Industrial Tribunals Northern Ireland Decisions
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Cite as: [2015] NIIT 1167_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1167/13
CLAIMANT: Gertrude McGarrell
RESPONDENT: North Eastern Education and Library Board
DECISION
The unanimous decision of the tribunal is that the claimant is not disabled within the meaning of the Disability Discrimination Act 1995 as amended and that she was not constructively dismissed by the respondent. The claimant’s claims are therefore dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Crothers
Members: Mr A Henry
Mr J E Hughes
Appearances:
The claimant was represented by Ms M Jones, Barrister-at-Law, instructed by Philip Gallen and Company Solicitors.
The respondent was represented by Ms A Finnegan, Barrister-at-Law, instructed by Education and Library Board Solicitors.
The Claim
1. As appears from the issues set out below, the claimant claims that she is disabled within the definition contained in the Disability Discrimination Act 1995, as amended, (“DDA”), and that she was constructively dismissed. The respondent contended that the claimant was not disabled within the meaning of DDA, and otherwise denied her allegations in their entirety.
Issues
2. The relevant issues before the tribunal were as follows:-
LEGAL ISSUES
1. Was the Claimant constructively unfairly dismissed under Part XI of the Employment Rights (NI) Order 1996 and in particular Articles 127 and 130?
2. Did the written statement made by the Claimant in response to a request from Mrs Campbell constitute a Grievance?
3. If the Claimant did submit a grievance did the Respondent adhere to its grievance procedure?
4. If the Respondent did not or could not adhere to its grievance procedure did such failure amount to a breach of the implied term of trust and confidence?
5.
Was the Claimant a ‘disabled
person’ within the meaning of the Disability Discrimination Act 1995 as amended
at any time prior to her resignation?
6. Can the Claimant on the balance of probabilities, prove facts from which the Tribunal can conclude in the absence of an adequate explanation that the Respondent acted in a way which is unlawful contrary to the Disability Discrimination Act 1995? If the Claimant can so prove facts, can the Respondent prove on the balance of probabilities that he did not so act?
7. If so, has the Respondent provided an adequate explanation?
8. Was the Respondent on notice or ought it reasonably to have been on notice that the claimant was under a disability and did the duty to make a reasonable adjustment arise? If so, and the duty to make reasonable adjustments for the Claimant arose, was that duty discharged by the Respondent?
9. Has the Claimant identified a comparator and is the comparator selected by the Claimant a valid comparator?
FACTUAL ISSUES IN DISPUTE AND REQUIRING DETERMINATION
1. What happened on the 22 March 2012 at or about 8:30 am between the Principal Noel McCann and the Claimant?
2. Did the Claimant raise issues, concerns, complaints or grievances (a) orally and (b) in writing in the period March 2012 until March 2013?
3. What were the actions or inactions of the Respondent that the Claimant says amounts to a repudiatory breach of the Claimant’s contract?
4. What happened at the meeting on 30 August 2012?
5. What happened at the meeting on 28 November 2012?
6. What steps did the Respondent take to investigate the Claimant’s concerns and complaints?
9. What findings, if any, did the Respondent reach in relation to the concerns and complaints?
10. How did the Respondent resolve the Claimant’s concerns and complaints? Did the Respondent act (a) promptly (b) reasonably?
11. If the Respondent did not resolve the Claimant’s concerns and complaints, did the Claimant’s refusal to participate in any investigatory process contribute to such failure?
12. What reasonable adjustments could have been made?
13. What reasonable adjustments were offered by the Respondent, if any?
14. What reasonable adjustments did the Claimant, if any request?
15. What did the Respondent do to facilitate the Claimant’s return to work?
16. What further steps does the Claimant say that the Respondent could have taken to facilitate her return to work?
17. How, if at all, did the Respondent take into account the Claimant’s health when addressing any complaint raised?
18. Did the Respondent properly take into account occupational health or other medical advice?
19. Was there a breach of the Claimant’s contract of employment sufficient to justify constructive dismissal? If so, what was that breach and did it constitute a repudiatory breach?
20. If the answer to 19 above is yes, was any breach remedied by the Respondent, or waived by express consent or by the conduct of the Claimant?
Sources of Evidence
3. The tribunal heard evidence from the claimant, from her daughter Gillian McGarrell, and Una McKinley, the claimant’s sister, on her behalf. On the respondent’s behalf, it heard evidence from Kathryn Crease, Senior Administrative Officer – Welfare and Absence, Noel McCann, Principal of St Patrick’s Primary School and Nursery Unit, Irene Paget, retired Area Catering Manager, and Anne Campbell retired Catering Manager. The tribunal also heard evidence from Dr Loughrey and Dr Chada both Consultant Psychiatrists, retained on behalf of the claimant and respondent respectively. The tribunal was also assisted by bundles of documentation.
Findings of Fact
4. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-
(i) The claimant was employed by North Eastern Education and Library Board (“the Board”), from 1 September 1983. She was employed as a Unit Catering Supervisor from 28 August 2002 until her resignation on 11 June 2013. She was based at St Patricks Primary School, Rasharkin.
(ii) At approximately 8.30 am on 22 March 2012 the Principal of the school, Noel McCann, entered through the back door of the kitchen and went into the claimant’s small office where she was working alone. The reason for his visit related to two complaints received from two members of the teaching staff namely Bernie McNeill, Nursery Assistant, and Mr Terry McCann the school’s Vice-Principal. There was a considerable conflict of evidence as to what took place during Noel McCann’s visit. It was agreed that it was not necessary for the tribunal to make factual findings in relation to the incident, as the basis for the claimant’s claims relates to the period following 22 March 2012 until her resignation. It was not in dispute, however, that the claimant was distressed after Noel McCann’s visit and that she attended her General Practitioner the following day and was absent from work on the ground of stress, until 15 April 2012, having received a medical certificate from 22 March 2012 until 19 April 2012.
(iii) The claimant is employed by the Board. However Noel McCann is under the control and direction of the Board of Governors of St Patrick’s School and his employing authority is the Council for Catholic Maintained Schools (“CCMS”). This is an important feature in the case. The respondent’s evidence was confusing in relation to the procedure which pertained in this situation. It was its approach that it was open to the claimant to pursue a grievance against Noel McCann with his employer, whereas the claimant took the view that her employer should have done this on her behalf.
The Definition of Disability Issue
5. (1) Section 1 of the DDA provides, as follows:-
“(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act, if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
(2) In this Act ‘disabled person’ means a person who has a disability.”
In Goodwin v The Patent Office [1999] IRLR 4, the Employment Appeal Tribunal held that, in assessing the issue of disability, four separate conditions/matters require to be satisfied, namely:-
“(1) The impairment condition
Does the applicant have an impairment which is either mental or physical?
(2) The adverse effect condition
Does the impairment affect the applicant’s ability to carry out normal day to day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect?
(3) The substantial condition
(4) The long-term condition
Is the adverse effect (upon the applicant’s ability) long-term?”
Schedule 1, Paragraph 4, of the DDA, defines an impairment affecting normal day-to-day activities only if it affects one of the following:-
“(a) mobility;
(b) manual dexterity;
(c) physical co-ordination;
(d) continence;
(e) ability to lift, carry or otherwise move everyday objects;
(f) speech, hearing, or eyesight;
(g) memory or ability to concentrate, learn or understand; or
(h) perception of the risk of physical danger.”
Paragraph 2 of Schedule 1 states:-
“(1) The effect of an impairment is a long-term effect if –
(a) It has lasted at least 12 months;
(b) The period for which it lasts is likely to be at least 12 months;
(c) It is likely to last for the rest of the life of the person affected.
(2) Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”
(2) The tribunal had the benefit of helpful written submissions from both counsel in relation to the definition issue, which are appended to this decision. It was also referred to the relevant authorities to be considered by the tribunal. The tribunal heard further oral submissions from both counsel on the issues after the conclusion of the evidence in the case on 16 January 2015. The tribunal also took into account Appendix B of the Disability Code of Practice in relation to the definition issue. It is satisfied, in terms of Schedule 1, paragraph 4, of the DDA, that the relevant paragraph for consideration by the tribunal is as follows:-
“(g) Memory or ability to concentrate, learn or understand”.
The tribunal took into account paragraph D26 of the Guidance under the same heading. This paragraph states:
“Memory or ability to concentrate, learn or understand
D26. Account should be taken of the person’s ability to remember, organise his or her thoughts, plan a course of action and carry it out, take in new knowledge, and to understand spoken or written information. This includes considering whether the person has cognitive difficulties or learns to do things significantly more slowly than a person who does not have an impairment. Account should be taken of whether the person has persistent and significant difficulty in reading and understanding text in his or her native language despite adequate educational opportunities or in reading and understanding straightforward numbers. The ability to learn or understand also covers the perception of what is meant by certain types of verbal communication such as the use of humour or sarcasm as well as non-verbal communication such as body language and facial expressions. Account should be taken of whether the inability to understand communication leads to difficulties in understanding and following verbal instructions.
Examples
It would be reasonable to regard as having a substantial adverse effect:
· intermittent loss of consciousness an associated confused behaviour;
· persistent difficulty in remembering the names of familiar people such as family or friends;
· difficulty in adapting after a reasonable period to minor changes in work routine;
· persistent and significant difficulty with reading;
· persistent difficulty in remembering the spelling and meaning of words in common usage;
· considerable difficulty in following a short sequence such as a simple recipe or a brief list of domestic tasks;
· significant difficulty taking part in normal social interaction or forming social relationships;
· disordered perception of reality.”
(3) Paragraphs 6(1) and 6(2) of Schedule 1 to the DDA provide as follows:-
“6 – (1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day to day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.
(2) In sub-paragraph (1) “measures” includes, in particular, medical treatment ...”.
(4) It is no longer necessary for a mental illness to be “clinically well recognised”. It has not been determined whether all forms of stress and anxiety will be accepted as mental impairments. However in light of the removal of the above requirement, the focus is on the effect of the condition rather than the cause. Paragraph A6 of the Guidance includes depression as an example of a mental impairment.
(5) The material time in this case for assessing whether the claimant has a disability, is from 22 March 2012 until 11 June 2013.
(6) The burden of proof is on the claimant to prove that when the alleged discrimination occurred, she was disabled, in the manner alleged, for the purposes of the DDA.
(7) Whether or not the claimant is disabled is a matter of fact for the tribunal. It must make its decision in light of the medical evidence.
(8) If a person has a progressive condition and as a result of that condition has an impairment which has (or had) an effect on his ability to carry out normal day to day activities but the effect is not (or was not) a substantial adverse effect, the person shall be taken to have an impairment which has a substantial effect if the condition is likely to result in him having such an impairment. In the House of Lords case of SCA Packaging v Boyle (2009) UKHL 37, “likely” was interpreted as “could well happen”.
(9) Dr Loughrey, consultant psychiatrist, provided four reports dated 12.4.14; 4.8.14; 9.9.14; and 21.11.14: and gave evidence on behalf of the claimant.
(10) The tribunal is satisfied that the first specific mention of the claimant having a disability is in her letter of resignation dated 25 April 2013.
(11) The tribunal also noted that the Occupational Health Doctor, Dr Russell, did not refer to the claimant having a disability in the period between the incident on 22 March 2013 and 11 June 2013. Dr Loughrey had the benefit of access to GP notes and records in compiling his last report, dated 21 November 2014, in which he states:-
“Finally, the notes and records give a contemporaneous account of this lady’s attendances at around the time of the incident.
On the 22.03.2012 there was a telephone call to the surgery by her daughter reporting the incident and how she was upset. She was scheduled for an appointment on the next day. She saw Dr Henderson on the 23.03.2012, who wrote, “had a chat to patient. Stressed at work. Harassed by another colleague. Now in the hands of Solicitors”.
On the 13.06.2012 Dr Young wrote, “had a chat to patient. Still very upset and anxious and feels she couldn’t go back to school to work”.
On the 11.07.2012 she saw Dr Young, who wrote, “patient reviewed. Sleeping a bit better”.
On the 04.09.2012 Dr Young wrote, “had a chat to patient. Returning to work soon”.
She was issued with further sick lines on the 01.10.2012 and on the 30.10.2012, and her next attendance with psychological symptoms was on the 17.04.2014, when Dr Young wrote, “had a chat to patient. Still feels very upset by handling of “her case”. Needing medication daily and constantly intrusive thoughts re how she had been humiliated and unsupported by her employer. Sleep pattern erratic”.
The file entries in the GP notes and records suggest a significant measure of settlement within six months of the incident in question, as outlined in my earlier correspondence. The settlement was incomplete, and a file entry in 2013 suggests that the stress of the legal process was interacting with her sensitive nature to cause an exacerbation of her problems. Although this was not explicitly mentioned in the GP notes and records, I would suspect that being out of work probably had an adverse effect of her anxiety and depression.
As for eligibility under the Disability Discrimination Act, the fact that she had significant symptoms of depression in March 2010, and that poor concentration was mentioned so prominently, and she was prescribed Escitalopram, which she took regularly for years afterwards, is powerful evidence in favour of her eligibility under the Disability Discrimination Act, bearing in mind the mitigating effects of treatment with an antidepressant. As outlined in my earlier correspondence, I would view her continuing good compliance with treatment, with, to my eye, only a couple of periods when her compliance might have been judged less than highly satisfactory as being powerful evidence in favour of her having a continued need for antidepressants which in turn is evidence in favour of her eligibility.
Of course, the fact that there was no significant step-up in treatment by her GP after the incident in question does, in turn, suggest that many of her symptoms were established previously, and that the effect of the circumstances in March 2012 on her mental health was marginal rather than fundamental, and it was probably, on that account, of a nature and degree that would have been liable to settle within months, rather than persist at significant levels for years.”
(12) Dr Loughrey’s diagnosis of the claimant was that of a mixed anxiety and depressive order. His evidence before the tribunal was that this disorder featured clinically significant feelings of anxiety and depression. Based on the fact that the claimant had been taking antidepressants regularly since March 2010 Dr Loughrey concluded in his evidence before the tribunal, that in his view the claimant was disabled within the DDA definition from March 2010. The claimant had had a history of depression with significant symptoms in 1999 until 2005. Dr Loughrey also referred to a GP patient health questionnaire which she had completed on 22 March 2010 and which confirmed that the two main symptoms complained of were trouble in sleeping and trouble concentrating on things like reading a newspaper or watching television. The respondent did not have access to this questionnaire prior to the hearing. The GP notes and records showed that the claimant continued to collect medication without meeting her General Practitioner face to face. Dr Loughrey explained that this could be due either to the patient still experiencing symptoms at a lower level or that the original problem was recurring. Dr Loughrey relied on the foregoing as supportive of the fact that the claimant still required the medication ie Escitalopram. After the incident on 22 March 2012 the claimant developed an adjustment disorder which was largely resolved by the 4 September 2012. However in the period between the incident in March 2012 and 4 September 2012 the claimant’s medication was stepped up to include diazepam.
(13) Dr Chada provided reports dated 31 July 2014, 22 August 2014, and 22 September 2014 and gave evidence on behalf of the respondent. Her opinion and diagnosis were radically different to that of Dr Loughrey. In her report of 22 August 2014, under the heading of “Psychological Consequences” she states:-
“Mrs McGarrell reports that since this incident she feels that she has lost her confidence. She doesn’t go out much alone. She reports that if she is in a queue in the shop she will put the basket down and go on home. She indicated that she had hoped to stay at work until she got her pension at the age of sixty-three.
Mrs McGarrell confirms the principal had been the principal of the school for six or seven years and she knew him. “He was always a bit of a dictator. He wasn’t my boss. That’s the point. There was no attempt made to resolve this locally. I went to meetings with my boss, Mrs Campbell in Ballymena but there was no attempt to resolve this”.
Mrs McGarrell reported as a result of the incident she felt more anxious and her panicky feelings were more frequent. She indicates she lost confidence. Her GP gave her further Diazepam. She continued with her Cipralex.
Mrs McGarrell reports she attended Occupational Health on two or three occasions. “It was suggested we all sit down together and resolve it. We would each get our say. He thought I might be able to go back to work. But that meeting never happened. No-one told me what she said. I feel angry about the process. I feel let down by managers”.
Mrs McGarrell indicates that he has always been an anxious person but it has never interfered with her work. “I never missed work. I coped. It was not a bother. I could work in my environment. I never told them I had problems with anxiety. It never came into it. It wasn’t an issue”. Mrs McGarrell clarified that she did not believe her employers would have been aware of her anxiety problems prior to this incident.
Mrs McGarrell reiterated that no attempts were made to resolve the issue to allow her to return to work.”
(14) In her further addendum report of 22 September 2014 Dr Chada concludes by stating in the section entitled “Opinion”:-
“While
Mrs McGarrell did have an episode of anxiety and depression in 2010, she
appeared to have coped reasonably well for the next two years beyond that and
there was nothing to suggest Mrs McGarrell would have fallen within the
Disability Discrimination legislation prior to the index incident ... There is
no suggestion from the Occupational Health’s notes and records that it was
their view that Mrs McGarrell would fall within the Disability
Discrimination legislation and indeed Occupational Health decided not to review
Mrs McGarrelI ... At the time of her resignation in June 2013 I do
not believe that she would have fallen under the Disability Discrimination
legislation. In my opinion
Mrs McGarrell would not have fulfilled the definition for disability until a
year from the end of 2012/early 2013 (I noted Mrs McGarrell resigned in April
2013). Given the Occupational Health entries and the GP entries, there is no
reason for the employer to know or reasonably having expected to know Mrs
McGarrell was disabled within the meaning of the Act at the time of her
resignation in April 2013”.
Miss Jones submitted that Dr Chada had not addressed the deduced effects aspect of the claimant’s condition. However Miss Finnegan submitted that Dr Chada’s evidence before the tribunal was that the claimant continued to take medication not because she was ill but because she wanted to avoid the recurrence of symptoms. Miss Jones, on the other hand, referred to Dr Loughrey’s view that the claimant took medication because she needed it.
(15) There was no evidence before the tribunal that the claimant had difficulty in carrying out her job and there was no evidence that she had shown signs of impaired concentration in the course of her duties. Dr Loughrey in his evidence, conceded that in the absence of documented work errors he would not make the case that the claimant was disabled within the meaning of the Act, in the workplace. It also appears, from the records, that the claimant was taking antidepressants from April 2005 and that she was able to carry out normal day to day activities in her work environment both with and without medication. There is no evidence in the GP notes and records that the claimant was suffering from depression at any time between March 2012 and September 2013 and “ongoing generalised anxiety” is recorded from September 2013. The claimant was not referred by her general practitioner to mental health services until September 2013. Indeed the claimant was reporting an improvement in her medical condition by July 2012 and on 4 September 2013, some four days after a meeting with the respondents on 30 August 2012, the GP records indicate that the claimant was “returning to work soon”.
(16) The respondent relied on the provisions of Section 6 of the DDA (failure to make reasonable adjustments) and in particular Section 6 which provides:-
“Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know -
... (b) in any case, that the person has a disability and is likely to be affected in the way mentioned in sub-section (1)”.
This aspect is further addressed at the end of Miss Finnegan’s written submissions. Miss Jones submitted that the Respondent had actual knowledge of the claimant’s disability from the date of the incident on 22 March 2012, that there was a duty on the respondent to make reasonable adjustments, and that there was no evidence of the Occupational Health Doctor having investigated into whether the claimant had a disability. Miss Finnegan submitted that had the Occupational Health Doctor thought that the claimant had a disability, he would have reported back accordingly.
(17) At paragraph 52 of Miss Jones’ first written submissions, she submits that Dr Chada accepted that the claimant had an underlying mental illness of a relapsing nature but the symptoms were not sufficient to interfere with her work and were therefore not disabling within the meaning of the DDA. She then goes on to point out that Dr Chada had not considered what the effect of that condition would be without the medication At one stage during his evidence, Dr Loughrey was asked what the effect would have been if the claimant had stopped her medication. His response was that this would increase the odds of the depression recurring. He also emphasised that the claimant had ticked the lack of concentration option in the GP questionnaire. The tribunal was also referred to a second health questionnaire dated 23 October 2013 which does not appear to refer to lack of concentration. Miss Jones, however, in referring to the claimant’s evidence, pointed to her concentration being affected and that she was able to work because she was on medication. Also, in asserting that the claimant had an impairment at the material time, Miss Jones relied on her inability to concentrate in the context of Schedule 1 paragraph 4(1) of the DDA.
(18) The claimant’s sickness absence record from May 2005 up to 22 March 2012, refers, in chronological order, to nausea, knee pain, diarrhea, throat infection, blood poisoning, knee injury and, lastly, on 22 March 2012, to stress until 15 April 2012. The claimant had received a medical certificate from 22 March 2012 until 19 April 2012.
Conclusions on the Definition Issue
6. (i) The tribunal is faced with diametrically conflicting consultant psychiatric reports and evidence before it. It acknowledges that the definition of disability issue is a matter of fact for the tribunal. However the tribunal also acknowledges that it must make its decision in light of the medical evidence (Hospice of St Mary of Furness v Howard (2007) IRLR 994, EAT).
(ii) The tribunal is not satisfied, on the evidence before it, that the claimant suffers from a mental impairment and prefers Dr Chada’s evidence in this regard. Moreover, as recorded in Dr Chada’s report, (supra) the claimant recounted how:-
“I never missed work. I coped. It was not a bother. I could work in my environment. I never told them I had problems with anxiety. It never came into it. It was not an issue”.
The claimant admitted that at no time prior to the incident on 22 March 2012 did she notify her employer that she had or that she considered herself to have a disability. If the tribunal is wrong on this issue, there is no satisfactory evidence as to how the alleged impairment affected the claimant’s ability to carry out normal day to day activities at the relevant time or that she displayed any problems in concentrating. Dr Loughrey, in the absence of documented work errors, would not make the case that the claimant was disabled within the meaning of the DDA, in the workplace. In this respect the tribunal agrees with the respondent’s submission that if the claimant had an impairment, it did not affect her ability to carry out normal day to day activities involving memory, concentration, learning or understanding. There is also considerable doubt, on the evidence before the tribunal, that there was any adverse affect that could be described as substantial ie more than minor or trivial, and there is insufficient evidence in relation to whether, if there was a substantial adverse affect, it was long term.
(iii) The tribunal therefore concludes that the claimant was not disabled within the meaning of the DDA. The further question relating to Section 6(6) of the DDA does not therefore arise in relation to the duty to make reasonable adjustments.
(iv) The claims of direct discrimination and/or failure to make reasonable adjustments pursuant to the DDA, as amended, are therefore dismissed.
The Constructive Dismissal Claim
7. (i) The tribunal was shown a copy of the Board’s individual grievance procedure. Initially it was referred to an outdated document. The written procedure ultimately placed before the tribunal does not apply to Teachers or Chief Executives and states at the end that:-
“This procedure shall take effect from 1 November 1989 and shall remain in force for a period of three years at which time it shall be subject to review.”
There was no evidence before the tribunal of any such review or of any protocol having been agreed between the Board and CCMS establishing a mechanism to address grievances raised by an employee of the Board against an employee of CCMS. Anne Campbell’s position was that she had no authority over Mr McCann and claimed consistently that the claimant refused to make a formal grievance/complaint against Mr McCann which, Mrs Campbell claimed, could have been referred to CCMS through Human Resources. The tribunal accepts that the claimant was unwilling to instigate a formal process in this manner.
(ii) The tribunal had the benefit of an agreed chronology which is appended to this decision, and incorporates agreed facts. The claimant’s correspondence to Mrs Campbell of 2 April 2012, although described by Mrs Campbell as information from the claimant regarding the incident with Mr McCann, is in the nature of a complaint/grievance. The tribunal sympathises with the claimant in circumstances where she felt that her employer should be in a position to take forward her complaint/grievance and yet was unable to do so, not because of any fault on the claimant’s behalf but due to inadequate procedures and protocols to effectively deal with the situation. The respondent was therefore left in a situation where, on the one hand, it could not entertain a complaint/grievance against an employee of CCMS and at the same time had to address a resolution of the circumstances which had arisen as a result of which the claimant was suffering from stress and anxiety. As already stated she was reluctant to engage in a formal process involving Mr McCann’s employer.
(iii) The chronology, which is interspersed by references to the claimant’s medical condition, refers to the type of process engaged in by the respondent in an effort to resolve any issues with Mr McCann and to ensure the claimant’s return to work. The tribunal carefully considered the relevant documentation and correspondence relating to the period from 22 March 2012 until the claimant’s resignation. In her correspondence of 25 April 2013 to the Board the claimant states as follows:-
“Dear Sirs,
RE: GERTRUDE McGARRELL – V – NORTH EASTERN EDUCATION & LIBRARY BOARD
[Having] taken legal advice I am tendering my resignation for the following reasons:-
1. On the 22nd March 2012 there was a traumatic incident involving the Principal and his behaving in an intimidating manor towards me.
2. As a result I went on sick leave and submitted a statement.
3. I pursued the matter in a co-operative manner but throughout seeking a proper investigation and resolution.
4. I refer to Dr Russell’s Report of 1st June 2012 which indicated that if the matter was resolved I could expect to return to work.
5. You have failed to resolve the matter in a satisfactory manner.
6. It has now been indicated that I am to medically retire by letter of 27th February 2013.
7. As you are aware I appealed this decision on the 25th March 2013 and explained that I had been unable to return to work since the incident and that the incident had not been resolved.
8. I refer to your letter of 28th March 2013 in which you allege that I was to return to work in September. This is not correct. Nothing was agreed at that time. The matter had not been resolved. I was, at no time, offered the opportunity to return to work moreover even if I had been given such an offer, until the underlying issue of the March incident, I did not feel able to return.
9. Further, at the meeting on 28th November 2012, the matter of the resolution of the issue was not addressed and neither was the issue of my returning to work in the school.
10. It is accepted that I indicated to Dr Russell in February that I did not feel able to go back to the school because the issue had not been resolved.
11. I refer to my letter of 10th April 2013 reiterating the outstanding issues at large.
12. Having received your letter of 15th April 2013 I have decided that I have no option but to resign because of your on-going failure to address and resole the complaint regarding the Principal and properly resolve the issue to facilitate my return to work in the school.
I believe your handling of this matter since March 202 has been inadequate and deficient and amounts to a fundamental breach of my contract of employment. Further I believe that you have breached the Disability Discrimination Act 1995 by treating me less favourably on the grounds of my disability and failing to make reasonable adjustment given all the circumstances.
Yours sincerely
GERTRUDE McGARRELL
CC: Mrs Irene Paget, Area Catering Manager”
(iv) In correspondence dated 15 August 2012 to the claimant, Mrs Campbell refers to Dr Russell being confident that she would be able to resume employment after all the issues have been resolved and suggested a meeting on 30 August 2012 at which Irene Paget would also be in attendance. That correspondence also refers to the claimant’s previous requests for copies of any statements taken pursuant to her correspondence of 2 April 2012 (posted 3/4/12). Mrs Campbell confirmed that these statements have not been obtained as she was trying to deal with the matter informally and hoped that the meeting on 30 August 2012 would “provide every opportunity for discussion of all matters of concern and determination of what further action will be taken”. The subsequent correspondence from Mrs Campbell dated 19 September 2012 states, inter alia:-
“Further to our meeting, Mrs Paget and I met Mr McCann regarding your possible return to duty and it has been agreed with Mr McCann that when you feel able to return, any direct contact between yourself and him will be kept to a minimum. He may have need to advise you of any issues that directly involve lunch-time service. I have requested that any other communication from the school to the kitchen will be directed through the school secretary or Mrs Paget.
As discussed at our meeting that as School Principal, Mr McCann has responsibility for his school and this will be respected by the school meals staff.”
(v) At a further meeting held on 28 November 2012, possible options were discussed as follows:-
(1) That the claimant lodged a formal complaint against Mr McCann to the Board of Governors.
(2) That she participated in a process of mediation with the Principal, Mr McCann.
(3) A transfer to a catering vacancy in Our Lady of Lourdes School which had less hours.
(4) That the claimant should request ill health retirement. Kathryn Crease’s notes of that meeting (for Dr Russell) make clear that a final decision of the claimant’s continued employment “must now be made if she does not want to consider any of the above options”. Kathryn Crease as Senior Administration Officer (HR – Staff Welfare and Absence), had already suggested, in correspondence dated 25 October 2012 the option of awaiting a further period of recovery and arranging a review appointment with Dr Russell in or around three months time to ask for his updated views and at the same time establish a parallel process to resolve the outstanding issues. A second option was to commence the contemplation of the claimant’s dismissal on the grounds of ill health. This process would involve an offer of meetings, an offer to appeal Dr Russell’s views, and a final offer of an appeal of the decision. She considered however, that this option could be viewed as premature if no attempt was made to resolve the situation or seek the claimant’s views.
(vi) Dr Russell’s report of 19 February 2013, which followed a further review of the claimant makes clear that she still suffers from an anxiety related illness, that she had considered the options put to her and remained of the opinion that she did not wish to return to work. Dr Russell’s report refers to ongoing marked symptoms of anxiety and depression. He states his opinion that the claimant is unfit for work and that this is likely to be the case for the foreseeable future.
(vii) The tribunal is satisfied that the respondent’s correspondence to the claimant dated 29 April 2013, signed by G Laverty, Human Resources Manager, in response to the claimant’s resignation letter of 25 April 2013, contains an accurate and fair summary of the salient matters and events, particularly from 30 August 2012. The tribunal considers it appropriate to set out that correspondence as follows:-
“Dear Mrs McGarrell
I refer to your letter of 25 April 2013, which has been passed to me for information.
I note your stated wish to resign from your post of Unit Catering Supervisor and the reasons listed. I appreciate that you have been involved in a long (and it appears difficult) process and that you remain dissatisfied with how matters have been conducted by the Board and it is for this reason that I would, before taking any further action, wish to review and clarify a number of points.
Dr Russell’s report of 30 May 2012 stated that (up to that point) you had felt unable to participate in a process of resolution of the incident involving the Principal of St Patrick’s Primary School and that, following counselling, a meeting should be facilitated to seek a way forward.
You met With Mrs Campbell and Mrs Paget from the Catering Service on 30 August 2012, at which point you were advised that;
It had been agreed that contact with the Principal would be kept to a minimum and that, as far as possible, communication between the school and kitchen would be directed through the school secretary or Mrs Paget.
It was (then) the Board’s understanding that a way forward had been agreed and that you would return to work within a few weeks of that meeting.
It is my understanding (now) that you remain of the view that the matter had not and still has not been satisfactorily resolved because no action has been taken against the Principal.
The notes of the meeting of 30 August 2012, indicate that you were informed that as the Principal is employed by the Board of Governors and that the employing authority is the Council for Catholic Maintained Schools, the Board was not in a position to initiate any action against the Principal and that you should, if you wished, lodge a formal complaint with either the Chairman of the Board of Governors or with CCMS.
The occupational health report of 23 October 2012, indicated that you were unhappy with the outcome of the meetings of that point and felt unable to return to work.
I note that a further meeting involving yourself, Mrs Campbell, Mrs Paget, Mrs Crease (Welfare) and your daughter took place on 28 November 2012, and that the issue of your perception of the Board having failed to take action again the Principal was again discussed and that a number of options were identified;
1. Your right to make a formal complaint to the Board of Governors/CCMS
2. The possibility of mediation
3. The possibility of a transfer to another location
4. Consideration of retirement on the grounds of ill-health
And it was agreed that following consideration of the options you would advise the Board of how you wished to proceed.
You did not provide a response as agreed and attended a further occupational health appointment on 19 February 2013 at which you advised the doctor that you had considered the options discussed and said that you did not wish to return to work.
Consequently, the Board took the view that it had not alternative but to initiate the process of contemplation of retirement on the grounds of ill-health of which you were advised in a letter of 27 February 2013. You were also informed in that letter of your right to appeal the medical opinion that you are unit for work and likely to remain so for the foreseeable future. In a further letter of 28 March 2013, the Board afforded you an opportunity of a further meeting with relevant officers in order to consider any reasonable adjustments which might have facilitated your return to work.
Following receipt of your letter of 10 April 2013, in which you indicated that while you did not wish to appeal the medical opinion you did want to appeal the Board’s decision to terminate your employment of the grounds of ill-health on the following grounds;
1. The cause of ill-health was due to an incident which happened at your place of work,
2. The incident has not been resolved.
Arrangements were being made to facilitate your request for an appeal hearing when your letter of resignation was received.
I would wish to advise you that it is my view that the Board has taken reasonable steps in seeking to advise you of;
The appropriate route to pursue a complaint against the Principal
The availability of mediation
The possibility of a transfer to another location
The offer to meet with you regarding the possibility of reasonable adjustment
The offer of the right of appeal against the decision to terminate your employment on the grounds of ill-health.
Before proceeding to take any action on your letter of resignation I would wish to satisfy myself that you understand and accept that you have been provided with an opportunity to appeal the decision to terminate your employment on the grounds of ill-health and to offer you a further, final opportunity to exercise that right in case there has been any confusion or misunderstanding.
As a consequence, I would be most obliged if you could let me know, on or before Friday 10 May 2013, if you;
a) Wish to exercise your right of appeal. Or
b) Wish to resign from your post.
Yours sincerely,
G Laverty
Human Resources Manager”
(viii) The claimant wrote to Mr Laverty on 10 May 2013 confirming the position in her letter of resignation dated 25 April 2013.
(ix) The parties agreed a Schedule of Loss, subject to liability.
The Law
8. (i) Article 127 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) states as follows:-
“127. – (1) for the purposes of this Part an employee is dismissed by his employer if … - (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.
(ii) Article 156(2) of the Order states as follows:-
“Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly”.
(iii) The Order further states at Article 157(6) as follows:-
“Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding”.
(iv) Harvey on Industrial Relations and Employment Law (“Harvey”) states at Division D1 at 403 as follows:-
“In order for the employee to be able to claim constructive dismissal, four conditions must be met:
(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.
(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.
(3) He must leave in response to the breach and not for some other, unconnected reason.
(4) He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract”.
(See also Western Excavating (ECC) Limited v Sharp 1978 IRLR 27).
(v) Harvey continues:-
“(b) The duty of co-operation
[461] More recently the EAT has specifically followed the Post Office case on this point (Woods v WM Car Services (Peterborough) Ltd 1981] IRLR 347, [1981] ICR 666). The Tribunal emphasised the significance of this duty for employers not to conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of mutual confidence and trust. As it pointed out, it enables an employee who is ‘squeezed out’ of the company by the wholly unreasonable conduct of the employer to leave and claim that he has been dismissed even though he cannot point to any specific major breach of contract by the employer.
[462] This duty not to undermine the trust and confidence in the employment relationship can be subsumed under a wider contractual duty which is imposed on the employer, to co-operate with the employee.”
(vi) Once a tribunal has established that a relevant contractual term exists and that a breach has occurred, it must then consider whether the breach is fundamental. Where an employer breaches the implied term of trust and confidence, the breach is inevitably fundamental (Morrow v Safeway Stores plc 2002 IRLR 9, EAT). A key factor to be taken into account in assessing whether the breach is fundamental is the effect that the breach has on the employee concerned.
(vii) It is also possible for a tribunal to make a finding of contributory conduct in a constructive dismissal case in the event of there being a connection between the employee’s conduct and the fundamental breach by the employer. As was pointed out in the Northern Ireland Court of Appeal case of Morrison v Amalgamated Transport and General Workers Union (1989) IRLR 361 NICA, since it was open to a tribunal to declare a constructive dismissal fair, there could be no inconsistency in its holding that the employee contributed to the dismissal in the first place. All that is required is that the action of the employee to some extent contributed to the dismissal. Once a tribunal has found on the evidence that an employee has to some extent caused or contributed to his or her dismissal it shall reduce the compensatory award.
(viii) Unlike an anticipatory breach of contract, an actual breach of contract cannot be retrieved by the employer offering to make amends before the employee leaves. Once the breach has been committed it is for the wronged party to decide how to respond (Buckland v Bournemouth University [2010] IRLR 445 CA).
(ix) In Mahmud and Malik v Bank of Credit and Commerce International SA [1997] IRLR 606, (‘Malik’) the duty of implied trust and confidence was affirmed by the House of Lords in the following terms:-
“The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.”
Lord Steyn stated that:-
“The implied obligation as formulated is apt to cover the great diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.”
(x) The test for breach of the implied duty of trust and confidence is an objective one. The duty of trust and confidence may be undermined even if the conduct in question is not directed specifically at the employee. The duty may be broken even if an employee’s trust and confidence is not undermined. It also follows that there will be no breach simply because an employee subjectively feels that such a breach has occurred, no matter how genuinely this view is held.
(xi) The range of reasonable responses test is not applicable to constructive dismissal per se. However it is open to the employer to show that such a dismissal was for a potentially fair reason in which case the range of reasonable responses test becomes relevant.
(xii) The breach of contract must be “sufficiently important” to justify the employee resigning or it must be the last in a series of incidents which justify his leaving. It must go to the heart of the contractual relationship between the parties. Harvey comments that where the alleged breach of the implied term of trust and confidence constitutes a series of acts, the essential ingredient of the final act is that it is an act in a series, the cumulative effect of which amounts to the breach. It follows that although the final act may not be blameworthy or unreasonable, it must contribute something to the breach even if it was relatively insignificant (Harvey Division D, paragraph 481.01). See Omilaju v Waltham Forest London Borough Council [2005] IRLR 35.
(xiii) The employee must resign in response to the breach. In the recent EAT case of Wright v North Ayrshire Council [2014] IRLR 4, (“Wright”) Mr Justice Langstaff (President) states at paragraph 20 of his judgment that:-
“Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause.”
(xiv) In Western Excavating (ECC) Ltd v Sharp (1978) IRLR 27 CA, it was pointed out that an employee must make up his mind regarding resignation soon after the conduct of which he complains. Should he continue any length of time without leaving, he will lose his right to treat himself as discharged from the contract. However, where there is no fixed period of time within which the employee must make up his mind, a reasonable period is allowed. This period will depend on the circumstances of the case including the employee’s length of service, and whether the employee has protested against any breach of contract.
(xv) The tribunal also considered the recent case of Chindove v William Morrison Supermarkets Ltd (“Chindove”) UKEAT10201113 (26 June 2014, unreported).
Submissions
9. The tribunal carefully considered the written submissions from both Counsel in relation to the definition of disability issue together with further oral submissions from both Counsel on this issue at the close of the resumed hearing on the 16 January 2015. The tribunal also subsequently received a series of further helpful written submissions from both Counsel in relation to the remaining issues. Copies of all written submissions are appended to this decision.
Conclusions
10. The tribunal carefully considered the law relating to a constructive dismissal and the conditions which must be met in order for the claimant to be able to claim constructive dismissal. Having applied the relevant principles of law to the findings of fact, the tribunal concludes as follows:-
(1) Notwithstanding its findings of fact in relation to the procedures in existence for dealing with complaints/grievances, the tribunal is not persuaded that the respondent without reasonable and proper cause conducted itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between itself and the claimant, particularly in a situation where the claimant’s complaint was against the school principal who was employed by a different employing authority to that of the claimant, and in circumstances where the claimant was not prepared to authorise the respondent through its Human Resources Department to lodge a formal grievance/complaint against this individual with his employer. The tribunal has already set out, at paragraph 7(vii) of this decision, the respondent’s correspondence to the claimant dated 29 April 2013 which, it found, contained an accurate and fair summary of the salient matters and events, particularly from 30 August 2014.
(2) The test for breach of the implied duty of trust and confidence is an objective test. There will be no breach simply because an employee subjectively feels that such a breach has occurred, no matter how genuinely this view is held.
(3) Thus, in light of its findings of fact, when considered against its analysis of the relevant legal principles, the tribunal is not satisfied that the claimant has established a repudiatory breach or breaches of contract which is/are sufficiently important to justify her resignation. Furthermore, the last straw doctrine is not engaged.
(4) The claimant’s claim of constructive dismissal must therefore be dismissed.
Employment Judge:
Date and place of hearing: 24, 25, 26, 27 November 2014 and 16 January 2015.
Date decision recorded in register and issued to parties:
