Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1160/15

 

 

 

CLAIMANT: Lindsay Knox

 

 

RESPONDENT: Henderson Retail Limited

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was constructively dismissed by the respondent. The matter will be relisted for a remedy hearing in the absence of a resolution by the parties.

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Crothers

Members: Mr J Barbour

Mrs L Torrans

 

Appearances:

The claimant was present and represented herself.

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

 

THE CLAIM

 

1. As appears from the issues set out below, the claimant claimed that she was constructively dismissed by the respondent. The respondent contended that the claimant was not constructively dismissed.

 

 

ISSUES

2. The relevant issues, as agreed at a Case Management conference held on 19 February 2016, were as follows:-

 

          LEGAL ISSUES

 

1. Was the claimant dismissed by the respondent, and in particular:

 

(a) Did the respondent conduct itself in a manner so as to destroy the implied term of mutual trust and confidence between itself and the claimant?

 

(b) If the respondent did breach the implied term of trust and confidence, was the breach repudiatory so as to permit the claimant to resign and claim constructive dismissal?

 

(c) Did the claimant resign in response to that repudiatory breach?

 

2. In the alternative, if the tribunal finds that the claimant was dismissed:

 

(a) Did the respondent have a potentially fair reason for the dismissal, namely some other substantial reason?

 

(b) Was the dismissal fair in all the circumstances?

 

3. What, if any, remedy is the claimant entitled to?

 

FACTUAL ISSUES

 

4. Did the respondent properly investigate the claimant's grievance, including:

 

4.1 allegations of undue pressure on the claimant to work extended shift patterns

 

4.2 allegations of bullying and harassment following a report of an alleged theft by the claimant

 

4.3 allegations that the concerns of a person who had been allegedly detected stealing, were placed above those of the claimant?

 

5. Was the grievance investigation carried out in accordance with the respondent's procedures?

 

6. Did the respondent consider a store move for the claimant?

 

7. Did the respondent adequately seek to assist the claimant in getting back to work?

 

8. Was it reasonable for the respondent to offer and discuss mediation with the claimant and was the claimant's response to this offer/discussion reasonable?

 

9. Did the respondent investigate the cause of the claimant's work-related stress?

 

SOURCES OF EVIDENCE

 

3. The tribunal heard evidence from the claimant and, on the respondent's behalf, from David Agnew, Commercial Manager, who dealt with the Stage 1 grievance, Stephen Gibson, Channel Sales Manager, who dealt with the Stage 2 grievance, and Laura Nolan, Human Resources Adviser. The tribunal also received two witness statements on behalf of the claimant. However it is satisfied that little or no weight can be attached to these. The tribunal also received an agreed bundle of documentation together with further documents in the course of the hearing.

 

FINDINGS OF FACT

 

4. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-

 

(i) The claimant was employed as a Manager in the respondent's Abbey Hill store from 23 July 2007 until her resignation on 1 April 2015. The tribunal was satisfied that the claimant was a diligent and hard working employee, and presented as a credible witness before the tribunal.

 

(ii) The claimant resigned from her employment by way of correspondence dated 1 April 2015 to Ann McKillop, Human Resources Manager, in the following terms:

 

"Dear Ann,

 

I am writing to inform you that I am resigning from the Henderson Group as Store Manager with immediate effect. Please accept this as my formal letter of resignation, and termination of our contract.

 

I feel that I am left with no choice but to resign in light of the fact that after having followed your grievance procedure you refused to provide me with a safe working environment contrary to the terms of my contract by attempting to have me work in the same environment as the person whose actions I believe caused me ill health.

 

I raised health and safety issues to you once I had reported a theft from your store stating clearly I felt unable to work in the store with the alleged thief still delivering to the store and you failed to protect my health and safety.

 

As a result your manager sought to place me under further pressure thus exacerbating my health to the point where I felt [too] ill to work.

 

I fully engaged in your grievance procedure offering you every opportunity to comply with your duty of care to me. However you chose to dismiss any concerns I raised and failed to discuss any solution to the situation I suggested, such as a move to another store. In this process you only sought to force me to engage in mediation with the person I informed you had abused me and I felt unable to meet, speak to and in no circumstances work with again. In doing so I feel you have failed in your duty of care to me, your actions amount to a breach of contract and a breach of trust. I feel that you are therefore an unsafe company for me to work in.

 

My health has suffered as a result of your fundamental breach of our contract and a breach of trust and I have suffered significant financial loss.

 

I would be grateful if you could acknowledge this letter at the earliest available opportunity.

 

I would appreciate very much if you could also forward to me any outstanding pay or holiday pay owed to me.

 

I look forward to hearing from you.

 

Regards

 

Lindsay Knox"

 

(iii) The claimant claimed that on 2 and 23 August 2014 she caught a Brennan's Bread delivery driver stealing bread from the store in which she worked as Manager. The claimant, in her grievance letter of 1 October 2014, describes certain events, which from her point of view, set in motion a further sequence of events leading to her letter of resignation on 1 April 2015. This followed a meeting with the Labour Relations Agency on 31 March 2015 pursuant to which the claimant claims that she discovered the next day that Mr Mullin's office had been permanently moved to her old store. She further claimed that this meant that she would have contact with him if she agreed to return to work at that store. Her case was that this was essentially the last straw for her as she felt the respondent was not providing her with a safe place of work. The opening section of the grievance letter to Emma Gibson, Group Human Resources Manager, makes the claimant's position clear, as follows:-

 

"Dear Emma

 

                        I wish to invoke a grievance in regard to treatment of me by Ian Mullin over the last several weeks.

 

                        Below I outline the context in which I am working at the Abbeyhill store, Newtownards Road, Bangor and then behaviours of Ian Mullin which I feel [have] been oppressive and not conducive to a healthy working environment.

 

                       You are aware from previous conversations that these issues are not new.

 

                        On the 2 ^nd and 23 ^rd of August I detected a Brennan's bread delivery driver, named Peter stealing stock.  On the 2 ^nd of August I personally challenged Peter and recovered the loss.  CCTV evidence was secured.  On the 23 ^rd of August I reported the thefts to Ian Mullin.  On Monday the 25 ^th August I had received no reply from Ian Mullin so I therefore informed David Hamilton Fresh Food Manager of the thefts.  I kept Ian Mullin [updated] on the situation.  The same driver Peter did not deliver that week until Friday the 29 ^th of August.  I was astounded that he was still delivering to the store.  I rang Ian Mullin and asked why Peter was allowed in the store.  Ian Mullin told me he would ring me back after he had spoken to David Hamilton.  Later that same date, at 4.10pm Ian Mullin rang me and told me Peter would not be delivering to the store on the 30 ^th of August and 1 ^st September and in the mean time they would be working out what was going to happen.  Ian Mullin asked me what outcome I wanted and I told him I did not want Peter delivering to the store again.

 

                        I was on leave between the 1 ^st of September and the 7 ^th of September.  On my return I was astounded to find that Peter the delivery driver from Brennan's was still delivering to the store.  On the 9 ^th of September I again asked Ian Mullin why Peter was still delivering to the store.  Ian Mullin reviewed the CCTV evidence and stated he would speak to David Hamilton.  I felt sick at the fact that a person I had caught and had to deal with personally for stealing from the store was still delivering to Abbeyhill on the 10 ^th of September when I informed Ian Mullin of my feelings.  Ian Mullin suggested that I swap shifts to avoid Peter.  The reality there was no other staff available that could take on the responsibility required to supervise Peter.  However my issue is, why am I asked to change my shift and the impact that has on my family life to facilitate a person who I have detected stealing from Henderson's to continue in his routine without hindrance?

 

                        Everything Ian Mullin suggested would leave Henderson's at risk of losing stock from the same thief.  To my knowledge the situation is still unchanged.  I remind you that on previous stock takes we have had £1300 loss in the first quarter of this year and this was reduced to £400 down on the third quarter as a result of checks being put in place.  The CCTV evidence shows approximately £6 of stock being stolen by the delivery driver Peter.  At six visits a week of 13 weeks a quarter equates to £468, is that too much of a coincidence?"

 

The tribunal is satisfied that the above is an accurate summary of the position.

 

(iv) It was the claimant's case, also reflected in her letter of grievance, that following the incidents on 2 and 23 August 2014, the attitude of the Area Manager, Ian Mullin changed towards her and manifested itself in the form of extreme pressure, excessive hours, unrealistic tasks and a lack of staff to support her. She alleged that her experience of Ian Mullin was that he was unreasonable and disrespectful to his subordinates. Her case was that on 13 September 2014 Ian Mullin also asked the claimant if she wanted to be in the AbbeyHill store. She felt that Ian Mullin was manufacturing the situation to have her moved from the store. She felt threatened and explained to Ian Mullin that, due to her family circumstances, she would not be making such a request. Essentially her allegation was that at this stage Ian Mullin was pressing her to transfer to another store because of poor stock sales and results. He then asked her for a letter requesting a move on 15 September 2014. Her case was that the store in question had been transformed from being a non-profitable store to a profitable one and that she had worked hard to achieve this. The tribunal accepts that the claimant felt under extreme pressure and stress as a result of these events following the alleged thefts. She was unable to sleep, and felt depressed and sick at the thought of going into work. She arranged an appointment with her doctor for 16 September 2014. She was unfit to return to work due to stress.

 

(v) The tribunal was shown an Occupational Health report dated 2 October 2014, in which it is recorded by Bernadine McGurk (Specialist Nurse Practitioner) Occupational Health, that:-

 

"Lindsay tells me she loves her work and attributes her current absence to not being able to take any more from her Line Manager. Lindsay further tells me she had spoken to her Line Manager in an attempt to improve their working relationship. However she feels this only served to escalate the situation. Lindsay tells me she developed headaches, nausea, became very tearful and lay awake at night worrying about having to go into work and dreaded answering the phone or seeing the Manager come into the store. Lindsay tells me her parents advised her to see her GP as they were very concerned for her health".

 

(vi) In the concluding section of the report Bernadine McGurk states as follows:-

 

"In my opinion Lindsay is unlikely to be fit to meet with management prior to her review appointment with Occupational Health in four weeks. However I would recommend that in order to prevent protracted absence and any further deterioration in her mental health, management will need to arrange to meet in an attempt to have the issues Lindsay perceives led to her absence resolved to all parties' satisfaction".

 

(vii) The tribunal also considered the further Occupational Health report of 30 October 2014 (which was also before David Agnew during his Stage 1 investigation) and the recommendation that management should arrange to meet with her at the earliest opportunity in an attempt to have the issues addressed to all parties' satisfaction. A further appointment was arranged at Occupational Health on 27 November 2014. The report shows that there had been some improvement in the claimant's condition with the benefit of medication. Bernadine McGurk's opinion was that the claimant should be fit to attempt a phased return work. She goes on to state:-

 

"... however to enable a sustained return it remains my opinion that the issues which she perceives led to her absence need to be addressed (by) management to all parties' satisfaction to prevent any further deterioration in her health or result in a protracted absence".

 

(viii) Bernadine McGurk did not recommend a routine review but advised the claimant that she would be happy to see her again if she or management felt this was appropriate.

 

(ix) On 30 September 2014, and therefore in advance of the claimant's grievance letter dated 1 October 2014, and the Occupational Health appointment on 2 October 2014, Ian Mullin had provided questions for the attention of Occupational Health. There is no evidence before the tribunal that Ian Mullin was made aware of or knew about the claimant's grievance in advance of submitting these questions to Occupational Health.

 

(x) The claimant and the tribunal were made aware during the hearing that Ian Mullin was not being called to give evidence. The respondent's counsel referred to the factual issues agreed at the Case Management Discussion which focus on the investigation and contended that it would have been inappropriate for the tribunal to engage in an exercise of re-examining evidence placed before the grievance panels in the course of their investigation. However, the tribunal was also made aware in the course of evidence that allegations regarding Mr Mullin span a considerable period following the two alleged incidents of theft and that he remained as the key material factor in the circumstances leading to the claimant's resignation on 1 April 2015.

 

(xi) On 6 October 2014, David Agnew requested the Human Resources Department to conduct a grievance investigation into complaints made by the claimant against Ian Mullin. He subsequently obtained the claimant's grievance letter ahead of the grievance hearing along with the two Occupational Health reports dated 2 and 30 October 2014. He also received a copy of correspondence sent from Emma Gibson to the claimant on 9 October 2014 and was made aware that the claimant had responded to say that she was not fit to meet with management. The Stage 1 grievance meeting took place on 14 November 2014 in the presence of Colin Clinton, HR Adviser. The claimant was accompanied by a colleague, Lisa Ballantine. David Agnew understood the key points in the claimant's grievance letter to be as follows:-

 

" (I) Lindsay detected a Brennan's bread delivery driver stealing stock on 2 and 23 August 2014. After reporting the issue, Lindsay was not happy with the way in which her area manager, Ian Mullin, had dealt with it.

 

(II) Lindsay worked a night shift with her assistant manager, Alison Patterson, in order to get through a list of tasks that Ian Mullin had given her in store on 13 September 2014.

 

(III) On 13 September 2014, Ian Mullin requested that Lindsay Knox make an official written request to leave the store.

 

(IV) On 18 August 2014 Lindsay Knox received a phone call from Ian Mullin demanding a response to an email he had sent and she had been unhappy with the manner of his responses on that call.

 

(V) Lindsay Knox requested help in training staff in fresh food handling on 22 August 2014 to which she got no response.

 

(VI) Ian Mullin had reported to the assistant manager, Alison Patterson that he had been in store on 28 August, 29 August and 2 September 2014 and found out of date items. Lindsay had disputed that one of these store visits had taken place and asserted that Alison Patterson told Lindsay that she saw entries in Ian Mullin's diary of the three dates Ian had said he was in store. Lindsay stated in her letter that this was a deliberate attempt to fabricate derogatory evidence and was deliberate fraud."

 

(xii) David Agnew carried out investigatory interviews with Michelle Donnelly, Commercial Analyst, Alison Patterson, Assistant Manager in Spar, AbbeyHill, David Hamilton, Fresh Food Manager, and Ian Mullin, Area Manager. Notes of these interviews were included in the bundle placed before the tribunal.

 

(xiii) The claimant, together with Colin Todd, Business Development Manager Brennan's Bread, and David Hamilton, had reviewed the CCTV footage. David Agnew described the evidence in the CCTV footage as being inconclusive. He felt that in hindsight he should himself have viewed the CCTV footage but was not sure if such viewing would have helped. It is recorded in David Hamilton's interview notes that:-

 

"DH - Colin Todd and myself met with Lindsay and reviewed the CCTV, Colin thought he was in the clear, and I apologised if I had gotten this wrong.

 

DH - The relationship between the driver and the store had now broken down, Colin was going to talk to the driver on how to move forward, the problem we have as a business if we move the driver we remove the brand. It is as simple as that, Brennan's do not have enough drivers to move from one area to another".

 

(xiv) David Agnew asked David Hamilton why the respondent should allow a driver to deliver if they were stealing stock to which he replied:-

 

"DH - We did not have enough evidence that he was deliberately not giving credits.

 

DH - As for this driver coming back to the store, instead of Colin speaking to me first, the driver was put in that is when Ian Mullin called me asking why the driver had been allowed back to the store.

 

DH - I spoke to Lindsay and explained that this was an error and she went off on holidays, in that time the Driver was back however Lindsey was happy with this.

 

DH - Lindsay knew this was an error and she was adamant she did not want the guy dismissed, in fact she said "I don't want that to happen personally".

 

DH - I spoke to Lindsay at length as we wanted to ensure that Lindsay was okay with whatever decision was made".

 

(xv) The claimant in her evidence before the tribunal in relation to viewing the CCTV footage, denied saying that "she did not want the guy dismissed". In the interview notes with Ian Mullin it is also recorded that he stated:-

 

"David Hamilton and David Todd visited the store and watched the CCTV and with speaking to Lindsay everything was fine, it was a misunderstanding".

 

(xvi) David Agnew subsequently put to Ian Mullin:-

 

"and Lindsay was happy".

 

He replied:-

 

"yes as far as I am concerned.

 

I think she then changed her mind as now she was not happy with this".

 

(xvii) The claimant in her evidence before the tribunal denied that she ever indicated to the respondent that she was "happy". The tribunal is satisfied that the subsequent train of events shows clearly, even if in the respondent's case the claimant did take the initial position as alleged in relation to the CCTV footage, that she did not maintain this position as is reflected in the above except from Ian Mullin's interview notes. David Agnew was clearly aware of this. The tribunal is satisfied that the claimant genuinely believed that thefts had taken place on two occasions. It is also clear in David Hamilton's interview notes that if the respondent moved the driver they removed the brand. The tribunal is satisfied that this was an important consideration in the investigation of the alleged thefts and in David Agnew's investigation. He clearly did not want to go more deeply into the issue of the alleged thefts. He chose not to view the CCTV footage, and to take the claimant's claims more seriously in relation to the alleged thefts.

 

(xviii) The claimant was astounded to find that the delivery driver from Brennans was still delivering to the store when she returned from leave on 7 September 2014. On 9 September the claimant again asked Ian Mullin as to why the delivery driver was still delivering to the store. Ian Mullin reviewed the CCTV evidence and indicated that he would speak to David Hamilton. The claimant was clearly concerned that she would have to deal personally with the delivery driver and she informed Ian Mullin of her feelings on 10 September 2014 following which Ian Mullin suggested that she would swop shifts to avoid the delivery driver, Peter Magee. She took issue with the fact that she has been asked to change her shift to facilitate someone who in her view, had been detected stealing from the respondent. These matters are reflected in the claimant's grievance letter referred to earlier in this decision.

 

(xix) The tribunal finds it necessary, at this stage, to reproduce the remainder of the grievance letter at this stage:-

 

"On Saturday the 13 ^th of September Ian Mullin spent two hours in the store. During this time he produced a list of tasks for me to get complete. I informed him that we were short staffed due to a member failing to turn in for work. Ian insisted that the tasks were to be completed by Tuesday and regardless of my protestations he refused to be reasonable and basically ignored me. I informed him that I would have to work a night shift, as well as my day shift on the Monday to get the task done. I did work my full shift on Monday, which is historically a very busy day and then returned and did a night shift. My assistant Manager Alison Patterson did the same. Both of us have young children.

 

My issue is Ian Mullin totally disregarded his duty of care both to me and my assistant Manager. Further than that he did not have the basic manners to thank us. My experience of him is that he is unreasonable and disrespectful to his subordinates.

 

Also on the 13 ^th of September Ian Mullin asked me if I wanted to be in Abbeyhill store. I stated given the shortage of resources and staff in recent months no as I felt as though I didn't want to be there. This was said in the context that the situation in the store is very uncomfortable and has been so from the time I started there almost two years ago. In that time the store has gone from being a non-profitable store to a profitable store and I have worked hard to achieve this. I was shocked when Ian Mullin told me to make an official written request to leave the store. I felt that the whole situation was being manufactured to get me to move from the store. I felt threatened and explained to Ian Mullin that due to my family circumstances I would not be making such a request.

 

Ian Mullin then said to me that there are only so many poor stock results, wastage or poor sales figures before he had to take further action. He said 'I am not trying to force your hand up your back but that's the reality.'

 

My reality is that I could only perceive that as a threat and it places an unwarranted stress on me.

 

My suspicions were only reinforced on Monday the 15 ^th of September when Ian Mullin asked for my letter requesting a move, as he wanted to get it to Stephen Hamilton and Emma Gibson.

 

I again stressed to Ian Mullin my reasons for not wanting to move, yet at that time such was the pressure from him that I felt the only way to conclude the conversation was to tell him that I would get back to him in a couple of days.

 

I had an appointment for my Doctor on the 16 ^th September. This was due to not being able to sleep, feeling depressed and feeling sick at the thought of going into work. At my appointment my Doctor assessed me as not being fit for work due to work related stress.

 

Further to the above representations on the dates between the 18 ^th of August and 29 ^th August I would like to raise the below issues.

 

On Monday the 18 ^th of August I was very busy, as I have previously stated Mondays are globally recognised is Henderson's as being an extremely busy administration day. I concentrated on pressing issues for the day in addition, to an interim stock take and dealing with a broken lift. Between 9am and 9.30am that morning I received a phone call [from] Ian Mullin. His manner was abrupt and rude. He demanded a response to an email he had sent over the weekend. I asked him what the email was about with intent of helping him by addressing any request there and then. In an ignorant manner Ian Mullin replied 'I am not doing your job for you, ring around your colleagues and find out what the email is about, and then email me your response'.

 

As well as Ian Mullin, having a responsibility for being helpful and supportive to staff he has a duty of care towards Henderson's adopted values, I found his response totally disrespectful, ignorant and not conducive to promoting a team work attitude in obtaining shared goals.

 

During August there had been an issue with chilled foods being allowed to go out of date. This was due to new members of staff not being 'up to the task'. On the 22 ^nd of August I requested help in training staff in fresh food handling. This was never responded to. A member of staff was dismissed on the 28 ^th of August. On the 4[th] of September Ian Mullin was in the store and spoke to Alison Patterson. He informed Alison that he had been in the store on the previous Thursday 28 ^th August, when 26 items were out of date in chilled foods and on the Friday 29 ^th August when 16 items were out of date and on the Tuesday 2 ^nd September when 6 items of sock were out of date. When Alison reported this to me I rang Ian Mullin and challenged him as to what time he was in the store on the Friday. He asserted he was in the store on the Friday because of what he had seen on the previous day. I put to him that I was in the store all day and completed the date checks on the fresh food personally and there were no items out of date. I asked him what time he was in the store on Friday as I didn't see him. He said he was in, I told Ian I would check CCTV to see if he was in the store on the Friday at all. Ian Mullin then claimed to have made a mistake and that it must have just been the Thursday and a Tuesday. My concern is that Alison Paterson when telling me about this said she saw entries in Ian Mullin's diary of the number of items out of date on the dairy [sic] on the 3 days he asserts he was in the store. If this is the case then there can be no claim of a mistake but a deliberate attempt to fabricate derogatory evidence and a deliberate fraud. I am aware of the seriousness of what I am saying in that in effect I am alleging a criminal fraud.

 

In summary my grievance against Ian Mullin is that:-

 

1.          He has placed the concerns of a person who has been detected stealing Henderson's property above that of me, a member of staff, in suggesting I change shifts to avoid contact with the thief and in doing so was prepared to place Henderson's at risk of further losses.

 

2.          He has created an atmosphere and dynamic that asserts an undue pressure on me to request a move from the Abbeyhill store.

 

3.          That he has attempted to discredit me and may have committed a fraudulent act in his attempts.

 

4.          That he has failed in his duty of care to Alison Patterson and myself in demanding I work unreasonable and unlawful hours.

 

5.          He has failed to support me in my role as is his duty, ignoring request for additional staff.

 

Given the seriousness of the allegations I have made a level of mistrust I have in Ian Mullin's integrity, along with the serious impact Ian Mullin's behaviour has had on my health, I believe the only suitable resolution of my grievance, is for Ian Mullin to be moved to an area where he no longer can have an adverse effect on my career with the Henderson Group.

 

Yours sincerely

 

Lindsay Knox"

 

(xx) David Agnew was clearly aware of the impact for the respondent should the Brennan's driver be removed having been so informed by David Hamilton during his interview. Furthermore, he was clearly aware from Ian Mullin (in relation to the viewing of the CCTV footage), that the claimant was, in terms, maintaining her original position that thefts had taken place.

 

(xxi) The tribunal considered carefully David Agnew's evidence together with the available notes of the first stage grievance and the terms of the outcome letter which found no evidence to support the claimant's allegations (as referred to in that letter) that:-

 

"1. Ian Mullin had placed the concerns of a person who had been detected stealing Henderson's property above you, in suggesting that you change shift to avoid contact with the Brennan's delivery driver, and in doing so was prepared to place Hendersons at risk of further loss.

 

2. Ian Mullin had created an atmosphere and dynamic that asserts undue pressure on you to request a move from Abbeyhill store.

 

3. Ian Mullin has attempted to discredit you and may have committed a fraudulent act in his attempt.

 

4. Ian Mullin has failed in his duty of care to Alison Patterson and yourself in demanding you work unreasonable and unlawful hours."

 

(xxii) In relation to the allegation that:-

 

Ian Mullin has failed to support you in your role as is his duty, ignoring request for additional staff, David Agnew concludes as follows:-

 

"We investigated this issue and found no evidence to collaborate your version of events, as stated previously due to the nature of some of the incidents you have mentioned in relation to the allegations that it might not be possible to substantiate these claims due to a lack of evidence or witnesses.

 

Please be assured that the findings of this investigation do not negate your perception of how you have felt you had been treated nor does it question your integrity or that of those who had been questioned as part of the investigation".

 

(xxiii) The tribunal is satisfied that David Agnew's investigation did not adequately accommodate the claimant's concerns either in relation to the alleged thefts and the driver concerned or in relation to Ian Mullin. It is clear to the tribunal that the claimant had obvious and genuine difficulties and concerns with Ian Mullin which, as the Occupational Health reports show, had a direct impact upon her health. She was also extremely concerned about having any contact with Ian Mullin. The tribunal acknowledges, however, that as Area Manager, it would have been difficult for Ian Mullin to avoid any contact whatsoever with her as long as she worked within his managerial area.

 

(xxiv) At the stage two grievance Stephen Gibson had access to the fulsome notes and relevant documentation pertaining to stage one together with the claimant's appeal letter. Under the relevant procedure his task was to review the stage one process following the claimant's letter of appeal dated 28 December to Ann McKillop which reads as follows:-

 

"Hi Ann

 

I wish to escalate my grievance made in writing on 1 ^st October and verbally to David Agnew on 14 ^th November 2014.

 

I am not satisfied that a thorough and impartial investigation has been conducted.

 

From the letter dated 8/12/14 the only people interviewed were Ian Mullin and David Hamilton.

 

In David Hamilton's response he states he offered me mediation, surely if I had no issue with Peter Magee and accepted loss to Hendersons was due to an error, why would I have raised the issue in the first place and secondly why would mediation be needed. David Hamiltons response to me was that brennans was a premium [product] that has to stay in store. This is also inconsistent with the shop procedures for scanning goods inward and outward from the store. It states 'HRL staff are not to be put under pressure to compromise how this procedure is carried out'.

 

Was Alison Patterson interviewed? Certainly from your letter dated 8/12/14 it appears not.

 

In regard to Ian Mullin talking to me about work life balance this simply didn't happen. He spent two hours dominating me and bombarding me with a list of tasks to be completed within the next few days. Basically he put me under pressure knowing it couldn't be done without me having to work a night shift and then he told me he wanted me to write a letter to move store. If Ian Mullin was genuinely concerned, dealing with a vulnerable member of staff then surely he would have recorded notes of the meeting in order to ensure integrity and fairness.

 

With all due respect to David Agnew, I feel he is ill equipped to conduct a thorough investigation impartially.

 

What degree of proof is he seeking, balance of probability or beyond reasonable doubt.

 

In assessing evidence, the credibility of witnesses must be taken into account. My previous experience with hendersons was questioned by David Agnew, has he considered Ian Mullins? I suggest witnesses have been cherry picked.

 

I initially asked for a copy of the minutes of the meeting held on 14/11/14 on 5 ^th December 2014. This was due to a significant inaccuracy of that meeting dated 8/12/14 read to me on 5/12/14.

 

I only received by email the minutes of the meeting on 23/12/14 and was informed I must reply by 29/12/14 by midday. I find this very manipulative, I have been given a six day period over the Christmas holidays, in which legal advice was not available to me.

 

I find this very disappointing given the honesty and commitment I have given to Hendersons in the last 11 years.

 

I await your response.

 

Lindsay Knox"

 

(xxv) The stage two outcome letter dated 6 February 2015 states as follows:-

 

"Dear Lindsay

 

Further to your email on 28 ^th December 2014 escalating your grievance to the second stage of the company procedures, this letter outlines the findings following the hearing on 16 ^th January 2015 and the outcome meeting on 2 ^nd February 2015. The findings were verbally relayed to you at the outcome meeting.

 

Lisa Ballantine accompanied you at both meetings and Laura Nolan (HR Advisor) accompanied me as notetaker.

 

It was explained to you during the hearing on 16 ^th January 2015 that the meeting was not a rehearing of your original grievance but an opportunity for you to present any new evidence to support your claims as per your escalated grievance. You said that you understood this.

 

It was also explained that there may not be evidence to substantiate your claims. This being the case, there would be no questions as to your integrity in what you had alleged, nor would the integrity of individuals, whom allegations had been made against, be questioned unless there was substantive evidence to support this.

 

Therefore, whilst the outcome of the second stage investigation may not be satisfactory to you, assurances can be made that a full and thorough investigation has taken place into your issues.

 

The second stage investigation has reached its conclusion and as discussed at our meeting on 2 ^nd February 2015, the findings are as follows. The findings are listed under the points detailed in your email dated 28 ^th December 2014.

 

1.          Not everyone has been interviewed as part of the investigation and witnesses have been cherry picked.

 

I can assure you that a thorough investigation has been carried out and the people relevant to your specific grievance have been spoken to.

 

2.          Issue around Brennan's delivery driver.

 

The investigation found that the Brennan's delivery driver had made an error in relation to credits. A full investigation was carried out by David Hamilton and Colin Todd (Brennan's). David and Colin made the decision that no action would be taken that the driver would continue to deliver to SPAR Abbeyhill. This decision was not taken by your Area Manager, Ian Mullin. It was documented during the investigatory interviews that you had told David Hamilton that you did not want the driver dismissed and that you were happy with the outcome. You will appreciate that when conversations take place on a one to one basis, it makes it difficult to substantiate any allegations made.

 

3.          Ian Mullin spent two hours dominating you and bombarding you with a list of tasks to be completed, knowing that it couldn't be done without you working a nightshift.

 

This discussion took place on a one to one basis without witnesses. The initial investigation found no supporting evidence to suggest that Ian Mullin had spent two hours dominating you and bombarding you with a list of tasks or that he instructed you to work nightshift. The investigation found that Ian Mullin had provided you with a list of tasks and I do not believe that such a request from your line manager is unreasonable. We expect our management team to manage employees in an appropriate way and be able to carry out their role without fear of reproach. The investigation would suggest that it was a store decision to work nightshift.

 

4.          Ian Mullin told you to write a letter to move store.

 

Again, as you'd said that there were no witnesses to this, the investigation found no evidence to substantiate this claim. We are aware that a conversation took place about SPAR Abbeyhill being a critical care store and that a discussion had occurred about your happiness in the store. During the second stage grievance hearing on 16 ^th January 2015, when I asked why you thought Ian would want you to move store, you said that you didn't know but it was maybe because the store wasn't performing. However there was no evidence that Ian told you to write a letter to move store.

 

5. David Agnew is ill equipped to carry out a grievance investigation.

 

There is no evidence to substantiate your claim. You stated during the hearing on 16 ^th January 2015 that David Agnew works with Ian Mullin and David Hamilton. David Agnew is a senior manager within Henderson Retail and is a grade higher than Ian Mullin and David Hamilton and therefore is more senior to them. It should also be noted that David is not part of the Area Team and works in a different function. We can assure you that with over 30 years' experience of working in a retail environment, David was chosen as the best person to hear the grievance. He was deemed an independent party and I can assure you that he acts with integrity and impartiality. It should also be noted that on receipt of your email on 28 ^th December 2014, this point was taken into consideration and a manager outside of Henderson Retail managed the second stage of the grievance process.

 

6. You brought up during the second stage grievance hearing that you had met with two other Store Managers who also had issues with Ian Mullin.

 

A grievance procedure is in place for employees to follow if they have issues or concerns with another employee of the company. It has been deemed that your conversation with these Store Managers was not relevant to the specifics of your grievance. I would advise that when speaking with these managers again about these matters, that you advise them that they can submit a grievance in line with the procedures should they have issues with their line manager.

 

You also raised the issue of "probability" as you stated that Ian Mullin has a record of grievances against him. You will appreciate that I am not at liberty to discuss an employee's record with another employee. This also applies to discussions about you with other employees. Matters of this nature are and should be treated with the utmost confidentiality by all parties involved. An outcome of a grievance would never be based on "probability" and a thorough investigation carried out in each case with findings based on evidence available.

 

7. You raised the issue of whistleblowing.

 

You asked during the second stage grievance procedure why this has not been treated as whistleblowing. Whistleblowing is making a disclosure in the public interest and it occurs when a worker raises a concern about danger or illegality that affects others. The investigation found no evidence to suggest this has occurred.

 

8. Inconsistencies with notes.

 

You refuted that you had been told during the investigation that the allegations may not be substantiated due to a lack of evidence as noted in the outcome letter. That said, it was explained to you during the grievance outcome meeting on 5 ^th December 2014. Due to the nature of incidents happening on a one to one basis, it lends itself to difficulties in substantiating the allegations. This is by no means making assumptions as to the honesty or integrity of either party.

 

You stated that the outcome letter said an appointment was arranged for the nurse to ensure you were fit for meetings however the nurse said you were not. On receipt of your fist medical certificate, an occupational health appointment was arranged on 2 ^nd October 2014. The report from this appointment stated that you would be reviewed by occupational health in four weeks' time and it was unlikely that you would be fit to meet with management prior to this review appointment.

 

However the Occupational Health Advisor recommended that in order to prevent a protracted absence and any further deterioration in your mental health management, the company needed to arrange to meet with you in an attempt to have the issues you perceived resolved.

 

In an effort to avoid a protracted absence for you, Emma Gibson, Group HR Manager, wrote to you on 9 ^th October 2014 advising you that it was important that we have a full understanding of your current situation and any issues which may be affecting your health. She had advised you that Colin Clinton, HR Advisor, would give you a call in the following days to discuss a suitable date to meet. We received your response to our letter on 17 ^th October 2014 in which you stated that you were not physically or emotionally fit to meet with management at this time.

 

You then attended an occupational health review appointment on 30 ^th October 2014 as per the nurse's recommendations and following this appointment, the report stated that management should arrange to meet with you at the earliest opportunity and this action was taken.

 

You raised issues that you had questioned David Agnew and Colin Clinton about who had wrote the questions for the first occupational health referral and that this was not in the minutes from the meeting. A note has been taken of this as those were the contemporaneous notes taken at that time.

 

Having investigated your claim, it was found that Ian Mullin completed your referral form and returned it to the HR Department. This was done prior to us receiving your initial grievance letter on 1 ^st October 2014. It is standard procedure for a line manager to complete the referral form for one of his/her team members.

 

Please be assured that had the HR department been in receipt of your initial grievance letter prior to the request and return of the occupational health form, Ian Mullin would not have been asked to complete this.

 

Therefore, upon receipt of your grievance letter, the occupational health report was not forwarded to Ian Mullin (which would be normal procedure) and he was not aware of the issues raised by you until he was spoken to during the investigation stage.

 

9. Issue around timescales for escalation.

 

The grievance procedure states that should you be unhappy with the outcome of the investigation or conclusion, you have the right to escalate your grievance to the next stage. As per your outcome letter dated 8 ^th December 2014, you were asked to put your grounds for escalation in writing within three working days of receipt of the outcome letter. You requested a copy of the minutes from the meeting and therefore had the period for submitting your reasons for escalating your grievance extended until 29 ^th December 2014. This is outside of our normal procedures.

 

This concludes the second stage grievance investigation and findings thereof and you have now exercised stage two under the company grievance procedure.

 

Whilst you may feel that the responses to your points are unsatisfactory, we cannot and will not question the integrity of any employee, including you, because it does not fit what your belief is. Findings are based on evidence from a thorough an unbiased investigation.

 

During the second stage outcome meeting on 2 ^nd February 2015, I had explained to you that Ian Mullin will remain the Area Manager of SPAR Abbeyhill. However you stated that you could not work with him.

 

The Company, in its formal handling of this matter, have attempted to resolve any outstanding concerns or issues that you have. Please be assured that the findings do not negate your perceptions of how you feel. We are committed to helping you achieve a resolution to any outstanding issues or concerns that you have and facilitating a return to work for you as soon as possible.

 

We would like to give you the option of having an open discussion with Ian Mullin to allow you to raise your concerns with him directly. This could be facilitated through mediation and a neutral mediator could be used from within the company.

 

Alternatively we can offer you to move to stage three of the company grievance procedure which would involve referring the matter to the Labour Relations Agency. This options exists as a contingency for when open communication between an employee and management fails to identify and remove problems.

 

We would encourage you to consider these options as ultimately we want to help facilitate a return to work. If you would like to discuss these options, please contact Laura Nolan, HR Advisor, by 4pm on Thursday 12 ^th February 2015.

 

Should you have any queries in connection with the content of this letter please do not hesitate to contact me.

 

Yours sincerely

 

Stephen Gibson

Regional Sales Manager (Henderson Wholesale)"

 

(xxvi) In point two of the above letter relating to the issue around Brennan's delivery driver, Stephen Gibson again refers to the investigatory interviews when the claimant allegedly told David Hamilton that she did not want the driver dismissed and that she was happy with the outcome. However, as with David Agnew, this allegation, denied by the claimant in her evidence to the tribunal, does not seem to have been weighed against Ian Mullin's interview notes for the stage one grievance which states that:-

 

"I think she then changed her mind as now she was not happy with this".

 

Furthermore, there is no evidence of how David Agnew or Stephen Gibson weighed David Hamilton's statement regarding the impact of the removal of the Brennan brand:-

 

"... the problem we have as a business if we move the driver we remove the brand. It is a simple as that, Brennan's do not have enough drivers to move from one area to another".

 

(xxvii) The tribunal therefore finds that the investigation was neither adequate, thorough enough, nor properly handled in that the claimant's claims were not taken sufficiently seriously. It finds that there was evidence that concerns in relation to the respondent's business involving Brennans and the driver concerned, had been placed above the interests of the claimant. It is also significant, in the tribunal's view, that the episodes regarding the alleged thefts form the fountain head from which the subsequent streams of difficulties arose leading ultimately to the claimant's resignation. The tribunal has no reason to question the credibility of the claimant's claims involving Ian Mullin. There was also evidence in the form of Occupational Health Reports available during the investigation which also highlight a very significant problem between Ian Mullin and the claimant.

 

(xxviii) It is also clear to the tribunal that the claimant was in considerable financial difficulty in the early part of February 2015. She was contemplating resignation as she could not see a future for herself in the respondent's business. She felt that her concerns were not being adequately addressed. She also felt that the mediation process was entirely unsatisfactory in that it did not deal adequately with the ongoing problem, which, to her, was Ian Mullin.

 

(xxix) The claimant's concerns are highlighted in her correspondence to Geoffrey Agnew on 18 February 2015 as follows:-

 

"Dear Mr Agnew

 

I write to you in sadness as after 11 years I feel my time with Henderson Retail is due to come to an end. I am aware of the investment you have personally made to your staff in the growth of Hendersons. It is due to your investment that I would like to inform you of the following:-

 

On 23 ^rd August 2014 I detected the [Brennans] delivery driver Peter Magee stealing bread whilst making a delivery. Because of the way this matter was handled I ended ill and involved in a grievance procedure. In that process I learnt the following

 

1)            Union Rep Ivan Taylor spoke to Emma Gibson from the HR department and told her that Ian Mullin has at least three previous grievances that he knows of against him and if they continue to do nothing about it they will find themselves in court.

 

2)            Ian Mullin told Yvonne Anderson to run Abbeyhill for four weeks. Yvonne informed Ian Mullin that she has a bad back and couldn't manage the stairs. Ian's reply to Yvonne was that she didn't need to go into the stockroom, she could manage the store from upstairs. She also informed Ian Mullin that she didn't have petrol handling as she is from a dry site. Ian told her it was ok as it was only 4 weeks.

 

3)            Margaret Ennis was off last November again with shingles. She phoned Ian Mullin to see if he could get cover for her store. Ian's response to Margaret was that it wasn't his responsibility to get cover for her store. He told her to sit in the car park. At least that would keep them legal.

 

4)            When Ian Mullin first started in our area, Ann McKillop told Yvonne Anderson to back up all conversations she has with Ian Mullin with an email outlining the conversation they just had. That would keep her right.

 

5)            I am also now aware that a brennans driver was caught with cleaning chemicals in the back of his van. This is the same van he delivers bread into your stores.

 

The reality is no member of staff has felt confident enough to report any of these matters. They operate in an environment of intimidation and fear.

 

I personally feel my actions to protect Henderson's revenue once I detected a theft by Brennan's delivery driver. I feel that all subsequent issues such as my grievance against Henderson's Retail/Mr Mullin and the subsequent deterioration in my health could have been avoided if the theft had been properly handled at the time and in line with Company Policy and Procedures.

 

I am on the verge of losing everything, my job, my home, my car. My health is deteriorating because of this. I can't even afford to feed my 5yr old daughter. Newtownards foodbank have been very kindly donating food parcels to me. This is the nightmare I find myself in.

 

Please see attached a copy of my grievance which will explain everything to you in more detail.

 

Kind Regards.

 

Lindsay Knox"

 

(xxx) The tribunal is satisfied that the claimant was essentially imploring Geoffrey Agnew to help her. It also considered Geoffrey Agnew's polite but short reply to her correspondence dated 19 February 2015. The tribunal is further satisfied that the nature of the correspondence to Geoffrey Agnew again illustrates that the investigation process was neither adequate, thorough enough, nor properly handled, particularly in its assessment of the claimant's genuinely held belief regarding the alleged thefts and the attitude of Ian Mullin displayed towards her subsequently. The tribunal reiterates that it found the claimant to be a credible witness who was well motivated in her employment with the respondent. As the final Occupational Health report of 27 November states:-

 

"... she remains very keen to return to work".

 

(xxxi) The tribunal considered carefully the claimant's evidence in relation to her alleged loss. The claimant accepted an offer of alternative employment on 23 March 2015, a short time before she tendered her resignation. She commenced work with the Card Factory, but claims that she was "head hunted" by the Post Office. The claimant accepted a job offer from the Post Office before she ceased employment with the Card Factory on 13 April 2016. She was not working between 13 April 2016 and 24 April 2016, when she commenced employment with the Post Office, at the same rate of pay (£8.50 per hour).

 

THE LAW

 

5. (i) Article 127 of the Employment Rights (Northern Ireland) Order 1996 ("the Order") provides that an employee is dismissed by his employer if the contract under which he is employed is terminated by the employer (whether with or without notice). Article 127 continues to provide as follows:-

 

"127. - (1) for the purposes of this Part an employee is dismissed by his employer if ... - (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct".

 

(ii) Article 156(2) of the Order states as follows:-

 

"Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly".

 

(iii) The Order further states at Article 157(6) as follows:-

 

"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding".

 

(iv) Harvey on Industrial Relations and Employment Law ("Harvey") states at Division D1 at 403 as follows:-

 

"In order for the employee to be able to claim constructive dismissal, four conditions must be met:

 

(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

 

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

 

(3) He must leave in response to the breach and not for some other, unconnected reason.

 

(4) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract".

 

(See also Western Excavating (ECC) Limited v Sharp 1978 IRLR 27).

 

(v) Harvey continues:-

 

"(b) The duty of co-operation

 

[461] More recently the EAT has specifically followed the Post Office case on this point ( Woods v WM Car Services (Peterborough) Ltd 1981] IRLR 347, [1981] ICR 666). The Tribunal emphasised the significance of this duty for employers not to conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of mutual confidence and trust. As it pointed out, it enables an employee who is 'squeezed out' of the company by the wholly unreasonable conduct of the employer to leave and claim that he has been dismissed even though he cannot point to any specific major breach of contract by the employer.

 

[462] This duty not to undermine the trust and confidence in the employment relationship can be subsumed under a wider contractual duty which is imposed on the employer, to co-operate with the employee."

 

(vi) Once a tribunal has established that a relevant contractual term exists and that a breach has occurred, it must then consider whether the breach is fundamental. Where an employer breaches the implied term of trust and confidence, the breach is inevitably fundamental (Morrow  v Safeway Stores plc 2002 IRLR 9, EAT). A key factor to be taken into account in assessing whether the breach is fundamental is the effect that the breach has on the employee concerned.

 

(vii) It is also possible for a tribunal to make a finding of contributory conduct in a constructive dismissal case in the event of there being a connection between the employee's conduct and the fundamental breach by the employer. As was pointed out in the Northern Ireland Court of Appeal case of Morrison v Amalgamated Transport and General Workers Union (1989) IRLR 361 NICA, since it was open to a tribunal to declare a constructive dismissal fair, there could be no inconsistency in its holding that the employee contributed to the dismissal in the first place. All that is required is that the action of the employee to some extent contributed to the dismissal. Once a tribunal has found on the evidence that an employee has to some extent caused or contributed to his or her dismissal it shall reduce the compensatory award.

 

(viii) Unlike an anticipatory breach of contract, an actual breach of contract cannot be retrieved by the employer offering to make amends before the employee leaves. Once the breach has been committed it is for the wronged party to decide how to respond ( Buckland  v Bournemouth University [2010] IRLR 445 CA).

 

(ix) In Mahmud and Malik  v Bank of Credit and Commerce International SA [1997] IRLR 606, ('Malik') the duty of implied trust and confidence was affirmed by the House of Lords in the following terms:-

 

"The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee."

 

Lord Steyn stated that:-

 

"The implied obligation as formulated is apt to cover the great diversity of situations in which a balance has to be struck between an employer's interest in managing his business as he sees fit and the employee's interest in not being unfairly and improperly exploited."

 

(x) The test for breach of the implied duty of trust and confidence is an objective one. The duty of trust and confidence may be undermined even if the conduct in question is not directed specifically at the employee. The duty may be broken even if an employee's trust and confidence is not undermined. It also follows that there will be no breach simply because an employee subjectively feels that such a breach has occurred, no matter how genuinely this view is held.

 

(xi) The range of reasonable responses test is not applicable to constructive dismissal per se. However it is open to the employer to show that such a dismissal was for a potentially fair reason in which case the range of reasonable responses test becomes relevant.

 

(xii) The breach of contract must be "sufficiently important" to justify the employee resigning or it must be the last in a series of incidents which justify his leaving. It must go to the heart of the contractual relationship between the parties. Harvey comments that where the alleged breach of the implied term of trust and confidence constitutes a series of acts, the essential ingredient of the final act is that it is an act in a series, the cumulative effect of which amounts to the breach. It follows that although the final act may not be blameworthy or unreasonable, it must contribute something to the breach even if it was relatively insignificant ( Harvey Division D, paragraph 481.01). See Omilaju  v Waltham Forest London Borough Council [2005] IRLR 35.

 

(xiii) The employee must resign in response to the breach. In the recent EAT case of Wright  v North Ayrshire Council [2014] IRLR 4, ("Wright") Mr Justice Langstaff (President) states at paragraph 20 of his judgment that:-

 

"Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause."

 

(xiv) In Western Excavating (ECC) Ltd  v Sharp (1978) IRLR 27 CA, it was pointed out that an employee must make up his mind regarding resignation soon after the conduct of which he complains. Should he continue any length of time without leaving, he will lose his right to treat himself as discharged from the contract. However, where there is no fixed period of time within which the employee must make up his mind, a reasonable period is allowed. This period will depend on the circumstances of the case including the employee's length of service, and whether the employee has protested against any breach of contract.

 

SUBMISSIONS

 

6. The tribunal had the benefit of written submissions from the respondent. These are attached to this decision. It also considered the oral submissions from the claimant and further oral submissions from the respondent's counsel.

 

CONCLUSIONS

 

7. The tribunal having carefully considered the evidence before it and having applied the relevant principles of law to the findings of fact, concludes as follows:-

 

(1)           The tribunal is satisfied that the respondent breached the implied term of trust and confidence and the wider contractual duty to co-operate with the claimant. The claimant resigned in response to that breach. The tribunal has already made factual findings in relation to the investigation as being neither adequate, thorough enough, or properly handled, particularly in its assessment of the claimant's genuinely held belief regarding the alleged thefts and the attitude of Ian Mullin displayed towards her subsequently. The tribunal was satisfied that the claimant was a credible witness who was well motivated in her employment with the respondent. It is also clear to the tribunal that from in or about 18 February 2015, the claimant was contemplating possible resignation due to the foregoing factors. This is reflected in her correspondence to Geoffrey Agnew dated 18 February 2015. The tribunal is further satisfied that the breach was fundamental and therefore sufficiently important to justify her resignation, or, alternatively the failure in the mediation process was the last in a series of incidents flowing from the alleged thefts, (and compounded by the nature of the investigation), ultimately justifying the claimant leaving the respondent's employment. The Occupational Health reports also substantiate the claimant's claims as to the impact of the ongoing events upon her health. These reports also stress the need for the respondent to make attempts to resolve the issues. The tribunal's finding is that the mediation process could have gone further to minimise any contact between Ian Mullin and the claimant and to safeguard the claimant's interests and her health in continued employment with the respondent. The tribunal does not consider contributory conduct to be a factor in this case.

 

(2)           The tribunal found the evidence in relation to remedy unsatisfactory in a number of respects. In the absence of a resolution between the parties in the meantime, the tribunal proposes to relist the hearing to consider remedy.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 6, 7 & 8 June 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: