into cross-examination and re-examination.

 

6. The claimant, and on her behalf, Mr Sean Rodgers, gave evidence in this matter. Mr Brian Clark, Ms Bernie Martin, Mr Paddy McGettigan and Ms Nicola Dunn also gave evidence on behalf of the respondent using the witness statement procedure. Mr Hugh McVeigh gave oral evidence-in-chief on behalf of the respondent before being cross-examined and re-examined.

 

7. The panel read the witness statements and the relevant documentation before the commencement of the hearing. The panel did not know the identity of the witnesses until the those witness statements were read by the panel on that first morning of the hearing. At that point, Ms McReynolds, a panel member, realised that the claimant intended to call Mr Rodgers. Ms McReynolds had worked in the same building as Mr Rodgers some 15 years ago. They had worked in different departments at that time and had not spoken since except on one occasion when they met during a Queen's University function. They had not been and were not friends and had not been close work colleagues. This was disclosed to the parties before the commencement of the hearing and the Vice President indicated that he could see no reasonable conflict in this matter. The parties agreed and the case proceeded.

 

8. There was also a discussion before the commencement of the hearing about the disclosure by the claimant of GP notes and records. While it is clear that the claimant had not disclosed all such records, the claimant stated in open tribunal that she had disclosed any such notes and records that were relevant to this case. On that basis, the case proceeded.

 

Relevant law

 

9. Article 126 of the 1996 Order provides:-

 

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

 

10. Article 127(1)(c) of the 1996 Order provides:-

 

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

 

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

 

11. The starting point for any successful claim of constructive unfair dismissal must be that there has been a repudiatory breach of contract by the employer. In Western Excavating (ECC) Ltd v Sharpe [1978] IRLR 27, the Court of Appeal stated:-

 

" In my opinion the contract test is the right test. "

 

It went on to approve the earlier finding of the EAT in Wetherall (Bond Street W1) Ltd v Lynn [1978] ICR 205, which stated:-

 

"Parliament might well have used the words - (such as to make the criteria whether the employer's conduct had been reasonable having regards to equity and the substantial merits of the case) - but it neither laid down that special statutory criteria or any other. So in our judgment, the answer can only be, entitled according to law, and it is to the law of contract that you must look."

 

The Court of Appeal had stated in relation to the contract test:-

 

"If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract."

 

12. In the Leeds Dental Team Ltd v Rose [2014] ICR 94, the EAT determined:-

 

" ... that, in a case of constructive dismissal, the tribunal had to consider objectively whether the conduct complained of was likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee; but the test did not require a tribunal to make a factual finding as to what the employer's actual intention was, since his subjective intention was irrelevant; that whether there been a repudiatory breach was a question of fact for the tribunal ... ."

 

13. In Brown v Merchant Ferries Ltd [1998] IRLR 682, the Northern Ireland Court of Appeal stated that although the correct approach to constructive dismissal is to ask whether the employer was in breach of contract and not whether the employer had acted unreasonably, if the employer's conduct had been seriously unreasonable, that may provide sufficient evidence that there had been a breach of contract.

 

14. In WE Cox Toner (International) Ltd v Crook [1981] IRLR 443, the EAT stated in relation to affirmation:-

 

"It is accepted by both sides (as we think rightly) that the general principles of the law of contract apply to this case, subject to such modifications as are appropriate to take account of the factors which distinguish contracts of employment from other contracts. Although we were not referred to cases outside the field of employment law, our own researches have led us to the view that the general principles applicable to a repudiation of contract are as follows. If one party (the guilty party) commits a repudiatory breach of the contract, the other party (the innocent party) can chose one of two courses : he can affirm the contract and insist on its further performance or he can accept the repudiation, in which case the contract is at an end. The innocent party must at some stage elect between these two possible courses : if he wants to affirm the contract, his right to accept the repudiation is at an end. But he is not bound to elect within a reasonable or any other time. Mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation : Allen v Robles [1968] 1 WLR 1193. Affirmation of the contract can be implied. Thus, if the innocent party calls on the guilty party for further performance of the contract, he will normally have been taken to have affirmed the contract since his conduct is only consistent with the continued existence of the contractual obligation. Moreover, if the innocent party himself does acts which are only consistent with the continued existence of the contract, such acts will normally show affirmation of the contract. However, if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy that breach, such further performance does not prejudice his right subsequently to accept the repudiation."

 

In Hadji v St Luke's Plymouth [2013] UKEAT/0095/12, the EAT stated:-

 

"The essential principles are that -

 

(i) The employee must make up his 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 ...

 

(iv) There is no fixed time-limit in which the employee must make up his mind; the issue of affirmation is one which, subject to these principles, the Employment Tribunal must decide on the facts; affirmation cases are fact-sensitive ... ."

 

15. In the case of Mari v Reuters Ltd [2015] UKEAT/0539/13, the claimant, in an affirmation case, argued that she had been so mentally ill during the relevant period that she had been unable to contemplate resignation. A psychiatric report had been furnished on her behalf which supported her argument. However that was contradicted by other matters raised in evidence. The Employment Tribunal stated:-

 

"We are very wary of expressing a medical opinion, but the decision is ours, and on the basis of far more extensive oral and documentary evidence, and evidence from the respondent, which was unavailable to Dr Ornstin. Throughout this period the Claimant was engaged in various coherent e-mail traffic with the respondent, and while she had help on some occasions from Ms Saffery, on others she did not. She was able to take legal advice. We do not accept that she was incapable, for medical reasons, of resigning or putting in a claim."

 

The EAT stated:-

 

"In my judgment Employment Tribunal's conclusion was not perverse. There was ample material on which the Employment Tribunal could reject the claimant's case that she was incapable of resigning. It was entitled to look at the evidence as a whole (which included her GP records, her correspondence with the respondent, her ability to seek access to the internet and to visit their premises, her travel arrangements abroad, and so forth) and reach the conclusion it did."

 

Relevant findings of fact

 

16. The claimant had been employed by the respondent since August 2005. Since 2009 her job title had been ' Accommodation and Community Support Worker'.

 

17. Up to September 2012, she had been employed in the Cliftonville Avenue Centre, working with adult residents. In 2012, there were unrelated difficulties in another location, ie Conway Court. That location/centre provided for apartment accommodation for families in need of support.

 

18. Three members of staff at Conway Court were moved and, as a consequence, the claimant was selected to fill one of the consequent vacancies in Conway Court as a experienced accommodation officer.

 

19. The claimant worked in Conway Court for approximately nine months and went on sick leave on 24 June 2013. She remained on sick leave for approximately 18 months until she resigned on 19 December 2014.

 

20. The claimant's list of complaints and allegations against the respondent was diffuse, confusing and utterly unconvincing. For example, she repeatedly and passionately asserted in cross-examination that she had received no training and no supervision throughout her career and that she had been left alone working ' on the frontline'. Even after it had been put to her, on several occasions, that she had in fact received significant training and that she had benefited from significant supervision, these assertions continued.

 

21. The claimant was asked at the commencement of her cross-examination to set out the reason or reasons for her resignation in December 2014. What followed was a long list of confused and repeated complaints which appeared to be spread over the entire period of employment. These were:-

 

"(i) No support and no training since 2005.

 

(ii) No supervision.

 

(iii) The respondent had ignored the health & safety at work policy.

 

(iv) The claimant's line managers had not been qualified to act as her line manager.

 

(v) There were no supervision records or just a couple of records.

 

(vi) The respondent had refused to acknowledge its alleged failings.

 

(vii) The respondent did not give the claimant child protection training when she moved to Conway Court in September 2012. She told the tribunal that she had been working with child protection in Conway Court and did not know what she was doing.

 

(viii) She had been unhappy working at Conway Court.

 

(ix) The claimant had asked to be moved from Conway Court and her move had been refused.

 

(x) The claimant had received no induction training in Conway Court. She had had to read everything herself. 'By 'everything' she appear to mean fire safety regulations and evacuation regulations together with the normal procedures in any such building.

 

(xi) She had been thrown 'in at the deep end' and at 'the frontline'."

 

Training

 

22. The tribunal had been taken, in the course of cross-examination, through the claimant's extensive training record with the respondent. This record covers two typed pages and spans the period from October 2005 to October 2013. It records 38 items of training. None of this detail, however, prevented the claimant from repeatedly asserting that she had received no training.

 

23. In particular, the claimant had been trained by the respondent to NVQ Level 3 in Health & Social Care in 2009, even though that was a higher level than her job required. The claimant was evasive in cross-examination about the content of this course, which was the equivalent of an A Level. She stated that could not remember the course covering the issue of child protection. The respondent's witnesses were clear that it did cover this issue. The tribunal accepts the respondent's version of this matter. It seems highly unlikely that such a course would ignore children or the issue of child protection, particularly in 2009, or that it would have, for some reason, concentrated only on those over 18.

 

24. Furthermore, the claimant had received separate training in 2008, again at the expense of the respondent, entitled ' Child Protection Basic Awareness'. The claimant in a grievance procedure (to which this decision will turn shortly) stated that she did not remember this training. Her trade union representative on 17 September 2014, in fact, demanded proof that the claimant had taken this course. The claimant's memory, however, appears to have improved significantly by the time of this tribunal hearing, in that during the cross-examination she did remember the course and did remember receiving this training. She argued simply that the training had been out-of-date by the time she moved to Conway Court.

 

25. The claimant had been booked for further additional training in child protection issues in July 2013 but did not attend this training because she was, at that stage, absent on sick leave. Given the claimant's existing training in relation to child protection, either as part of the specific 2008 course or as part of the general NVQ Level 3 qualification in 2009, it appears to the tribunal to be unreasonable for the claimant to assert that she should not have been moved to Conway Court until she had received this further training. In any event, she made no such assertion at the relevant time.

 

26. The claimant's position was, in any event, as an accommodation and support worker. She was tasked to work with the adults living in the Conway Court apartments. She was supposed to help them with their accommodation and benefit claims and to assist them in their reintegration into society. The children living with those adults were not her clients. They had their own social workers employed by the Trust. The claimant was not their social worker; she was not a social worker at all. Furthermore, if any child protection issue had arisen, she simply had to report it to her team leader, or to the respondent's Child Protection Officer or indeed to the relevant social worker.

 

27. The tribunal is satisfied that the claimant had been extensively and appropriately trained throughout her career and that there had been no breach of contract of any sort in relation to training, much less a repudiatory breach.

 

Supervision

 

28. As with the issue of training, the claimant seemed to have a fixed view in relation to supervision which was entirely unsupported by the evidence. She had been part of a small team with regular contact with her team leader, either on shift handovers, informally, or at team meetings. If she had had any issues she could have raised them at any stage with her team leader or with anyone else in the respondent's management structure. If she had any queries in relation to any point she could have raised them with her team leader or with anyone in that management structure or indeed with anyone acting as a social worker for any of the residents.

 

29. The claimant argued that there had not been sufficient formal minuted one-to-one meetings between her and her team leader. She argued that the flowchart relating to performance development review and the policies relating to performance development review had not been meticulously followed to the letter. Even at the height of her allegations, any alleged shortcomings in this regard were minor and inconsequential. They fell far short of repudiatory breaches of contract either taken singly or in conjunction with every other allegation made by the claimant. They were the sort of criticisms which could be made in any busy organisation where a detailed flowchart and elaborate performance appraisal policies were not always observed with absolute and regular precision.

 

30. It also seems clear from the evidence of Ms Martin and Ms Dunn that an induction procedure had taken place with the claimant on her move to Conway Court and that safety procedures had been adequately explained to her. While a formal record of this induction had not been retained on her personnel file, and had to be formalised later, the fact remains that the induction had taken place. Furthermore, the claimant had clearly received extensive training, including fire safety training, and had received a copy of the Personal Emergency Evacuation Plan. In any event, the claimant does not assert, even if her allegations were entirely correct, that either she or indeed anyone else had been put in any actual danger. She states that she simply had to read the relevant procedures herself. The tribunal believes that this allegation was incorrect. However, even if it had been correct it would not have amounted to a significant breach of contract. The procedures were there; they were capable of being read. If the claimant had had any genuine query in relation to any of the procedures relevant to Conway Court, she could have raised them specifically with her team leader or with colleagues.

 

31. The flowchart outlining the personal development review procedure was ambitious and detailed. It prescribed three one-to-one meetings per year of one hour each, plus day-to-day management, together with a two or three hour performance development review meeting and a one to two hour interim performance review. In the real world, an individual in a small team with daily shift handovers and with unrestricted contact with her team leader was unlikely to require all of this to function effectively. She certainly had not asked for any further such meetings.

 

That said, there were a significant number of documented supervision meetings. For example, in a detailed progress report in August 2011, the claimant indicated that she was not raising any personal training needs and that she was not raising any policies for discussion at the team meeting. Documents in relation to her key performance indicators and to training needs were completed in 2011 and 2012. An assessment of the lone working risk assessment procedure was completed in 2012. A performance development review was completed with the claimant in December 2012. Formal team meetings were held (albeit irregularly) and minuted in detail. One was held on 28 March 2013 and another on 4 June 2013; the claimant certainly attended the latter. She may indeed have attended the earlier meeting. If she had not she would have received the relevant papers. The claimant did not allege dissatisfaction with training or with supervision. In cross-examination she told the tribunal that she felt constrained in some way from doing so during these team meetings. It is difficult to see how this could have been the case. There were only eight people present during these meetings and it appears to the tribunal that if there had been any genuine concerns they could have been raised by the claimant during any of these meetings.

 

Health & Safety Policy

 

32. The claimant's complaints under this heading appear to have related to her allegation that she did not receive an adequate induction on moving to Conway Court and also to her allegation that she did not receive any training or supervision. As indicated above, the tribunal does not accept that either allegation has any merit.

 

Qualification of line managers

 

33. This allegation does not make any sense. In any event, the claimant does not appear to have raised this matter until after she went on sick leave. The claimant was training to a higher standard (NVQ Level 3) than she needed; however this does not seem to have been a legitimate cause for complaint. It does not appear that the claimant is asserting that the respondent should then have moved to dismiss her for being over-qualified. It is difficult to see what this complaint actually means.

 

The alleged lack of records of supervision

 

34. As indicated above, the respondent failed to comply fully with the detailed performance development review system. However, there had been performance review meetings and, in any event, the claimant had been adequately trained, adequately supervised and minor criticisms of this nature are not significant. They cannot, either on their own or in conjunction with all the other complaints, amount to a repudiatory breach of contract.

 

The move to Conway Court

 

35. The respondent had clear business reasons for this move. It was done on adequate notice. It was not contrary to the claimant's contract. According to that contract, she could properly have been moved to any location in Belfast. The claimant had indicated some unhappiness originally at this move but then agreed to move. While she asked to move from Conway Court on later occasions, she was in fact afforded a move to another location which she then refused.

 

Grievance procedure

 

36. In or around August 2014, after some 14 months of sick absence, the claimant invoked the grievance procedure with what she described as a ' comprehensive document' of some four typed pages.

 

37. She raised the allegation of a lack of training and supervision. She complained that her health and safety had been put at risk; that she had had to do the work of two people without support; that management had refused to look for an alternative role for her and that she had been intimidated by staff working for the respondent. In relation to the latter allegation, the claimant alleged that a ' sinister' threat to kill her had been left on her answering machine at home.

 

38. A grievance meeting was held by Mr McVeigh on 17 September 2014. The claimant was represented by a Unison representative. During this meeting, the claimant stated that she did not recall getting child protection training in 2008. Her Unison representative asked for documentation to establish that this training had in fact taken place. The claimant further claimed that she had not received any supervision or support and that she had done the work of two people. She complained of the move to Conway Court. She alleged that she had been intimidated by other members of staff because she had observed an act of gross misconduct ' of a sexual nature'. She refused repeatedly to name the staff members allegedly involved. After a brief adjournment, she stated that she did not want to proceed with the complaint of intimidation.

 

39. Mr McVeigh interviewed Ms Martin, the Belfast Area Service Manager, on 23 September 2014. Ms Martin explained the business reasons for the claimant's transfer to Conway Court. She confirmed that an induction process had taken place. The claimant had had child protection training in 2008. Further child protection training had been arranged for the claimant to take place on the day that the claimant commenced her long period of sick leave. The claimant did not do the work of two people. The caseload target for support workers was 10 clients. The claimant had never exceeded seven clients.

 

40. Mr McVeigh interviewed Ms Dunn on 23 September 2014. Ms Dunn had been the claimant's final team leader. She stated that there had been supervision and that the claimant had not, at any stage, met the target workload. Her workload had not been excessive. Ms Dunn had been present during daily handovers and the claimant had had the same workload as other support workers. One-to-one meetings and PDRs had been completed.

 

41. On 16 October 2014, Mr McVeigh wrote to the claimant dismissing her grievance. He found that there had in fact been adequate training and supervision. He stated that the claimant had been contracted to work anywhere in the Belfast area and that the transfer to Conway Court had been permitted by the contract. He stated that the claimant's workload had been normal and that, in fact, she had worked slightly less than the other five support workers. Her support hours, which had been logged on the Osaka computer system, had not exceeded 38 hours per month. The other five support workers ranged from 43 hours to 76 hours per month.

 

Mr McVeigh also found that the claimant, while in Conway Court, had been offered another location in Belfast but she had refused.

 

Finally, Mr McVeigh asked again for details of the alleged intimidation.

 

42. The claimant appealed. She stated that the respondent had breached her contract by not updating her training every three years. She alleged again that she had been left without support. She stated that the team leaders had not been adequately qualified. She alleged that the PDRs had not been properly completed. She stated that she had been forced to move to Conway Court and that she had had to do the work of two people without support. She stated she had been refused a move. She repeated the allegation of intimidation but again refused to give names.

 

43. Mr McGettigan, the Director of Homelessness Services, held an appeal meeting on 31 October 2014. The claimant was again represented by a Unison representative. The claimant stated that she had a lot of concerns and was using the procedure to vent those concerns.

 

44. On 5 January 2015, the claimant e-mailed Mr McGettigan. She alleged that after she had met one of the team leaders, someone had entered her house and had left without being seen. She said:-

 

"This was no coincidence. I am wondering if you have revealed my identity and further details to staff. If you knew what I knew you would know that you should not put information in the wrong hands."

 

45. The grievance appeal was not successful. The claimant had not put forward any new evidence but had simply repeated the earlier complaints.

 

Home visits

 

46. The claimant had received several home visits during her lengthy period of sick leave. They included 11 July 2013, 30 September 2013 and 18 November 2013. These were all conducted properly and the tribunal can see no evidence of improper conduct on the part of the respondent. The claimant was provided with counselling and she was examined by an Occupational Health Doctor on 5 February 2014.

 

Income Protection Insurance

 

47. The respondent offered an insurance policy underwritten by Canada Life which provided a level of income protection. The claimant claimed, under this policy, in or around April 2014.

 

The claimant repeatedly told the tribunal that her GP had advised her to resign because of the treatment that she had been receiving from the respondent. However, the same GP had completed a report for Canada Life on 30 July 2014 in which he stated that there had been no issues in the workplace which contributed to the claimant's sick absence. When this was put to the claimant in cross-examination, the claimant stated that she could not speak for her GP (despite having repeatedly done exactly that).

 

Evidence of Mr S Rodgers

 

48. The claimant introduced a witness statement from Mr Rodgers who attended to give evidence. The evidence was completely irrelevant to the claimant's allegations. Mr Rodgers had been based in a different location, had only worked there for nine months and had never worked with the claimant. He had absolutely nothing of any relevance to say in this matter.

 

Resignation

 

49. The claimant resigned on 19 December 2014. She stated that she had decided to resign after the completion of the grievance procedure on 18 November 2014. However she was unable to explain satisfactorily why she waited for a full month before carrying out that resignation. It would appear that the claimant waited until she had received payment under the Income Protection Policy.

 

Decision

 

50. The claimant has alleged that the respondent had been in breach of contract, in that it had failed to provide adequate training to the claimant. The claimant focused particularly on training for child protection. The allegation of inadequate training is clearly incorrect. The claimant had received extensive training. She had also received basic child protection training in 2008 and had been trained to NVQ Level 3 in Health and Social Care.

 

The adequacy of the claimant's training has, of course, to be assessed against her actual duties when employed by the respondent. In Conway Court, she worked with the adult residents in those apartments. The children residing with some of those adults had their own social workers. The respondent also had its own Child Protection Officer. The claimant had also regular contact with her team leader. If, for some reason, a child protection issue had arisen and had been reported exclusively to the claimant, all the claimant had to do in those circumstances was to notify the relevant social worker, or the Child Protection Officer or her own team leader. In short, there was no actual need for further specific child protection training. Any need perceived on the part of the claimant cannot be elevated to the status to a repudiatory breach of contract.

 

51. In any event, the respondent had arranged further child protection training as requested by the claimant but the claimant did not attend that training. She went on sick leave on the same day.

 

52. The claimant also alleged that the respondent had been in breach of contract, in that supervision and support for the claimant had been inadequate. This allegation is also incorrect. They may have been instances where formal one-to-one meetings were not held or were not properly recorded. There may have been instances where particular forms had not been regularly completed or fully completed. However, the tribunal is satisfied that there had been adequate and indeed close supervision and support. It is notable, for example, that the claimant, when she suspected that one of the residents in Cliftonville Avenue had been ill, had waited until the shift change for her team leader to deal with the matter.

 

53. The claimant also alleged that the respondent had been in breach of contract, in that there had been no induction training in Conway Court. This is also incorrect. There had been such training and indeed it had been repeated. In any event, the claimant had been an experienced and trained employee and, on her own evidence, had been perfectly capable of reading the relevant procedures on her own.

 

54. The move from Cliftonville Avenue to Conway Court, ie from one Belfast location to another, was within the terms of the claimant's contract and had carried out on notice. It had also been carried out for reasonable business reasons. It had not been in any sense a breach of contract.

 

55. When the claimant had, after a lengthy period sick leave, invoked the grievance procedure, the grievance procedure had been carefully followed by the respondent. The claimant's grievances had been fully considered and investigated. The decision of the respondent, at first instance, rejecting the grievance and on appeal affirming that rejection had been reasonable.

 

56. The small number of home visits during the claimant's lengthy period of sick leave were properly conducted and were not in any sense a breach of contract.

 

57. In short, any of these alleged breaches of contract did not in fact occur and, considered either singly or in conjunction with each other, did not amount, on any reading of events, to a repudiatory breach of contract which could properly ground a constructive unfair dismissal claim.

 

58. On that basis, the claim of constructive unfair dismissal fails.

 

59. Even if there had been a repudiatory breach of contract (and there had not been) the claim would still have failed by reason of delay and affirmation.

 

60. The claimant stated that she had decided to resign after the conclusion of the grievance procedure, ie on 18 November 2014. The claimant did not resign until 19 December 2014. That delay would, on its own, have defeated any claim of constructive unfair dismissal.

 

61. There is, in any event, the issue of affirmation. Apart from the claimant's allegations in relation to the grievance procedure, which simply amounted to an alleged failure on the part of the respondent to acknowledge previous mistakes, the claimant had been aware of all the alleged incidents when she went on sick leave on 24 June 2013. As indicated, she did not resign until 19 December 2014. Throughout that period the claimant had been in receipt of sick pay. She had been in frequent contact with her employer with e-mails and home visits. She had indicated her intention to return to work and had enquired after part-time work. She had pursued a claim for Income Protection Insurance and received a payment under that policy. She invoked the grievance procedure and pursued that grievance procedure, both at first instance and on appeal. That procedure had lasted until 18 November 2014 when she was informed that her grievance had been rejected.

 

62. This was not an instance of an employee, who faced with an alleged repudiatory breach of contract, promptly, or relatively promptly resigned, without further operating the terms of the employment contract. By receiving sick pay, by pursuing the Income Protection Policy, by invoking the grievance procedure and by remaining in frequent contact with the respondent throughout, the claimant had repeatedly affirmed her contract. This is most evident in her actions in confirming or at least indicating to the respondent that she intended to return to work and in her actions in asking about part-time work.

 

63. Therefore, even if there had been a repudiatory contract and even if there had been no delay, any claim would have still have failed on the issue of affirmation.

 

64. The claim of constructive unfair dismissal is therefore dismissed.

 

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing: 24 - 26 August 2015, Belfast

 

 

Date decision recorded in register and issued to parties: