Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 279/17

 

 

 

CLAIMANT: Ashley Victoria Thompson

 

 

RESPONDENT: Coolmar Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that the claim of constructive unfair dismissal is dismissed.

 

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr R McKnight

Mr M McKeown

 

 

Appearances:

The claimant was represented by Mr M Quigley, Barrister-at-Law, instructed by Campbell & Company, Solicitors.

The respondent was represented by Mr P Moore LLB, of MCL Associates.

 

Background

 

1.             The respondent company is one of three associated companies which run supermarkets in North Antrim. The respondent company runs a supermarket in Ballymoney.

 

2.             The claimant had worked in that supermarket for some 11 years and had latterly been employed as a supervisor.

 

3.             The claimant alleges that her relationship with her line manager deteriorated after she challenged him at a particular supervisors' meeting on 15 March 2016. The respondent alleges that her line manager had concerns about her conduct and performance and that the relationship deteriorated when he raised those concerns.

 

4.             The claimant's line manager invited the claimant to a ' clear the air' meeting on 25 April 2016 to discuss his concerns. The claimant alleges the meeting was part of an agenda to punish her for challenging her line manager.

 

5.             The claimant objected to the conduct and outcome of that meeting and indeed to other aspects of her employment relationship. She lodged a grievance against her line manager.

 

6.             That grievance was not successful and she appealed against that decision.

 

7.             She resigned. The grievance appeal had not been determined at that point.

 

8.             The claimant lodged a claim of constructive unfair dismissal.

 

Relevant law

 

Constructive dismissal

 

9.             In London Borough of Waltham Forest v Omilaju [2005] IRLR 35, the Court of Appeal (GB) set out the basic propositions of law relating to constructive dismissal. It stated that they were:-

 

"1. The test for constructive dismissal is whether the employers' actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1998] IRLR 27.

 

2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA [1997] IRLR 462, 464 (Lord Nicholls) and 468 (Lord Steyn). I shall refer to this as 'the implied term of trust and confidence'.

 

3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract; see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347; 350. The very essence of the breach of the implied term is that it is 'calculated or likely to destroy or seriously damage the relationship'.

 

4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at p464, the conduct relied on as constituting the breach must "impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer".

 

5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a serious of incidents. It is well put at para 480 in Harvey on Industrial Relations and Employment Law -

 

'Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify him taking that action, but when viewed against the background of such incidents, it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the 'last straw' which causes the employee to terminate a deteriorating relationship'."

 

10. The Court also stated:

 

"Although the final straw may be relatively insignificant, it must not be utterly trivial. The principle that the law is not concerned with very small things (more elegantly expressed in the maxim "de minimis non curat lex") is of general application."

 

11. The Court went on to state:

 

"The question specifically raised by this appeal is: What is the necessary quality of a final straw if it is to be successfully relied on by the employee as a repudiation of the contract? When Glidewell LJ stated that it need not itself be a breach of contract, he must have had in mind, amongst others, the kind of case mentioned in Woods at page 351 where Browne-Wilkinson J referred to the employer who, stopping short of an actual breach of contract, squeezes out an employee by making the employee's life so uncomfortable that he resigns. A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase "an act in a series" in a precise or technical sense. 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 on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant."

 

The Court went on to state:

 

"Moreover an entirely innocuous act on the part of an 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 his employer. The test of whether the employee's trust and confidence has been undermined is objective ... ."

 

12. In Brown v Merchant Ferries Ltd [1998] IRLR 682 , the Northern Ireland Court of Appeal said that although the correct approach in constructive dismissal cases was to ask whether the employer had been in breach of contract and not to ask whether the employer had simply acted unreasonably; if the employer's conduct is seriously unreasonable, that may provide sufficient evidence that there has been a breach of contract.

 

Unfair dismissal

 

To ground a successful claim, a constructive dismissal must, of course, also be unfair.

 

13. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

 

"130-(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

 

(a) the reason (or if more than one, the principal reason) for the dismissal and

 

(b) that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

(2) a reason falls within this paragraph if it -

 

(b) relates to the conduct of the employee,

 

(4) where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

 

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

 

(b) shall be determined in accordance with equity and the substantial merits of the case."

 

Procedure

 

14. This claim had been case-managed and a Case Management Discussion was held on 5 April 2017. The claimant had been present at that Case Management Discussion, although she had been unrepresented at that stage. The respondent had been represented by Mr Moore.

 

15. The claimant's current solicitor did not come on record until 26 May 2017. Nevertheless the claimant had been advised by another solicitor in relation to her employment and in relation to her grievance. That other solicitor has ceased practice.

 

16. The claimant had been provided with a written record of the Case Management Discussion by letter on 6 April 2017. It is clear that she had understood the directions which had been given in the course in that Case Management Discussion. It is also clear that during that Case Management Discussion the claimant had been reminded specifically of the importance of complying in full with the directions which had been given.

 

17. Those directions required, inter alia, that a copy of the audio recording made by the claimant of the grievance meeting should be provided by the claimant to the respondent. It was further directed that the claimant's transcript of that recording should be provided to the respondent no later than 28 April 2017. The transcript was not provided by the claimant until 15 June 2017, less than one week before the hearing commenced. Discovery of other documentation was also late.

 

18. The directions which had been given in the course of the Case Management Discussion and which had been confirmed in writing to the claimant were clear and should have been complied with in full by the claimant. That compliance would have been a simple matter and did not require, in any sense, the intervention of a solicitor. The claimant's present solicitor had, in any event, officially come on record on 5 June 2017 and even at that stage there had been a further delay of 10 days in furnishing the transcript. This was particularly important because the respondent's representative did not accept that the transcript of the grievance meeting was either complete or accurate.

 

19. In the event, the respondent's representative agreed to proceed with the hearing on the basis of a copy of the transcript which had been annotated by him with his comments; although he would have been entitled to argue that the transcript and indeed other documentation which had been provided late should have been excluded as being provided otherwise than in compliance with clear case-management directions.

 

20. The witness statement procedure was used in this case. Directions had been given for the exchange of witness statements. Those witness statements took the place of oral evidence-in-chief. Once each witness swore or affirmed to tell the truth and adopted their witness statement as their evidence, they moved immediately to cross-examination.

 

21. The claimant gave evidence on her own behalf and called no other witnesses.

 

Two witnesses gave evidence on behalf of the respondent; Mr Peter McCool, the managing director of the respondent company, and Mr Patrick Moore who had conducted the grievance hearing.

 

22. The parties made oral submissions at the end of the evidence.

 

23. The hearing took place on 21 - 22 June 2017.

 

Relevant findings of fact

 

24. The claimant had latterly been employed as a supervisor in the delicatessen department. Her post was one of several supervisor posts in the supermarket. She had been paid £7.20 per hour, whereas at that stage the other supervisors had been paid £7.00 per hour. That 20p differential had been given to her by her line manager, Mr Ian Elliott.

 

25. The relationship between the claimant and her line manager had been good. The claimant accepted that they had been friends and that they had socialised outside work. The claimant had visited Mr Elliott's caravan in Portrush. Mr Elliott had regarded her as a trusted senior employee and she had seen herself as such.

 

26. The claimant's evidence was that the relationship between the claimant and Mr Elliott had deteriorated after she had challenged Mr Elliott during a supervisors' meeting on 15 March 2016. She stated that during that meeting Mr Elliott had made a comment about a fellow employee and had inferred that he was lazy. She stated that she had challenged that comment and had argued that the employee had been disabled through coeliac disease. She stated that Mr Elliott had obviously resented being criticised and that he had been shocked at her intervention.

 

27. The only evidence before the tribunal in relation to this meeting on 15 March 2016 was the unsupported evidence of the claimant. The claimant did not call, as a witness, any of the approximately eight people who she claims had been present during the course of that meeting. She had not, at any stage, sought a Witness Attendance Order to compel the attendance of any of those individuals. Mr Elliott is no longer employed by the respondent and was not called by either party to give evidence, inter alia, about this meeting on 15 March 2016. No complaint or grievance had been made by the claimant in the immediate aftermath of this meeting, even though she stated in the supplementary grievance document submitted on or about 9 May 2016 that "I was concerned at my treatment and consulted Citizens Advice".

 

28. Although, in the course of the tribunal, the claimant was absolutely clear that the meeting on 15 March 2016 had been of pivotal importance, in that it was, at that point, that relationships had significantly and markedly deteriorated, she did not mention the meeting on 15 March 2016 at any stage in her four-page grievance which she had issued to the respondent on 26 April 2016, just over one month later. The claimant's failure to do so must be significant. If this meeting had transpired as alleged by the claimant, and if it had been of the importance alleged by the claimant, that would surely have been the first thing that she would have mentioned in the course of that written grievance. The grievance had obviously been carefully written and was detailed. The meeting was in fact not mentioned at all by the claimant in writing until a supplementary document was added to the grievance on or about 9 May 2016, almost two weeks after the submission of the grievance and almost two months after the alleged meeting on 15 March 2016.

 

29. The grievance lodged on 26 April 2016 alleged that there had been a ' wider agenda' on the part of Mr Elliott in relation to his actions towards the claimant and, in particular, in relation to the ' clear the air' meeting. It was at that point that the tribunal would have expected the claimant to explain exactly what she meant by a " wider agenda" and, in particular, if the meeting on 15 March 2016 had occurred as she had alleged, to explain her position in relation to that meeting.

 

30. The tribunal also notes that in the claimant's own transcript of the grievance meeting held with Mr Moore on 17 May 2016, the claimant indicated to Mr Moore that she did not expect any of her supervisor colleagues, who had been present during that meeting to support her version of events. That does not seem credible. If, as the claimant alleges, she had been speaking up in defence of a disabled colleague, who had been a supervisor before voluntarily stepping-down to a junior role, the tribunal would have expected the claimant's evidence had been supported by her colleague supervisors or at least by some of them. It seems incredible that the claimant anticipated that none of those colleague supervisors would have supported her claims in those circumstances.

 

31. On the balance of probabilities, and in light of concerns that the tribunal has about the claimant's credibility, the tribunal concludes that the claimant's allegations about the meeting on 15 March 2016 are not accurate, that they were inserted in her grievance at a late stage to bolster and to support that grievance and that they were not unrelated to the fact that her line manager had raised concerns about her conduct and performance on 25 April 2016. The allegations did not surface until after that date. .

 

32. In her evidence to the tribunal, the claimant made no complaint about her treatment in the period following the alleged meeting on 15 March 2016 to 20 March 2016 when she went on leave for one week. She stated in evidence that, at one point during that period of holiday between 20 March 2016 and 27 March 2016, she had been in the house of a former colleague and that Mr Elliott had telephoned that colleague, while she had been present, to ask him about her drinking habits. Again the claimant did not call that former colleague as a witness to support her version of events. It does not seem credible that Mr Elliott would have felt it necessary to ask a former colleague, who had apparently left his employment with the respondent company some nine months earlier, about the claimant's drinking habits. It also seems extraordinary that the former colleague would have continued with that conversation in the claimant's presence. The claimant also alleged that Mr Elliott told the former colleague that he had checked the claimant's company discount scheme to identify alcohol-related purchases. Again it is difficult to see why, if this conversation occurred at all, Mr Elliott would have felt the need to tell the former colleague that he had checked the discount scheme.

 

33. The claimant stated that she had been so worried by this that she visited the Citizens Advice Bureau for some guidance: "I was so worried about Ian's phone call to Andrew that I actually visited the local Citizens Advice Bureau for some guidance as to what I should do when I returned to work"

 

As indicated above, the claimant said in the supplementary grievance document submitted on or about 9 May 2016 that she had consulted the CAB after the alleged meeting on 15 March 2016 and Mr Elliott's alleged conduct in the week thereafter. There appears to be some confusion over when, and in what circumstances, the claimant visited the CAB.

 

34. Despite all of that, the claimant did not lodge any complaint or grievance about this alleged telephone call on her return to work after 27 March 2016. She did not tackle Mr Elliott about the alleged telephone conversation. It is difficult to credit that the claimant had observed this telephone conversation and had done nothing about it in the immediate aftermath of the event. If the claimant's version of events is correct, this had been an extremely serious matter. Her line manager, and a former relatively close friend, had been making enquiries about her drinking habits. On the balance of probabilities, the tribunal concludes that this incident did not take place as alleged by the claimant. It is not the case, as appears to have been advanced on behalf of the claimant that any allegation, however outlandish, must be accepted by the tribunal simply because the claimant is the only person giving direct evidence of the alleged event. The tribunal must also consider the nature of the allegation and the likelihood if it being accurate. It must also consider the claimant's failure to call an obvious supporting witness and the failure of an alleged consultation with the Citizens Advice Bureau to produce any form of immediate complaint.

 

35. The claimant stated that on 4 April 2016 she was informed ' that I was to be demoted'. At its height, this allegation was that she was to be moved to another supervisor's post. From the start of April 2016 all supervisors were to be paid £7.40 per hour. She had therefore been moved to an equivalent post at a higher rate of pay. There was no evidence that it had been proposed that her replacement as supervisor in the delicatessen department would continue to have been paid an additional 20p an hour. That differential had been given to the claimant by Mr Elliott and appears to have been unique to her. Therefore, on the balance of probabilities, this was a proposal or decision which could not, on any rational basis, have been viewed as a demotion. However, the claimant continued to view it in that light.

 

36. The claimant was invited by Mr Elliott to a ' clear the air' meeting on 25 April 2016. This does not appear to have been any form of disciplinary investigation or any form of formal performance appraisal procedure. It seems to have been no more than what it purported to be; ie an informal discussion.

 

37. The e-mail inviting the claimant to the meeting stated:-

 

"I want to sit down with you in my office on Monday the 25 ^th of April at 11 am to have a clear the air meeting as I feel at times we are not pulling together in the same direction.

 

The points I would like to discuss are -

 

Deli orders

 

Dairy and provision orders

 

EVH audit score three

 

Move from deli to dairy department - permanent

 

Reasons for move from deli

 

Deli staff notes and observations

 

Reason for Jordan promotion

 

Man management and supervisory skills

 

Team work with other staff and rest of management team

 

Sickness and vomiting on shop premises

 

The way forward

 

Rachel will be present at this meeting, to take notes on both our behalves, and if you would like any other points discussed, please send me a list and I will try my best to cover these at this meeting, or indeed to set a time for a further meeting."

 

38. The claimant alleged that this meeting had in fact been a disciplinary and capability hearing where she had been threatened with disciplinary action and demotion. The tribunal's conclusion is that none of that happened. She had not been demoted or threatened with demotion. She had already been notified of a sideways move at a higher salary. There had been no ' threat' of disciplinary action. Various matters had been discussed. The disciplinary procedure had not been invoked and no disciplinary investigation had been commenced.

 

39. The claimant alleged that she had been ' ambushed' in the course of this meeting with a six page document which contained comments and allegations ' allegedly' made by the claimant's colleagues in the delicatessen department.

 

40. The notes of this meeting are no longer available and, as indicated above, Mr Elliott has left the respondent company and was not called by either party to give evidence. The tribunal is therefore restricted to the claimant's evidence of what occurred during this meeting together with the record of the e-mail inviting the claimant to that meeting. That e-mail had raised several matters and had brought them specifically to the attention of the claimant. Notably, it had referred to notes and observations from staff in the delicatessen department and it had also referred to the need for teamwork with other staff. In the context of what appears to have been a relatively informal meeting, it cannot be reasonably be suggested that Mr Elliott had been under any obligation to furnish full formal written statements from her colleagues or to provide any more details in relation to the concerns he had about the claimant's conduct in advance of that meeting. It is therefore difficult to understand the claimant's allegation that she had in any sense been ' ambushed'. She would have known specifically from the content of the e-mail on 23 April 2016 that her colleagues had commented specifically on her and that the issue of vomiting on shop premises would be discussed.

 

41. The claimant in cross-examination maintained that the comments from staff had been either forced by Mr Elliott, or fabricated by Mr Elliott, or both. It is clear from the evidence of the claimant that the comments that had been put forward to her in the course of this meeting had been less than complimentary. Her conduct and in particular the incidents of vomiting at work had been criticised. In response the claimant's answer was, as indicated, that they had been forced or fabricated. That would have involved Mr Elliott putting himself in a position where, following a grievance or complaint by the claimant, a simple enquiry by Mr McCool of any of the staff involved would have elicited a denial and would therefore have placed Mr Elliott in serious disciplinary difficulty. It is also the case that Mr Moore gave sworn evidence to this tribunal that he had interviewed all the relevant staff in the delicatessen department and that they, without exception, had indicated that they had provided the criticisms of the claimant to Mr Elliott on request. It was not suggested to Mr Moore that he had been lying on oath in this respect. Therefore, if the tribunal were to believe the claimant's version of events in relation to the complaints from the claimant's colleagues, it would necessarily have to conclude that Mr Elliott had taken the risk of fabricating or forcing or exaggerating complaints to facilitate some sort of grudge and thereby had placed himself at the risk of serious disciplinary action. It would also have to conclude that Mr Moore had lied deliberately on oath. On the balance of probabilities, the tribunal must conclude that the complaints from the claimant's colleagues had been genuine. They had been discussed with the claimant in the context of a relatively informal meeting. No disciplinary action had been contemplated at that point or had put in train at that point.

 

42. Turning to the specific allegation of vomiting on the shop premises, the claimant was vague in her evidence and it seems unclear whether she has accepted that she vomited once, twice, three or four times on the shop premises. It nevertheless is beyond argument that she had vomited on at least one occasion. That was a matter of legitimate concern for a manager who was supervising a food department and indeed a matter of legitimate concern for her colleagues. It is a matter which many other employers would have dealt with on a more formal basis.

 

43. As indicated above, the grievance was originally contained in a letter of 26 April 2016 comprising some four typed pages. There were two subsequent documents submitted by the claimant as part of her grievance. One was dated 13 May 2016 and comprised a further three typed pages. The other document appears to have been undated but appears to have been received by the respondent on or about 9 May 2016.

 

44. The original grievance complained about the ' clear the air' meeting on 25 April 2016. She stated that she had been ambushed and faced with the threat of demotion and disciplinary action. She complained that the comments from her colleagues had been "garnered" to support a ' wider agenda'. She alleged that they had amounted to ' defamation'. She disputed their content and stated:-

 

"I absolutely refute these allegations as untruths or misrepresentations and would expect these to be fully investigated, sourced and witnesses as part of your investigation and I would expect staff to be made aware of the legal ramifications."

 

She disputed that there had been any drop in performance on her part and complained of the lack of promotion. She complained that Mr Elliott had discussed her health and had suggested that she had a drinking problem. She stated that Mr Elliott had told her:-

 

"Bring my A game as I was still a valued member of staff and that he would not want to go down the disciplinary route."

 

45. In the document, apparently submitted on or about 9 May 2016, the claimant first raised the allegation concerning the supervisors meeting on 15 March 2016.

 

She complained of what she regarded as a demotion to another supervisor's post. She complained of the loss of what she regarded as a 20p per hour differential. She complained that other staff and representatives from suppliers would know about her alleged demotion. She did not state how representatives, in particular, or indeed other staff of the respondent, would have known of her hourly pay rate. She complained again about the ' clear the air' meeting and alleged that she had been ambushed. She complained again about not being promoted. She complained that the comments received from her colleagues were defamatory and that they referred to common knowledge of a drink problem.

 

46. In the further document submitted on 13 May 2016 the claimant covered much the same ground. She stated that she had been until recently a member of Mr Elliott's inner circle of trusted advisors and that she had now been ostracised.

 

She complained that:-

 

"This man is a danger to the business, employees and associates of the business and I have further information with regard to that which I will bring forward at the appropriate time."

 

47. The possibility of a grievance first came to light on or around 26 April 2016 when the claimant arrived at the premises of a separate but associated company in Ballymena to complain to the managing director, Mr Peter McCool, of the respondent company. She did not have an appointment but arrived at the premises and stated that she wished to speak to Mr Peter McCool. Mr McCool listened to what she had to say. She stated she had been accused of vomiting when carrying out her duty in the delicatessen department and that she had been accused of excessive drinking. The claimant stated or implied that the staff witness statements had been false.

 

48. After that meeting had concluded, Mr McCool contacted Mr Patrick Moore of MLC Employment Law who advised the three associated companies on employment and HR matters. Mr Moore advised Mr McCool to wait until a formal complaint had been received and that he should allow time for matters to cool down.

 

49. The formal grievance and the two supplementary documents were received by the respondent company and were passed to Mr Moore. He agreed to conduct the internal grievance hearing. The tribunal does not see anything unusual or wrong in this arrangement. Such an arrangement would be quite common, where small or medium size employers have contracted with similar companies such as Peninsula or ETS. In the present case, it also have had the advantage of leaving Mr McCool free to deal with any appeal that might emerge in due course.

 

50. The claimant was invited to a grievance hearing on 17 May 2016. She was advised that the grievance meeting would be held at Mr McCool's office and that the meeting would be conducted by Mr Patrick Moore. She was also advised that she could be accompanied by a work colleague/trade union representative.

 

The claimant sought to argue at the tribunal that she had been entitled to be represented by a friend, in this case by her father, at this grievance meeting. Having looked at the procedures, and having listened to the evidence, the tribunal is unanimously satisfied that the claimant had been entitled to be represented by a work colleague/friend or by trade union representative. It is therefore satisfied that the claimant had not been entitled to insist on representation from someone unconnected with work and unconnected with a trade union. The tribunal therefore concludes that the respondent was correct not to allow representation by the claimant's father. In any event, she had been assisted at the grievance meeting by her brother who had also been an employee of the respondent company.

 

51. As Mr Moore was preparing for the grievance hearing in the offices of the respondent company, Mr Ian Elliott met Mr Moore outside his own office. He appeared to Mr Moore to be upset. He suggested to Mr Moore that he would like the matter to be dealt with informally and that he believed that the claimant had overreacted at the ' clear the air' meeting. Mr Elliott had stressed that the claimant had been a close personal friend and that he believed that he could ' get her back on course again'. Mr Moore explained to Mr Elliott that if the matter was to be disposed of informally, the claimant would have to give permission.

 

52. In the opinion of the tribunal, it was unwise for Mr Moore to have engaged in any form of conversation with Mr Elliott immediately before this grievance meeting, even though it had been inevitable that he would have had to discuss matters with Mr Elliott before reaching a decision on the grievance.

 

53. It is also clear that during the course of the grievance meeting, Mr Moore did his best to persuade the claimant that an informal resolution would be the best forward. The tribunal accepts that it had been right to point out that a formal grievance could have had adverse implications for the claimant if the grievance was not successful, in that certain issues which would be on the record at that point might result in disciplinary or other action against the claimant. However it was again perhaps unwise for Mr Moore to spend so much time and effort to persuade the claimant to deal with the issue informally. It created an impression of partiality.

 

54. That said, it would appear that the matter did eventually proceed formally and that it had been investigated by Mr Moore as a formal grievance. Mr Moore interviewed each of the claimant's colleagues and each of those colleagues confirmed that they had passed on complaints about the claimant to Mr Elliott. Mr Moore also interviewed Mr Elliott.

 

55. The claimant made an unauthorised audio recording of the grievance meeting. She also provided a transcript which had apparently been completed on her behalf by her father.

 

56. The grievance meeting was conducted for just over three hours. In the course of that transcript it is clear that the claimant accepted that she had been sick in the delicatessen on two occasions in 11 years.

 

57. Mr Moore had discussed an incident during the previous week when the claimant's father had become angry in the respondent's premises. He had told the claimant that in such an incident Mr McCool's first port of call was the police.

 

58. Mr Moore attempted to persuade the claimant that she should proceed by way of an informal grievance. The claimant confirmed that she wished to proceed formally.

 

59. It is clear that Mr Moore proceeded through each aspect of the claimant's grievance and that he tested each part of the grievance in exchanges which on occasion became quite argumentative. A wiser course might have been to simply let the claimant explain her grievance and to then have moved on to interview potential witnesses. That would have resulted in a much shorter and a much less heated grievance hearing. While it could be argued that Mr Moore's approach meant that the claimant's grievance was fully tested, it created an unnecessary level of confrontation and again created an impression of partiality.

 

60. Some days after the grievance meeting, Mr Moore was contacted by the claimant's then solicitor who informed Mr Moore that the respondent company should stay away from the complainant and that it should not contact her until the solicitor had confirmed that the claimant was fit to take part. Mr Moore confirmed that he would have passed that onto the respondent. The tribunal accepts that this conversation had taken place and that it explains, to an extent, the later delay in conducting an appeal hearing.

 

61. After the grievance meeting, Mr Moore had to interview eight of the claimant's former colleagues in the delicatessen department, a number of other employees and Mr Elliott. Those interviews were conducted over several visits to the business. Mr Moore was also on holiday at the end of June and first part of July.

 

62. There was therefore a six week delay in providing an answer to her grievance which was in itself a very detailed set of three documents. The grievance meeting had, as indicated above, lasted over three hours. The tribunal does not believe, given the need for the further interviews and given Mr Moore's holiday and indeed other business commitments, that such a delay was, in all the circumstances, unreasonable.

 

63. The grievance decision issued by letter on 29 July 2016. The grievance was not upheld. Mr Moore stated that he was recommending disciplinary proceedings against the claimant in relation to her attitude to her job, her attitude to her work colleagues and management and her vomiting episodes at work. He stated that he had spoken to all of her colleagues and that every one of them ' without exception' had confirmed that the claimant had vomited on ' several occasions' behind the counter of the delicatessen. He stated that one colleague had complained that he had cleaned up her vomit on no less than three occasions. He stated that all of her colleagues had related her vomiting to drinking and that they had stated that this had got out of hand.

 

64. On 1 August 2016 the claimant wrote to Mr Peter McCool appealing against the grievance decision.

 

The claimant wrote again on 6 October 2016 to ask Mr McCool to give the appeal his urgent attention. It appears to be common case that the claimant had not corresponded with Mr McCool or with the respondent company between 1 August 2016 and 9 October 2016.

 

65. On 20 October 2016, Mr McCool wrote back to the claimant to indicate that she had not been contacted in relation to the appeal hearing because of the content of her sick note which had described her reaction to the grievance decision as ' severe'. He also stated that her solicitor had suggested not issuing any further correspondence until such times as it had been indicated that she was fit to attend the hearing. In light of the most recent correspondence, he had scheduled the appeal hearing. The letter stated that it had been fixed for Thursday 19 October 2016.

 

This was in a letter dated 20 October 2016. 19 October 2016 had obviously passed and in any event had not been a Thursday. It was obvious on any reading of this letter that this had been a simple typographical error. It would have made no sense for Mr McCool to attempt to fix an appeal hearing on a date in the past. The claimant could have telephoned Mr McCool's secretary to double check the date. She did not.

 

66. Nevertheless on 22 October 2016, almost immediately after receiving Mr McCool's letter she resigned. She stated, inter alia, that the company had failed to provide a fair appeal procedure and referenced the letter which stated that ' the date of that meeting had passed'. This was not a rational reaction to the letter of 20 October 2016.

 

67. In the interval, when making arrangements for the appeal hearing, Mr McCool had been notified by another member of staff of the typographical error. He wrote again to the claimant on 25 October 2016 apologising for the typographical error and indicating that the appeal was to be on Thursday 27 October 2017.

 

Having already received the resignation, he asked for to re-consider her resignation. The claimant did not do so. The claimant did not take up the opportunity of a grievance appeal meeting and did not rescind her resignation. It is not clear why this was the case. It seems that the claimant regarded the reference in the letter of 20 October 2016 to the '19 ^th October' as a deliberate act on the part of Mr McCool.

 

Decision

 

68. For the claimant to succeed in her claim of constructive unfair dismissal, there would have to have been a fundamental breach or repudiation of contract which entitled the claimant to resign from her employment. That could include a series of acts, culminating with a last straw, which damaged trust and confidence to a sufficient extent.

 

69. The tribunal has concluded that the claimant's allegations about the supervisor's meeting on 15 March 2017 are inaccurate and that those allegations have been raised late by the claimant as a reaction to the concerns which had been raised by her line manager about her conduct and her performance.

 

70. The tribunal has also concluded that the claimant had not been "demoted" and that she had not been ' threatened' with disciplinary action.

 

71. The tribunal has also concluded that the claimant's allegations about the ' clear the air' meeting are inaccurate and that this meeting had been an informal discussion of concerns which had been held by her line manager and indeed by her colleagues in the delicatessen department. Other employers in these circumstances might have moved immediately to a disciplinary or performance appraisal procedure. This respondent did not do so.

 

72. None of these issues can be regarded as breaches or repudiations of contract; much less as fundamental breaches of contract.

 

73. The claimant's grievance was investigated and determined reasonably promptly, bearing in mind the detail contained within the grievance and the need to interview several witnesses.

 

74. Mr Moore was unwise to have let Mr Elliott engage him in conversation outside Mr Elliott's office before the claimant was interviewed in the grievance meeting. He was also unwise to have spent so much time and effort in the course of that meeting attempting to proceed the claimant to go informally.

 

75. The tribunal accepts that Mr Moore had been told by Mr Elliott that Mr Elliott had genuine concerns about the claimant and that he wished to help her ' get back on track'. The tribunal also accepts that Mr Moore had concluded that Mr Elliott had been genuine in expressing his concerns and that the pragmatic way of concluding this matter was for the claimant to proceed by way of an informal grievance. Mr Moore clearly believed that this would have been to the benefit of the claimant and that it would have avoided the risk of disciplinary proceedings and indeed would have avoided the stress and expense of tribunal proceedings. However, he went too far in attempting to explain all of this to the claimant and in certain instances the language he used was perhaps inappropriate in attempting to explain the full horrors of tribunal proceedings.

 

76. Nevertheless, the grievance had been dealt with as a formal grievance as the claimant had wished. It had been investigated thoroughly and the necessary witnesses had been interviewed. In that respect, there had been no fundamental breach of contract. Even if the conduct of the grievance meeting had amounted to a fundamental breach of contract, the claimant did not in any event resign either during or immediately after the grievance meeting because she had been put under some degree of pressure to proceed informally.

 

77. The tribunal has concluded that the claimant's then solicitor had told Mr Moore that the respondent should not contact the claimant without permission. It is also clear that the claimant was absent on sick leave. While there had been some contact made by an employee of MCL in the absence of Mr Moore, the tribunal concludes that the instructions from the claimant's then solicitor and indeed the absence of the claimant on sick leave, explained to a considerable extent the delay in setting up an appeal hearing.

 

78. Even if it did not explain or did not fully explain this delay, the letter of 20 October 2016 is crucial. In that letter, Mr McCool scheduled an appeal hearing. He explained the delay which had occurred in scheduling that hearing. Unfortunately the letter contained an obvious typographical error in relation to the scheduled date for that hearing. It obviously could not have been 19 October 2016, which had, in any event, not been a Thursday.

 

79. Despite the obvious nature of the typographical error, the claimant responded promptly with a detailed letter resigning from her employment. She referred to the fact that "the date of that meeting had passed".

 

80. The claimant, at that point, had been offered a grievance appeal meeting before Mr McCool. During that grievance appeal meeting she could have raised all her concerns about her line manager and indeed her concerns about Mr Moore. She chose not to take that opportunity. She chose not to take the obvious step of telephoning Mr McCool's secretary to get the correct date of the appeal meeting.

 

81. Any alleged breach of contract which might have been caused by the delay in fixing an appeal meeting had been cured at that point. The tribunal in any event is not convinced that any fundamental breach of contract had occurred in relation to the delay in fixing an appeal meeting. As indicated above, that delay in large measure is explained by the intervention of the claimant's then solicitor and by the claimant's absence on sick leave.

 

82. The tribunal therefore concludes that there had been no fundamental breach of contract, whether the conduct of the respondent is viewed as a series of single incidents or whether it is viewed as a continuous course of conduct. An obvious typographical error cannot be regarded as a "last straw" which can justify a resignation. A ' final straw' does not itself have to be a breach of contract. However it must not be ' utterly trivial'. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute, when viewed objectively, something to that breach. On any objective measure, an obvious typographical error which could have been easily checked and corrected, cannot add to any alleged breach of trust and confidence.

 

83. The claimant did not resign in response to either the grievance meeting on 17 May 2016 or in response to the grievance decision on 29 July 2016. Her resignation on 22 October 2016 was almost three months after the date of the decision. She had affirmed her contract by lodging her appeal against that decision and by writing on 6 October 2016 reminding the respondent of the need to progress the appeal.

 

The claim of constructive unfair dismissal was advanced on the basis that the letter dated 20 October 2016 from Mr McCool had been a ' last straw'.

 

That cannot be the case for the reasons outlined above. To repeat what the Court of Appeal said in Omilaju:-

 

"Moreover, an entirely innocuous act on the part of an 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 his employer. The test of whether the employee's trust and confidence had been undermined is objective ... ."

 

84. The claim of constructive unfair dismissal is therefore dismissed. There was also discussion about a claim of alleged failure to provide statutory terms and conditions of service but that was not pursued. In any event there was no evidence to support any such claim.

 

All claims were therefore dismissed.

 

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing: 21 - 22 June 2017, at Belfast

 

 

Date decision recorded in register and issued to parties: