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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McLean v Footprints Women's Centre Ltd [2015] NIIT 00754_15IT (11 August 2015)
URL: http://www.bailii.org/nie/cases/NIIT/2015/00754_15IT.html
Cite as: [2015] NIIT 00754_15IT, [2015] NIIT 754_15IT
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INDUSTRIAL TRIBUNALS
CASE REF: 754/15
CLAIMANT: Karen McLean
RESPONDENT: Footprints Women's Centre Ltd
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 I Savage
Mr T Wells
Appearances:
The claimant was represented by Mr P Moore LLB of PM Associates.
The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by Worthingtons Solicitors.
Background
1. The claimant had been employed by the respondent for approximately five years, latterly as a Women's Empowerment Worker.
2. The respondent is a company limited by guarantee which promotes women's issues.
3. The claimant alleged that there had been a pattern of bullying or harassment by her employer. She applied for a reduction in hours and intended to start her own business offering baby massage. That reduction was refused.
4. The claimant resigned by letter of 20 March 2015.
5. The claimant complained to this tribunal that she had been constructively and unfairly dismissed for the purposes of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order).
Title of respondent
6. Following discussion, the title of the respondent was amended to:
"Footprints Women's Centre Ltd"
The title of the action is amended accordingly.
The procedure
7. This claim had been case managed at two separate Case Management Discussions on 18 June 2015 and 23 July 2015. Specific directions had been given in relation to the interlocutory procedure. Following representations from the parties, the claimant had been directed by the tribunal on 23 July 2015 to provide:
"(a) written confirmation that she did not attend her GP or any other medical person in relation to her health arising out of her employment, by 29 July 2015; or
(b) discovery of her relevant GP's notes and records as soon as possible after 28 July 2015."
8. In an e-mail dated 27 March 2015 from the claimant to the Centre Director the claimant had stated:
"In a follow up meeting with Kyra, I then elaborated my reasons and emphasised that I will not be participating in any further meetings on the matter, due to the distress that that meeting had caused. As you are aware I met with my doctor on Tuesday afternoon, which subsequently led me to taking Wednesday off due to the extremely high blood pressure caused by work related stress, therefore I need to put my health needs first." [Tribunal's underlining].
9. On 22 July 2015, Worthingtons Solicitors, acting for the respondent, had written to the claimant's representative seeking further clarification of matters relating to additional information and further items of discovery. That letter included the following:
"The purpose of our request for the claimant's relevant GP and other medical notes and records, if any, arises directly from the claimant's ET1 claim form, wherein she states "by January 2015 I decided I could take no more of the dreadful working environment and having no one to turn to decided that I needed to change before it had a significant impact on my health which was already suffering". [Tribunal's underlining].
The letter further stated:
"Therefore, if the claimant attended her GP or another medical professional as a consequence of the alleged treatment afforded to her by the respondent, the respondent is entitled to a copy of the relevant extracts of same, which would be relevant for the purposes of cross-examination of the claimant. To this end, please provide a copy of all the claimant's relevant GP and other medical notes and records. If none exist, please confirm that this is the case."
10. The claimant's representative replied, on instructions, in the following terms on 29 July 2015. That letter stated:
"The claimant has confirmed that she did not attend her GP at the time for appointment at the open clinic as she was too upset. She further states that she did not discuss matters with her GP thereby making your request for her notes unnecessary."
There appears to be a clear conflict between the correspondence of 29 July from
Mr Moore and the e-mail direct from the claimant of 27 March. The latter suggests that she had actually attended the GP and that that attendance had led to her taking Wednesday off with high blood pressure caused by work related stress. The former made it plain that she had not attended the GP at all in relation to work related stress. That conflict was not explained in the course of this hearing.
11. The witness statement procedure was directed in this case. Witness statements were exchanged in advance of the hearing. This exchange was simultaneous rather than sequential. Unless brief oral additional evidence in chief was required to deal with new matters arising out of the simultaneous exchange of witness statements, each witness swore or affirmed to tell the truth, adopted their witness statement as their entire evidence in chief, and moved immediately into cross-examination and then brief re-examination.
12. The hearing was heard over two days on 4 and 5 August 2015 finishing at
12.00 noon on the second day.
13. The panel met immediately after the conclusion of that hearing on 5 August 2015 and discussed the oral evidence and the documentary evidence. This document is the decision reached by the panel.
14. The tribunal heard evidence from the claimant. She called no witnesses on her own behalf. Ms Kyra Pauley, the claimant's line manager and the Deputy Centre Director, Ms Gillian Gibson, the Centre Director, and Ms Mary McNeill, the Chairperson of the managing board, gave evidence on behalf of the respondent.
Relevant Law
15. In London Ambulance Service NHS Trust -v- Small [2009] EWCA Civ220, the Court of Appeal stated at paragraph 46:
16. The Small decision recognises that the role of a tribunal in a standard unfair dismissal claim is entirely different from its role in a constructive unfair dismissal claim. In the former, the role of the tribunal is limited to determining fairness; essentially looking at procedure and then at whether or not a dismissal was within the band of reasonable responses open to a reasonable employer. In such a case the tribunal must be careful not to substitute its decision for that of the employer. In the latter, the position is entirely different. The tribunal is of necessity required to reach findings of fact on the various incidents of alleged breaches of contract, or of alleged inappropriate behaviour leading to loss of trust and confidence, which have brought forward by the claimant in evidence.
17. The law in relation to constructive unfair dismissal is well settled and was not in dispute between the parties. In a helpful written submission, Mr Doherty summarised those principles. Without reproducing that document in full, those principles are as follows.
18. Article 127(1)(c) of the 1996 Order states:
"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."
19. Case law summarised in Harvey clarifies that there are four elements in constructive dismissal:
(a) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.
(b) The breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify her leaving.
(c) She must leave in response to the breach and not for some other unconnected reason.
(d) She must not delay too long in terminating the contract in response to the employer's breach, otherwise she may be deemed to have waived the breach and to have agreed to vary the contract.
20. As indicated in Western Excavating (ECC) Ltd -v- Sharp [1978] 1All ER713 and by the Northern Ireland Court of Appeal in Brown -v- Merchant Ferries Ltd [1998] IRLR682, the appropriate test in a constructive dismissal case is a contractual test and it is not in itself a question of reasonableness. That said if an employer has acted sufficiently unreasonably that might be evidence of a breach of contract. The focus however must be on whether there was such a breach of contract.
21. In every contract of employment there is an implied term of mutual trust and confidence. As the House of Lords indicated in Mahmud and Malik -v- Bank of Credit and Commerce [1997] IRLR462:
"The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employer."
It is accepted generally that the word "and" in the second line should be read as "or".
22. The House of Lords further stated:
The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is likely to have in the employer."
23. In cases where an employee does not leave in response to a single incident or in response to a single breach of contract but instead resigns in response to a series of such incidents or breaches, the final incident or breach that causes the employee to resign may not in itself amount to a repudiatory breach of contract. However, it must be viewed by the tribunal as sufficient to warrant the employee leaving in response to a "last straw". In Lewis -v- Motorworld Garages Ltd [1985] IRLR465, the Court of Appeal stated:
"The last action of the employer which leads to the employee leaving may not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?"
24. In Omilaju -v- Waltham Forest London Borough Council [2005] IRLR35, the Court of Appeal stated that the final act in a "last straw" case may not be blameworthy or unreasonable but it still nevertheless had to contribute something to the alleged breach of contract, even if relatively insignificant.
Relevant findings of fact
25. The claimant stated in cross-examination that in October 2014 she had been taken to the Mater Hospital and had "ended up" in the RVH as a result of pressure at work. Her statement in cross-examination was the first time that this serious allegation had been made even though this was an allegation which, if true, was obviously a relevant allegation for the purposes of her claim. That claim was that following a series of events she was driven to a resignation. Hospital treatment as a result of work pressure in the six months before her resignation was obviously relevant.
26. The claimant had disclosed no relevant documentation or medical records to the respondent's representative despite the clear terms of the tribunal's Order in relation to discovery, which is summarised above. The allegation of work related illness in October 2014 which had led allegedly to hospital treatment, had not been made in the IT1. It had not been made in the witness statement which had been exchanged in accordance with directions and was supposed to amount to the claimant's entire evidence in chief. In fact the witness statement stated in clear terms at paragraph 2:
"My problems with the respondents began around December 2014/January 2015." [Tribunal's underlining].
27. The claimant sought to argue that in preparing her witness statement, she had been focusing her evidence on the most recent relevant period. However, her statement at paragraph 2 was in plain terms. It clearly stated her problems began in December 2014. It did not, for example, state that her problems had begun earlier but that she was, for some reason, focusing her evidence on a later period.
28. The allegation of hospital treatment in 2014 because of work pressure was not raised by either the claimant or her line manager in a detailed note of a supervision meeting (performance appraisal meeting) held on 5 November, shortly after this alleged treatment. That note, which comprised some five pages of manuscript, recorded inter alia that:
"Karen (the claimant) ready for a new challenge and to progress further in her career. It has been a challenging few months now it's nice that there is a buzz in the Centre."
29. The tribunal concludes that if the claimant's statement in cross-examination had been accurate, the allegation would have been raised in the IT1, in the witness statement and indeed in the supervision meeting. It is extraordinary that neither the claimant, who had signed the supervision notes, or her line manager, had even mentioned during this supervision meeting that such a serious incident had occurred. It cannot reasonably be taken to have been the case that a Women's Empowerment Worker, working in a Women's Centre, in the context of a supervision meeting where she had clearly raised a series of work related matters which had been openly discussed, felt in any way impeded from raising such a serious matter.
30. While it may well have been the case that the claimant had visited the RVH and the Mater in October 2014, the tribunal must therefore conclude on the balance of probability that this had nothing to do with the claimant's alleged treatment at work. If it had been relevant, that would have been recorded in medical records which would have been produced to the respondent instead of being ruled out by the claimant as irrelevant. The Order issued by the tribunal in relation to discovery was in very plain terms. It required written confirmation from the claimant, if she had attended her GP or any other medical person in relation to her health arising out of her employment. This requirement to make that confirmation was not limited to the period starting in December 2014. She had not been directed to forget about or to ignore a period some few weeks earlier.
31. The tribunal can therefore only conclude that the claimant's response to cross-examination on this point demonstrated a willingness on her part to embellish and to exaggerate evidence, where she perceived that to do so would suit or would advance her case. That has serious implications for her credibility.
32. On the same general point, the tribunal notes that the claimant made a serious allegation in the course of the hearing. She alleged that documents which were minutes of meetings on 9 and 10 March 2015 had been altered by the respondent before being produced by way of discovery. There was, in short, an allegation of forgery and of a conspiracy to pervert the course of justice. The documents had been redacted to focus on issues relevant to this case. That to the tribunal, appeared to be obvious from the format in which they had been produced. There was nothing in those documents to suggest that they had been forged, or altered in any way apart from that redaction. The allegation of forgery was quickly disproved when the respondent produced the full unredacted minutes as soon as the allegation was made. The claimant had not sought the full unredacted minutes in advance of the hearing. The claimant had not even sought sight of those unredacted minutes on the morning of the first day before the hearing commenced. She was nevertheless willing to make such a serious allegation without any evidence. That again must have serious implications for her credibility and tends to support the proposition that the claimant is prepared make serious allegations with no evidentiary support.
33. As will be dealt with in more detail shortly, the claimant also made a serious allegation against a high ranking officer in a funding organisation. The claimant alleged that that high ranking officer had breached a duty of confidence in relation to a personal financial matter and had deliberately leaked that information to the Centre Director. This was again a serious allegation, made without any evidence to back it up.
34. It was common case that in 2014, funding had been tight and that redundancies had been declared in the respondent organisation. Those staff made redundant included some of the claimant's immediate colleagues. However the claimant was never personally identified as at risk of redundancy and was never part of any redundancy selection process.
35. In opening her case, the claimant alleged that the "trigger" for her claim was an alleged incident which had taken place on 6 February 2015. The claimant alleged that Ms Gibson, the Centre Director, had entered "our office warning us all to be quiet and be careful who we speak to outside of the Centre as everything always comes back to her". The claimant alleged that this had been a "personal go at me as I believed that another member of the Board breached confidentiality and informed her that I was considering setting up a business for myself. I believe this information came directly from the business adviser in [named funding body]."
36. Ms Gibson stated that she had entered the training and education office in the respondent's building to speak to all the staff in that area. She had been told by a board member that a member of staff, other than the claimant, had been indiscreet about her pending redundancy and had been told by that board member that such a general warning should be issued. The general warning had had nothing to do with the claimant. It had been initiated by indiscretion on the part of another member of staff. The claimant accepted in cross-examination that Ms Gibson in the course of this meeting had not identified her, or indeed anyone else, as the target of her warning. The warning had been in general terms.
37. This was yet another serious allegation for the claimant to make and indeed to maintain at the tribunal. As indicated above, she was alleging that a senior member of a funding organisation had breached confidentiality and had leaked personal information about her to her current employer. She was also alleging that Ms Gibson had been motivated by this alleged breach of confidence and had issued the warning on 6 February as a spiteful act against her. She described it as a "personal go at me". The claimant had no evidence for this serious allegation. She was prepared to make it on the basis of nothing other than speculation. It is also noted that no complaint or grievance was lodged by the claimant at this time. The claimant throughout this case has sought to explain the lack of any contemporaneous complaint or grievance as a desire on her part to avoid trouble and to secure a good reference. That does not appear to the tribunal to be correct. The claimant's wish for a good reference has not prevented the claimant from pursuing this tribunal application and has not prevented her making some serious allegations. It is difficult to see why it would have prevented an internal complaint at an earlier stage. Again, it cannot be the case that someone of the claimant's seniority in such an organisation, given the work that the claimant was employed to do, and given the frequent discussion with management, was unable to issue even a mildly worded complaint or unable to seek a further explanation of this incident if it had indeed been something which she had at the time felt had been directed towards her. It seems unlikely that the claimant would have been prepared to meekly put up with such alleged behaviour, without complaint, simply to avoid trouble. The claimant herself has stated at paragraph 192 of her witness statement that:-
"‒ I have stood up and been assertive to Gillian who is nothing but a bully".
38. Even if she had felt that the warning had been directed against her, that was a feeling which was completely speculative, entirely wrong and unwarranted.
39. The tribunal therefore concludes that the evidence given by Ms Gibson was correct. She had received no confidential information about the claimant and the warning that she had given to the staff gathering in the training and education department on 6 February 2015 had been entirely unrelated to the claimant. It had been a normal management action. It was not in itself a breach of contract. It could not be considered as the sort of inappropriate incident which might have formed part of a series of such incidents leading to a breach of the implied trust and confidence condition.
40. The claimant alleged that thereafter there had been a culture of bullying and harassment against her. The claimant did not provide any specifics of such incidents until the allegation in relation to 26 February 2015. The claimant again did not make a complaint or lodge a grievance during this period. There is no reason for the tribunal to uphold this allegation. As indicated above there had been no leak of confidential information from the funding body. The respondent did not know at any point between 6 February and 26 February that the claimant had been planning to set up her own business. The respondent had not selected her for redundancy. It had in fact preserved her employment. The tribunal concludes that this is yet another groundless allegation.
41. The allegation relating to 26 February 2015 was that the claimant had had a meeting with Ms McNeill, the Chairperson and the Centre Director, and that afterwards Ms Gibson had spoken to her and had asked her what had been wrong during the earlier meeting. The claimant alleged that she had been accused of being "edgy". She described Ms Gibson as "mean" and "appalling" and alleged that the claimant had been reduced to tears. Again no complaint or grievance was lodged at that time. This was despite the fact that the claimant felt that during the earlier meeting she had been "proactive", "assertive" and "confident". It is not the case that she had been cowed into submission or that she was in any way afraid to speak her mind.
42. The evidence of Ms Gibson was that during this exchange with the claimant, she had asked the claimant what had been wrong during the earlier meeting because she had been concerned about the claimant. She had not been rude to the claimant. The claimant had not cried.
43. As indicated above, the tribunal has concerns about the credibility of the claimant's evidence. Furthermore, it notes that a few days after the meeting on 26 February, on 4 March 2015, the claimant had yet another detailed supervision meeting with her line manager. The record of that meeting comprised six pages of manuscript notes which again had been countersigned by the claimant. No mention was made in these notes of the alleged incident on 26 February. The claimant did not allege during her evidence that the alleged incident on 26 February had been discussed during the supervision meeting but had simply not been recorded. It is quite clear from the content of the notes that there had been a full and open discussion of work issues and that the claimant had in no way been constrained or in any way impeded from discussing what she had wanted to discuss. In fact the notes stated at page 75 in the bundle:
"- Discussed office environment and how atmosphere has been tense but Karen (the claimant) is content at minute."
This was the point, if indeed such an incident had occurred or had been perceived as she indicated it had been perceived, where the claimant would have mentioned and discussed the alleged incident on 26 February. The claimant did not raise it.
44. The tribunal prefers the evidence of Ms Gibson in relation to this meeting. She had perceived that the claimant had acted oddly in the earlier meeting and had raised this with her in a confidential and sensitive manner. There had been no tears. If there had been, there would have a complaint or a grievance or some follow up from the claimant. It is again, simply inconceivable that an individual in the claimant's position, within such an organisation, who had previously and in this context described herself as "assertive", had been so deferential that she was not able to even mention the alleged incident during a free and open discussion with her line manager.
45. The claimant alleged that she then rang Ms McNeill to apologise if she had "come across as edgy" during the first meeting on 26 February. She alleged that Ms McNeill had told her she had nothing to apologise for. Ms McNeill denied that she had said this. She stated that the claimant had been rude and dismissive during that meeting and that she had asked Ms Gibson to speak to the claimant about it. Again, the tribunal prefers the evidence of Ms Gibson in relation to this alleged telephone call. If Ms McNeill had indeed told the claimant she had done nothing wrong during the first meeting on 26 February, that would have been mentioned in the meeting on 4 March or would have formed part of a contemporaneous complaint or grievance.
46. A general complaint of the claimant was that no one had supported her and that she had had no one to talk to. The evidence indicates that the reality was entirely different. The claimant had full and regular access to her line manager and indeed to the Centre Director. She was not in any way prevented or discouraged from raising work issues. The contrary is in fact correct.
47. The next significant incident raised by the claimant occurred on 2 March 2015. The claimant submitted a letter direct to Ms Gibson, the Centre Director, to be forwarded to the Board of Directors. That letter stated:
"I am writing to inform you that I am keen to secure my future and pursue my passion in the area of baby massage. Therefore I have taken the steps to start up my own business, which will be commencing in May 2015.
I would like to request as from 1 May 2015 that I reduce my hours from 35 to 23. The days I am requesting to work as:
Tuesday 9.00 - 5.00pm
Thursday 9.00 - 7.00pm
Friday 9.00 - 5.00pm
This would enable me to continue with my 50plus group, volunteers, young girls and Women's Empowerment programme.
I am requesting this at this early stage, to give you the opportunity to see if this is viable and meets with the organisational needs.
I would however, be grateful if you could let me know at your earliest convenience.
I look forward to hearing from you."
That letter does not indicate any dissatisfaction with the working environment.
48. The business plan submitted in February 2015 to the funding organisation by the claimant states:
"Karen is currently employed on a full time basis (35 hours per week) at Footprints Women's Centre in Poleglass. She will be reducing her working hours to a three day week Tuesday, Thursday and Friday in order to devote all day Monday and Wednesday (eight hours each) to the delivery of the business services."
It is clear from the wording of that business plan that it is a requirement for funding that the applicant intends to spend a minimum of 16 hours per week working on the business. It is equally clear that the claimant's business plan was based on the premise that she would be free during two working days every week to pursue her private business activities.
49. Ms Gillespie took the letter from the claimant and passed in on to the Board of Directors. It was discussed between the claimant and her line manager Ms Pauley as part of the regular supervision meeting on 4 March 2015, two days after the letter had been received. The claimant complains that the reaction of Ms Pauley had been "petty in the extreme". This allegation is based in part on the fact that
Ms Pauley had raised a particular issue with the claimant during this meeting.
Ms Pauley had asked why the claimant had not raised the application directly with her as her line manager but had instead passed a letter to the Centre Director for onward transmission to the Board. The claimant took and appears to still take grave exception to this being raised by Ms Pauley. The tribunal is unable to understand why this could be a proper reaction on the claimant's part to what appears to the tribunal to be an entirely normal management comment. While there was no contractual documentation or written procedure outlining a particular course of action where an employee of the respondent seeks to reduce hours, it appears to the tribunal to be entirely rational and entirely normal for the respondent to have concluded that the line manager should first have been contacted and that the employee should not have attempted in such a matter to immediately go over the head of the line manager and to bypass her authority in this manner. It is clear that Ms Pauley did not shout at the claimant during this meeting, did not abuse the claimant and the tribunal cannot accept that her raising of this matter had been in any way "petty in the extreme".
50. The claimant further alleged that Ms Pauley had "got rather rude" in the course of this supervision meeting. Again, no contemporaneous complaint or grievance was lodged by the claimant. Notes of the supervision meeting were countersigned by the claimant without comment. It clearly indicates that the meeting had:
"Discussed Karen's request to F&PSG (Finance & Personnel Sub Group)."
There is no indication in these notes of the claimant's line manager becoming "rather rude" as "petty in the extreme" or of any sense of confrontation. It appears instead to have been a normal management meeting with an employee. Ms Pauley's evidence was clear and consistent. She had discussed the application with the claimant at the end of the supervision meeting and she told the claimant that she would be preparing a report to the finance & personnel sub group or sub-committee. Given the difficulties referred to above in relation to the claimant's credibility and given the clear documentary evidence and the clear evidence given by Ms Pauley the tribunal prefers Ms Pauley's version of events. There had been no rudeness or pettiness displayed to the claimant in the course of this supervision meeting.
51. The claimant further alleged that during this meeting she had been made to feel "terrible", "guilty" and "so bad that I was again considering resigning". The tribunal does not accept that any of this was the case.
52. The next significant incident raised by the claimant was International Women's Day Rally in Belfast City Centre on 7 March 2015. The claimant stated that there had been an expectation for her to attend. The respondent indicated that it had been part of her work. It appears to be common case that the claimant had arrived late at the meeting accompanied by her mother and that there had been a discussion between her and the Centre Director about the provision of a banner. There had been no shouting and no abusive language. The Centre Director stated that the claimant had been so late that the organisation had been denied an opportunity to participate in photo calls and interviews while she had been performing actions which should have been undertaken by the claimant. The claimant stated she had only been a few minutes late because "my mother had been on a stick". The claimant alleged that the Centre Director had ignored her and her mother and had acted rudely. She stated "I felt she had acted in a despicable way to me and my mother". She stated "it was rude to the point of being childish". She further stated "it was mean and vicious in the extreme".
53. No evidence was produced by the claimant from her mother or indeed from any other alleged witness to this incident. The Centre Director was quite clear in her evidence that the claimant had been late, that she had been inconvenienced, that the organisation had lost a chance to further its aims by participating in the interview and photo call process and that she had asked the claimant's line manager to speak to her afterwards. There was again no contemporaneous complaint or grievance by the claimant. If, as alleged by the claimant, the Centre Director had been "mean and vicious in the extreme", such a complaint or grievance would have emerged. It did not. The tribunal does not accept the claimant's version of events. This seems to be a simple employment incident where the claimant was late at an event which she was supposed to be attending as part of her work and indeed where she was supposed to be taking a central role. She had inconvenienced her employer. She had not been treated badly as a result.
54. The claimant in the course of the hearing sought to allege that the fact that the relevant minutes did not contain extensive and detailed records of the discussion at the finance and personnel sub-committee or finally at the Board of Directors, indicated that the application to reduce hours had not been discussed. The tribunal cannot accept that as a valid proposition. The evidence from the respondent's witnesses, from Ms Pauley, Ms Gibson and Ms McNeill was that the application had been discussed in detail and that a decision had been reached on a rational business grounds.
55. The respondent had reached the conclusion that work in the area of women's empowerment was central to the work of the organisation, crucial to funding applications, and that it could not agree to a reduction in hours. The claimant may well disagree with this proposition, but it cannot be regarded as a breach of contract in its own right or even as an inappropriate incident or decision which could form part of a series of such matters leading to a breach of the implied duty of trust and confidence.
56. The next significant incident raised by the claimant occurred on 12 March 2015 when Ms Pauley, the claimant's line manager, asked the claimant to speak with her. It appears to be common case that she was told in the course of that meeting that her application for reduced hours had been turned down because of business reasons and that the Board of Directors had asked Ms Pauley to stress with her that the application should have been discussed with Ms Pauley in the first instance and that a formal application should then have gone to the Centre Director. The claimant reacted by describing this as "extremely petty". The claimant accused Ms Pauley of "smirking" and being "appalling and almost childish". The claimant stated that she drafted her resignation at the end of that week. Ms Pauley denied that she had acted in this way. The tribunal concludes that she would have had no reason to have done so as the respondent clearly intended to retain the claimant in full-time employment as a valued employee.
57. The claimant alleged throughout the hearing that there should have been a meeting between the claimant and the Board of Directors before a decision had been reached on the claimant's application to reduce hours. Ms McNeill's evidence was that the application had been in writing and it had been dealt with in writing. It was clear that no application had been made by the claimant for such a meeting with the Board of Directors, either before or after her application had been rejected. She had not sought to appeal the decision. She had not sought to put forward any alternative way forward. She had not lodged a separate tribunal application alleging breaches in the relevant statutory procedure. She had not identified this as a statutory claim for flexible working. She did not in the course of this hearing identify any alleged breach of the statutory procedure. In any event, there appears to have been no such breach.
58. Having observed the witnesses, the tribunal concludes that yet again this was a situation where the claimant has made allegations which are quite simply incorrect and illustrate a propensity to overreact to ordinary situations and to read malign motives into a perfectly ordinary decision making process.
59. The claimant then delivered her letter of resignation to Ms Gibson on 20 March 2015. That letter read:
"This letter is to formally tender my resignation as Women's Empowerment Worker at Footprints, effective from today, Friday 20 March 2015, this is in accordance with the four week contractual notice period agreed at the commencement of my employment.
For the last year I have asked for new challenges in relation to my progression to management level within the organisation. To date there has been no such progression even though I have managed large pieces of work which highlight my strengths but also along with this the direction of my post is no longer clear.
I also feel that the environment and ethos within the Centre in recent months has been uncomfortable to work in, which impacts on job satisfaction.
After careful consideration and due to the decision to decline the reduction in my hours, I have no other option than to follow my own aspirations to achieve my career goals; therefore the time is right to move on.
However, I would like to take this opportunity to thank you for the professional guidance and support provided during my period of employment, and wish you and Footprints success in the future."
60. The final paragraph of this letter, thanking the respondent for "professional guidance and support" and wishing Ms Gibson success in the future seems odd in the context of a letter of resignation which is later relied on in a constructive unfair dismissal application.
61. The first issue raised in that letter of resignation concerned the lack of progression to management level. The claimant had completed a management training course, funded by the respondent, and the claimant had obviously been encouraged throughout to pursue her career. She had been told that she could progress to a management level. However, she had never been guaranteed such a post and it cannot be regarded as a breach of contract or indeed even an inappropriate action to fail to provide such a post, particularly within the context of funding reductions, staff cuts and general austerity.
62. The second issue raised was "environment and ethos within the Centre in recent months". The claimant stated only that it had made the Centre "uncomfortable" to work in. No specifics were provided.
63. The next matter raised was the decision to decline a reduction in her hours. The first thing for the tribunal to note about this letter of resignation is that it specifically stated that the resignation was "due" to that decision. The second thing for the tribunal to note is that there was no complaint about the procedure adopted by the respondent in reaching that decision. The third thing for the tribunal to note is that the claimant placed particular emphasis on "my own aspirations" and had decided that she wanted to pursue those aspirations. The letter conveys no sense of being driven out of employment by any particular issue or issues, either lack of career progression, environment and ethos, or a decision to decline the reduction in hours. The personal choice of the claimant to pursue her own business was clearly a significant factor in the resignation.
64. Much of the claimant's evidence to this tribunal concerned matters which post-dated that resignation. That evidence was not directly relevant to the issue before this tribunal. It could at most have provided some support for the claimant's allegations which might be summarised as allegations of bullying and harassment. The claimant focused on one particular matter. In an undated letter received shortly after her resignation, the claimant was advised by the respondent that:
"I am writing to acknowledge receipt of your resignation on 20 March 2015. Your resignation is accepted.
I also wish to inform you that we understand that you commenced a new business while in Footprints Women's Centre. This is in breach of your terms and conditions of employment as you did not discuss your intentions to start your business with the Centre Director to get agreement that there would be no conflict of interest. Ordinarily, this matter would be subject to a disciplinary investigation. However, we do not propose to commence an investigation in view of your resignation."
The letter concluded with:
"We wish you well in your new venture."
65. The claimant alleged that this letter and the inclusion of the allegation of a potential breach of contract supported her version of earlier events.
66. It is clear that the contract of employment signed by the claimant provided at paragraph 39:
"Members of Footprints Women's Centre staff undertaking outside employment are expected to ensure that other employment will not impair the efficiency of their employment with Footprints Women's Centre, or is such as to bring the organisation into disrepute. When any outside employment is contemplated, members of staff must discuss their intentions with the Centre Director and get agreement that there is no conflict of interest."
67. The respondent took the view following the examination of a Facebook page, which had been brought to their attention, that the claimant had already commenced her business before notifying the Centre Director. That had caused the respondent concern. The claimant appeared to suggest in the course of the hearing that the respondent had stated that she would have been dismissed in any event. That is not actually the case. The respondent had simply indicated that the matter would have been subject to an investigation if the claimant had remained in employment. It may or may not have resulted in disciplinary action which may or may not have led to dismissal.
68. The Facebook pages seem to have been primarily an advertising venture on behalf of "Giggles & Jiggles", the business undertaken by the claimant. It is however clear from the Facebook entries that the claimant had indicated "bookings coming in already" on 19 March 2015. That predated her resignation. The tribunal concludes that there was sufficient information in those Facebook entries to cause the respondent legitimate concern if the claimant had been remaining in employment. It is clear that in such a situation the claimant should at least have raised the matter with the Centre Director for clearance before pursuing a business to the extent of accepting bookings and launching a Facebook page.
69. It could be argued and indeed was argued on behalf of the claimant that there had been no necessity on the part of the respondent to include a reference to a potential breach of contract in the letter accepting the claimant's resignation. That much is true. The respondent could, if it had wished, simply have accepted the resignation and wished the claimant well in her new venture. It could simply have omitted the middle part of that letter. The fact that it did not do so, to the tribunal's mind, does not support the claimant's earlier allegations of bullying and harassment. It indicates nothing other than that a Facebook page had been drawn to the attention of the Board and the Board had been concerned about its content.
Decision
70. The claimant has argued in this case that there has been a series of events which, taken together, amounted to a repudiatory breach of the implied duty of trust and confidence on the part of the respondent. The tribunal does not accept that this was the case.
71. Allegations of bullying and harassment leading to ill-health on the part of the claimant were not corroborated by the production of any medical records or by the production of any GP notes. These notes and records have not been produced despite the clear terms of the Order of the tribunal. The allegations of bullying and harassment are further undermined by the very late allegation of hospital treatment which allegedly had occurred in October 2014. This late allegation had not been mentioned in the IT1 or in the witness statement, or even in the record of a supervision meeting which had occurred shortly after the alleged treatment. This allegation of hospital treatment is directly contradicted in fact by the claimant's own witness statement which states in clear terms that the alleged difficulties that the claimant had with her employer began in December 2014, not in October 2014 or indeed earlier. No independent evidence, either oral or documentary, has been produced by the claimant to support these allegations. The allegations are based therefore only on the claimant's unsupported assertions, often expressed in very florid and expansive terms, and by the letter of the respondent accepting her resignation, which also pointed out that if she had stayed in employment there would have been an investigation into a potential breach of contract. Against the background of clear, consistent and convincing evidence of the three respondent witnesses, the claimant's allegations of bullying and harassment cannot be accepted. She had not been bullied. She had not been selected for redundancy. She had in fact not been driven out of employment.
72. The specific incidents on 6 and 26 February 2015 appear to the tribunal to have been entirely normal and cannot form part of a "last straw" claim, either as the trigger or as part of a cumulative series of events properly viewed, they could not have undermined trust and confidence. The application for reduced hours was properly considered by the respondent and had been referred by the respondent for valid reasons. That decision to refuse the reduction in hours had been properly communicated to the claimant. The fact that the claimant had been advised that she should have in the first instance brought the application to her line manager again seems entirely normal and unremarkable.
73. The fact that the resignation had been accepted in a letter which had also pointed out, on reasonable grounds but, strictly speaking, unnecessarily, that she appeared to be in breach of contract cannot add anything of significance to this matter. The contract was clear. The Facebook entry stated that bookings were being taken by the business. On the evidence before the respondent, the business had apparently been launched before the required clearance from the Centre Director. All of this had occurred in any event after the resignation had been made.
74. There had been no repudiatory breach of the implied duty of trust and confidence either as a result of any one event or because of a series of such events.
75. Even if there had been such a repudiatory breach, the tribunal concludes on balance, that the decision of the claimant to resign had been motivated by the claimant's desire to set up her own business and to pursue her own career. That desire would have required grant aid from the funding body. The application for grant aid had been on the basis of a reduced working week. When that reduction in the working week had been refused, the claimant had been left with the options of either resigning or of continuing with a full-time job and attempting to fit the business into evenings and weekends. The letter of resignation made it clear that the resignation was "due to" the decision not to reduce hours.
76. The claim is therefore dismissed.
Vice President:
Date and place of hearing: 4 and 5 August 2015, Belfast
Date decision recorded in register and issued to parties: