Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  1528/15

 

 

 

CLAIMANT:                          William McIlwrath

 

 

RESPONDENT:                  Walkers Snack Services Limited

 

 

 

DECISION

The unanimous decision of the tribunal is that:-

 

            (1)       the claimant was unfairly constructively dismissed by the respondent; and

 

(2)       the tribunal makes an award of compensation to be paid by the respondent to the claimant in the sum of £20,139.47.

 

Constitution of Tribunal:

Employment Judge:          Employment Judge Drennan QC

Members:                             Mrs T Hughes

                                                Mr I Rosbotham

 

Appearances:

The claimant was represented by Mr O Friel, Barrister-at-Law, instructed by Paul Doran Law, Solicitors.

The respondent was represented by Mr S Gilmore, Barrister-at-Law, instructed by Eversheds LLP, Solicitors.

 

Reasons

 

1.1       The claimant presented to the tribunal on 12 August 2015 a claim of unfair constructive dismissal arising from the termination of his employment.  The respondent presented to the tribunal on 15 September 2015 a response, in which it denied liability in relation to the said claim of the claimant. 

 

1.2       The tribunal, in accordance with its normal practice, held a Case Management Discussion, on 7 October 2015, in which it gave relevant case-management directions/orders for the substantive hearing, including the simultaneous exchange of witness statements, which were read by the tribunal prior to the commencement of the substantive hearing.  The tribunal heard oral evidence from the claimant and, also, heard oral evidence, on behalf of the respondent, from Paul Kelly and Claire Fitzgerald.

 

1.3       The claimant commenced employment with the respondent on 4 January 2010 and in a letter dated 18 May 2015 he resigned, with effect from that date, from his employment with the respondent.  In a letter dated 29 May 2015, the respondent confirmed it accepted the said resignation.  As set out in the said letter, the claimant was paid by the respondent up until 31 May 2015.  At the date of his resignation he was a Sales Development Representative (‘SDR’), having been promoted to that role on or about 1 March 2013.  He had a clear disciplinary record.  At the termination of his employment, it was agreed his gross weekly wage was in excess of £490.00 (pursuant to relevant statutory cap of ‘one week’s pay’ in accordance with Article 23(1) of the Employment Rights (Northern Ireland) Order 1996) and he was in receipt of £380.19 net per week.  The claimant was born on 24 May 1967.

 

1.4       At the commencement of the hearing, the claimant’s representative confirmed that, if the tribunal found the claimant’s dismissal was unfair, the claimant wished to obtain, by way of remedy, an award of compensation; and he was not therefore seeking an Order for Reinstatement and/or Re-engagement.

 

2.1       Having considered the evidence given to the tribunal by the parties, as set out above, the documents in the ‘trial bundle’ to which the tribunal was referred during the course of the hearing, together with the oral submissions made by the representatives of the parties at the conclusion of the hearing, the tribunal made the following findings of fact, insofar as relevant and necessary for the determination of the claimant’s claim, as set out in the following sub-paragraphs.

 

2.2       The claimant, in his role as a SDR, was involved in brand development and attending to various customer locations around Northern Ireland, but predominantly in County Antrim to meet existing and potential customers, provide samples, take orders, negotiate space allocations on shelves, arrange branding and displays and deal with any problems that a customer might have.  The claimant was a Level 3 SDR known as a SDR (Impulse), in contrast to a SDR (Grocery).  The latter dealt with the large English multiples in Northern Ireland, such as Asda, Tesco and Sainsbury’s; whereas the former dealt with convenience stores, owned predominantly by the Henderson and Musgrave Wholesale and Retail Groups.  The claimant’s line manager was Mr Paul Kelly, the Channel Field Sales and Project Manager, with whom the claimant at all times material to this action had a very good working relationship and it was not disputed the claimant was a very valuable, experienced and respected member of Mr Kelly’s team.  Mr Kelly had 25 SDRs reporting to him; six, including the claimant, were in Northern Ireland and 19 in the Republic of Ireland.  Mr Kelly’s line manager was Mr Noel McEneaney, who is based in Dublin.  In or about 2013/2015, the company fleet of vehicles in Northern Ireland, all of which vehicles were under long-term leasing arrangements, were, insofar as relevant and material to these proceedings, five Volkswagen Caddy vehicles (‘Caddy’) and four Mercedes Vito vehicles (‘Vito’).  The Vito was used by two sales supervisors and two Level 4 SDRs (grocery).  The respondent allowed the drivers of the Vito vehicles to use them for personal use.

 

2.3       The claimant, along with others in his SDR (Impulse) team, were provided with a Caddy vehicle in or about September 2013, which followed a restructuring of the company.  This resulted in the Northern Ireland sales team becoming part of an all-Ireland sales team, and not part of the UK sales team, as previously.  Initially, on this restructuring, it had been intended that the claimant and the other SDRs in his team would have been provided with the Vito vehicle; but this decision was changed and the claimant was provided with the Caddy vehicle, as referred to above.  The Vito vehicle is a much larger and roomier vehicle than the Caddy.  The claimant, in his previous role as a route sales representative, had driven, without difficulty, a 6.5 tonne high vehicle Iveco Activa.   The tribunal has little doubt that the claimant, from the outset, would have had a personal preference to have been provided with the Vito vehicle in preference to the Caddy vehicle and indeed he so informed his line manager, Mr Kelly, on more than one occasion.  Regardless of this personal preference, the tribunal is satisfied, as set out later in this decision, this was not relevant to the determination of this claim.  The claimant began shortly after the Caddy vehicle was provided to him, to have significant physical health problems with the design of the Caddy and, in particular, the space in the Caddy’s driving compartment and the extremely limited seating adjustment.  The Caddy has a bulkhead barrier between the front cab and the rear compartment, which significantly restricted the seating adjustment for the claimant.  He drew all these matters to the attention of Mr Kelly from shortly after the provision of the vehicle to him.  The claimant who is tall, but not significantly so, began to notice, in particular, after commencing to drive the vehicle, that his heel was increasingly in pain.  He found that the design of the vehicle forced him to sit in an unnatural driving position, which coupled with the inability to adjust his seating position meant his legs were situated at unnatural angles on the floor of the vehicle.  In the evenings, after a full day’s work involving driving the vehicle, he noticed increasing pain and discomfort, mainly in his heel and lower legs.  However, the claimant would find that, after a rest at weekends or days off, the pain would ease until he resumed driving the van again at work.  The tribunal is satisfied, although not initially recorded and documented, the claimant continued to make his concerns and difficulties known to Mr Kelly.  Mr Kelly was not unsympathetic but, initially, he took no formal relevant action, other than to informally keep his line manager and HR Department appraised of what the claimant was telling him, no doubt believing the situation would resolve in due course.  The claimant, who it is accepted was a dedicated, hardworking employee, continued to carry out his duties, despite the pain and discomfort in his heel, as referred to above, apart from a period of sick leave for back trouble in or about November 2013, which the claimant attributed to these problems.

 

2.4       In particular, the claimant brought up the issue of the physical health problems he was having with his driving of the Caddy vehicle, with senior management at an organisational health meeting in or about March 2014, with the support and approval of Mr Kelly.  The HR team of the respondent is based in Great Britain and it provides HR support for the GB sales team, the Northern Ireland sales team and the finance, marketing and sales teams in the Republic of Ireland.  The relevant HR officer until May 2014 was Ms K Tweedale, who was then replaced by Ms Claire Fitzgerald.  In an e-mail dated 29 May 2014, Mr Kelly wrote to Ms Tweedale and stated, inter alia:-

 

“As discussed in the past, [tribunal’s emphasis] William McIlwrath has complaints around the seating position in his Caddy van and the discomfort it is causing him.  You suggested getting someone out to look at the seat and William’s seating position.  This has never happened and William has stressed that the pain in his heel is gradually becoming worse.  Can you advise next steps as I believe we need to action ASAP.”

 

            In reply, Ms Tweedale stated:-

 

“ ... Yes we should be able to get this organised.  Claire (Fitzgerald) - please can you contact RPS and discuss whether we could get an OH adviser or ergonomist out to visit William in Northern Ireland - please use them as a first point of call, if they do not offer this service, please let me know ASAP and we will see who else could offer this provision.”

 

Ms Fitzgerald referred this matter to Occupational Health on 30 May 2014 - stating:-

 

“We have an employee who has complaints around the seating position in his Caddy van and the discomfort it is causing him.  The employee has stressed that the pain in his heel is gradually becoming worse.  Is it possible to get an OH adviser or ergonomist out to visit William in Northern Ireland?”

 

The matter was subsequently referred to Ms Judith Pitt-Brooke, a                            physio-ergonomist based in Great Britain, who reported on 24 June 2014, following a telephone consultation with the claimant:-

 

“ ...

 

I think it likely that he has an underlining condition that requires face-to-face consultation with a physiotherapist to enable clear diagnosis, with possible further investigation through his GP subject to findings.  It is possible a short course of physiotherapy may help but I think it is likely that the problem he is having is being caused by an underlining clinical problem and that the mechanic of the car has found that problem rather than being a direct cause.  I have reassured him on this ... .”

 

(The claimant would dispute there was such an underlying cause; but, in the event, this was of no relevance to the determination of the claimant’s claim.)

 

The claimant was then referred to a local NI sports physiotherapist, by the respondent, who did not provide physio sessions but rather had a brief appointment with the claimant.  After looking at the Caddy and after examining the claimant’s heel he confirmed that, in his view, the claimant suffered from heel pad contusion which derived from a lack of adjustable seat position in the Caddy.  The physiotherapist recommended the claimant to use heel pads on his foot but the claimant subsequently reported to the physiotherapist that he had not had any benefit from use of the heel pads and in fact his physical pain and discomfort was worse than ever.  Indeed, Ms Pitt-Brooke confirmed to Claire Fitzgerald on or about 25 September 2014 that the feedback from the physiotherapist was that:-

 

“This is a pressure-related issue that seemingly only occurs in this vehicle.  He has looked at the driver’s set-up and reports that he has maximised driver position for him but there are still problems.  It is not a strength issue and not likely to be a problem other than short-term discomfort in the vehicle.  No evidence it is building into anything else either.  So we should be careful about over-medicalising.”

 

2.5       The tribunal is satisfied that, at all relevant times during these examinations, the claimant was continually and repeatedly explaining to Mr Kelly that he was experiencing serious and severe pain and discomfort and that something had to be done about the Caddy vehicle, otherwise he would have to take time off sick to recuperate.  Indeed, he began to report to Mr Kelly that the pain he was suffering from had worsened so that rather than being in discomfort only at night, he was experiencing pain 24 hours per day, seven days a week, which was severely affecting his personal life. 

 

2.6       In or about late 2014, Mr Kelly was informed by Mr R Morgan, who was responsible for the provision of vehicles for the teams in UK, but excluding the Northern Ireland sales team, that the respondent was considering changing vehicles driven by SDRs from vans to estate cars.  Mr Kelly informed the claimant about the proposed change, on a confidential basis, during a conversation he had with the claimant about the problems he was having with the Caddy in or about early 2015.  The claimant made it clear to Mr Kelly that he believed that, since the pain was caused by the use of the Caddy vehicle, the pain would only be resolved by the use of a different vehicle.  Unfortunately, although there was a decision, as outlined above, in early 2015 to change vehicles driven by SDRs from vans to estate cars in Great Britain, this did not apply to the Northern Ireland sales team, where any decisions in relation to the provision of vehicles had to be made by relevant personnel in Dublin and not by Mr Morgan.  The tribunal is satisfied that in or about early 2015, Mr Kelly had a discussion with Mr McEneaney to see if there was to be a decision made by relevant personnel in Dublin for a similar change of vehicle, from van to estate, for the Northern Ireland sales team.  He understood that Mr McEneaney had spoken to the general manager and that, as a result, there was to be a similar review to that which had taken place in Great Britain.  It was clearly hoped by Mr Kelly that this review would result in a similar change in Northern Ireland and that this would resolve the particular issue in relation to the claimant’s physical problems using the Caddy vehicle.  The claimant at an organisational health meeting in or about October 2014 had again raised these issues with senior management, as he had done at the previous meeting in March 2014. 

 

2.7       The claimant continued to carry out his work but with increasing difficulty and was becoming increasingly concerned that his specific complaints were being ignored or were ‘being put on the long-finger’, pending the various fleet reviews/changes referred to above.  It has to be noted that in the medical reports, as indicated above, there was a clear expectation, at the outset, that the difficulty would resolve and was not a long-term difficulty.  However, this expectation was found to be incorrect in or about March 2015. 

 

            In an e-mail dated 3 March 2015, Judith Pitt-Brooke informed Ms Fitzgerald as follows, insofar as relevant to the issues in this matter:-

 

“ ... in terms of the heel pain, this is clearly a stubborn and slowly deteriorating problem.  Last year he saw a physiotherapist who reported back to me, the findings being that the heel pain was consistent with a contusion type problem (pressure related) and being aggravated by William’s driving position.  The seat position and facility to push the seat back was reported as limited in the vehicle, by the physiotherapist, such that an optimal position that might enable adequate offloading of the heel could not be achieved.  That said, the physiotherapist concluded that things may settle with time and advised what adjustments were available in the vehicle.

 

Clearly the pain has not settled and from today’s assessment by telephone, there is a clear continued, positional aggravation on the heel arising from his driving position, such that the pressure-based issue is deteriorating rather than improving.  It now seems unlikely this can improve whilst driving the same vehicle and there seems little doubt that the resolution of the problem lies in avoidance of this particular vehicle.                       [Tribunal’s emphasis]

 

I understand that the vehicle is the one used in the whole fleet and William tells me that he is the only one having any problems.  Individual anatomical characteristics are such that this can sometimes be the case - simply a bad fit between machine and operator due to specific individual physical characteristics.  On this occasion, the physiotherapist felt that all possible adjustments had been made within the current vehicle and there was little more he could offer.                                                                     [Tribunal’s emphasis]

 

In answer to your final question therefore, I think that use of a different vehicle is likely to help to resolve the issue and it is unlikely that anything else will ... .”                                                                         [Tribunal’s emphasis]

 

2.8       In an e-mail dated 13 March 2015, Noel McEneaney contacted Mr R Morgan, in relation to replicating the switch from vans to cars for the sales fleet in Northern Ireland and the Republic of Ireland.  This appears to have been the initial enquiry made by Mr McEneaney, despite assurances that had been given to the claimant earlier that the matter was being looked into.  This, in any event, was part of a general review and was not directed to the specific issues raised in relation to the claimant by the report of Ms Pitt-Brooke.  On 19 March 2015, Mr Kelly, in light of the report of Ms Pitt-Brooke, wrote to Ms C Fitzgerald in HR, and asked her to advise on the next steps, as the report clearly stated that the vehicle seating position would not allow for healing and should be avoided.  Ms Fitzgerald, in a reply dated 19 March 2015, asked who managed the vehicle that the claimant was using, to which Mr Kelly replied:-

 

“Currently I have been managing the NI fleet since we split from the UK.  This should not be the case as UK were meant to maintain but Rhys (Morgan) has nothing to do with NI so its falling in no man’s land unless I pick up.  Noel is currently talking with Matt to get Rhys to pick up but this has not happened yet.  Noel is also discussing with Natalie around NI falling in line with the UK and their new car agreement.  I hope this would resolve the issue but no definite decision has been made yet.  Natalie was looking into Arval including the six NI VW Caddys in this deal as Rhys has already included the four NI Vitos.

 

Clear as mud as usual ... .”

 

2.9       Arval, which is part of the major BNP Paribas Group, was the relevant leasing contractor for the respondent.  It would appear that an early termination of agreement estimate from the relevant leasing agreement in respect of the claimant’s Caddy was looked into, subsequent to the determination of the claimant’s employment and it was estimated, at that time, it would be in or about the sum of £2,321.00.  Mr Kelly was not in the position to take any decision in relation to changing the claimant’s vehicle, which decision rested with Mr McEneaney, in consultation with HR Department.  No such decision, despite the report from Ms Judith Pitt-Brooke, was made by Mr McEneaney.  Nor was any relevant decision taken by Ms Fitzgerald, following receipt by her of the said report.  Indeed, she gave evidence to the tribunal that any such decision would have had to be taken by Mr McEneaney, in consultation with her line manager, Ms N Keith, neither of whom gave evidence to the tribunal.  The tribunal is satisfied that Ms Fitzgerald had fully informed Ms Keith of the situation following the receipt of the said report. 

 

2.10    The tribunal is also satisfied that following the said report in March 2015, until the termination of his employment, the claimant was discussing his ongoing physical difficulties, driving the Caddy, with Mr Kelly on a regular basis, who sought to assure him that relevant enquiries are being made on his behalf and the situation would shortly be resolved.  The claimant clearly had a good rapport with Mr Kelly and relied on his assurances.  The tribunal is satisfied that Mr Kelly was at all times trying to resolve the matter but without success, in the absence of any decision by either Ms Fitzgerald and/or her line manager, Ms Keith and/or Mr McEneaney.  Ms Fitzgerald and Mr Kelly properly accepted, in evidence to the tribunal, that the respondent was a wealthy successful company with large resources, and that the cost of early termination of the leasing contract for the claimant’s vehicle and/or its replacement by another vehicle would not have been a costly and difficult exercise for the respondent.  Similarly, both accepted there would not have been difficulties for a ‘one-off’ change of vehicle for the claimant, due to his particular [tribunal’s emphasis] difficulties as set out in Ms Pitt-Brooke’s report; regardless of any ongoing discussions amongst senior management about changes in the type of vehicle to be generally used by the sales team in Northern Ireland and Republic of Ireland from van to estate, similar to the changes made in Great Britain.  Despite the terms of Ms Pitt-Brooke’s report on 3 March 2015 and the ongoing heel pain suffered by the claimant, which was known about by his line manager and HR, no proper, firm or immediate proposal for change of his vehicle was made to the claimant between 3 March 2015 and May 2015.  Indeed, at a meeting in or about May 2015, Mr Kelly, in a one-to-one session with the claimant informed him that changes to the vehicles used by the SDRs in Northern Ireland would not take place until 2017.  Indeed, at the date of the tribunal hearing, discussions relating to change of vehicles are still ongoing and are not resolved.  The tribunal accepts on learning that he might have to suffer the pain and discomfort for another two years and with no proper firm or immediate proposal for a change of vehicle, the claimant reached the conclusion that the respondent no longer cared about his physical condition/health or himself as an employee and despite Mr Kelly’s assurances that something would be done, in particular, since the March report, he concluded that he had no other option but to resign from his position.  So, by letter dated 18 May 2015, the claimant wrote to Mr Kelly resigning his position with the respondent, stating:-

 

“With a lot of personal anguish I have made the decision to resign from my role at Pepsico (respondent).  I feel that for my own good health and happiness I’ve no choice.

 

The company vehicle supplied to me forced me to sit in an unnatural posture causing a heel pad contusion in my foot and now more recently I’ve endured more pain and discomfort due to problems now arising in my knees.  The above health problems ease when I have taken a holiday but recur when I resume work again.  Pepsico have been aware of my complaint for over a year and I have mentioned it to you personally many times, each time expressing the pain and discomfort I am feeling.  The ongoing action by Pepsico has caused me and also my family sadness and anxiety.  The sadness I am feeling about leaving is outweighed by the relief I now feel as I start on the road to recovery.”

 

In the fleet in Northern Ireland there were a number of Vito vehicles.  Mr Kelly did explore the possibility of re-assigning one of these vehicles to the claimant and asked Mr McEneaney, both before and after the March 2015 report from                         Ms Pitt-Brooke; although he recognised the ability for the users of the Vito vehicle to use them for personal use meant to take one of the Vito vehicles for the claimant in such circumstances was an added complication.  In any event, he did not get a positive response from Mr McEneaney to allow him to take such a decision.

 

2.11    In or around April 2015, there was a restructure in the respondent’s Northern Ireland team, which resulted in an increased need for office-based sales staff.  One of the new roles created was in sales logistics.  Mr Kelly suggested to the claimant that he might wish to consider applying for the role.  The claimant apparently commented that the suggestion seemed to be ‘a quick fix’ to get him out of his van.  Mr Kelly acknowledged that moving to a sales-based role would resolve the physical difficulties the claimant was experiencing whilst driving.  However, he also genuinely thought that the claimant might be keen to take an opportunity which did not involve driving; not least because the claimant’s home was near the respondent’s depot.  The claimant did apply for the post and indeed was successful in his application and was offered the role on the same grade (Level 3) as he was employed as a SDR with a small salary increase of £2,000.00 per annum.  However, the claimant turned down the role, as he was entitled to do, as he did not want the increased responsibility and pressure involved with the new role.  He indicated to Mr Kelly, before turning down the role, he would have been willing to accept the role if he had been given a car which he could have used for private use, since, together with the small increase of salary, would have been of some benefit to him, after taking account of the additional responsibility and pressure.  This was not on offer and so the discussion went no further.  The claimant clearly enjoyed his sales role and wanted, if physically possible, to be able to continue it and he believed that he would be able to do so if there had been the change of vehicle from the Caddy arranged by the respondent, as recommended by Ms Pitt-Brooke, as the only solution to his particular difficulty. 

 

2.12    On 29 May 2015, Ms Fitzgerald wrote to the claimant stating:-

 

“I am writing to confirm acceptance of your resignation, which you tendered to the business effective 18^th of May 2015.  As you have not returned to work since this date, and you have been paid up to the 31^st of May, this will be your effective leaving date (31^st of May 2015). 

 

 ... In your letter you raise a number of points regarding your health and I thought it prudent to clarify the support that has been provided to you, in addition to the medical advice we have been provided with. 

 

In response to you raising the issue regarding your seating position whilst driving in May 2014, you have been referred to the Occupational Health team on two occasions, had an ergonomic assessment and physio treatment.  Following this treatment, the company was advised that there was no further actions to be taken and the condition would be short-term.  Unfortunately it has persisted and we were recently advised that there may be a very specific fit issue between you and the vehicle, and therefore we had commenced an exploration of what could reasonably be done in light of this, taking into account the requirements of the SDR role.

 

... .”

 

Ms Fitzgerald accepted in evidence that she had received the resignation letter via Paul Kelly and contacted Paul Kelly to see if the claimant stood by his resignation and, in particular, to ensure that this was not some kneejerk reaction, as the claimant had also sent a text to Mr Kelly, at the time of his resignation, that he had had ‘the worse weekend limping about like an invalid’ and that he would not get ‘in that van again’.  However, Ms Fitzgerald fairly and properly acknowledged that, although she had informed her line manager, Ms Keith, of the resignation and the reasons for it she took no further action before waiting for instructions from Ms Keith as to what to do next.  She accepted that there may have been some conversation between Ms Keith and Mr McEneaney about the contents of the resignation letter but no record of any such conversation was kept and, in particular, no decision was taken to change the claimant’s vehicle before Ms Fitzgerald was given instruction by her line manager to send the letter dated 29 May 2015 accepting the claimant’s resignation.  Ms Fitzgerald acknowledged that the recommendation by                       Ms Pitt-Brooke had been made in March 2015 but no relevant decision to follow the recommendation, which was never disputed by the respondent, had been made before the letter of resignation, some two months later, nor was any such decision made in the intervening period between the letter of resignation and its acceptance by the respondent.  Both Ms Fitzgerald and Mr Kelly acknowledged and accepted the report of Ms Pitt-Brooke had found that, although it had been hoped, initially, the claimant’s difficulties might settle with time, this was no longer the situation in March 2015 and that resolution lay in avoidance of the Caddy vehicle by the claimant and use of a different vehicle.  However, both Mr Kelly and Ms Fitzgerald accepted that neither of them were in a position to take any such relevant decision.  The relevant decision-makers were Mr McEneaney and/or Ms Keith, who were not called to give evidence by the respondent, and there was no evidence either of them gave appropriate instructions to Mr Kelly and/or Ms Fitzgerald to enable the recommendation of Ms Pitt-Brooke to be complied with and, in particular, the claimant’s Caddy vehicle to be changed, so he would no longer be required to use it in the course of his said work with the respondent.  Given the failure to give evidence by Mr McEneaney and/or Ms Keith, the tribunal is satisfied in the circumstances, neither was in a position to give evidence to assist the respondent (see further Paragraph 3.9 of this decision).

 

2.13    Approximately two weeks after the claimant resigned, Mr Kelly went to the claimant’s house to collect the claimant’s van and other relevant company property.  There was a discussion between them; and, in the course of same, both expressed genuine disappointment that it had come to the claimant’s resignation.  Indeed, during the course of this conversation, the claimant pointed out that he had hoped, that the matter could still have been resolved; even at this late stage, and, as confirmation of that hope, he described to Mr Kelly how, in the interim period between his letter of resignation and its acceptance, he had continued to take orders from two of his customers.  His resignation, he told Mr Kelly, had been a bluff in the hope the respondent would change his vehicle after he had sent in his letter of resignation.  He acknowledged to the tribunal, in evidence, that this phrase, as used by him to Mr Kelly was somewhat unfortunate and open to misinterpretation and that it would have been better to have stated, at the time, something along the lines of ‘the company would stand up to the plate’.  Mr Kelly, in his evidence, accepted he had always understood it was said by the claimant, in the context of him trying to get the company to take action.  Mr Kelly further accepted, in evidence, that, following receipt of the text and the resignation letter from the claimant on 18 May 2015, he had immediately telephoned the claimant, as instructed by Ms Fitzgerald; and that, in the course of that conversation, he had asked the claimant ‘was there anything that could be done?’  To which the claimant had replied that, if he was provided with a different vehicle, he would come immediately back to work.  Mr Kelly again fairly acknowledged that he had said to the claimant ‘leave it with me’.  In fact, as seen above, and to his clear regret in the view of the tribunal, he was never, in the circumstances, in a position to do so.  He had properly informed both Ms Fitzgerald, but also Mr McEneaney, that to avoid this resignation all that was required was a change of vehicle for the claimant but they took no action to do so.  Indeed, Mr Kelly was not consulted before the letter of 29 May 2015 was sent to the claimant by Ms Fitzgerald accepting his resignation.

 

2.14    It was not disputed the claimant had a contract of employment, which, in the present economic climate, had generous and unusual fringe benefits.  In particular, the claimant was entitled to sick pay on full pay for a period of 12 months and was also a member of a final salary pension scheme.  The claimant recognised, in cross-examination, that these benefits would have remained open to him, if he had not resigned and gone on long-term sick absence.  As he stated in evidence, he had hoped, when Mr Kelly said ‘leave it with me’, as referred to above, following his text and resignation letter on 18 May 2015, the matter would have been resolved by the respondent, without him having to give up such benefits.  However, when no proposal to change the vehicle was made by the respondent, he felt he had no choice but to resign, even if it meant giving up such benefits, as the respondent, in his view, had had enough time to resolve the situation, in particular, from March 2015 but had failed to do so in the said period.

 

2.15    Since the date of his resignation, the claimant has not obtained any new employment.  Indeed, he suggested, in evidence, he was waiting until January 2016, to give himself ‘a new start’.  He said that, initially, he had decided not to begin to look for any such employment until he was fully fit to take on any such employment.  The claimant produced, in evidence, a medical report, dated 18 November 2015, which confirmed the diagnosis of plantar fasciitis, which can be precipitated and exacerbated by pressure on the hind foot.  It also acknowledged that the condition can be very painful.  It has to be noted that at no time did the respondent, and, in particular, Ms Pitt-Brooke or the sports physiotherapist, dispute the claimant’s said condition with his heel.  The claimant’s General Practitioner noted that, since the claimant had resigned, his pain had greatly improved but stated it was still present to a lesser degree and there was some tenderness over the right heel.  Significantly, the claimant acknowledged, in evidence, that he would have been fit enough to take up other employment from the end of July 2015.  The claimant has not required to attend his General Practitioner between the date of resignation and date of the said report, which was clearly obtained for the purposes of these proceedings.  The claimant has made no attempt since the date of his resignation, and, in particular, the end of July 2015, to obtain other employment.  Indeed, he confirmed, in evidence, he has not applied for or received any statutory benefits nor has he registered with any relevant employment agencies.  The claimant was notified that he would be required for jury service in or about December 2015 but, in the tribunal’s judgment, this would not have prevented the claimant, as he sought to suggest, either seeking or obtaining other employment in the period prior to December 2015 and, in particular, from the end of July 2015.

 

2.16    The claimant, when he was employed with the respondent, was allowed to operate an online sales business from his home selling, amongst other things, clothes pegs imported from France.  He has successfully continued to do so since his resignation, walking to the nearest post office from his home to ensure deliveries of his sales products to his online customers.  Other than the requirement for jury duty, the claimant gave no other explanation for his failure to seek to obtain other employment from end of July 2015, when he acknowledged, as set out above, that he would have been fit enough to obtain other employment. 

 

Relevant law

 

3.1       Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides:-

 

            Article 126 of the 1996 Order:-

 

“(1)      An employee has the right not to be unfairly dismissed by his employer.”

 

Article 127 of the 1996 Order:-

 

“(1)      For the purposes of this Part an employee is dismissed by his employer if ...

 

(c)        The employee terminates a 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.”

 

3.2         As stated in Harvey on Industrial Relations and Employment Law, Volume 2, Section D1, at Paragraph 403, it has long been held that:-

 

“In order for an 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 him 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 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 further Western Excavating  v  Sharp [1978] QB 761.)

 

3.3       It should also be noted, in the above context, that a constructive dismissal is not necessarily unfair and it is normal for a tribunal, in order to make a finding of unfair constructive dismissal, to find the reason for the dismissal and whether the employer has acted reasonably in all the circumstances (Stevenson & Company (Oxford) Ltd  v  Austin [1990] ICR 609). 

 

3.4       Even if an employee cannot establish a breach of an express term of a contract, it has also been recognised that a contract of employment includes an implied obligation that an employer would not, without reasonable and proper cause, act in a manner calculated to or likely to destroy or seriously damage the relationship of trust and confidence between an employer and employee.  This is often referred to as the Malik term (see Malik  v  Bank of Credit & Commerce International SA [1997] UKHL 23 and Baldwin  v  Brighton & Hove CC [2007] IRLR 232).

 

Baldwin confirmed that the original formulation of ‘calculated and likely’, as set out in some cases (including the leading case of Malik) was a slip.  The test is objective : an intention to damage the relationship is not required (see further Leeds Dental Team  v  Rose [2014] IRLR 8). 

 

3.5       However, as seen in Amnesty International  v  Ahmed [2009] ICR 1450 and Ministry of Justice  v  Sarfraz [UKEAT/0578/10] the phrases ‘without reasonable and proper cause’ and ‘destroy or seriously damage’ must be given their full weight.  As Lord Steyn stated in Malik, the term is there to protect ‘the employee’s interest in not being unfairly and improperly exploited’; the conduct must, objectively speaking, if not destroy then seriously damage trust and confidence - mere damage is not enough.

 

In Abbey National PLc  v  Fairbrother [2007] IRLR 320 the Employment Appeal Tribunal set out the following useful guidance:-

 

“(30)    ... conduct calculated to destroy or seriously damage the trust and confidence inherent in the employer/employee relationship may not amount to a breach of the implied term; it will not do so if the employer had reasonable and proper cause for the conduct in question.  Accordingly, the questions that require to be asked in a constructive dismissal case appear to us to be:-

 

1.         What was the conduct of the employer that is complained of?

 

2.         Did the employer have reasonable and proper cause for that conduct?

 

If he did have such cause then that is an end of it.  The employee cannot claim that he has been constructively dismissed.

 

3.         Was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?”

 

A failure, for example, to hold a proper appeal, in respect of a grievance may be a significant breach of the implied term of trust and confidence (see Blackburn  v  Aldi Stores [2013] IRLR 846).

 

In Frankel  v  Topping [2015] UKEAT/01606/15, Langstaff P, in the EAT, held:-

 

“The test is a demanding test.  It has been held (see, for instance, the case of BG  v  O’Brien [2001] IRLR 496 at Paragraph 27) that simply acting in an unreasonable manner is not sufficient.  The word qualifying ‘damage’ is ‘seriously’.  This is a word of significant emphasis.  The purpose of such a term was identified by Lord Steyn in Malik ... as being ‘apt to cover the greater 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.’  Those last few words are again strong words.  Too often we see in this tribunal a failure to recognise the stringency of this test.  The finding of such a breach is inevitably a finding of a breach which is repudiatory : see the analysis of the appeal tribunal in Morrow  v  Safeway Stores [2002] IRLR 9.”

 

3.6       The above authorities established it is an implied term, which is descriptive of conduct, viewed objectively, that is repudiatory in nature.  In assessing whether or not there has been a breach, what is significant is the impact of the employer’s conduct on the employee, objectively tested, rather than what, if anything, the employer intended (see further Woods  v  WM Car Services Peterborough [1981] IRLR 3) and the Malik decision.  In the more recent decision of Buckland  v  Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, the Court of Appeal emphasised that a tribunal should determine the matter by reference to the law of contract and not by reference to the fairness and/or merits of the case:-

 

“the range of reasonable responses test is not appropriate to establish whether an employer has committed a repudiatory breach of contract entitling an employee to claim constructive dismissal”;

 

and thereby confirming the test for establishing constructive dismissal remains objective (see Western Excavating  v  Sharp [1978] ICR 221).  In the case of Tullett Prebon PLc  v  BGC Brokers LP [2011] IRLR 420, it was confirmed that the test for determining whether there was a repudiatory breach of the implied term of trust and confidence had to be determined objectively, ie from the perspective of the reasonable person in the position of the innocent party. 

 

In the decision of the Court of Appeal in the case of Nottingham County Council  v  Meikle [2005] ICR 1.

 

Keane LJ held:-

 

“It has long been held by the EAT in Jones  v  Sirl & Son (Furnishers) Ltd [1997] IRLR 493 that in constructive dismissal cases the repudiatory breach of the employer need not be the sole cause of the employee’s resignation.  The EAT there pointed out that there may well be concurrent causes operating on the mind of an employee whose employer has committed fundamental breaches of control and that the employee may leave because of both those breaches and another factor such as the availability of another job.  It suggested the test to be applied was whether the breach or breaches were the ‘effective cause’ of the resignation.  I see the attractions of that approach but there are dangers in getting drawn too far into questions about the employee’s motives.  It must be remembered that we are dealing here with a contractual relationship and constructive dismissal is a form of termination of contract by a repudiation by one party which is accepted by the other; see the Western Excavating case.  The proper approach therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract as at an end.  It must be in response to the repudiation but the fact that the employee also objected to other actions or inactions of the employer not amounting to a breach of contract would not vitiate the acceptance of the repudiation …  Once it is clear the employer was in fundamental breach ... the only question is whether [the employee] resigned in response to the conduct which constituted that breach.”

 

This dicta was followed by Elias J, as he then was, in the case of Abbeycars (West Horndon) Ltd  v  Ford [UKEAT/0472/07], when he stated:-

 

“On that analysis it appears that the crucial question is whether the repudiatory breach played a part in the dismissal … ”

 

                        and

 

“It follows that once a repudiatory breach is established if the employee leaves and even if he may have done so for a whole list of reasons, he can claim that he has been constructively dismissed if the repudiatory breach is one of the factors relied upon.”

 

and also was followed in the case of Logan  v  Celyn Home Ltd [UKEAT/0069/12] where HHJ Shanks stated:-

 

“ … It should have asked itself whether the breach of contract involved in failing to pay the sick pay [the relevant breach] was a reason for the resignation not whether it was the principal reason.”

 

This approach was again recently confirmed and followed by Langstaff P in the case of Wright  v  North Ayrshire Council [EATS/0017/13] where he emphasised that it is an error of law for a tribunal, where there is more than one cause, to look for the effective cause in the sense of the predominant, principal, major or main cause and in doing so he raised concerns how the relevant law is expressed in Paragraph 521 of Harvey on Industrial Relations and Employment Law, Volume 1, Section D1. 

 

In the ‘summary head note’, Langstaff P stated:-

 

“In order to determine a claim for constructive dismissal, a tribunal had applied to a test, referred to in Harvey, whether the contractual breach by the employer was ‘the effective’ cause ‘of an employee’s resignation’.  It was now time to scotch any idea that this approach is correct if it implies ranking reasons which have all played a part in the resignation in a hierarchy so as to exclude all but the principal, main, predominant, cause from consideration.  The definite article ‘the’ is capable of being misleading.  The search is not for one cause which predominates over others, or which on its own would be sufficient but to ask (as Elias J put it in Abbey Cars  v  Ford) whether the repudiatory breach ‘played a part in the dismissal’.  This is required on first principles and by Court of Appeal authority (Meikle).  The tribunal here appeared to seek for ‘the’ cause rather than ‘a’ cause ... .”

 

In Adams  v  Charles Zub Associates Ltd [1978] IRLR 551 it was held a failure to pay an employee’s salary on the due date may amount to conduct which constitutes a breach going to the root of the contract or which shows the employer has no intention thereafter to honour the contract and thus, on the facts of a particular case, may justify the employee in resigning.

 

3.7       As has long been recognised (see further Paragraphs 480 - 481.01 in Harvey on Industrial Relations and Employment Law, Section D1), many constructive dismissal cases which arise from the undermining of trust and confidence, can involve the employee contending that he left in response to a course of conduct carried on over a period of time, but the particular instance which caused the employee to leave may in itself be insufficient to justify his taking that action; but nevertheless, when viewed against a background of such incidents, it may be considered sufficient by the courts to warrant treating the resignation as a constructive dismissal (‘the last straw’ doctrine).  As was made clear in the case of London Borough of Waltham Forest  v  Omilaju [2005] IRLR 35, in order to result in a breach of the implied term of trust and confidence, a ‘final straw’ which is not itself a breach of contract, must be an act in a series of earlier acts which taken together amount to a breach of the implied term.  The Court of Appeal held in particular:-

 

“The act does not have to be of the same character as the earlier acts.  Its essential quality is that, when taken in conjunction with the earlier acts upon which the employee relies, it amounts to a breach of the terms of trust and confidence.  It must contribute something to that breach, although what it adds may be relatively insignificant so long as it is not utterly trivial.  Thus, if an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence but the employee does not resign and affirms the contract, he cannot rely on those acts to justify a constructive dismissal if the ‘final straw’ is entirely innocuous and not capable of contributing to that series of earlier acts.  The ‘final straw’, viewed in isolation, need not be unreasonable or blameworthy conduct.  …  Moreover an entirely innocuous act on the part of the employer cannot be a ‘final straw’, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in the employer.  The test of whether the employee’s trust and confidence has been undermined is objective.”

 

(See further Pan  v  Portigon AG London Branch [2013] UKEAT/0116 where the tribunal followed the guidance of Omilaju and found a return to work letter sent by the respondent to the claimant as ‘innocuous’, insofar as it was relied upon by the claimant, as the last straw entitling him to regard himself as discharged from further performance.)

 

3.8       In the Western Excavating case, Lord Denning referred to the necessity for an employee to ‘make up his mind’ soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged’.  Issues have arisen in this context in relation to whether an employee can be such to have ‘waived the breach’ or affirmed the contract and therefore lost the ability to claim constructive dismissal.  Indeed, in many cases/textbooks, the terms are often used interchangeably.  Indeed, in many claims, even where there is a breach, the employee may choose to give an employer an opportunity to remedy it (see further W E Cox Toner (International) Ltd  v  Crook [1981] IRLR 443, which was recently referred to with approval in the case of Colomar Mari  v  Reuters Ltd [2015] UKEAT/0539/13.

 

            In (Colomar) Mari, HH Judge Richardson also referred with approval to the more recent decision of the Employment Appeal Tribunal in Hadji  v  St Luke’s Plymouth [2013] UKEAT/0095/02 - where it stated:-

 

                        “The essential principles are that:-

 

(i)         the employee must make up his/her mind whether or not resign soon after the conduct of which he complains.  If he does not do so he may be regarded as having elected to affirm the contract or as having lost his right to treat himself as dismissed.  (Western Excavating  v  Sharp ... as modified by W E Cox Toner ... and Cantor Fitzgerald International  v  Bird [2002];

 

(ii)        mere delay of itself, unaccompanied by express or implied affirmation of the contract, is not enough to constitute affirmation; but it is open to the Employment Tribunal to infer implied affirmation from long delay - see Cox Turner;

 

(iii)       if the employee calls on the employer to perform its obligations under the contract or otherwise indicates an intention to continue the contract, the EAT may conclude there has been an affirmation - see Fereday  v  South Staffordshire NHS Primary Care Trust [2011] UKEAT/0513;

 

(iv)       there is no fixed time-limit in which the employee must make up his mind; the issue of affirmation is one which subject to these principles the Employment Tribunal must decide on the facts; affirmation cases are fact sensitive - see Fereday.”

 

As seen in the recent decision in the case of Adjei-Frempong  v  Howard Frank Ltd [2015] UKEAT/0044/15, after again referring with approval to Cox Toner, the Employment Appeal Tribunal made it clear, in determining this issue, ‘context is everything’.  Further, the EAT referred with approval to the guidance of Langstaff P in the case of Chindove  v  William Morrisons Supermarket PLc [2013] UKEAT/0201/13 when he stated, inter alia:-

 

“25.     ... the matter is not one of time in isolation. The principle is whether the employee has demonstrated that he has made the choice. He will do so by conduct; generally by continuing to work in the job from which he need not, if he accepted the employer's repudiation as discharging him from his obligations, have had to do.

26.       He may affirm a continuation of the contract in other ways: by what he says, by what he does, by communications which show that he intends the contract to continue. But the issue is essentially one of conduct and not of time.  ...  But there is no automatic time; all depends upon the context. Part of that context is the employee's position. As Jacob LJ observed in the case of Buckland  v  Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, deciding to resign is for many, if not most, employees a serious matter. It will require them to give up a job which may provide them with their income, their families with support, and be a source of status to him in his community. His mortgage, his regular expenses, may depend upon it and his economic opportunities for work elsewhere may be slim. There may, on the other hand, be employees who are far less constrained, people who can quite easily obtain employment elsewhere, to whom those considerations do not apply with the same force. It would be entirely unsurprising if the first took much longer to decide on such a dramatic life change as leaving employment which had been occupied for some eight or nine or ten years than it would be in the latter case, particularly if the employment were of much shorter duration. In other words, it all depends upon the context and not upon any strict time test. ...  ”

 

The cases of (Colmar) Mari, Fereday, Hadji and Chindove, on their own particular facts, did raise issues whether , if a period of delay arises where an employee is off sick and in receipt of sick pay, can this be a relevant fact in relation to the issue of affirmation.  As seen in Harvey on Industrial Relations and Employment Law, Volume 1 Section D (534 - 538):-

 

“ ... there may still be cases where there is no affirmation in spite of receipt of sick pay but that will be as a matter of fact (as in Chindove) with no particular rule of thumb as to the length of an acceptable period.  On the other hand, a finding of affirmation must be seen as a distinct danger for the employee in this difficult position, with the illness absence being in itself no reliable excuse for an ever-lengthening delay, especially where there are other acts or omissions of the employer relevant to the question, in addition to continuing receipt of sick pay.”

 

3.9       As set out in the findings of fact referred to in Paragraph 2 of this decision, neither Mr McEneaney nor Ms Keith, the relevant and ultimate decision-makers, were called to give evidence. 

 

            The relevance of such a failure, if any, required to be considered further by the tribunal.

 

            In Lynch  v  Ministry of Defence [1983] NI 216, Hutton J, as he then was, endorsed the principles which had been stated in O’Donnell  v  Reichard [1975] UR 916 at Page 929:-

 

“Where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury might not treat as evidence what they may as a matter of speculation think that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that person’s case; if the jury draw that inference, then they may properly take it into account against the party in question for the purposes, namely  (a)  in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which a person not called as a witness could have spoken; and (b)  in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.”

 

In Wiszniewski   v  Central Manchester Health Authority [1998] PIQR 324, Brooke LJ helpfully set out the following principles from this line of authority in Reichard:-

 

“(1)      In certain circumstances a Court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have mutual evidence to give on an issue or an action.

 

(2)       If a Court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

 

(3)       There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference : in other words there must be a case to answer on that issue.

 

(4)       If the reason for the witness’ absence or silence satisfies the Court, then no such adverse inference may be drawn.  If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potential detrimental effect of his/her absence or silence may be reduced or nullified.”

 

This line of authority was approved more recently by the Northern Ireland Court of Appeal in Breslin  v  McKevitt and Others [2011] NICA 33 and referred to, without further comment, in the case of Curley  v  Police Service of Northern Ireland and Another [2009] NICA 8.

 

In a recent decision of the Employment Appeal Tribunal, in the case of Habinteg Housing Association Ltd  v  Holleron Ltd [2015] UKEAT/0274/14, Langstaff P held at Paragraph 29 of his judgement; (albeit in a case on very different facts to the present proceedings) gave some guidance on the absence of a witness to give evidence:-

 

“ ... First, it shows to me that a tribunal is entitled to take into account the absence of a witness who could give contradictory evidence in assessing whether the assertion made by a party is accurate.  This is because it is a sound principle that a party’s case is to be determined not just by the evidence produced but by the evidence which it is within the power of either party to support or refute the allegation.  In simple terms, if a conversation is critical, then if a party has within its power to call a person who could give evidence of that conversation which is supportive of its case and does not do so, a tribunal is entitled to draw an inference ... .”

 

3.10    In the case of Morrison  v  Amalgamated Transport & General Workers Union [1989] IRLR 361, the Northern Ireland Court of Appeal held in relation to the issue of contributory fault:-

 

“(i)       the tribunal must take a broad common sense view of the situation;

 

(ii)       that broad approach should not necessary be confined to a particular moment, not even the moment when the employment is terminated;

 

(iii)      what has to be looked for in such a broad approach over a period is conduct on the part of the employee which is culpable or blameworthy or otherwise unreasonable; and

 

(iv)      the employee’s culpability or unreasonable conduct must have contributed to or played a part in the dismissal.”

 

In Allders International Ltd  v  Parkins [1982] IRLR 68, it was emphasised that it is the employee’s conduct alone, which is relevant to the issue of whether the loss resulting from the dismissal should be reduced on grounds of contributory fault.

 

3.11    A finding of contributory fault can be made in a case of constructive unfair dismissal (Garner  v  Grange Furnishing Ltd [1977] IRLR 206).  In the case of                        Polentarutti  v  Autokraft Ltd [1991] IRLR 457, however, it was made clear there is no legal requirement that exceptional circumstances must be shown before a finding of contributory fault can be made in a constructive dismissal case.  (See also Morrison  v  ATGWU).

 

In Frith Accountants Ltd  v Law [2014] IRLR 510, it was held, although there was no test of exceptionality, it will be unusual for a constructive dismissal to be caused or contributed to by any conduct on behalf of an employee.  This is because where the conduct is a repudiatory breach of the implied term of trust and confidence, by definition, there will be no reasonable or proper cause for the employer’s behaviour.

 

3.12    In relation to the issue of mitigation of loss, there is no dispute that the principle that a claimant is under a duty to take reasonable steps to mitigate his loss is              well-established under common law and that the principles of mitigation of loss apply equally to awards of compensation by a tribunal in relation to awards of compensation for unfair dismissal (see Fyfe  v  Scientific Furnishings Ltd [1989] IRLR 331) and that therefore the employee must take reasonable steps to obtain alternative employment.  In the case of Wilding  v  British Telecommunications PLc [2002] IRLR 524, the Court of Appeal ruled that the following general principles apply in determining whether a dismissed employee, who is refused an offer of employment, has breached the duty to mitigate:-

 

“(a)      The duty of the employee is to act as a reasonable person unaffected by the prospect of compensation from her employer.

 

 (b)      The onus is on the former employer as wrongdoer to show that the employee has failed to mitigate by unreasonably refusing the job offer.

 

 (c)       The test of reasonableness is an objective one based on the totality of the evidence.

 

 (d)      In applying that test, the circumstances in which the offer is made and refused, the attitude of the former employer, the way in which the employer had been treated, in all the surrounding circumstances, including the employee’s state of mind, should be taken into account.

 

 (e)      The tribunal must not be too stringent in expectations of the injured party (that is, the employee).

 

The guidance in set out in the Wilding case has been applied in a number of recent decisions by the Employment Appeal Tribunal; but each relate to their own particular facts (see further Harris  v  Tennis Together Ltd [2009] UKEAT/0358/08, Hibiscus Housing Association Ltd  v  Mackintosh [2009] UKEAT/0534/08, and Beijing Ton Ren Tang (UK) Ltd  v  Wang [2009] UKEAT/0024/09.”

 

Sedley LJ, when emphasising the principle that the employer must prove the employee acted unreasonably in failing to mitigate, drew attention to the difference between a test of acting reasonably on the one hand and not acting unreasonably on the other:-

 

“55      It is not enough for the wrongdoer to show that it would have been reasonable to take the steps he had proposed : he must show it was unreasonable of the innocent party not to take them.  This is a real distinction.  It reflects the fact if there is more than one reasonable response open to the wronged party, the wrongdoer has not right to determine his choice.  It is where, and only where, the wrongdoer can show affirmatively that the other party has acted unreasonably in relation to his duty to mitigate that the defence will succeed.”

 

The state of the labour market can be relevant in deciding whether an employee has made reasonable efforts to find a new job (see Korn Employment Tribunals Remedies, Paragraphs 13 - 28).  It was held HG Bracey  v  Kes [1973] IRLR 210 that the duty of mitigation does not require the dismissed employee to take the first job that comes along, irrespective of pay and job prospects. 

 

In the recent decision of Look Ahead Housing and Care Ltd  v  Chetty (2014) UKEAT/0037 Langstaff emphasised, in relation to the burden of proof by the employer:-

 

“But without there being evidence (whether by direct testimony or by inadequate answers given by a claimant in cross-examination) adduced by the employer on which a tribunal can be satisfied, on the balance of probabilities, that the claimant has acted unreasonably in failing to mitigate, a claim of failure to mitigate will simply not succeed”. [tribunal’s emphasis]

 

In a recent decision, Langstaff P in the case of Cooper Contracting Ltd  v  Lindsey [2015] UKEAT/0184/15, has reviewed the above and other authorities, with approval, and set out the following guidance in relation to this issue of mitigation of loss:-

 

                        “16      ...

 

(1)       The burden of proof is on the wrongdoer; a claimant does not have to prove that he has mitigated loss.

 

(2)       It is not some broad assessment on which the burden of proof is neutral.  ...  If evidence as to mitigation is not put before the Employment Tribunal by the wrongdoer, it has no obligation to find it.  That is the way in which the burden of proof generally works : providing the information is the task of the employer.

 

(3)       What has to be proved is that the claimant acted unreasonably; he does not have to show that what he did was reasonable (see Waterlow, Wilding and Mutton).

 

(4)       There is a difference between acting reasonably and not acting unreasonably (see Wilding).

 

(5)       What is reasonable or unreasonable is a matter of fact.

 

(6)       It is to be determined, taking into account the views and wishes of the claimant as one of the circumstances, though it is the tribunal's assessment of reasonableness and not the claimant's that counts.

 

(7)       The tribunal is not to apply too demanding a standard to the victim; after all, he is the victim of a wrong.  He is not to be put on trial as if the losses were his fault when the central cause is the act of the wrongdoer (see Waterlow, Fyfe and Potter LJ's observations in Wilding).

 

(8)       The test may be summarised by saying that it is for the wrongdoer to show that the Claimant acted unreasonably in failing to mitigate.

 

(9)       In a case in which it may be perfectly reasonable for a claimant to have taken on a better paid job that fact does not necessarily satisfy the test.  It will be important evidence that may assist the tribunal to conclude that the employee has acted unreasonably, but it is not in itself sufficient.

 

... .”

 

4.1       In this matter the claimant, in his schedule of loss has made a claim for pension loss, as part of his compensatory award.  It will be necessary to consider this claim in greater detail later in this decision. 

 

            The method of calculation of that loss, which method the respondent’s representative agreed, subject to liability, was calculated by the claimant, pursuant to the Employment Tribunals’ Guidelines on Compensation for Loss of Pension Rights [3^rd Edition 2003].  In a recent decision - David Millar  v  Department of Justice [2015] NIIT 1680 at Paragraphs 4.5 - 4.7 the relevant authorities in relation to the method of calculation to be adopted by a tribunal in respect of pension loss was considered and, in particular, whether in any particular case the above Guidelines or the Ogden Tables Methodology should be used.  In view of the agreement between the parties and their representatives that, in these proceedings, the appropriate method of calculation was to be done pursuant to the said Guidelines, it was not necessary for this tribunal to further consider the authorities referred to in Millar, as referred to above.  In any event, for the tribunal to have applied the Ogden Tables Methodology in this matter would have required further detailed relevant evidence from the parties (see further Millar).

 

4.2       In determining the amount of financial loss and the period for which it can be awarded, as part of any compensatory award, a tribunal has to compensate and compensate fully but not to award a bonus.  (Norton Tool Co Ltd  v  Tewson [1973] 1 AER 183.)  Compensation for any such loss will only be awarded where the tribunal consider it ‘just and equitable’ (Article 157 of the 1996 Order).  If a claimant is unemployed at the date of the hearing, it can often be difficult for a tribunal to determine, for example, how long the claimant may remain unemployed and how long it will be before the earnings from the new job will match those of the old.  The difficulties of obtaining a new job in the present adverse economic conditions, and, in particular, having regard to the nature of the type of work for which a claimant may be suited and/or his or her age can be relevant in many cases.  However, much may depend on the evidence before the tribunal of such difficulties and it may be limited to broad assertions and asking the tribunal to take ‘judicial notice’ of such matters.  Frequently, precise figures/periods may be impossible for a tribunal to state with any certainty.  However, subject to the foregoing, an award is required to be made if it appears from the limited evidence before the tribunal there is a loss, even if its quantification is imprecise.

 

            In Griffin  v  Plymouth Hospital NHS Trust [2014] EWCA Civ 1240, Underhill LJ stated:-

 

“At the risk of spelling out the obvious, that is not a finding that it was more probable than not that the claimant would find a job precisely after one year.  Rather, it is an estimate, made on the assumption that the claimant continued to make reasonable efforts to mitigate her loss of the midpoint of the probabilities.  In Wardle  v  Credit Agricole Corporate and Investment Bank [2011] IRLR 604, Elias LJ said -

 

‘ ... In the normal case, if a tribunal assess that the employee is likely to get an equivalent job by a specific date, that would encompass the possibility that he might be lucky and secure the job earlier, in which case he would receive more than his actual loss, or he might be unlucky and find the job later than predicted, in which case he will receive less than his actual loss.  The tribunal’s best estimate ought in principle to provide the appropriate compensation.  The various outcomes are factored into the conclusion.  In practice, the speculative nature of the exercise means that the tribunal’s prediction will rarely be accurate.  But it is the best solution where the law seeking finality at the point where the Court awards compensation, can provide.

 

It is however convenient to refer to it as the tribunal did, as the date on which it was likely that she would obtain employment.”

 

            (See further Cooper Contracting Ltd)

 

Therefore, depending on the evidence before the tribunal, it may be necessary for the tribunal to engage in a speculative exercise but also, where necessary, to apply a ‘broad brush assessment’ in order to ensure any award is ‘just and equitable’.

 

4.3       In his schedule of loss, the claimant has made a claim for loss of statutory rights, as part of his claim for a compensatory award.  He has made a claim for the now ‘conventional award’ for this temporary loss arising from the right to claim for unfair dismissal, owing to the need to re-qualify for this right in future employment.  In Cooper Contracting Ltd Langstaff P said, obiter:-

 

“It may be that sometimes too easily a Judge adopts a conventional figure without considering whether the loss is a real loss that needs to be compensated for a claimant.”

 

He has also made a claim for loss of entitlement to statutory notice.  In Daley  v  AE Dorsett (Almar Dolls) Ltd [1981] IRLR 385, it was held that a claim for loss of a service-related notice entitlement was a head of damage that could be reflected in a compensatory award.  It was held not to be a claim in respect of loss of earnings over a period; but rather it was a claim for compensation for the loss of an intangible benefit, namely that of being entitled, in the course of employment, to a longer notice than might otherwise be the case.  In Arthur Guinness & Company (GB) Ltd  v  Green [1989] IRLR 288, it was held that where it was appropriate to compensate an employee for loss of entitlement to long-notice the practice is to award a sum calculated by multiplying net pay by a fraction of the statutory maximum period of notice of 12 weeks but the convention was never to award a sum based on a multiplier of more than six weeks.  As held in S H Muffett Ltd  v  Head [1986] IRLR 488, relevant matters for a tribunal to consider will be whether the claimant will get a new job and, if so, will he be dismissed from that new job before building up the notice entitlement he had in his previous job.  The remoteness or otherwise of these contingencies, given the local employment conditions, will be relevant in any such consideration.  The claimant, in the present proceedings, on the termination of his employment would have been entitled to five weeks’ notice, pursuant to Article 118 of the 1996 Order.  The tribunal was satisfied that the claimant was entitled to such loss of statutory rights and notice; since, upon resumption of employment, he will have to begin to build up his rights to such statutory rights and notice.

 

5.1       In light of the facts, as found by the tribunal and after applying the legislative provisions and the guidelines set out in the legal authorities referred to in the previous paragraphs of this decision, the tribunal reached the following conclusions, as set out in the following sub-paragraphs:-

 

5.2       The tribunal accepts that, initially, when the claimant had physical difficulties with  his use of the Caddy vehicle (as described in Paragraphs 2.3 - 2.7 of this decision) that no issue of breach of the implied term of trust and confidence arose.  Indeed, it was apparent the claimant was prepared to continue, despite the difficulties, working for the respondent, using the Caddy vehicle, confident that the respondent would take, in a reasonable period, relevant and appropriate steps to remedy the situation.  Indeed, as described in the said paragraphs of the decision, the respondent was fully aware of the claimant’s said difficulties, which he had notified to his line manager, Mr Kelly, who, in turn, had informed his senior management.  Indeed, initially, the reports from the physio-ergonomist based in Great Britain, Ms Judith Pitt-Brooke, who was instructed by the respondent, suggested this was  ‘a short term’ issue, which would resolve.  However that situation changed on 3 March 2015, when, as set out in Paragraph 2.7 of the decision, Ms Pitt-Brooke reported to the respondent’ inter alia:-

 

“It seems unlikely this can improve whilst driving the same vehicle and there seems little doubt that the resolution of the problem lies in avoidance of this vehicle ... I think that use of a different vehicle is likely to help to resolve the issue and it is unlikely anything else will ... .”

 

            The advice, which was not challenged by the respondent, could not have been clearer; but yet no change of vehicle was arranged for the claimant by the respondent; although the necessity for same, following the report, was known by the claimant’s line manager but also his senior manager in Dublin, Mr McEneaney and the senior managers in the respondent’s HR Department. 

 

            In good faith, Mr Kelly kept assuring the claimant, following Ms Pitt-Brooke’s report, that relevant enquiries were being made on his behalf and his situation would shortly be resolved; but unfortunately this did not prove to be the case due to the failure to act by both the HR Department and/or Mr McEneaney.  It was not disputed by either Mr Kelly or Ms Fitzgerald, of the HR Department, in evidence to the tribunal that it would not have been a costly and difficult exercise for the respondent to terminate early the leasing contract for the claimant’s vehicle or indeed to replace it with the lease of another vehicle and/or to arrange ‘a one-off change’ of vehicle for the claimant.  Despite all this, no firm or immediate proposal for a change of vehicle was made to the claimant between 3 March 2015 and May 2015.  Indeed, at a meeting in May 2015 Mr Kelly told the claimant the previously suggested for changes to the type of vehicle used by SDRs in Northern Ireland, which changes had been previously thought might have provided a solution, would not take place until 2017.  In the absence of any such proposal, and given the information provided by Mr Kelly, the claimant sent his letter of resignation on 18 May 2015.  In the circumstances, the tribunal is satisfied that the failure to provide the claimant with an alternative vehicle was a serious breach of his contract, going to the root of the contract and was a reason for/played a part in his decision to resign; and, in the circumstances, he was justified in doing so.  (See Paragraph 3.6 of this decision.)  By the refusal of the respondent to act on the report of  Ms Pitt-Brooke and provide the claimant with an alternative vehicle within the period 3 March 2015 - 18 May 2015, knowing the increasing physical difficulty for the claimant in using the Caddy vehicle, the tribunal was satisfied this was likely to destroy or seriously damage the implied term of trust and confidence between the claimant and the respondent (the Meikle term), which had therefore been breached, in the circumstances, by the respondent.  There was no reasonable and proper cause for the respondent’s said failure.  As set out above, the solution, namely to change the vehicle, could have been easily arranged by the respondent; but it failed to take the necessary action in the said period between March and May 2015.  Further, the claimant gave the respondent ample opportunity to take the necessary action.  Indeed, to have failed to act, when he did, might have raised issues, given the history of the matter, he had waived the breach and/or affirmed the contract.  During cross-examination, by the respondent’s representative it was suggested to the claimant, instead of resigning, he could have gone on sick leave for the full 12 month period of his entitlement under his contract of employment.  The claimant, in response, made it clear he never wished to do so; albeit he was fully aware he was entitled to such a period of leave.  At all times, he merely wished to be able to continue to work, as he had continued to do despite his physical difficulties, in a suitable alternative vehicle.  (As seen in Paragraph 3.8 of this decision, to have taken on such a period of sick leave in such circumstances, as suggested by the respondent’s representative, might have given rise to issues of waiver and/or affirmation.)  The tribunal has no doubt the claimant, when he resigned, did so as a ‘last resort’, in the absence of any firm proposal by the respondent; as he fully realised that he would be giving up a job he enjoyed and was very successful at, and a job for which he had a good salary and which entitled him to a final salary pension scheme, which are increasingly difficult to find in present day employment.

 

5.3       The sales logistics post, when he successfully applied for in April 2015, might have provided a solution for the respondent.  However, the claimant was entitled to turn down the role, due to his belief in the increased responsibility and pressure involved with the new role, despite the small salary increase.  The respondent never offered him the car, which he could have used for private use, as part of this new role, although Mr Kelly was aware this would have in fact persuaded him to take up the offer.  When the claimant turned down the offer of this post, as set out above, and remained in his original post, the only solution for the respondent therefore remained the change of vehicle from the Caddy.  This was all known in April 2015, which would still have given ample time and opportunity for the respondent to act before he resigned on 18 May 2015.  A further opportunity arose for the respondent to act between 18 May 2015 and 29 May 2015, when the letter of resignation was accepted by the respondent.  The letter of resignation, as the claimant accepted, was an attempt by him to get some urgent action by the respondent to replace to Caddy vehicle.  In the hope the respondent would do so, he had continued to service two of his major customers in the period immediately following his resignation.  Mr Kelly was fully aware this was his hope and that all that was required for him to go back to work was for the respondent to change the vehicle.  Mr Kelly properly told HR Department and Mr McEneaney that this would allow the claimant to return to work.  Despite this, no action was taken to resolved the matter before the resignation was accepted by the respondent on 29 May 2015.

 

            This could not have been a clearer illustration that, despite the assurances of action since March 2015, in fact the respondent had no intention of taking the appropriate and necessary action to resolve the situation and thereby restore the claimant’s trust and confidence in the respondent.

 

5.4       In such circumstances, the tribunal was satisfied not only was the claimant constructively dismissed but also the said dismissal was unfair.  The respondent, despite the considerable time and opportunity to resolve the situation and change the vehicle, failed to do so and therefore failed to act reasonably in the circumstances (see Stevenson & Company (Oxford) Ltd).  Further, given the actions of the claimant, at the relevant times to inform his line manager of his difficulties in using the Caddy vehicle, his declared willingness to continue working for the respondent upon such a change of vehicle, the tribunal could not see on the facts, as found by the tribunal, any circumstances in which it could be found the claimant had contributed to his said dismissal (see further Paragraph 3.10 - 11 of this decision). 

 

6.1       As found by the tribunal, the claimant, following the termination of his employment, failed to obtain any new employment.  The tribunal was prepared to accept, in particular, on the basis of his own admission in evidence to the tribunal, that he would have been fit enough to take up other employment from the end of July 2015.  However, the claimant made no attempt since the date of his resignation, and, in particular, in the circumstances outlined above, since the end of July 2015, to obtain other employment.  His requirement for jury service in December 2015, was not, as found by the tribunal, to be a proper explanation for such failure.

 

            In the circumstances, and in the absence of a proper explanation for his failure following the end of July 2015, the tribunal was prepared to accept, due to his physical difficulties until the end of July 2015, the claimant was entitled to an award of compensation for loss of earnings up to end of July 2015; but the tribunal had considerable concerns for the period following the end of July 2015.  The respondent’s representative challenged, in cross-examination, the claimant’s failure to seek other employment during this period as a failure by the claimant to mitigate his loss.  In essence, in broad terms, he submitted the claimant had acted unreasonably in failing to mitigate his loss when he took no action to seek other employment from the end of July 2015.  There was no relevant evidence brought by the respondent as to what opportunities there were for the claimant to obtain new employment in the relevant period.  In this context, it has to be remembered that the burden of proof in such matters is upon the respondent.  It also had to be noted, in the judgment of the tribunal, that the claimant’s contract of employment, with its generous salary and other fringe benefits including the final salary pensions scheme, might not be easily matched by a ‘new employer’, in the immediate future.  Of course, given the claimant had made no attempt during this period to find any other employment, he had no firm evidence of such matters and, in particular, what job opportunities were available.  Other than the respondent’s representative’s general assertions, which were not challenged in any meaningful way, by the claimant, that there were many sales posts advertised in job centres/newspapers during this period, together with other non-sales jobs for which the claimant might be suitable, the tribunal had no other relevant evidence, when considering this issue of the appropriate compensation, if any, to be awarded to the claimant, following the end of July 2015.

 

6.2       In the circumstances, the tribunal was satisfied, because of the absolute failure of the claimant to look for other employment from end of July 2015, without any proper explanation, he had acted unreasonably and this was a serious failure by him to mitigate his loss.  However, the tribunal, as seen in Cooper Contracting Ltd, had to take account of the fact that the claimant’s loss was caused by the respondent.  Also, under Article 157 of the 1996 Order, any compensatory award is required to be “as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal insofar as that loss is attributable to the respondent”.

 

            Doing the best it could, in the absence of other relevant evidence, other than the said general assertions, the tribunal concluded, not without some hesitation, the claimant might have taken some time to obtain other employment and any employment, when obtained, might have been at a reduced salary etc in comparison to his employment with the respondent.  However, given the claimant was a successful and experienced salesman, the tribunal had little doubt the claimant, with appropriate effort, would have been able to obtain other employment at some date between the end of July 2015 and the date of the tribunal hearing, albeit probably at a reduced rate for a period.

 

            Taking all these uncertainties into account but also his serious failure to mitigate his loss, the tribunal concluded it would not be just and equitable to make no compensatory award for any financial loss from July 2015; but it would be just and equitable to make, in the circumstances, a compensatory award up to the date of the tribunal hearing but no further.  The claimant, in the tribunal’s judgment, could not expect, in the circumstances, to do nothing in relation to obtaining new employment from end of July 2015 until January 2016 and to be financially compensated for a 12 month period of future financial loss, as claimed by him in his schedule of loss.  To do so would be to make an award which was not ‘just and equitable’ in the circumstances and which failed to properly reflect the claimant’s serious failure to mitigate his loss.

 

6.3       In relation to the claimant’s final salary pension scheme loss, given the agreement of the representatives that the correct method of calculation was to be pursuant to the Employment Tribunal’s Guidelines on Compensation for Loss of Pension Rights, it was necessary for the tribunal to make the relevant calculations pursuant to those guidelines; but also taking into account the claimant’s failure to mitigate his loss, as set out above.  In particular, the tribunal was satisfied the claimant was entitled to:-

 

(i)         loss of pension from EDT to the tribunal hearing, as per Appendix 7 Table 7.1 of the said guidelines; and

 

(ii)        loss of enhanced pension rights accrued prior to dismissal as per Appendix 4 Table 4.1 minus appropriate withdrawal percentage.

 

            As stated previously, the representatives agreed, subject to liability, the calculations for such loss (see further Chapter 5 of the guidelines).  However, given the tribunal’s conclusion that the claimant should not obtain any award for compensation before the tribunal hearing (see Paragraph 6.2 above), the tribunal decided to make no award for any pension loss after the tribunal hearing.

 

7.1       In light of the foregoing, the tribunal assessed the compensation to be paid by the respondent to the claimant, as follows:-

 

                        A         Basic Award

 

                                    £490.00 x 7.5

                                    (Subject to statutory maximum)                                         £ 3,675.00

 

                        B         Compensatory Award

 

                                    (1)       Loss of salary

                                                from 31 May 2015 (paid by respondent

to that date) to date of tribunal hearing

 

                                                25.5 x £380.19                                                          £ 9,694.84

 

                                    (2)       Loss of statutory rights                                            £    400.00

 

                                    (3)       Loss of long notice period

                                               

                                                2 x £380.19                                                               £    760.38

 

                                    (4)(i)    Loss of pension from EDT

                                                to tribunal hearing as per

                                                Appendix 7 Table 7.1 of

                                                Employment Tribunal Pension Loss

                                                Guidelines                                                                £    714.42

 

                                    (4)(ii)   Loss of enhanced pension rights

                                                accrued prior to dismissal as per

                                                Appendix 4 Table 4.1 minus

                                                appropriate withdrawal percentage                      £ 4,894.83

 

                                    Total (1), (2), (3) and (4)                                                     £16,464.47

 

                                    Total Monetary Award (A + B)                                         £20,139.47

 

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

 

7.3       The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996, as amended, do NOT apply to this decision as the tribunal is satisfied, on the evidence of the claimant, he did not receive and/or claim any relevant statutory benefits.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing:          24 - 26 November 2015, at Belfast

 

 

Date decision recorded in register and issued to parties: