Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    2374/14

 

 

 

CLAIMANT:                      Michael Gillespie

 

 

RESPONDENT:                R and M Greenkeeper Ltd

                                       

 

 

DECISION

 

The decision of the tribunal is that the claimant was not constructively dismissed and his claims before the Industrial Tribunal are therefore dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge McCaffrey

 

Members:                        Ms M E Bailey

                                        Mr I Rosbotham

 

 

 

Appearances:

 

The claimant was represented by Mr K Denvir, Barrister-at-Law instructed by Campbell Stafford Solicitors.

 

The respondent was represented by Mr T Warnock, Barrister-at-Law instructed by Worthingtons Solicitors.

 

 

1.               THE ISSUES

 

1.1     This is a claim of constructive dismissal brought by the claimant against the respondent.  The claimant alleged that following his transfer to the respondent’s employment under the Transfer of Undertakings Regulations 2006 (“the TUPE Regulations”) in September 2013, there had been a number of incidents which, taken together, constituted a fundamental breach of the implied contractual term of trust and confidence which an employer owes to an employee.  The claimant resigned his employment by letter dated 13 October 2014, at which stage he had been absent from work on sick leave from the end of January 2014.  The allegations were denied in their entirety by the respondent.

 

1.2     The claimant’s claim form also alleged that he had suffered unlawful deductions of wages.  However there was no evidence of this adduced by the claimant at the hearing, and it was not addressed by the claimant’s representative in final submissions.  Accordingly this element of the claimant’s claim is dismissed.

 

2.               THE FACTS

 

2.1.    We received witness statements and heard oral evidence from the claimant, from Ms Anne Coney of the DHSS, from Mr Kyle Smyth, Managing Director of the respondent company, Mrs Jacqui Willis, Office Manager of the respondent company and Ms Lorraine Rooney who was an HR Consultant employed by the respondent.  A number of documents were also opened to us in the course of the hearing.  On the basis of the evidence received, we make the following findings of relevant facts.

 

2.2     The claimant commenced employment with Fold Housing Association (“Fold”) on 15 October 2001.  He was employed as a gardener/handy man and worked mainly in the Greater Belfast or North Down areas.  His employer at this time was based in Holywood, County Down and the claimant lives in Bangor. 

 

2.3     In the spring of 2013 the respondent company successfully tendered for the grounds maintenance contract for the Accord Housing Association and as a result the claimant and a number of his colleagues in similar roles transferred to the respondent’s employment in September 2013.

 

2.4     Prior to the transfer of the contract to the respondent company, the respondent’s Managing Director, Mr Smyth and Ms Rooney met the claimant’s union representative Ms Catherine Arkinson of NIPSA in August 2013.  One of the payments made to the claimant by Fold was an essential car user payment which was paid to him to allow him to travel to and from Fold’s various sites to carry out his duties.  That allowance consisted of a monthly amount in respect of wear and tear on his car and mileage allowance.  This “essential user” payment was discussed by Mr Smyth with Ms Arkinson at their meeting.  Ms Arkinson did not attend the hearing to give evidence, but Mr Smyth’s evidence was that she had raised the issue of the payment at their meeting and Mr Smyth explained to her that they had company vehicles to transport employees from site to site.  He said Ms Arkinson commented that the claimant and his colleagues were not therefore entitled to the essential user allowance after they transferred to the respondent.

 

2.5     A further meeting took place at Fold premises on 21 August 2013 when the claimant and a couple of his colleagues, together with Ms Arkinson, met Mr Smyth.  At that meeting (the minutes of which were produced to us) there was discussion about the employees’ start and finish times (which was different from the respondent’s other employees) and the fact that they would be asked to report for work at the respondent’s premises at Mallusk, rather than travelling to the respondent’s Head Office in Cookstown each day.  The minutes note that all seemed agreeable to this, and no concerns were raised.  There were various issues discussed, including the NILGOSC pension which was being discontinued to new members.  It was confirmed that this would not be transferred.  The claimant was not a member of the NILGOSC pension scheme at this stage.  Mr Smyth indicated that the company was looking into a pension scheme which employees would have the option to join “shortly”, and he gave evidence to the tribunal that an auto-enrolment scheme would be made available to staff in April 2015.

 

2.6           There were various other matters discussed, including the personal situation of two other members of staff present, when wages would be paid, the need to obtain Access NI clearance for the claimant and his colleagues and induction training.  Mr Smyth confirmed in his evidence to the Tribunal that the Access NI clearance had been obtained and this was not contradicted by the claimant.  There was also some discussion in relation to the essential user allowance.  It was noted that the claimant and his colleagues, like the respondent’s other employees, were paid the national minimum wage.  One of the claimant’s colleagues noted that his travel allowance built up his wages.  The minute then states:

 

“It was confirmed by Catherine that travel allowance would no longer be paid as the company provides transport for workers.  Mark stated that he will find it difficult to work on minimum wage only.  Catherine confirmed that the organisation will pay and make current contractual terms which is minimum wage”. 

 

There is no record in this meeting of the claimant having raised any concerns about the loss of essential user allowance.  There was some discussion about wage reviews and Mr Smyth confirmed that there were pay reviews/assessments during the employment based on performance in the role.   

 

2.7     The claimant and his colleagues travelled to Cookstown for an induction day on 2 September.  It had been agreed (and was recorded in the minutes of the meeting of 21 September) that the claimant would be reimbursed travel expenses for using his car on that day.  The claimant complained that he had never been reimbursed these travel expenses.  The respondent (Mr Smyth) said that he had told the claimant he would be reimbursed but had never received any claim from him and he would have expected the claimant to have made the claim.  We accept that the claimant was told he would be reimbursed expenses, but never put in a claim.

 

2.8     On this training day, the claimant indicated that he had expected a consultant employed by the respondent to come and carry out the training, but it was Mr Smyth who carried out the training.  The claimant seemed to allege that the training was in some way unsatisfactory because of this.  Mr Smyth explained that while he did use a health and safety consultant to provide documentation, he carried out the “hands on” training himself as the consultant was not in fact qualified to operate some of the equipment involved.  He also noted that some of the equipment used by his company was more powerful than that which the claimant had previously operated and it was suggested that this would have made many aspects of the role of the gardeners easier.  This was not disputed by the claimant.

 

2.9     The claimant also alleged that on the induction training day when they went for lunch, Mr Smyth said to him that if he had had his choice, he would not have employed the Fold employees.  Mr Smyth disputed this and said that this simply had not happened.  On balance we accept Mr Smyth’s evidence in relation to this, as we do not find it credible that a new employer would say such a thing on the claimant’s first day working for them.

 

2.10   The claimant continued working for the respondent through the autumn of 2013.  There was a review meeting carried out by Ms Rooney with the claimant and other staff members in November 2013.  The form completed by Ms Rooney in relation to this notes that when the claimant was asked how he was settling in since his transfer, his answer was, “Ok – going OK”.  When he was asked how he was finding the work, his answer was, “OK – a bit harder but OK”.  The claimant indicated that the job was heavier than he was used to as it was largely a gardening job but he did not raise any particular complaint with Ms Rooney.  He indicated that he had good relationships with his team and that he had good team mates.  When he was asked “What has gone well for you in the last two months?”, his reply was, “Sizing bigger”.  Ms Rooney clarified in cross-examination that this was a reference to the fact that the company was bigger and the claimant was working in a larger team.  When he was asked what had not gone well in the last two months (if anything) his answer was “No, nothing”.   He was then asked if there was any support or training he felt he would need from the company to help with his job and his answer was, “Ok at the moment”.  There was not therefore any particular complaint raised by the claimant at that time.  In cross-examination Ms Rooney was asked if she had probed any further when the claimant indicated that he found the work a bit harder and she said that she had: the claimant had indicated that it was more physical than previously but had not complained about it which was why she had added, “but OK”.  No complaint was raised by the claimant at this meeting in relation to the loss of the essential user allowance.  At the hearing the claimant also complained that he had been promised a wage review which had not occurred.  The respondent’s explanation was that wage reviews were based on performance which seems usual and reasonable.  We would find it surprising if a wage review were given within a few months of starting work.  In the claimant’s case he was with the respondent for about four and half months before he went off on sick leave.

 

2.11   It was the claimant’s evidence that on 14 January 2014 he was injured in an accident at work as a result of which the claimant went on sick leave from 29 January 2014.  He remained on sick leave from this time until his resignation in October 2014.  The respondent indicated that they had not received any accident report in relation to this matter and the first that they were aware of the claimant’s allegations in relation to the incident was when they received a letter of a claim in relation to a personal injury claim in July 2014.  The respondent disputed that the claimant had been injured in an accident at work.  The claimant however had submitted sick lines in relation to his condition, the first of which was dated 29 January 2014 and referred to “joint pains”.  Sick lines continued to be submitted by the claimant giving varying reasons for absence from “back pain” to “a joint pain”, “neck and arm pains” and “neck and back pain” until July 2014.

 

2.12   The claimant was initially paid two weeks’ full pay and then two weeks’ half pay by the employer and he then subsequently went on statutory sick pay.  On 18 April 2014, the respondent sent a letter to the claimant requesting consent to obtain a medical report.  They received a reply from the claimant confirming receipt of the letter and indicating that he would give consent for a medical report if the respondent agreed to pay the fees.  The respondent then wrote to the claimant on 30 April saying that they would obtain a medical report and would cover the cost but they did not receive any reply to this letter.  The claimant said that he had not received it.  During his absence the claimant complained that contrary to their stated policy, no one from the respondent was in touch with him about his illness.  Mr Smyth’s evidence however was that he had tried to ring the claimant every month when he was off sick, but could never get a reply, and the claimant did not return the calls.  There was no evidence the claimant had contacted the respondent, except to send in sick lines.

 

2.13   On balance we are satisfied that the respondent did attempt to contact the claimant and to obtain an updated medical report in relation to his condition but that the claimant did not co-operate in relation to this.  Following the letter of 30 April, the claimant did not provide consent to the respondent getting a medical report on him, nor did we hear any evidence that the claimant had phoned the respondent’s office to check on the position.

 

2.14   Towards the end of June 2014, the claimant initiated a claim in relation to mortgage protection insurance.  His evidence was that he had sent the paperwork to the respondent twice, but that they had failed to respond, saying that “it took around three months for them to process this”.  The claimant’s evidence in relation to this was unclear.  He produced to the tribunal two letters from Payment Shield (his insurance company) dated 17 and 24 June 2014 each of which enclosed a claim form.  He said that he had sent the claim form to the respondent on two occasions and that the second claim form had a note on the front stressing the urgency.  The respondent’s representative (namely Mrs Willis) was clear that the form had been received only once, at the end of June, and that it had been processed within 2-3 weeks.  When it was put to Mr Smyth that the form could have been processed more quickly, he disagreed that the company had delayed unduly.  He pointed out that if the form was received around the end of June, which appeared to be the case, that that would have been a holiday period and that this may have contributed to the delay in the form being sent back.  The claimant did not give any evidence in relation to the process by which the insurance claim was made.  He indicated that there had been a delay from the respondent, but he did not give any evidence of the basis of this assertion, apart from the fact that he had only received a payment from the insurance company in September 2014.  We were referred to correspondence from the insurance company which set out (amongst other things) the items which needed to be forwarded in order to process the claim.  These included information in relation to the claimant’s mortgage, bank statements, sick notes from his doctor and part of the form completed by the doctor as well, along with the completed claim form.  The claimant did not give any evidence in relation to how quickly he was able to assemble all of the other documentation necessary to process his claim or when he returned the claim form to the insurance company.  In light of this lack of information regarding the process, we are unable to make the inference which Mr Denvir invited us to make, that the respondent had delayed by two months in returning the claim form.  On balance we accept the respondent’s evidence that the insurance claim form was processed within 2-3 weeks and that it was delayed slightly by the July holidays.

 

2.15   The claimant’s solicitor sent a letter of a claim to the respondent in relation to the personal injury claim on 16 July 2014.  Mr Smyth indicated that he had passed this letter to his insurance company.  It was put to him by Mr Denvir that this claim being brought against him coloured his attitude in relation to the claimant, which Mr Smyth denied.  He indicated that claims like this were received from time to time and he simply passed them on to his insurers.  We accept his evidence in relation to this point, which was not challenged in any way.

 

2.16   The respondent by this time had still not obtained the claimant’s consent in relation to obtaining a medical report and Mrs Willis subsequently prepared a letter to the claimant on the 14 August 2014, again requesting the claimant’s consent to obtain a medical report.  She said that this part of the letter had been prepared in consultation with Prestige HR Consultants.   The start of that letter also refers to the claimant’s SSP position.  The first paragraph reads:

 

                    “I note that you have been away from work through sickness since 29/01/2014 to which your full Statutory Sick Pay Entitlement has now been paid.  Your last SSP payment is to be paid up to 13/08/14 and the company will no longer be providing sickness payments.

 

                    Your current sick line was dated until 05/09/2014 and I write to ask if you could update me of your current situation regarding your illness and if you feel you are unable to return to work”.

 

          The letter then goes on to request the claimant’s consent to obtain a medical report in relation to his condition.

 

2.17   The claimant indicated that he had received a letter from the respondent in August, but that it had not included anything in relation to Statutory Sick Pay.  He was asked if he had the letter which he had received and he indicated that he did not.  The respondent did not receive any reply to this letter and wrote again to the claimant on 10 September sending a letter which was effectively in the same terms as the August letter.  This time the claimant agreed that he had received the letter.

 

2.18   On balance, given the claimant’s inability to produce the letter which he says was sent to him, and given the evidence of Mrs Willis that the two letters sent in August and September were in exactly the same terms, we accept that the respondent did set out the position in relation to Statutory Sick Pay to the claimant in the letter of 14 August 2014 and that it was received by the claimant.  We also found it surprising that according to his evidence, the claimant did not realise that he was not being paid statutory sick pay until he received the respondent’s letter of 10 September, given that he was clear in his evidence to the tribunal that he was financially pressed during his period of sick leave.

 

2.19   The other matter of which the claimant complained was the failure of the respondent to produce an SSP1 form to him when his entitlement to Statutory Sick Pay ended.   He required this in connection with his claim for Employment Support Allowance.  The claimant called a witness from the Social Security Agency, Ms Anne Coney, who gave evidence in relation to a CD rom (and transcripts of the CD) which had been produced regarding the claimant’s contacts with the Social Security Agency.  She also confirmed that in order to process a claim for Employment Support Allowance, the Department required medical evidence together with confirmation that the claimant satisfied National Insurance contributions conditions.  The employer would be legally required to provide an SSP1 form to show entitlement to statutory sick pay was exhausted.  The claimant’s evidence about this was that he had been told by the DHSS that his claim for benefit would be “parked” until the SSP1 form was received.  He provided contact details for the employer to the DHSS as appears from the transcripts of his various telephone contacts with the Department.  Ms Coney indicated however that there had been two attempts to contact the respondent by telephone by the Department’s staff, both on 20 September 2014, which was a Saturday.  There was no reply from the respondent.  In cross-examination Mrs Willis confirmed that the respondent’s offices were open from Monday to Friday and that no telephone calls had been received.  Both she and Mr Smyth also confirmed that there had been no correspondence or telephone calls either from the Department or from the claimant in relation to the SSP1 form.  She went on to say that in her experience of working for the respondent, they had never had a situation where someone had exhausted their entitlement to Statutory Sick Pay and so she had never had to issue an SSP1 form previously.

 

2.20   On balance we accept the evidence given by the respondent in relation to this matter.  There was no evidence of them having received a written request for the SSP1 form either from the claimant or from the DHSS.  The telephone contacts by the DHSS were attempted on a Saturday when the respondent’s offices were closed, and none of the evidence before us suggested any other contacts were made either by the claimant or by the DHSS requesting the SSP1 form.  Mr Smyth conceded in cross-examination that there was a statutory obligation to provide the form and he accepted that this should have been done.  Like Mrs Willis, he indicated that he had not come across this before.

 

2.21   The claimant remained on assessment level contribution-based ESA until he found alternative employment which commenced on 27 November 2014.  We were not told when he was offered that job.  He received assessment rate ESA which he continued to receive (vouched by sick lines) until such times as he started his new job.  He gave no evidence as to the rate of ESA he would have received had all the necessary information been provided to the DHSS. 

 

2.22   On 13 October 2014 the claimant sent a faxed resignation letter to the respondent.  The body of that letter read as follows:

 

                              “Dear Sirs

 

                    I am writing to inform you that I am resigning from my employment with immediate effect.  I feel that I am left with no choice but to resign due to your handling of my accident at work, various breaches of contract as well as your failure to process my mortgage protection and DHSS documentation.

 

                    Yours sincerely

 

                    Michael Gillespie”

 

          The claimant gave little evidence at the hearing of his complaints regarding the respondent’s handling of his accident at work, except to say the respondent had not been in touch with him, other than to ask for consent to a medical report.  (See paragraphs 2.16 and 2.17 above).

 

2.23   Mr Smyth replied to the claimant by letter dated 15 October 2014.  The body of that letter read as follows:

 

                              “Dear Michael

 

                    I refer to your letter dated 13 October in which you state you are resigning from your position.  I am now writing to ask is this really what you want to do.

 

                    You have been a valued member of staff in the period of time you have employed with the company.  Your letter has been received with much regret, particularly as we have been trying to get in touch with you.

 

                    I would be most grateful if you would contact me with a view to discuss [sic] the reasons for your resignation from the company.

 

                    If I have however not heard from you by 22 October 2014 I will honour your request to resign from the company and process your resignation.

 

                    I look forward to hearing from you.

 

                    Yours sincerely

 

 

                    Kyle Smyth (Director)”

 

          The claimant indicated that he had never received this letter, making this the third letter which he said he had not received from the respondent.  We accept the respondent’s evidence that the letter was sent.  We also observe that, to paraphrase Oscar Wilde, to lose one letter is unfortunate, to lose three seems like carelessness.

 

2.24   The claimant’s claim to the industrial tribunal was lodged on 15 October 2014.  The claimant commenced a new job with the Presbyterian Church in Ireland on 27 November 2014.  In that job he is working as a handy man for 20 plus hours per week, although his hours vary.  His take-home pay in relation to this work was in or about £600.00 per month, depending on the hours worked.

 

3.       THE RELEVANT LAW

 

3.1     The relevant statute law in relation to constructive dismissal is Article 127(1)(c) of the Employment Rights (Northern Ireland) Order 1996 which provides as follows:-

 

          “(1)     For the purposes of this Part an employee is dismissed by his employer if and, (subject to paragraph 2(2)) ... only 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”.

 

This is usually referred to as constructive dismissal.

 

3.2     Harvey on Industrial Relations and Employment Law (“Harvey”) states at
Division D1, paragraph 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 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 acts 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”.  

 

3.3     Harvey also notes at paragraph 401.01 that a constructive dismissal is not necessarily unfair and a tribunal which makes a finding of constructive dismissal will err in law if it assumes that the dismissal is unfair without making explicit findings on the reason for the dismissal and whether the employer has acted reasonably in all the circumstances (Stephenson and Co (Oxford) Ltd v Austin [1990] ICR 609, EAT).

 

3.4     It is important to note that the conduct relied upon to constitute a breach of contract must be a repudiatory breach of contract and not simply unreasonable behaviour on the part of the employer.  A repudiatory breach is one that goes to the heart of the employment relationship between employer and employee.  In Brown v Merchant Ferries Ltd [1998] IRLR 682 NICA, the Court of Appeal in Northern Ireland indicated that, although the correct approach in constructive dismissal is to ask whether the employer was in breach of contract and not whether the employer acted unreasonably, if the employer’s conduct is seriously unreasonable this may provide sufficient evidence that there has been a breach of contract.  In this case the claimant alleges that there were a series of acts by the employer the cumulative effect of which was a breach of the implied duty of trust and confidence owed by the employer to the employee.  The implied duty of trust and confidence was affirmed by the House of Lords in Mahmud and Malik v Bank of Credit and Commerce International SA [1997] IRLR 606 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 employee”.

 

3.5     Lord Steyn commented 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”.

 

3.6     In Mahmud and Malik the House of Lords rejected three suggested limitations to the scope of the duty of trust and confidence.  It will be recalled that this was in the context of the claim by two former employees of BCCI who said that they considered they had suffered loss and damage when that Bank collapsed as they had been tainted by the BCCI’s poor reputation and had been unable to find other work.  First of all, the House of Lords held that the duty of trust and confidence may be undermined even if the conduct in question is not directed specifically at the employee.  Secondly, the Court held that it was not necessary for the employee necessarily to be aware of the wrong doing while still employed, however the question of when the breach is discovered is highly relevant to the question of remedy:  If a breach is not discovered until after the employment ends, the employee cannot rely on it as a ground for terminating the contract and thus it will not provide a basis for an unfair dismissal claim.  Thirdly, the duty of trust and confidence may be broken even if an employee’s own trust and confidence is not undermined.  Similarly, it follows that there will be no breach simply because the employee subjectively feels that such a breach has occurred, no matter how genuinely this view is held.  If, on an objective approach, there has been no breach then the employee’s claim will fail (Omilaju v Waltham Forest Borough Council [2005] IRLR 35 EWCA).  In Omilaju the Court of Appeal noted that many constructive dismissal claims which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time.  As Lord Justice Dyson stated:-

 

          “Suppose an employer has committed a series of acts which amount to a breach of the implied terms of trust and confidence, but the employee does not resign his employment instead he soldiers on and affirms the contract.  He cannot subsequently rely on these acts to enable him to do so.  If the later act he seeks to rely on is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to revoke the final straw principle”.

 

3.7     It has been noted by a number of commentators that the standard of the repudiatory conduct required here is such that it must – objectively speaking – if not destroy, then seriously damage, the trust and confidence between employer and employee.  Mere damage is not enough; the term is there to protect the employee’s interest in not being unfairly and improperly exploited.  The most recent authority on this subject is Buckland v Bournemouth University [2010] 4 All ER 186, where the Court of Appeal in England and Wales cited with approval the comments of His Honour Judge Clarke in the EAT as follows:-

 

                    “In summary, we commend a return to settled authority, based on the following propositions:-

 

                    (1)      In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence, the unvarnished Mahmud test should be applied.

 

                    (2)      If, in applying the Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 principles, acceptance of that breach entitled the employee to leave, he has been constructively dismissed.

 

                    (3)      It is open to the employer to show that such dismissal was for a potentially fair reason.

 

                    (4)      If he does so, it will then be for the Employment Tribunal to decide whether dismissal for that reason, whether substantively and procedurally (see J Sainsbury PLC v Hitt [2003] ICR 111) fell within the range of reasonable responses and was fair”.

 

3.8     It was suggested by Mr Denvir in his submissions that in connection with a breach of the duty of implied trust and confidence, which is what is alleged in this case, it was not necessary for the claimant to show a fundamental breach of contract.  Harvey however notes at Division D, paragraph 434 that:-

 

                    “It needs to be stressed that the conduct does need to be repudiatory in nature in order for there to be a breach of the implied term of trust and confidence (see Morrow v Safeway Stores Ltd [2002] IRLR 9, EAT).” 

 

          This tallies with the comments of Lord Steyn in the Mahmud case where he refers to the conduct of the employer causing “serious damage” to the employment relationship.  Harvey sets out at paragraph 436 a number of examples of what might constitute a breach of the implied duty of trust and confidence, including a breach through failing to give an employee reasonable support to enable him to carry out the duties of his job without disruption or harassment from fellow workers, false accusations of theft, undermining the position of a supervisor by upbraiding him in the presence of his subordinates, failing to treat a long-term employee with dignity and consideration or persistently attempting to vary an employee’s conditions of service.  Harvey also states at paragraph 436.01 that it is established that not every breach of a statutory right will amount to a breach of the implied term of trust and confidence.

 

3.9     In relation to the issue of breach of the statutory duty, in this case it was admitted that the respondent had failed in its statutory duty to provide an SSP1 form for the claimant.  In Graham Oxley Toole Steels Ltd v Firth [1980] IRLR 135 Mr Justice Talbot set out the approach which should be taken by a tribunal in dealing with a claim of breach of statutory duty in the context of constructive dismissal claim.  In his judgment the learned Judge asserted that:-

 

    “In every case what has to be done is to look at the circumstances of the contract, the obligation under the contract, to determine whether there is a breach of contract and whether the breach is of such a quality that it indicates the employer no longer intends to be bound by his obligation under that contract”.

 

3.10   In this case the claimant argued that the failure by the employer to produce the SSP1 form was the last in a series of breaches which, taken together, amounted to a fundamental breach of the implied term of trust and confidence.  It is fair to say that of the various issues raised by the claimant in relation to the early part of his employment with the respondent, potentially the most serious matter of which he complained was the discontinuance of his essential car user allowance, which he said put him at a considerable loss each month of approximately £200.00.  This issue was not specifically raised by the claimant in his resignation letter, but was relied on at the hearing.

 

3.11   Mr Denvir argued that the employer had unilaterally varied the contract by discontinuing payment of the essential user allowance to the claimant.  He said that there was no documentation to show that the claimant had consented to the variation and accordingly, he argued, this was a fundamental breach of contract.  It was agreed that any potential claim in relation to this matter under the Transfer of Undertakings Regulations 2006 (“The TUPE Regulations”) was out of time, and we did not therefore have to consider the statutory test in relation to any variation in the contract which had occurred as a result of the transfer of the business to the respondent.  However, we were invited to consider whether the unilateral variation of the contract by the employer was a fundamental breach of contract.  The respondent argued first of all that the claimant had agreed to the variation by his actions and that he had never raised any objection in relation to the matter.  Secondly, Mr Warnock argued that the allowance was paid to the claimant because of the fact that he was required to use his car for the performance of his duties when employed by Fold.  Once the requirement to use his car for work stopped, (because he was supplied with transport by his employer to get from site to site), the reason for payment of the essential user allowance disappeared and the employer was entitled to discontinue it.

 

4.       REASONS AND DECISION

 

4.1     In considering our decision we set out below our response to the four questions referred to by Harvey.

 

          1. & 2. Was there a breach of contract by the employer and was it a          repudiatory breach of contract? 

 

4.2     We are conscious that in a case such as this where the “last straw” doctrine has been invoked by the claimant, there must be a series of acts which taken together, amount to a fundamental breach of contract.  The final act, while it may not of itself be repudiatory in nature, must contribute something to the breach of contract.

 

4.3     In this case the claimant set out a number of matters with which he was unhappy, many of which had occurred at, or shortly after, the transfer of his employment to the respondent.  He referred to the loss of pension opportunity, but he was not in fact a member of a pension scheme with Fold and he had made no effort to join the pension scheme provided by Fold at any time during his 11 years of service with them.  We do not therefore consider that there was any breach or potential breach of the implied duty of trust and confidence by the respondent in failing immediately to set up pension arrangements for the claimant.

 

4.4     The claimant complained also that the respondent had failed to process his Access NI clearance, but in fact the respondent satisfied us that this had been done.  He complained of loss of his trade union membership, but in fact what appears to have happened is his trade union subscriptions were no longer being processed through his pay.  The claimant never appears to have raised this with the respondent and asked for this to be done, so it is difficult to see how this can contribute to a breach of the implied duty of trust and confidence on the respondent’s part as it was not aware of the previous practice.  The claimant complained that prior to the transfer to the respondent, some of the respondent’s workers had appeared on site at a job where he was carrying out gardening work.  The respondent’s explanation was that it had been agreed with Fold that they would go out to do a preliminary check at sites.  While it may well have been unfortunate that the claimant was not told of this, we cannot see that any responsibility attaches to the respondent as far as this is concerned. 

 

4.5     The claimant raised an issue in relation to his expenses for the Cookstown induction meeting, but he had not submitted a claim as he had been told to do.  He argued before the tribunal that there had been a change in his work duties, but this was never raised by the claimant with the respondent and was not raised at his review meeting in October when his comment was, “A bit heavier but ok”.

 

4.6     The most substantial matters which the claimant raised, potentially, were the loss of his essential user car allowance and the question of him having to travel to Mallusk rather than to Holywood to start his work.  A substantial difference in an individual’s start location may potentially be a change in contract which is to their detriment, but if this is to be raised under the Transfer of Undertakings Regulations, it should be raised within three months of the transfer.  This was not the case which the claimant made at tribunal.  The issue that the claimant raised before the tribunal was that it was costing him more to travel to Mallusk especially as he had not received the essential car user allowance.  The issue is whether the loss of the essential car user allowance (which had components to compensate the claimant for the wear and tear on his car when used for work, and a mileage component), is a fundamental breach of contract.  The case put forward by the respondent was that the claimant no longer needed to use his car to go from site to site, as they were providing a company vehicle.  Mr Denvir argued that while written evidence of the award of the essential user allowance had been provided to the claimant, there was no paperwork showing that the award had been discontinued or that the claimant had agreed to this.  There were however two separate meetings where first of all the claimant’s trade union representative discussed this matter with the respondent and secondly, it was discussed with the claimant and his colleagues in the presence of the trade union representative.  There is no record of the claimant having objected at any point to the discontinuance of the essential user allowance, and it seems clear to us that the claimant accepted this change on advice from his union representative.  It is also noteworthy that in November 2013, when the claimant had his review meeting with Ms Rooney, he did not raise discontinuance of the travel allowance as an issue, although by that stage he would certainly have felt any financial difference in the loss of the car allowance.  We are therefore of the view that the claimant accepted this variation and that it was carried out by agreement.  Secondly, we have reservations as to whether or not this change to the claimant’s working conditions would have been a fundamental breach of contract.  The essential user allowance was paid to the claimant to compensate him having to use his car to travel from site to site, not to travel to and from work.  Following September 2013, he did not have to use his car to get from site to site, and he was not therefore at any loss as far as that was concerned.   

         

4.7     We also note that Fold Housing Association’s travel and subsistence policy, which was opened to us in the course of the hearing, refers to the process by which someone qualifies for essential car user status.  It also includes the sentence:-

 

“In the event of mileage falling below the designated level (to qualify for essential user status) and based on the likelihood that mileage will not return to the designated level over the next business year, the essential user allowance will be withdrawn in accordance with the employee’s conditions of contract”. 

 

4.8     It is not clear to us that the claimant needed to consent to the withdrawal of this allowance; it appears to us that the employer, in the event that the claimant was no longer using his own car for business purposes, was entitled to withdraw the allowance.  We also note that this issue was not referred to at all in the claimant’s resignation letter.

 

4.9     The other matters of which the claimant complains relate to the processing of his mortgage protection insurance claim and the failure of the employer to provide the SSP1 form.

 

4.10   In relation to the claim regarding the mortgage protection insurance, the claimant was adamant that he had sent the paperwork to the respondent on two occasions.  Mrs Willis (for the respondent) was clear that she had received it only once.  We accept that the respondent received the paperwork around the end of June.  If it was sent twice, there was only one week between the two letters received from the insurance company and we therefore assume that the paperwork (if indeed it was sent a second time, which is unclear) was sent some time during the third week in June.  Mrs Willis was not precise as to when the paperwork was sent back, but indicated that she believed it had been processed within two to three weeks of receipt.  While the respondent accepted that the paperwork could have been processed more quickly, they also pointed out, reasonably, that if the paperwork was sent at the end of June, this was probably the start of the holiday season and in our view two to three weeks to process the paperwork at the time of year was probably not unreasonable. 

 

4.11   The claimant gave no evidence as to when he received the paperwork back.  It was unclear to us also as to whether the paperwork was returned to the claimant for onward transmission to the insurance company, or that it was sent direct to the insurance company.  The claimant gave no evidence as to any other documents which he had to provide to the insurance company and which were set out in the insurance company paperwork referred to above at paragraph 2.14.  It is also notable that the claimant’s doctor had to complete a section of the form and we were not told how long that took.  The only piece of information provided to us was that the insurance company eventually paid out a sum of money to the claimant in respect of his mortgage payments at the end of September 2014.  Other factors may have contributed to the delay, we do not know.  We are not therefore in a position to make a finding that there an undue delay on the part of the respondent processing the mortgage protection insurance.  We also question whether or not any delay in processing such a form would contribute to a breach of the implied duty of trust and confidence: while the co-operation of any employer with an employee in providing this information is certainly desirable, we have difficulty in seeing that it is a contractual obligation, or that failure to provide it could contribute to a fundamental breach of the implied duty of trust and confidence.

 

4.12   In relation to the failure to provide the SSP1 form, the respondent agreed that they had been in breach of their statutory obligation to provide the SSP1 form.  They also said that they had not been aware that they were under any obligation to provide the documentation, as they had not come across this situation before.  Mr Smyth and Mrs Willis were candid in their evidence in relation to this.  The question for us is how serious this matter was.  The case law is clear that a breach of a statutory obligation does not of itself constitute a breach of contract between employer and employee.  We were referred to the case of Oxley which refers to the nature, gravity and duration of any breach which occurred, together with the issue of whether or not the claimant may have complained in relation to the alleged breach.  In that case the claimant was obliged to work in extremely hot conditions over a period of months contrary to the Health and Safety at Work Legislation.  Although she had not complained about the breach, it was considered that the employer was well aware of the conditions, that the company was a small one and management was familiar with the environment. 

 

4.13   In the case before us, the employer was ignorant of the breach and was never approached either by the claimant or the DHSS to ask for the form to be issued.  The evidence given by Mr Smyth was that had they been asked for the form, they certainly would have produced it straight away.  The claimant’s witness statement makes no reference to him having contacted the respondent to ask for the SSP1 form.  The DHSS indicated that they telephoned on a couple of occasions, on a Saturday, but there was no reply.  There was no copy of a letter sent to the employer requesting the SSP1 form produced to us at any time.  In this case, there was a one-off breach of a legal obligation.  While it had implications for the claimant in not receiving his full benefit, there is no evidence before us to show that the respondent knew of the breach at the time or was asked by anyone to produce the SSP1 form.  In those circumstances we fail to see how the respondent’s failure to produce the SSP1 form can be considered a breach of its contract with the claimant or how it could have contributed to a series of acts, the cumulative effect of which is a breach of the implied duty of trust and confidence. 

 

4.14   We have also considered whether the various acts complained of by the claimant, taken together, could constitute a fundamental breach of contract, bearing in mind that the breach complained of must be a repudiatory breach of contract.  The breach must indicate that the employer no longer considers himself bound by his contract with the claimant.  It is our view that the matters complained of by the claimant do not constitute such a fundamental breach. 

 

4.15   The matters which the claimant alleges occurred in the autumn of 2013 (i.e. “loss” of right to join a pension scheme, the issues to do with his trade union membership, Access NI clearance and his expenses for the induction training and loss of essential car user payment), all occurred on or shortly after the claimant’s transfer to the respondent’s employment under TUPE.  If he wished to complain of these as a fundamental breach of contract, then he should have resigned in response shortly thereafter, and claimed constructive dismissal at that point.  He did not do so and therefore he has lost the right to sue on foot of these alleged breaches.  The claimant in this case has, to use the words of Lord Dyson, “soldiered on” and in so doing he affirmed the contract of employment and waived his right to sue for constructive dismissal in relation to those matters.  It is clear from the case law that if the claimant now wishes to rely on the autumn 2013 matters, he must be able to point to other acts which “revive” the potential to claim.  The case law also shows that even if the final act relied on is not of itself a fundamental, repudiatory breach of contract it must contribute something to the breach of the relevant implied term (see Lewis v Motorworld Garages Ltd [1985] IRLR 465 and 468 and Omilaju referred to above at paragraph 3.6). 

 

4.16   Given our finding that the “final straws” complained of by the claimant (namely, the failure to produce the SSP1 form and the alleged delay in processing the mortgage protection insurance form) are not made out, we find that those acts were innocuous and did not contribute to the alleged breach of contract.  It is our finding that the respondent did not commit a fundamental breach of the implied term of trust and confidence, such that the employee was entitled to resign in response to it.  Accordingly, it is not necessary to consider the other questions relating to constructive dismissal set out in Harvey. 

 

4.17   For completeness, we also state that if for some reason we are wrong in relation to the question of the variation of contract by the withdrawal of the essential car user allowance from the claimant, then it is our view that, given that the withdrawal occurred in September 2013, the claimant was out of time in pursuing this matter, given that he lodged his claim form only on 15 October 2014.

 

4.18   We can appreciate that it can be difficult for employees to adjust to a change, particular after a transfer of undertaking, when they have been used with a particular employer and a particular system of working over a lengthy period of time.  We can also appreciate that to someone in the claimant’s position, where he was earning the minimum wage for his work, lost an essential car user allowance and was faced with a longer journey to work than he had been used to, he may have found the change in his work routine and employer more difficult to cope with.  We cannot however find on the basis of the evidence before us that the respondent was responsible for a fundamental breach of contract such that the claimant was entitled to resign, and accordingly the claimant’s claim of constructive unfair dismissal is dismissed. 

 

4.19   The claimant’s claim of unlawful deduction of wages was not pursued by the claimant at the hearing and accordingly that claim is also dismissed.

 

 

 

 

Employment Judge:      

 

 

Date and place of hearing:  24, 25 and 26 March 2015, Belfast.            

 

 

Date decision recorded in register and issued to parties: