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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Beattie v Sword Security (NI) Limited [2016] NIIT 02448_15IT (08 April 2016)
URL: http://www.bailii.org/nie/cases/NIIT/2016/02448_15IT02535_15IT.html
Cite as: [2016] NIIT 2448_15IT, [2016] NIIT 02448_15IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 2448/15
2535/15
CLAIMANT: Stephen Beattie
RESPONDENT: Sword Security (NI) Limited
DECISION
The claimant was not unfairly dismissed by the respondent.
The claimant’s claim of constructive unfair dismissal is dismissed for the reasons given at paragraphs 22-26 below.
Constitution of Tribunal:
Employment Judge: Employment Judge McCaffrey
Members: Mr B Hanna
Mr R McKnight
Appearances:
The claimant was represented by Mr T Caher of Campbell Caher Law Firm.
The respondent was represented by Mr T Sheridan of Peninsula Business Services Limited.
THE ISSUES
1. The claimant’s claim was a claim of constructive dismissal. He said he had resigned in response to the respondent telling him that his hours would have to be cut as a result of them losing a day time security contract at the site where the claimant worked as a security officer. The respondent denied this, stating that they had always assured the claimant that they would be able to find hours for him and denying that there had been any fundamental breach of contract.
2. The claimant had initially also lodged a claim in relation to unpaid wages, namely holiday pay, which was withdrawn during the hearing.
THE FACTS
3. We heard evidence from the claimant and from Mr George Steenson on his behalf. We also heard evidence for the respondent from Gavin Boyd, Operations Manager and from Emma Green, HR Administrator. There was a conflict of evidence between the parties as to what had occurred. For the reasons set out below we found that the evidence given by Mr Boyd and by Ms Green was more persuasive. We found the claimant’s evidence on a number of occasions to be unclear and contradictory. In particular he contended that he had been told by Mr Boyd that his hours would be cut to 28 hours per week and he must give a response by the end of the day as whether he was willing to accept that offer, which Mr Boyd denied as the change would not take place for at least 3 weeks, and he had offered other hours. Mr Boyd said the claimant told him in that initial discussion that he would probably go and work at the car park, which was in fact what happened. We also note that the claimant maintained that he had refused the offer of redeployment by the respondent on Thursday 24 September 2015 on the basis that he had by then found alternative work. The claimant said that his father had offered him part-time employment although he could not really afford to employ the claimant. The claimant said that he was working for his father on a self-employed basis for 16 hours per week and was paid £230 which is an average of £14.37 per hour. When working for the respondent and doing 48 hours per week on a shift basis, the claimant’s take home pay was £267 per week. The claimant also gave contradictory accounts of his view of his job with the respondent: at one point, he said he loved his job and at another he said he was fed up with the company. By contrast we found that Mr Boyd’s evidence and in particular Ms Green’s evidence was clear and unequivocal.
4. The claimant commenced work for the respondent as a security officer on 12 March 2010. He initially worked as a “floater”, working at different sites where the respondent provided security services to different customers but from about 2012 he had worked at the DHL side at Mallusk. He worked for forty-eight hours per week working four shifts of 12 hours from 7.00 am to 7.00 pm, which left him three days free in the week. He handed over his shift usually to one of the night staff of whom Mr Steenson was one.
5. In September 2015, Mr Hancock the site manager of DHL asked the claimant to contact Gavin Boyd the respondent’s Operations Manager as he wanted to speak to him. Mr Boyd then arranged a meeting with Mr Hancock and called with the claimant on site before going to see Mr Hancock. Mr Boyd was concerned as to whether there was a work issue and checked with the claimant as to whether there were any problems from his point of view. The claimant advised that the only problem was that some people were reluctant to sign in when they came onto the site.
6. After his meeting with Mr Hancock, Mr Boyd came to the claimant and told him that there were no work issues but that DHL had reached a decision to discontinue day time guarding on the site. They had introduced CCTV cameras and needed to make savings. They had therefore decided to have guards on site only from 7.00 pm to 7.00 am i.e. overnight and at weekends. The change was due to take place around 12 October. Mr Boyd explained the position to the claimant and said that while he could not provide the claimant with day time shifts at the Mallusk site after the changeover, he could offer him night time shifts or day time work at the weekends. He also told him that if he preferred to work at the weekends, the respondent would provide him with work at other sites as a “floater”. The claimant’s understanding was that he was only being offered two 14 hour shifts at the weekend and that Mr Boyd would “try and get him” more shifts. As the claimant had previously worked on a floating basis, this concept would not have been unknown to him. Mr Boyd and the claimant both said in their evidence that the claimant had indicated he wanted to speak to his wife about the matter. There was a discrepancy in their accounts in that the claimant said that he had raised the question of redundancy with Mr Boyd, which Mr Boyd said he had not. Mr Boyd said it simply had not been discussed as he had assured the claimant that he would be able to source hours for him. Mr Boyd noted that the claimant observed even at this stage that he might well go and work at the car park, which Mr Boyd understood to be the claimant’s father’s business close to the International Airport where people parked their cars when going on holiday. Mr Boyd’s diary notes confirm the offer of alternative work made to the claimant and on balance we accept his evidence regarding the conversation.
7. It was the claimant’s evidence that he had telephoned Mr Boyd later in the day to say that he would have to resign for financial reasons. He also said that he told Mr Boyd at this stage that he would leave a resignation letter for him at the security hut on site. Mr Boyd denied that he had been told that there was any letter there for him. The claimant wrote a resignation letter which he said he had photocopied in the DHL office and had countersigned by a man named Stephen McGann. Mr McGann was not present to give evidence at the hearing. Mr Steenson confirmed that the claimant had told him that he had left a resignation letter and that he had seen the envelope sitting waiting to be collected. He did not see the contents of that envelope.
8. The claimant also said that he had asked Mr Boyd if he needed to give a week’s notice and that Mr Boyd had told that he could go whenever he wanted. Mr Boyd denied this, saying that the claimant had not told him that he intended to work only the Monday and Tuesday and then resign. He also denied that any arrangement had been made with the claimant regarding leaving in his uniform and security pass. As far as Mr Boyd was concerned, the claimant worked Monday and Tuesday but then went sick on the Wednesday, which the claimant denied. Mr Boyd also said that he had not seen the claimant’s resignation letter until he saw the letter shown to him by Emma Green of Human Resources on Thursday 24 September.
9. The claimant was initially confused as to whether or not he had received a letter from the respondent company regarding his resignation and he then said it was a telephone call. On balance we accept that the claimant may have left a resignation letter at the security hut for Mr Boyd but no evidence was given to us as to whether or not the letter was still there when the claimant went to work on Tuesday or whether it had been collected by anyone else. The claimant by his own evidence left the letter there on Monday evening when he was leaving work around 7.00 pm. He worked the following day which meant he would have been at work at 7.00 am and he did not make it clear as to whether or not the letter had been collected in the meantime or whether he had still seen it on the premises. If he was confident that the letter had been collected, we are surprised that he took a further copy of the letter to his employer on the Thursday when he left in his uniform and security pass. Both Mr Boyd and Ms Green were clear that they were not aware of the claimant’s resignation until Thursday 24 September, and on balance we accept that evidence. There is nothing in the evidence before us to make it clear that the claimant had definitely resigned his job prior to Thursday 24 September 2015.
10. On 24 September the claimant brought his uniform and security pass to the respondent’s Head Office. There had been no arrangement made for him to call in and he happened to meet Emma Green in the reception area. She invited him to come in to her office but he refused to do this. The claimant did however give her a copy of his resignation letter, in which the claimant said that he had been told that the site he was working on was losing the day shift. It continued,
“the manager told me that he could give me some shifts but could not guarantee my 48 hours so I have no option but to resign from Sword.”
The letter is dated 21 September 2015.
11. Ms Green’s evidence was that she told the claimant in the reception area that the company could guarantee his contracted 48 hours per week. She confirmed that Mr Boyd had offered the claimant shifts working nightshifts at DHL and floating work during the day. Ms Green had made herself notes of this conversation shortly after it occurred. Her notes confirmed that the claimant agreed that he had been offered nightshifts at DHL and floating work, but that he had decided that it did not suit him personally and he was going back to work at a family business. Ms Green in fact asked the claimant to wait while she went and spoke to the Managing Director about the matter and, having spoken to him, came back and confirmed to the claimant that there was no difficulty with him being provided with his full hours. The claimant however said that he had now made other arrangements.
12. Ms Green wrote to the claimant the same day, expressing her surprise at having received his letter of resignation and asking if he definitely wished to resign. She referred to the issues raised in his letter and invited him to a grievance hearing the following Tuesday 29 September. She outlined his right to be accompanied at that meeting if he wished, and also offered him the opportunity to reconsider his decision to resign. The claimant telephoned Ms Green to say that he would not be attending the grievance meeting and also said that he would be seeking legal advice.
13. The claimant started work with his father the following week on a self-employed basis. He indicated that he currently earns approximately £230 per week for working 16 hours but expected his hours would increase as the business is busier over the holiday period. He indicated that his family still receives certain benefits and that position is unchanged. He also indicated prior to leaving the respondent’s employment he had occasionally helped his family out by doing occasional shifts.
THE RELEVANT LAW
14. The relevant law in relation to constructive dismissal is to be found at Article 127 of the Employment Rights (Northern Ireland) Order 1996 which provides as follows:-
“127 (1) For the purpose of this Part an employee is dismissed by his employer if...
(c) The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”
15. Harvey on Industrial Relations in Employment Law (“Harvey”) states at Division D1, Paragraph 403 as follows:-
“In order for the employee to be able to claim constructive dismissal five conditions must be met:-
1. There must be a breach of contract by the employer. This may be an actual breach or an anticipatory breach.
2. That breach must be sufficiently important to justify the employee resigning, whereas it must be the last in a series of incidents which justify his leaving.
3. A genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.
4. He must leave in response to the breach and not for some other, unconnected, reason.
5. He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he will be deemed to have waived the breach and agreed to bury the contract.”
16. The conduct relied upon to constitute a breach of contract must be a repudiatory breach of contract and not simply unreasonable behaviour on the part of the employer. In Brown v Merchant Ferries Ltd [1998] IRLR 682 NICA, the Court of Appeal in Northern Ireland indicated that, although the correct approach to constructive dismissal is to ask whether the employer was in breach of contract and not whether the employer acted unreasonably, if the employer’s conduct is seriously unreasonable this may provide sufficient evidence that there has been a breach of contract. In this case, the breach of contract alleged is the respondent’s failure to provide the claimant with 48 hours of work, following the proposed changes to the DHL contract at Mallusk.
17. The case law also emphasises that the breach of contract complained of must be repudiatory in nature. It must be sufficiently important to justify the employee resigning or it must be the last in a series of incidents which justify his leaving. Harvey comments that where an 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 significantly blameworthy or unreasonable, it must contribute something to the breach even if it was relatively insignificant.
18. The question also arises as to what happens if an employer has indicated a clear intention not to fulfil the terms of the contract in the future and the employee accepts that intention to commit a breach is bringing the contract to an end. It is clear that what is a repudiatory breach of contract depends on the facts in each case. In Financial Techniques v Hughes [1981] IRLR 32, the Court of Appeal held that in that particular situation, matters had not reached a stage where the employer was unequivocally refusing to be bound by the contract and so they did not consider that his conduct was a repudiatory breach. There was a difference of opinion in that case between the employer and the employee as to the amount of a bonus to which the employee was entitled on leaving employment, but no final decision had been made by the employer as to whether or not he was willing to pay the amount claimed by the employee.
19. It is also significant that an employer will have the opportunity to change its position and withdraw the threat of a breach of contract at any time up until the employee accepts a repudiation. If an employee resigns after the employer has withdrawn his threat to breach the contract, there will be no constructive dismissal (see Harrison v Norwest Holst Group Administration Ltd [1985] ICR 668.
20. By contrast if there has been an actual breach of contract, whether of an express or implied term of the contract, the Court of Appeal in England and Wales has found that once the breach has been committed, it is for the wronged party to decide how to respond. In Buckland v Bournemouth University [2010] IRLR 445 CA, the Court of Appeal found that once a breach of contract had been committed, it was for the wronged party to decide how to respond:-
“The defaulting party cannot choose to retreat. What it can do is invite affirmation by making amends.”
If the claimant rejects the offer, he or she can still resign and claim constructive dismissal. Sedley L J noted that employment law in this regard forms an integral part of the general law of contract where no doctrine of cure applies. He considered whether there was good and sufficient reason to introduce such a doctrine into employment law alone. While he could see the attraction of this, he ultimately rejected the idea saying:-
“Albeit with some reluctance, I accept that if we were to introduce into employment law the doctrine that a fundamental breach, if curable and if cured, takes away the innocent party’s option of acceptance, it could only be on grounds that were capable of extension to other contracts and for reasons I have given I do not consider that we would be justified in doing it. This does not mean, however, that tribunals of fact cannot take a reasonably robust approach to affirmation; a wronged party, particularly if it fails to make its position entirely clear at the outset, cannot ordinarily expect to continue with the contract for very long without losing the option of termination, at least where the other party has offered to make suitable amends.”
REASONS AND DECISION
21. The claimant’s allegation in this case is that employer fundamentally breached its contract of employment with him by unilaterally changing his hours of employment and reducing his hours of employment from 48 hours per week to 24 hours per week. On the basis of the evidence given before us, it is our finding that the employer did not unilaterally change the employee’s hours of work and reduce them to 28 hours per week. Indeed from the evidence given, we are satisfied that Mr Boyd spoke to the claimant on Monday 21 September to make him aware that there was no work related issue which had caused a problem with DHL, but that DHL were proposing to change their contract with the respondent and that that would mean that day time shifts at the Mallusk site would be discontinued.
22. We are satisfied from the note Mr Boyd made in his diary that the offer he had made to the claimant was to do two days Saturday and Sunday plus two nights or to look at “floating” work which would give him four shifts of 12 hours each. Mr Boyd’s note says, “Not sure will speak with her mite (sic) go work in car park”. This indicates to us that the claimant’s first instinct was that he did not want to work weekends at the Mallusk site and that he was not happy at the idea of working nights. We are satisfied that Mr Boyd’s discussion with the claimant was in relation to a potential change which was coming and that it was not an immediate change. We are satisfied that Mr Boyd was keen to try and find a shift pattern that would suit not only the employer but the claimant.
23. We are also satisfied as a matter of fact that the claimant did not resign his job on 21 September as the employer was not aware of that resignation at that time. We are satisfied that the respondent was notified of the resignation on Thursday 24 September when the claimant came to the respondent’s premises with his uniform and pass and spoke to Ms Green, handing her a copy of the resignation letter. It was put to her in cross-examination that this was definitely a photocopied letter. She said she was not sure and that she would need to look at her file, but either way we are satisfied on it was only on the Thursday that she was notified of the resignation and only on Thursday that Mr Boyd was advised of the claimant’s resignation as well. We note that the respondent did not initially accept the resignation but sought to reassure the claimant that his hours were available and that he could continue working for the respondent.
24. We are therefore not satisfied that the respondent committed a fundamental breach of contract such that the claimant was entitled to resign in response to it. The contract which was produced to us shows that the claimant’s hours of work would be “variable as rostered Monday to Sunday. You will receive agreed breaks each day depending on the length of your shift. You may be required to work additional hours when authorised and that necessitated by the needs of the business.” There were therefore no set hours agreed in the contract. The fact was that the claimant had established a routine of working through the week and doing four 12 hour shifts. It may be that when he had his conversation with Mr Boyd on 21 September there was a lack of clarity as to where he might be asked to work and whether he might be asked to work nights or weekends to make up his hours and it appears to us that the claimant was not happy at this suggestion. We are not satisfied however that the claimant was ever told that he could not be guaranteed 48 hours.
25. Even if the claimant was told on Monday 21 September 2015 that his hours were to be reduced, we are not satisfied that the company was notified of his resignation on the Monday. Indeed he continued to work on the Tuesday and we are satisfied that he telephoned in sick on the Wednesday. It was only therefore on Thursday 24 September 2015 when he delivered his letter to Emma Green at the respondent’s Head Office that the respondent was notified that the claimant was resigning.
26. If we are wrong in our finding that there was no breach of contract on 21 September, then we note that, no change was due to take place until 12 October at the earliest and so any breach of contract was anticipatory, not actual. If there was any anticipatory breach of contract on the part of the respondent, we are satisfied that the employer in this case had not reached the stage where the employer was unequivocally refusing to be bound by the contract (see Financial Techniques – v – Hughes referred to above). The claimant persisted with his resignation even though Emma Green had told him face to face that his hours could be guaranteed and indeed clarified this with the Managing Director of the company. We also note that the claimant would have continued on with his usual hours until at least 12 October and perhaps after that date, which would have given at least three or four weeks for the question of his hours to be sorted out. We consider that his resignation was premature and no breach of contract had taken place.
27. For all these reasons, we consider that the claimant was not constructively dismissed but resigned his job and accordingly his claim of unfair dismissal is dismissed.
Employment Judge:
Date and place of hearing: 3 March 2016, Belfast.
Date decision recorded in register and issued to parties: