Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 115/15

 

 

 

CLAIMANT: Angela McNulty

 

 

RESPONDENT: Thomas Doran Parkanaur Trust

 

 

 

DECISION

The unanimous decision of the tribunal is that

 

(i)            the title of the respondent is amended to "Thomas Doran Parkanaur Trust";

 

(ii)           the claimant was unfairly constructively dismissed by the respondent. The respondent is ordered to pay the claimant the sum of £4,963.40 in respect of compensation.

 

Constitution of Tribunal:

Employment Judge: Employment Judge McCaffrey

Members: Mr P Laughlin

Dr C Ackah

 

 

Appearances:

The claimant was represented by Mr Richard Smyth, Barrister-at-Law instructed by Jim Rafferty and Company Solicitors.

The respondent was represented by Ms Mary Gavin of Francis Hanna and Co. Solicitors acting on behalf of L H S Solicitors.

 

ISSUES

 

1. The issue for the tribunal to consider was whether the claimant had been constructively dismissed from her employment with the respondent when she resigned in December 2014 following two incidents of assault on her by a resident at the respondent's premises and following an unsuccessful outcome to her grievance in respect of the assaults. Specifically we had to consider the following:-

 

(1)           Whether there had been a fundamental breach of an express term of the contract of employment between the claimant and the respondent in that the respondent had failed to provide safe working conditions for the claimant in October 2013 and June 2014?

 

(2)           Whether the way in which the respondent dealt with the claimant's grievance (including its failure to meet the claimant and the delay in producing an outcome) constituted a fundamental breach of the implied duty of trust and confidence between employer and employee?

 

(3)           If either of the alleged breaches of contract referred to at (1) and (2) above were not fundamental breaches of contract of themselves, did they, taken together, constitute a fundamental breach of contract?

 

(4)           If the respondent fundamentally breached its contract of employment with the claimant, did the claimant resign in response to that breach of contract, and did she resign promptly?

 

(5)           If the claimant was constructively dismissed, was the dismissal unfair?

 

FACTS

 

2. The tribunal heard evidence from the claimant, from Nikue Assarpour and from Laura McMullan, her solicitors and Aidan Hanna, her trade union representative. We also heard evidence on behalf of the respondent from Mr Eamon Connolly, the claimant's line manager, from Mr Wilfred Mitchell, the Chief Executive of the respondent and Trevor Gage, an HR Consultant engaged by the respondent to deal with the claimant's grievance. In addition a number of documents were opened to us in the course of the hearing. On the basis of the evidence received we make the following findings of relevant facts. As one of the residents at the respondent college was closely involved in the facts of this case, and to protect his privacy, we have referred to him as "AB". The claimant referred to the respondent as "Parkanaur College" but on the basis of the evidence before us, it appears that the correct name of the respondent is "Thomas Doran Parkanaur Trust". Accordingly we order that the name of the respondent is amended to read "Thomas Doran Parkanaur Trust."

 

3. The claimant worked as a support worker for the respondent (referred to in these proceedings as the respondent or "Parkanaur"). As a support worker she worked with clients who had learning disabilities and challenging behaviour. The respondent is a facility which provides training courses for young people with learning and physical difficulties but also provides residential accommodation for some young adults with disabilities.

 

4. The claimant usually worked 43 hours a week and earned approximately £1,300.00 gross per month. Her basic pay was £297.56 per week gross. On occasions she worked overtime as well. She had considerable experience in caring for patients with learning disabilities and challenging behaviour and had all the relevant qualifications. The claimant quite often worked evening or night shifts and was not involved in the one-to-one care of AB. The claimant was on occasion unclear in her evidence in cross-examination and had to clarify her responses. She appeared to us to be nervous, but basically truthful in her demeanour.

 

5. The claimant was due to commence a shift at 5.00 pm on 8 October 2013 and went to the staff room for the handover for clients who were on the premises that day. The claimant advised that the staff room was used to store client files and also medication as well as being a place for staff to take breaks. Some of the students at Parkanaur also came into the staff room to take their medication. In the case of one student, AB, who had particularly challenging behaviour, he came in with his one-to-one carer for the handover. AB suffers from autism and learning difficulties and also is profoundly deaf. The claimant acknowledged that he has particularly challenging behaviour. The claimant sat down at the main table in the room for the handover and AB was sitting in a chair at the window a few feet away. The Deputy Manager, Linzi Hoare, was going through files with the claimant when AB came from behind the claimant, grabbed her hand and her finger and pulled it back, breaking her finger. The claimant was distressed and screamed before going to the sink to run cold water over her finger. She felt very scared by AB's behaviour and noted, that he was breathing short, heavy breaths and his pupils were dilated. He was then escorted out of the staff room by another member of staff. The claimant went to hospital to have her finger treated and it was confirmed that her finger was broken. A couple of hours later the claimant returned to Parkanaur to speak to Linzi Hoare, the Deputy Manager.

 

6. The claimant was concerned that the assault would affect her confidence as prior to this AB had assaulted another member of staff, a lady in her mid-70's, roughly a year before. AB had grabbed this lady by her hair and banged her head on the table. There had been other incidents where AB had assaulted other members of staff including Mikila McGee, in that he broke a plate over her head. The claimant was also aware of incidents where AB had been taken out by his carers into the grounds of Parkanaur and attempted to lift children out of pushchairs and had assaulted other members of staff. It was her unchallenged evidence that he had broken the fingers of two service users in the past. The claimant is a woman in her sixties and was concerned that if she did not go back to work promptly she would lose confidence to return, which we accept was a genuine concern. It was also agreed that AB had assaulted other individuals while staying at Parkanaur.

 

7. In her conversation with Linzi Hoare, the claimant said that Ms Hoare indicated that it may be appropriate for AB to leave Parkanaur in the interests of safety for staff and other service users. Before she resumed work, the claimant was asked to sign a form in which, amongst other things, she acknowledged her right to withdraw from shifts if she felt the injury prevented her from completing her duties at Parkanaur.

 

8. The next day Mr Mitchell rang the claimant at home to enquire how she was. He stated at that stage that Ms Hoare's suggestion of AB leaving Parkanaur was not possible. The claimant indicated to Mr Mitchell that she may make a personal injury claim. It was her evidence that Mr Mitchell then became threatening about the safety of her job and said, "And what age are you, Angela?" Mr Mitchell denied this in his evidence to the tribunal. On balance and having seen both individuals, we tend to the view that Mr Mitchell said this to the claimant. We cannot understand why the claimant would have fabricated such a comment in relation to a personal injury claim.

 

9. It was the claimant's evidence that she made a formal complaint to Ms Hoare about Mr Mitchell's attitude but nothing was done about this. Some weeks later two staff members named Fionnuala O'Neill and Nigel Herron (both of whom were experienced carers) showed the claimant illustrations drawn by AB which depicted him shooting a person named "Angela" with a machine gun and drawing pictures of the claimant. They also told the claimant that AB had made machine gun noises, made reference to shooting her and used sign language to indicate that he wanted her dead. The claimant was dismayed about this and felt threatened. She approached the Manager, Eamon Connolly, to advise him of AB's actions but nothing was done. In his evidence to the tribunal and in cross-examination Mr Connolly indicated that he was aware that AB drew pictures on a regular basis. He also appeared to dismiss the claimant's concerns in that he said AB frequently drew pictures of dead people and when asked who they were, AB would say it was his parents, sister or brother, so Mr Connolly didn't believe it was any member of staff in particular. When it was specifically put to him that the claimant was aware AB had told other staff he wished the claimant ill, Mr Connolly said he was not aware of that. Mr Mitchell was similarly dismissive of the claimant's concerns about the pictures which we find surprising, given the history of the incident.

 

10. The claimant said, and we accept, that she raised these matters with Mr Connolly but he did not take any action and she was not aware of any changes to the risk assessments as far as AB was concerned in the autumn of 2013 and early 2014.

 

11. On 26 June 2014 the claimant suffered a further assault by AB, again in the staff room and at handover time. There were no free seats at the staff table, so the claimant decided to sit on a dining room chair next to a settee where AB was sitting, as she felt that she would at least have him in her sightline. However just as she was sitting down, AB pulled her right hand towards him, placed her little finger in his mouth and began biting and crunching on it. The claimant immediately pulled her finger out of his mouth and ran to the sink, as her finger was bleeding. She said that she glanced towards AB and he was breathing very heavily and almost snarling. Again he was removed from the staff room. The claimant again went to the hospital and on this occasion her finger was not broken. She drove back to Parkanaur to advise she would not be able to finish her shift and contacted the Deputy Manager by telephone to discuss the incident. At that point Ms Hoare told the claimant she felt it may be appropriate for AB to leave Parkanaur and that she would contact his parents and ask them to take him home. It transpired that the parents could not take him home that weekend as it was not suitable and therefore AB remained at Parkanaur. He did in fact remain at Parkanaur throughout the relevant period, as far as we were told.

 

12. A few days later Mr Mitchell contacted the claimant by telephone to speak about the incident. He described this as a routine call which he would make to any member of staff who was off sick. There was a discussion about AB leaving Parkanaur and the claimant said that Mr Mitchell said, "If AB goes then you and three others will have to go. AB pays the wages of you and three others." Mr Mitchell denied this and said this did not happen. On balance, we cannot see how the claimant would have known such precise information in relation to the staffing ratios for AB, and on balance we prefer the claimant's evidence on this point. It appeared to us that Mr Mitchell was evasive in his manner when cross-examined on this point.

 

13. The written terms and conditions of employment between the claimant and the respondent indicate that the staff handbook and the policies and procedures adopted by the respondent form part of the contract of employment. At paragraph 4 of the Handbook there is a statement of the respondent's position in relation to health and safety which reads as follows:-

 

" Health and Safety

 

4. The college intends to maintain safe working conditions in all areas of activities. It is a condition of employment that employees comply with the college's health and safety policies, procedures and practices at all times and it is a requirement that employees familiarise themselves with these. Employees are reminded that they are required to have regard for the safety and wellbeing of themselves and others at work ...

 

4.1 Reporting of accidents

 

All accidents involving personal injury (no matter how slight) to employees, customers, visitors or others must be reported to the manager. Employees must co-operate fully in any subsequent investigation ..."

 

The Health and Safety Policy set out in Appendix 5 to the Staff Handbook includes the following:-

 

"2. It is therefore the company's policy to do all that is reasonable [sic] practicable to prevent personal injury and damage to property, and to protect everyone from foreseeable work hazards, including the public insofar as they come into contact with the company, or its products.

 

3. In particular, this company has a responsibility to:

 

(a) provide and maintain safe and healthy working conditions taking into account any statutory requirements.

 

(b) Provide training and instruction to enable employees to perform their work safely and efficiently.

 

(c) Make available all necessary safety devices and protective equipment and to supervise.

 

(d) Maintain a constant and continuing interest in health and safety matters applicable to the company's activities, in particular, by consulting and involving employees."

 

14. Following the incident on 26 June the claimant decided to submit a formal grievance to her Manager Eamon Connolly. She sent a detailed grievance letter to him on 3 July 2014 and asked for AB to be removed. In her witness statement she clarified that she actually wished for him to be removed from the staff room rather than to be removed from Parkanaur. She noted in her grievance letter that this was the second serious assault which she had suffered at the hands of this resident and it was a concern to her that no updated risk assessment had been put in place after the first assault when she suffered a broken finger. She noted that she did not feel that she could be expected to return to work until this serious threat to her physical wellbeing was dealt with. She set out the details of the drawings made by AB of her and that they depicted him using extreme force towards her. She finished her letter by saying,

 

"Under these circumstances and bearing in mind the obvious trauma and fear I am suffering as a result of these attacks, not to mention the real possibility of further assault, I feel that no risk assessment or review is sufficient to provide me with the protection to which I am entitled in the place of work."

 

15. Mr Connolly and Mr Mitchell were cross-examined in some detail about the respondent's actions in response to the second incident when AB bit the claimant. It was noted also that there was no immediate review or fresh risk assessment following the first incident. AB's care plan shows no notes between 25 September 2013 and 21 May 2014, when the October 2013 incident was noted. Mr Connolly said the October 2013 incident was considered less serious than the June 2014, as the claimant went for medical treatment after the first incident and returned to work that afternoon. He acknowledged when cross-examined that the claimant had suffered a fracture and had her finger strapped up for 6 weeks after the October incident. Following the incident in June 2014, Mr Connolly completed a report form to RQIA, indicating that an urgent review with the multi-disciplinary team was requested. Mr Connolly also noted that AB should not be in the staffroom, particularly at handover when it was busy. It appeared that in fact no students should have been in the staffroom at handover time but that staff had become "complacent" about this. No review of the risk assessment appears to have occurred until the usual six-monthly review. Eventually a multi-disciplinary team meeting took place on 16 September 2015 with Mr Connolly present. It was agreed that AB should have no access to the staffroom for "his greater good" although it may be an infringement of his human rights, given that Parkanaur was AB's home. No update on AB's care review was given to the claimant following this meeting, to try to encourage her to return to work.

 

16. Following this and given the claimant's concerns about her well-being, she spoke to a solicitor about representation. The solicitor wrote a letter of claim regarding her personal injuries to the respondent on 11 July 2014. No response was received and the solicitor sent a reminder letter on 8 August 2014.

 

17. Initially the respondent endeavoured to arrange a grievance hearing for 15 July 2014 but the claimant had already booked to go on leave at that stage. She had also made contact with a union representative, Aidan Hanna, who had endeavoured to contact Parkanaur on her behalf. The respondent did not reply to his emails. The respondent then wrote to the claimant regarding a grievance hearing for 30 July 2014, which was not suitable for the claimant's union representative. By this stage the claimant was aware that the respondent had appointed Mr Gage to deal with the grievance. Mr Hanna emailed Mr Gage on 29 and 30 July 2014, indicating that his calls had been unanswered. These emails were sent to the respondent rather than directly to Mr Gage. Dates were suggested in August, and a meeting was due to take place on 18 August 2014 but the claimant was unwell. A further date was arranged for 8 September. The claimant initially confirmed her availability but had been unable to contact her union representative on the day of the proposed hearing. She had in fact waited for her union representative to arrive by bus in Dungannon so that they could go together to the meeting and was unaware that Mr Hanna had emailed the respondent that morning to say he could not attend the meeting. The claimant telephoned the respondent's office to explain that Mr Hanna had not arrived and was told she could come to the meeting herself and it would be delayed for an hour, but the claimant said she would prefer to have her union representative present. In his email of 8 September to the respondent, Mr Hanna proposed three further dates when he was available to attend a grievance meeting. However the respondent subsequently wrote to the claimant on 8 October 2014 (having made no contact with her in the interim) to say that because she had been unable to attend meetings, the hearing would go ahead in her absence but she was free if she wished to send in a written submission. The claimant was unhappy about this and Mr Hanna contacted Parkanaur on a number of occasions by email and by phone on her behalf to try to arrange a meeting. Mr Mitchell's evidence was that he had been told by a colleague of the claimant that Mr Hanna was no longer acting for her as her union representative. Mr Mitchell accepted this at face value and rather than contacting the claimant to clarify the position, he told her that Mr Hanna was not to contact the college again and refused to respond to Mr Hanna's correspondence. The claimant said she felt that Mr Mitchell was bullying her and acting in a threatening manner.

 

18. On 16 October the claimant's solicitor sent a letter to Mr Gage, at the respondent's offices noting the respondent's apparent avoidance of Mr Hanna's attempts at contact and threatening to issue proceedings if the respondent persisted in refusing to engage with Mr Hanna. On 24 October the respondent replied, indicating that the claimant had not attended any meetings, that the claimant was entitled to make a written submission and that in the absence of any submission Mr Gage was now considering all the materials submitted by Ms McNulty. It appeared at that stage that the only material Mr Gage had from the claimant was her grievance letter. On 29 October the claimant's solicitor again wrote to Parkanaur and referred in the letter to the reasons why the claimant had been unable to attend previous meetings. The letter also noted, "Parkanaur's continued departure from LRA Codes of Practice is alarming and your continual refusal to engage with our client's union representative is wholly unacceptable. Mr Hanna and Mr McNulty had indicated they are available from 10 November 2014 until 14 November 2014 to have Ms McNulty's grievance heard and dealt with. Kindly please confirm that this is suitable and please arrange to have the same heard at a neutral venue."

 

19. On 11 November the respondent indicated to the solicitor that the claimant and Mr Hanna had repeatedly failed to attend meetings and that they were now carrying out their own internal investigations and would advise when they reached an outcome. The solicitor wrote on two further occasions, on 26 November and 2 December asking for a response and the outcome from the grievance but no reply was received. On 11 and 19 December the claimant spoke to her solicitors and on the second occasion, discussed her potential resignation as there was still no response from Parkanaur. The claimant instructed her solicitor that she wished to resign and her resignation letter was drafted on 22 December. On 23 December the claimant attended at her solicitor's office where she discussed the letter of resignation with her solicitor and signed it. The letter was posted to the respondent the same day by registered post. In her letter the claimant set out her resignation and said that she felt she had been left with no option but to resign due to the actions of the college. She set out in her letter three alleged breaches of contract. Referring to the grievance procedure set out in Appendix 2 of her contract of employment and the requirement to deal with grievances "quickly and effectively", she said:-

 

"Specifically you have not resolved to address my issues (sic) within a reasonable time and have not returned to my solicitor with findings from your internal investigation as per your letter dated 11 November 2014. Further, you have not fully co-operated or engaged with my Trade Union representative Aidan Hanna who has made in excess of ten telephone calls and email attempts to rearrange the grievance meeting. Finally, you have not fully co-operated or engaged with my legal representatives at Jim Rafferty & Co Solicitors, by failing to report to them on your internal investigations and failing properly to reply to their correspondences".

 

Secondly, the claimant referred to the respondent's failure to implement their own Health and Safety procedures (see para 12, above), and went on to say:

 

"Specifically, that you did not address, attempt to minimise or eradicate the issues to me after both attacks on me by student [AB] on 8 October 2013 and 26 June 2014, despite these attacks being reported to you."

 

Thirdly, the claimant alleged in her letter that there had been " a fundamental breach of confidence and trust."

 

20. In the meantime Mr Gage indicated that he had prepared an outcome letter for the grievance. He said as part of that grievance he had considered the claimant's complaint records, file and staff statements (none of which apparently had been discussed with the claimant), details of the review by the Social Care Trust and the minutes of the Vulnerable Adult's Review meeting on 8 August 2014. There was also a report of the Regulation and Quality Improvement Authority Inspection (RQIA) in November 2014. Mr Gage also considered the follow-up by management to the risk assessment following the incident of challenging behaviour. Mr Gage's evidence was that he worked on the outcome of the grievance letter between 11 and 15 December and it was checked by the respondent's legal advisers (their insurers). The final draft was sent to Mr Mitchell to be printed off on headed notepaper and then returned to Mr Gage for signature and posting. The final letter was dated 15 December 2014 and according to Mr Gage he posted it on 18 December 2014. The claimant was clear that she never received that letter, and it had not been received by her solicitors. The outcome of the grievance was that the claimant's claims were not upheld. Specifically, regarding her request for AB to be removed from the college to enable her to return, it was noted that both the Health and Social Care Trust and AB's social worker believed that the college was the best place to look after AB's needs and so Mr Gage found that the claimant's request could not be accommodated. As regards risk assessments, Mr Gage found that risk assessments had been reviewed and carried out in a "timely manner". Regarding AB's focus on the claimant, it was found that specialist training was afforded to carers at the college to mitigate these risks and that "where possible", the claimant would continue not to be asked to work directly with AB. The claimant's grievances were therefore not upheld and there was no suggestion that any steps were being taken to exclude AB specifically from the staff room.

 

21. The claimant's solicitor had sent her resignation letter on 23 December. On 2 January 2015 the respondent wrote to the claimant saying that they wished to treat her resignation letter as an appeal to the outcome of the grievance. They referred to a grievance outcome letter sent to her on 11 December and her right to appeal. Her solicitor replied on 7 January, pointing out that the claimant had not received any letter dated 11 December. At no time did the respondent send the claimant a further copy of the grievance outcome (which in fact was dated 15 December 2014) until it was provided on discovery in preparation for this claim.

 

22. The claimant did not avail of the appeal offered by the respondent. She has not worked since the date of her resignation and advised that she has been attending her doctor in relation to the distress she suffered as a result of these incidents. The doctor's notes produced show that even in May 2015, the claimant said she was suffering from post-traumatic stress, low moods and flashbacks of the incidents with AB.

 

THE RELEVANT LAW AND SUBMISSIONS

 

23. The relevant law in relation to constructive dismissal is to be found in Article 127 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") which provides as follows:-

 

"127(1) For the purpose 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."

 

24. Harvey on Industrial Relations in 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 an actual breach or an anticipatory breach.

 

(2)       That the breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. A genuine, albeit an 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 will be deemed to have waived the breach and agreed to vary the contract."

 

25. Although constructive dismissals will often be unfair, the tribunal still has the obligation to assess the reason for dismissal and apply the normal tests of fairness, see Cawley v South Wales Electricity Board [1985] IRLR 89, EAT and Stephenson and Co (Oxford) Ltd v Austin [1990] ICR 609 EAT.

 

26. The conduct relied upon to constitute a breach of contract must be a repudiatory breach of contract not simply unreasonable behaviour on the part of the employer. In Brown v Merchant Ferries Ltd [1998] IRLR 682 NICA, the Court of Appeal in Northern Ireland indicated that, although the correct approach to 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 sufficiently seriously unreasonable this may provide sufficient evidence that there has been a breach of contract.

 

27. The claimant's representative suggested that the duty to provide a safe place of work was an express term of the contract and he specifically referred to the Health and Safety policy which we have referred to above at paragraph 12. He also submitted that it was an implied term of the contract. Specifically he referred us to the decision of the EAT in Waltons and Morse v Dorrington [1997] IRLR 488. In that case, which pre-dates the smoking ban in public places, a non-smoking secretary in a firm of solicitors complained over a period about the unacceptable working environment which resulted from colleagues who were smokers. Eventually she resigned and alleged constructive unfair dismissal as nothing had been done about her complaint. The EAT held that it was an implied term of the contract of employment that "the employer will provide and monitor for his employees, as far as is reasonably practicable, a working environment which is reasonably suitable for the performance by them of their contractual duties." It was also noted that the obligation will extend beyond prohibiting smoking (in that particular case) and may even extend to creating a working environment which is not psychologically damaging to the welfare of employees, such as not one where bullying or harassment occurs.

 

28. The respondent's representative was of the view that there had been no breach of contract as far as this matter was concerned. They took the view that there had been no fundamental breach of contract. They disputed whether the claimant had actually raised complaints in the workplace regarding AB's conduct towards her and his presence in the staff room. They point to the fact that there is no independent evidence to support this apart from the claimant's own evidence. There were no statements for example from Fionnuala O'Neill or Nigel Herron. They submitted that the claimant's evidence regarding the receipt of the outcome letter for the grievance was unreliable as the claimant had been unclear as to whether or when she had received some other correspondence although that had ultimately been clarified.

 

29. The respondent's attitude in relation to the grievance procedure was that the claimant had failed to attend at a number of meetings that had been arranged and ultimately the respondent had decided to go ahead and deal with the matter without hearing from the claimant. While they agreed that communication could have been better, they said that lack of communication was not equal in their view to a fundamental breach of contract and constructive dismissal. They also noted that the claimant had been invited to provide written submissions which she had failed to do.

 

30. The claimant's representative had suggested that the delay in dealing with the grievance by the respondent constituted a fundamental breach of contract. They pointed in addition to the letter written by the claimant's solicitor requesting an urgent reply which had not received any response. The claimant's representative however argued that failure to reply to a seven day letter was not a fundamental breach of contract. She also noted that the solicitors at this stage were aware that the matter was being dealt with by an investigation. Furthermore the respondent's representative pointed to the fact that when the claimant sent in her resignation letter, the respondent suggested that be dealt with as an appeal against the grievance outcome, in order to give the claimant a full opportunity to respond.

 

31. In relation to the duty promptly to redress grievances, the EAT held in WA Goold (Pearmak) Ltd v McConnell and Another [1995] IRLR 516 that there was an implied term in the contract of employment that "the employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have." (See Harvey in Division D1 para 466). Harvey also notes that although there is an implied duty on the employer to address workplace grievances promptly there are practical limits to this obligation. They note that, for example, it would be necessary for the employee to articulate the relevant grievance properly to the employer before any such obligation in relation to redress is triggered. However once the grievance is articulated, and even though the Statutory Grievance Procedures have been repealed, failure to address a grievance may lead to an award of compensation being increased or decreased by up to 50% if either the employer or the employee has unreasonably failed to comply with the Labour Relations Agency's Code of Practice on Dismissal and Disciplinary Procedures. (S.4, Employment Act (Northern Ireland) 2011).

 

32. It is also important in a case of constructive dismissal that the employee is able to show that an alleged breach of contract is repudiatory in nature i.e. that it goes to the heart of the contract and also that the employee resigned in response to this breach and not for some other unconnected reason. It has not been suggested in this case that the claimant resigned for an unconnected reason; it is clear from her resignation letter why she resigned, and this was not disputed by the respondent.

 

The Implied Duty of Trust and Confidence

 

33. 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 the employee."

 

34. It is important to note that the test for breach of the implied duty of trust and confidence is an objective one. The House of Lords noted that the duty of trust and confidence may be undermined even if the conduct in question is not specifically directed at the employee. The duty of trust and confidence may be broken indeed even if an employee's own trust and confidence is not undermined. Similarly their Lordships pointed out that it followed that there would be no breach simply because the employees subjectively feel that such a breach occurred, no matter how genuinely this view is held. (See Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121 and London Borough of Waltham Forest v Omilaju [2005] IRLR 35.

 

35. The case also emphasises that the breach of contract complained of must be repudiatory in nature. It must be sufficiently important to justify the employee resigning or it must be the last in a series of incidents which justify his leaving. 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 that 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 significantly blameworthy or unreasonable, it must contribute something to the breach even if it was relatively insignificant. (see Omilaju). In Garner v Grange Furnishing Ltd [1977] IRLR 206 it was held that failing to treat a long serving employee with dignity and consideration can amount to a breach of the implied duty of trust and confidence.

 

The approach to compensation

 

36. In the event that the tribunal found in favour of the claimant, the claimant's representative also made submissions in relation to the issue of compensation. A Schedule of Loss had been provided for the claimant, but included loss for a period when the claimant had clearly been off work sick from 26 June 2014 until the date of her resignation. The claimant's representative conceded that she was not entitled to seek loss of wages for that period as she was not fit for work. He did however submit that the claimant was entitled to seek loss of wages from the effective date of termination of employment until the tribunal hearing and that the claimant was also entitled to claim for future loss. The principles applicable to the basic award are set out in Article 153 of the 1996 Order. As regards the compensatory award, Article 157 of the 1996 Order provides as follows:-

 

"157(1) Subject to the provisions of this Article and Articles 158, 158A, 160 and 161, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."

 

37. The leading case on this issue is the decision of the Court of Appeal in England and Wales in GAB Robins (UK) Limited v Triggs [2008] EWCA Civ 17. That case involved a claim of constructive dismissal, where the claimant who had been off sick for a period of time due to stress, bullying and over work, had brought a grievance which had not resolved satisfactorily. The claimant then resigned, and successfully claimed for constructive unfair dismissal. The issue of her compensation arose, Rimer LJ, giving the lead judgment, overturned the decisions of the ET and EAT that the claimant should recover compensation for her loss of income post-dismissal where her loss of income pre- and post-dismissal was attributable to the respondent's conduct. While Rimer LJ expressed some sympathy for the ET's approach, he also said that it was inconsistent with the guidance given by the House of Lords in Eastwood & Another v Magnox Electric plc; McCabe -v- Cornwall County Council and Others [2004] IRLR 733. At para 20 of the judgment, he notes:-

 

"The point, in short, was that loss of the type identified by the ET did not flow from the dismissal ... In so far as it was caused by the employer, it was caused by the employer's antecedent breaches of the implied term of trust and confidence, being breaches which, by the time of dismissal, had already caused Mrs Triggs to become ill and so impaired her earning capacity ... she might have a common law remedy in respect of the damage so caused ... But it was not recoverable as compensation in an unfair dismissal claim before an employment rribunal."

 

38. Rejecting the argument that the ill health suffered by Mrs Triggs as a result of the respondents' breach of contract formed part of the unfair dismissal and so should be treated as a consequence of the dismissal, the learned judge said at para 39:-

 

"... I respectfully disagree with that reasoning. Whilst the employer's repudiatory conduct is an essential condition of a constructive dismissal, it is not that conduct which effects the dismissal. It is the employee's acceptance of it. Damage caused by that conduct is not damage suffered inconsequence of that dismissal. It is damage in respect of which the employee already has an accrued course of action."

 

We have considered the content of Harvey on Industrial Relations and Employment Law Division D1 at paragraphs 2524 and following which relates to the principles to be applied in relation to assessing compensation. Harvey (referring to the decisions of the EAT in Lifeguard Assurance Company Limited v Zadrozny [1997] IRLR 56 and the decision of LJ Donaldson in Clarkson International Tools Limited v Short [1973] IRLR 90) sums up the position as follows:

 

"The basic function of compensation as being to compensate for the loss actually suffered, not to penalise the employer for his actions, nor to give a gratuitous benefit to the employee."

 

Harvey notes that it is important therefore for the tribunal to consider whether the loss claimed was occasioned or caused by the dismissal; whether it was attributable to the conduct of the employer and if so, is it just and equitable to award compensation? They also note (see paragraph 2526) that where it is asserted that there are concurrent causes of the loss of earnings following dismissal, such as a medical condition which is attributable to the claimant's dismissal and at the same time a medical condition which is not, the claimant is entitled to be compensated if the medical condition which is attributable to the dismissal renders them unfit for work even though they suffer from another condition which would also have caused them to be off work in any event. It is important that the tribunal makes clear factual findings whether the medical condition in the period after the dismissal was caused to any material extent by the dismissal itself; and, whether, if so it had continued to be so caused for all or part of the period up to the hearing; and, if it was still so caused at the date of the hearing, for how long it will continue to be so caused.

 

REASONS AND DECISION

 

39. Although the claimant's representative alleged that there were effectively three breaches of contract by the respondent (failure adequately or properly to implement the grievance procedure and not responding to the claimant within a reasonable time; not implementing the Health and Safety Procedures and providing a safe area of work for the claimant and thirdly, a breach of trust and confidence) it seems to us that the three alleged breaches are in fact interlinked. The claimant would not have brought a grievance had she not considered that there had been a breach of the Health and Safety Procedures, and it was the respondent's response to both the incidents in October 2013 and June 2014, together with the claimant's grievance which had brought about the alleged breach in the implied duty of trust and confidence. We consider it appropriate to take these matters separately but then to consider them together.

 

1. The respondent's alleged failure to implement the grievance procedure and lack of response to the claimant

 

40. The grievance procedure as set out in the Staff Handbook allows for management to deal with grievances in the first instance. The claimant sent her grievance to Mr Connolly, but it was decided that the grievance should be dealt with by an outside consultant, rather than by staff within the respondent organisation. This meant that in some instances communication was filtered through the respondent college and there may have been breakdowns in communication between Mr Gage and the claimant. The grievance procedure states that a hearing will be arranged which, where possible and practical should take place within five working days from the time both the written statement and the particulars for the basis of the grievance are provided in an attempt to resolve the matter. Management should provide their decision on the grievance as soon as possible and in any case within five working days from the date of hearing. The procedure also allows for an appeal.

 

41. In this case the claimant submitted her grievance on 3 July 2014. She was due to go on a period of leave and it was not disputed by either party that the meeting had to be rearranged at that time. The proposed date for 30 July was unsuitable for the claimant's union representative and the claimant was ill on a further date which was suggested in August 2014. The meeting scheduled for 8 September could not go ahead because of Mr Hanna's last minute unavailability, but when he emailed the respondent in relation to the proposed meeting, he did suggest three further dates within the next fortnight. Mr Gage's approach to that was that there had been difficulties in arranging meetings and the respondent simply was not going to offer another date for a meeting. It is clear from the Labour Relations Agency's Code of Practice that a grievance meeting should take place wherever possible. It was not disputed that there were valid reasons for the meeting not having taken place up to 8 September 2014 and the difficulties on that date were clearly not the claimant's fault. Given that the claimant and her representative made attempts to arrange further meeting in the next week or two, and that the respondent failed to contact the claimant again until 8 October 2014, we have some difficulty in seeing why a meeting could not have been arranged in the interim. It is clear that the delay from 8 September onwards was not the claimant's fault and that she was endeavouring by her union representative to arrange a meeting. Nothing further seems to have happened from the respondent's point of view until early December and no clear explanation was given as to why. Mr Gage said that he considered the matter between 11 and 15 December, finalised the outcome letter on 15 December and sent it to Mr Mitchell to have it printed out on headed paper. It was his evidence that he then posted the letter on 18 December to the claimant. It is our finding that the delay from 8 September until 18 December when the outcome letter was posted was entirely the respondent's responsibility and it seems to us that this was an unduly long period of time. The delay up to 8 September we can appreciate was due to the fact that the claimant was unable to attend various meetings which sometimes happens. There was however no good explanation given for the delay from 8 September through until 18 December, which is over three months. We are satisfied that the claimant resigned in response to the respondent's inaction in relation to her grievance and in particular their failure to advise her solicitor as to when an outcome might be received. We have considered whether the respondent's response to the claimant's resignation letter, or treating the resignation letter as an appeal to the grievance outcome (even though she had still not received the grievance outcome letter at that point) in any way retrieved the situation from the respondent's point of view. Applying the principles in Buckland (see paragraph 34 above) we do not consider that it does. By that stage the claimant had already resigned in response to the breach of contract and the respondent's attempts to "cure" the situation by offering an appeal to the grievance outcome were effectively too little and too late. We accept and find that the failure of the respondent to deal promptly and properly with the claimant's grievance in failing to allow her the opportunity to put her grievance in person at a meeting and in then taking a further three and a half months to produce an outcome letter constituted a fundamental breach of contract in that it breached an express term of the conditions of employment between the parties, in particular Appendix 2 the Grievance Procedure. We also consider that the claimant had raised the grievance in good faith, given that by this time she had suffered two assaults at the hands of the same resident and had raised concerns about her own safety.

 

2. The Respondent's Failure to provide a Safe Place of Work

 

42. This brings us on to consider the second alleged breach of contract, namely a failure on the respondent's part to provide a safe place of work, contrary to section 4 of the Handbook. As the claimant's representative noted, this is an express term of the contract and is also an implied term of the contract under the decision in Waltons and Morse v Dorrington.

 

43. The respondent in this situation noted that AB had difficulties and presented with challenging behaviour. The attitude which came through to us from the evidence of Mr Mitchell and Mr Connolly was that AB lived at Parkanaur, it was his home, and the staff and other residents simply had to cope with his behaviour even when it put others at risk of assault and injury. There was no immediate review of the risk assessment after the October 2013 incident, that was not done until May the following year when the usual six monthly review was done. Mr Connolly in particular seemed to minimise this incident indicating that it was not serious mainly because the claimant had returned to work within a few hours of the incident occurring. This ignored the fact that the claimant had sustained a fracture and her own stated reasons for trying to get back to work promptly, in case she would lose confidence. We consider that the claimant's approach in relation to this was commendable and indeed very sensible.

 

44. We can understand equally how the second incident in June 2014 had dented her confidence considerably to the extent that she felt unable to return to work. We are also conscious that the assaults on the claimant were not the first instances of this type of behaviour from AB: the claimant specifically referred to incidents involving Miss McCool and Ms McGee, both of which in our view were serious assaults. We are aware, too, that AB had attacked another student at the college and had attempted to lift small children out of their pushchairs in the grounds of Parkanaur (which is also a forest park open to the public). In light of all of this we consider it entirely foreseeable that an incident of this nature could have occurred and there is therefore in our view an obligation on the part of the respondent to be aware of this in its responsibility to its employees. We note that the incidents involving the claimant, Ms McCool and Ms McGee all occurred in the staff room. The simple and obvious way to minimise the likelihood of this type of attack was surely to keep AB (and indeed other students) out of the staff room. The clue is in the name: we were told in the course of the hearing that student files and medications were kept in the staff room. We are not sure why this should be so, if in fact it was a room for staff to use for their breaks. However this makes it all the more necessary in our opinion that students should not be in that room and should be kept out, for reasons of safety and confidentiality. The respondent appears to have failed completely to take on board that keeping students out of the staff room was a simple and obvious way of avoiding the difficulty of AB attacking staff members at handover time or at least minimising that risk. Mr Connolly's evidence was that they had put a notice up on the door in an effort to keep students out of the room, but a student had torn it down and no further efforts were made to enforce the policy.

 

45. Part of the reason for the delay in ensuring that AB was restricted from going in to the staff room seems to have been a suggestion that this would impinge on his human rights and as he lived permanently at Parkanaur, this was his home. To our mind this appears to give disproportionate weight to AB's human rights, without considering the human rights of other service users and employees of the respondent. It seems to us that they are equally entitled to have a safe place of work.

 

46. In our view the failure of the respondent to take steps after the October 2013 incident to ensure as far as possible a safe place of work for the claimant and their failure to take prompt steps after the incident in June 2014 to ensure that she had a safe system of work constitute a fundamental breach of her terms and conditions of employment. We consider that the respondent really did not appreciate just how vulnerable the claimant felt, particularly after the second incident. We note that there was no effort made to speak to the claimant directly after the June 2014 incident to reassure her about what steps may be taken to ensure that she could have a safe place of work. Clearly it was those concerns which gave rise to the claimant raising her grievance. The failure of the respondent to take steps to ensure as safe as possible a place of work for the claimant and to address her concerns promptly seems to us to be key to maintaining the claimant's confidence in her employer.

 

3. The Implied Duty of Trust and Confidence

 

47. This brings us, thirdly, to the implied duty of trust and confidence. The claimant had been working for the respondent for approximately 10 years. She was well aware of the challenges faced by the service users and residents at Parkanaur, and she was well qualified and experienced in dealing with challenging behaviour. We take all of this into account in considering whether or not there has been a breach of the implied duty of trust and confidence. We are also conscious from the dicta of the House of Lords in Mahmud v Malik that the duty requires that 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. One of the questions we have to consider is whether the way the employer conducted itself in this case was "a reasonable and proper cause". For the reasons which we have set out above in relation to the background to AB's behaviour, the respondent's knowledge of it and the way that the respondent dealt with the claimant's grievance and complaint, we do not believe that the respondent did have reasonable and proper cause for its behaviour. The respondent was aware that AB's behaviour could be unpredictable and aggressive. In our view they could have taken sensible and straightforward steps to deal with this by excluding him from the staff room which would have resolved quite a number of the difficulties faced by the claimant and other employees. We also have to consider whether the behaviour of the employer was "calculated and likely to destroy or seriously damage the relationship of trust and confidence". We believe that it was. We accept that the claimant raised a number of complaints and concerns informally with Ms Hoare and with Mr Connolly. She raised concerns for example in relation to the drawings which AB had made and his expressed intentions towards her. The respondent seems to have dismissed these concerns without any real attempts to reassure the claimant or to take steps to ensure that any risk to her was minimised. When the claimant raised the question of whether AB might be removed from Parkanaur, we note that Mr Mitchell's initial response was not to do with the claimant's safety, the safety of others or whether indeed there would be any implications for AB's care. His response was first and foremost that if AB went, the claimant and three others would also have to go because of the amount of funding attracted by caring for AB. This rather seems to us to miss the point: surely the safety and security of employees and other service users should take priority over the funding attracted by a particular resident. For these reasons, we accept that the respondent's actions constituted a fundamental breach of the implied duty of trust and confidence.

 

48. We have considered the entire history of this matter and the events which occurred from October 2013 through until the claimant's resignation in December 2014. It is our view that taken together all of these events constitute a fundamental breach of the implied duty of trust and confidence which was likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.

 

49. We have also considered whether the claimant resigned because of this and the other breaches of contract which we have outlined above and we are satisfied that she did. She has said so in her resignation letter and we are satisfied that the respondent's failure to address her grievance insofar as it related to her safety at work was the reason why the claimant resigned. There was no dispute on this point from the respondent.

 

50. There has been no suggestion from the respondent that the claimant was dismissed for any other reason or that her dismissal was fair, and accordingly it is our finding that the claimant was unfairly dismissed.

 

REMEDY

 

51. We have considered the submissions made to us by the parties in relation to the issue of compensation for the claimant and are also conscious of the fact that she had indicated that she intended to bring a personal injury claim in relation to the injuries she sustained at work by virtue of AB's assaults on her. We were also referred to copies of her medical notes where it was indicated that in August 2014 some two months after the second incident, the claimant was still feeling very anxious and stressed by the assault on her. We were aware that the claimant remained on sick leave and was paid sick pay during that absence. We were also referred to the claimant's GP notes which show that, as late as May 2015, the claimant indicated that she was not sleeping and was feeling low and suffering from post-traumatic stress disorder following the last assault in June 2014. No other evidence of this was adduced before us.

 

52. Mr Smyth conceded that the claimant's schedule of loss included a sum for loss of earnings up to the date of dismissal which was not properly recoverable as the claimant was sick and not fit for work during that period. The issue remains as to whether the claimant is entitled to a compensatory award for any other period, specifically loss of earnings up to the date of the hearing and future loss. Having considered the decisions in Eastwood and GAB Robins Ltd set out at paragraphs 36-38 above, we have come to the conclusion that she is not. The claimant was constructively dismissed and in those circumstances, it is her conduct, rather than the respondent's, which effects the actual dismissal, although the respondent's behaviour is an essential condition for it. The loss of earnings the claimant has suffered did not flow from the dismissal itself, but rather from the respondent's earlier conduct, and so she cannot be compensated for it under Article 157 of the 1996 Order, although she may have a remedy elsewhere. We reach this decision with some reluctance, as we have some sympathy for the claimant's situation.

 

53. The compensation which we order the respondent to pay to the claimant is therefore as follows. The claimant received gross weekly pay of £297.56 per week based on a 43 hour week. Her net pay was £258.07. She was aged 67 at the date of dismissal and had ten complete years' service.

 

Basic Award

 

1.5 x 10 x £297.56 = £ 4,463.40

 

Compensatory Award

 

We can make no award to the claimant for

loss of earnings for the reasons set out at

paragraphs 36-38 above. As there is no

account awarded as a compensatory award,

we cannot award an uplift for failure to

follow the LRA code.

 

Loss of statutory rights

 

£500.00

 

TOTAL AWARD £4,963.40

 

 

54. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 16, 17 and 19 November 2015, Belfast.

 

 

Date decision recorded in register and issued to parties: