Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1509/16IT

 

 

 

CLAIMANT: Claire McNarry

 

 

RESPONDENT: The Trustees and Committee of Royal British Legion Club Millisle

 

 

 

DECISION

 

The decision of the tribunal is that the claimant's claims of constructive dismissal, failure to pay notice pay and address a grievance are dismissed.

 

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Wimpress

 

Members: Mrs D Adams

Mrs M J McReynolds

 

 

Appearances:

 

The claimant was represented by Mrs Lynn Sheridan.

 

The respondent was represented by Mr Sean Doherty, B arrister-at-Law, instructed by Worthingtons Solicitors.

 

 

 

SOURCES OF EVIDENCE

 

1. The Tribunal received witness statements from the cl aimant, Ms Joanne McNarry, Mr Mark O'Neill, Mr Robin McKee, Mr George Campbell, Mrs Gwen Dowling, Ms Jo Orr, Mrs Jacqueline Munro and Mr Tommy Murphy. The tribunal heard oral evidence from all of these witnesses except Mrs Munro who was unable to attend. The tribunal also heard oral evidence from Violet Griffith. The tribunal received separate bundles of documents from each party which were supplemented during the course of the hearing. A schedule of loss was also provided by the claimant.

 

 

THE CLAIM AND THE RESPONSE

 

2. The claimant brought a claim in respect of the termination of her employment in which she alleged constructive dismissal. The basis for the claim of constructive dismissal was set out in the claim form. The main thrust of the claimant's claim was that Mr McKee carried out a campaign of bulling and intimidation against her. The claimant also made a claim in respect of notice pay and a complaint that a grievance that she had made was not addressed. The respondent filed a detailed response in which it denied the claimant's allegations and specifically the claim of constructive dismissal.

 

TITLE OF PROCEEDINGS

 

3. Mr McKee was named as a respondent in the claim form. It was submitted by Mr Doherty that Mr McKee should be dismissed from the proceedings as he was not the claimant's employer. In view of the nature of the claimant's claims as set out at paragraph 2 above we are satisfied that Mr McKee should be dismissed from the proceedings. In addition, we are satisfied that the correct name of the respondent is - The Trustees and Committee of Royal British Legion Club Millisle. The title of the proceedings is amended accordingly.

 

THE ISSUES

 

4. The main issue was whether the claimant had been constructively dismissed. Mrs Sheridan accepted that the claim in respect of notice pay does not require separate consideration as the relevant notice period will attract compensation if the claim of the constructive dismissal is successful. Mrs Sheridan was also unable to identify any statutory provision on which to base the claim in respect of the alleged failure to address the claimant's grievance.

 

FACTS

 

5. On 24 November 2012 the claimant commenced employment with the first respondent as a member of the general bar staff. Mr McKee was chairman of the Royal British Legion Club Millisle ("the Club") for all but one of the twenty years preceding the events that are the subject of these proceedings. He also served as bar manager for ten years up until January 2014. The claimant's sister, Joanne McNarry, was also involved in the Club and took up the role of Treasurer in November 2013.

 

6. Having commenced employment the claimant worked under Mr McKee for approximately one year. Mr McKee then resigned as chair of the bar committee and also relinquished his role as bar manager/bar steward. The position of bar steward was advertised and the claimant successfully applied for this position. The claimant's contract of employment provided that her normal hours of work were
25 hours per week but that she might be required to work additional hours as necessitated by the needs of business. There was no breakdown of the claimant's hours between bar work and administrative work. One of the claimant's responsibilities as bar steward was to bank the weekend takings on the following Monday unless it was a bank holiday.

 

7. According to the claimant on taking on the role of bar steward she discovered that Mr McKee had accrued substantial debt in the name of the club and over the next year the claimant and her sister, Joanne McNarry, managed to eliminate the debt. This was disputed by Mr McKee. Although he had a degree of responsibility for all financial matters the Club's financial arrangements would not have enabled him to accrue debt in this way. He accepted that Joanne McNarry had assisted in implementing a direct debit system to pay regular bills but this was not done to eliminate debt.

 

8. In November 2014 Mr McKee was once again elected as chairman. On
14 November 2014 Joanne McNarry resigned from her position as Club Treasurer and Gwen Dowling took over the role of Treasurer. In December 2014 a new subcommittee of the Finance Committee was formed to oversee the club's finances and to report to the Club Committee.

 

9. On 3 November 2014 Mr McKee inspected the club premises. This was done by him in anticipation of annual inspections undertaken by the local council and Environmental Health. Mr McKee discovered an ice bucket in the bar which was covered in black slime. The kitchen was also in an unhygienic state. Mr McKee spoke to the claimant and told her that he was very disappointed. The claimant says that she was upset by Mr McKee's criticism and we consider that that was likely to have been the case. Later that evening a club member, Bob Christie, approached Mr McKee and told him that he had heard about the ice bucket and kitchen. Mr McKee told him that the ice bucket had been changed and that the kitchen would be deep cleaned.

 

10. On 7 November 2014 Mr McKee overheard the claimant telling Gwen Dowling and her husband not to trust him. Mr McKee challenged the claimant about this and she shouted back that she had heard his conversation with Mr Christie. Mr McKee responded that he was asked a question and he wasn't going to lie. According to the clamant Mr McKee said he would be coming round to her house and she felt threatened, harassed and bullied by his behaviour. Mr McKee denied saying this and claimed that what he did do was to arrange a meeting with the claimant to sort the issue out.

 

11. Mr McKee and another committee member, Tommy Murphy, duly met with the claimant on 8 December 2014. Mr McKee explained to the claimant that had Environmental Health found the ice bucket it would have left the Club open to being fined. Mr McKee also asked the claimant why she had told Gwen Dowling and her husband not to trust him. The claimant responded that she had been upset. The meeting then finished. The claimant made reference to this meeting in her claim form but the account given in the form focuses on an alleged threat by Mr McKee to come to her house and on the failure of the meeting to take on board her objections to his bullying and intimidatory behaviour which made her feel as if she had done something wrong. The claimant viewed this as a further incidence of bullying. We accept Mr McKee's account of the meeting as it seems to us to be more consistent with the events which led to the meeting being called. Furthermore the claimant makes no mention of the meeting in her witness statement which suggests that she was not unduly upset or annoyed by it.

 

12. It is common case that on 15 January 2015 Mrs Munro phoned the claimant and asked if she would be able to attend a meeting with the Finance Committee the next evening. Mrs Munro told the claimant that there was nothing to worry about and there was just a few matters that needed to be sorted out. According to
Mrs Munro's witness statement the background to this was a finance meeting in January 2015 that reported discrepancies in the club to do with staff holidays, bar steward hours and record keeping of accounts such as door money and the Finance Committee had been asked to set up a meeting with the claimant to discuss these matters.

 

13. On 16 January 2015 the claimant attended a meeting of the Finance Committee. It is common case that Mrs Munro asked the claimant to justify her contracted 25 hours. According to Mrs Munro the claimant got very angry, questioned who Mrs Munro was to ask her to justify her hours and left the meeting. Mr McKee's witness statement also makes reference to the meeting being very heated and the claimant walking out. The claimant's witness statement makes no reference to her being angry and walking out and nor do the minutes of the meeting.

 

14. In her witness statement the claimant says that after the meeting on 16 January 2015 she wrote to the Club Secretary pointing out that she felt that she had been victimised and bullied by members of the Committee over the last ten weeks mainly by Mr McKee who was bullying and harassing her. The full text of the letter reads as follows:

 

"Dear Secretary

 

I would like to confirm that I received a telephone call from a committee member (Mrs J Munroe) on Thursday 15 ^th January 2015 and was asked if I would attend a meeting on Friday 16 ^th January 2015 at 8pm. I was reassured by Mrs Munroe that "there was nothing to be worried about".

 

I attended this meeting where I was greeted by 3 committee members. This was the first time I was made aware of that there was a new finance committee. I found it strange that my bar liaison person was not present. At this meeting we discussed door money, machine money and staff holidays. I felt this meeting was fine up until the point when Mrs J Munroe asked me " to justify the hours that I worked". I find this very strange as I have been employed as a bar steward for over 12 months with no questions being asked. Mrs Munroe proceeded to ask me how long it took me to [do] the "admin" work and why I went to Bangor to lodge the money on a weekly basis as it could be lodged in Donaghadee.

 

At my interview for position of bar steward, Mr Robin McKee advised me that I had to work 25 hours a week (as per my contract) and these hours were divided into 12 hours behind the bar and 13 hours doing other works. Mrs J Munroe said that I should be doing 17 hours behind the bar as stated in my contract of employment. Can the committee please provide a copy of this signed contract showing these hours with breakdown?

 

I personally feel that over the last 10 weeks I have been victimised and bullied by certain members of the committee. I feel strongly that my points of view should be brought to all committee members as I have heard on a number of occasions that they are trying to "push me out of my job role". I find this very difficult to come to terms with this treatment having worked for over 12 months with no confusion or ill feeling previous.

 

I truly enjoy and am committed to my job and feel that it is impossible to continue due to a bad atmosphere and lack of trust. I am in the process of seeking further advice outside the club to find out where I stand with regards to my contract.

 

Please ensure all future meetings with myself of bar staff members are held with my bar liaison person present. This will prevent any confusion between committee members and the bar staff.

 

Yours sincerely

 

Claire"

 

15. The claimant described this as a grievance letter which she prepared with the assistance of her sister, Joanne McNarry.

 

16. The claimant received no reply to the letter and did not follow it up with any further correspondence or enquiry of any type. The claimant gave evidence about the delivery of the letter and said that towards the end of January 2015 she, accompanied by her partner, Mr O'Neill, pushed the letter into the letter box on the club's premises. The claimant was unable to be precise about the date but was clear that it had been at 2.00 pm. It was not a matter of dispute that mail delivered to the club's premises in this manner would be deposited in a locked mailbox.

 

17. The respondent's witnesses denied receiving the letter. The respondent's grievance procedure provided that a reply to a grievance would be issued within
5 days. No such action was taken as on the respondent's case the letter was not received. Nor did the claimant follow up her letter when did not receive a reply either within 5 days or ever.

 

18. The claimant maintained that she did deliver the letter and the tribunal heard quite a lot of evidence from both sides on this. The copy of the letter which appears in the claimant's bundle is dated 17 January 2014. The copy in the letter in the respondent's bundle is dated 17 January 2015 with year having changed by hand from 2014 to 2015. Having regard to its contents the correct year is clearly 2015. The respondent's solicitor sought the electronic properties of the letter. These were provided at the hearing and were examined. These revealed that the letter was created on 20 January 2015 at 13.35. The claimant's explanation for this apparent discrepancy was that she wrote out the letter by hand on 17 January 2015 and then asked her sister to type it up which she did but without changing the date. None of this sounds on the key issues which are whether this letter was delivered or received. Conflicting evidence was given as to who had access to the mailbox and as to when Mr McKee received the keys to the mailbox but it is difficult to understand why anyone would misappropriate the letter or why the respondent would deny having received the letter. Mr Campbell to whom the letter was addressed denied receiving it. Mr Campbell did not have a key to the post box and it was his custom to pick up the post that the claimant left out for him on a Saturday or Sunday. It was suggested that Mr McKee could have intercepted the letter but he gave evidence that he did not receive a key to the mailbox until May 2015. It is however difficult to conceive of a plausible motive for Mr McKee or anyone else at the Club to deliberately conceal the receipt of the letter. Having given careful consideration to this matter we are satisfied that the claimant did deliver the grievance letter to the respondent's premises. We are also satisfied that the respondent did not for whatever reason receive it. The letter is not without importance however as it provides some evidence of the claimant's feeling about her treatment at the time of writing.

 

19. The Finance Committee met on 27 February 2015. The record of the meeting states that the claimant only worked 47% of her time behind the bar and spent 57% of her time on admin. The record goes on to describe the Club's financial situation as pretty glum. The record continues as follows:

"In order to try and save the club money the fiancé (sic) committee recommendations are that the committee do away with the bar steward and they take over the admin side of the steward. Claire would then revert to just working behind the bar on the hours that she does now 12 hrs per week at the normal bar staff hourly rate.

 

Once things pick up we will review the situation of bar steward."

 

After some discussion as to how to raise funds arrangements to meet with the claimant were recorded as follows:

 

"It was agreed by committee that Robin, George, Gwen and Howard will meet with Claire on Friday 6 mar 15 to inform her of the committees discision (sic)."

 

The meeting then concluded.

 

20. In her witness statement the claimant alleges that Mr McKee came to her home on 6 March 2015 and informed her that the Finance Committee were intending to make her redundant. According to the claimant she subsequently found this to be untrue but she regarded it as a further incident in an ongoing campaign of bullying and harassment at the hands of Mr McKee.

 

21. According to Mr McKee he visited the claimant on 28 February 2015 and not on
6 March 2015. This seems to us to be more consistent with the sequence of events as we understand it but nothing turns on the precise date.

 

22. In his witness statement Mr McKee stated that he told the claimant of the Finance Committee's decision and indicated that there would be an informal meeting with George Campbell, Gwen Dowling and himself to discuss any issues that the claimant had.

 

23. In his evidence to the tribunal Mr McKee described the Finance Committee's decision as being that the claimant's hours would not be reduced but rather that she would be required to do 7 hours admin work and spend the rest of her time behind the bar. As indicated in the record of the meeting the proposal to do away with the bar steward position and to reduce the claimant's hours was a recommendation rather than a decision. As far as Mr McKee was concerned he had faithfully conveyed the Finance Committee's decision to the claimant which was that her hours would not be reduced but that what she did during those hours would be changed with 7 hours to be spent on admin and the rest behind the bar. It is clear however from the record of the meeting that the claimant's position was in jeopardy and had the Finance Committee's recommendation been put into effect it would have represented a significant change to the claimant's contract.

 

24. The claimant alleged that during his visit Mr McKee said that the Finance Committee intended to make her redundant. In her evidence to the tribunal the claimant stated that Mr McKee had said that it was top of the committee's list to make her redundant to save money but that it would not happen on his watch. In his witness statement Mr McKee denied telling the claimant that she would be made redundant.

 

25. Mr McKee was questioned closely about this matter when he came to give evidence. He denied talking about redundancy or mentioning the word redundancy when he visited the claimant. Mr McKee was referred to the record of the Finance Committee meeting on 27 February 2015 and was asked whether he had mentioned to the claimant what the Finance Committee was recorded as having said. Mr McKee replied that he told the claimant that it was to do with her hours - to discuss her hours and that the committee wanted to make her work more behind the bar with 7 hours admin. Mr McKee was asked about the statement attributed to him by the claimant that she would not be made redundant on his watch. Mr McKee replied - "Not at that time - no." Mr McKee went on to indicate that he did say something of this nature but could not say when although it was shortly after that date and it may have been on a Monday as he would call at the Club most Mondays to speak with the claimant before she went to the bank.

 

26. On 26 March 2015, the Finance Committee met with the claimant. This meeting was not addressed in detail in the evidence presented to the tribunal and no record of the meeting was produced. It was dealt with in the respondent's response in the following terms. Committee members explained to the claimant that she was unable to claim 25 hours work and only attend the respondent's premises for 12.5 hours to conduct her bar work. The claimant became upset but after the committee explained its reasoning she agreed to focus more time on her bar role. The claimant was asked if she needed any help with the paperwork which she declined. She was also advised that she must continue to report back to the Finance Committee on a regular basis. The claimant agreed that a more precise diary detailing hours worked would be kept and that a new plan would be put in place to help her with administrative duties. It was also agreed that the claimant would continue to work 25 hours per week spending 7 hours on administrative duties and 18 hours behind the bar.

 

27. There was then a lull of approximately nine months during which period nothing untoward appears to have occurred as far as the claimant was concerned.

 

28. On 1 February 2016, Mr McKee was in attendance at the club premises at approximately 2.15 pm and at 2.30 pm the claimant left the premises. Mr McKee understood that she was going to the bank to lodge the takings from the weekend. It was custom and practice for the weekend's taking to be lodged on the Monday unless it was a Bank Holiday. This is also specified in the Finance Committee's code of conduct. Although in her evidence to the tribunal the claimant denied that she was obliged to make lodgements on a particular day it is clear that she made the lodgements each week. In the claimant's witness statement she makes reference to doing this "on a Monday as usual".

 

29. The Club had a contract with ABV Licensed Trade Wholesalers ("ABV") to supply its drinks. Drinks supplies were delivered on a weekly basis with payment being made shortly after delivery.

 

30. On 5 February 2016, the claimant phoned Mr McKee and informed him that the ABV drinks delivery had arrived but the delivery driver had been instructed that he could not deliver the goods unless a cash payment was made as the previous cheque had bounced. Mr McKee was shocked because the monies lodged in the club's bank account each Monday should cover the payment for the drinks delivery.

 

31. Mr McKee questioned the claimant about this and she advised that she did not lodge the monies in the account until Thursday 4 February 2016 as she had been feeling unwell. Mr McKee asked the claimant why she had not contacted the Club's Treasurer, Mrs Dowling or himself and requested that they take the monies to the bank. The claimant did not give an explanation. As a result Mr McKee had to source an alternative supplier who required to be paid on delivery.

 

32. On 18 February 2016 Pauline Beattie of ABV contacted the claimant's sister, Joanne McNarry, regarding an outstanding payment. According to Ms McNarry, Ms Beattie had advised her that Scott Robbie, an employee of ABV could lose his job over these debts as he had let stock go without payment on delivery. Ms McNarry advised Ms Beattie that the best course of action would be to put this in writing and present this to the next committee meeting.

 

33. On or about 19 February 2016 Pauline Beattie of ABV delivered a letter to the claimant's home from Scott Robbie addressed to Club Secretary, Mr George Campbell and raised concerns in relation to the Club's debt. The letter read as follows:

 

"The secretary

 

It is with regret I am writing this letter as I have regarded RBL Millisle as very good customer of ourselves here at ABV cash and carry.

 

RBL has an outstanding amount due for a few weeks now of £1079.05 and we urgently need payment. We received two cheques from RBL Millisle came back to us saying insufficient funds in issuers account.

 

We have contacted Robin McKee on numerous occasions with little to no response. The last text message we received said this matter would be passed to his finance department, which we are still waiting on him giving us a phone number for.

 

Mr McKee had signed a contract with us which gives us permission to come into the premises and take goods for the amount owed or failing this take this matter further to small claims court.

 

Could you please contact us as soon as possible to resolve this matter.

 

Contact

 

Scott Robbie - Manager [mobile phone number]

 

Or

 

Pauline Beattie - Accounts department [mobile phone number]

 

Yours sincerely

 

Scott Robbie

Manager"

 

34. The claimant did not as one might expect pass this letter immediately to Mr Campbell but instead gave it to her sister, Joanne McNarry.

 

35. Over three weeks later on 13 March 2016 Joanne McNarry handed the letter to Martin Stewart, a committee member before a committee meeting that was due to take place that day. Mr Stewart then passed it to Mr Campbell. Mr Campbell gave evidence he was very annoyed as the letter should have been given to him straightaway. According to Mr Campbell bar staff had no authority to approach suppliers.

 

36. The Finance Committee met on 13 March 2016 and Mr Campbell read out the letter from ABV. Mr McKee was annoyed because he knew that the letter had been there for several weeks because the amount due, £1,079.05 was the balance that was due on 22 February 2016. Mr McKee denied being very angry and cross about it.
Mr McKee gave evidence that he was upset because the letter had been withheld. Mr McKee had previously informed the Finance Committee about the cheque that had bounced and the Finance Committee was therefore aware that this was due to the claimant's failure to lodge the weekend's takings on time. Mr Campbell rejected the suggestion that the claimant had obtained the letter for a special reason namely that she had been accused of theft as no-one had ever accused her of theft. After consultation and agreement with the Finance Committee Mr McKee set up a payment plan with ABV to allow for one week's credit.

 

37. At the same meeting Mr McKee informed the Finance Committee that that the beer lines had not been cleaned since before Christmas. He had discovered a problem with the renovating powder on 25 February 2016 and raised this with the claimant the next day who informed him that the lines not been cleaned since before Christmas. According to the claimant she had phoned the person who undertook the cleaning but he never answered. Mr McKee asked why she never said as he had the number for a different line cleaner. Mr McKee contacted the other cleaner and the lines were cleaned on 3 March 2016. Ms Orr was also appointed as the bar liaison person at this meeting. She described Mr McKee's demeanour at the meeting as quite disappointed and more hurt than angry.

 

38. Mr McKee went home after the meeting. He was still very annoyed at the ABV letter being withheld. Mr McKee returned to the Club and spoke with the claimant in the stockroom. The claimant was working on the club premises in preparation for her partner's father's wake whose funeral was due to take place the following day. The claimant gave evidence that Mr McKee summoned her to the stockroom and questioned her in a hostile and aggressive manner about the letter. Mr McKee asked the claimant when the ABV letter came into the Club and who received it. The claimant denied all knowledge of the letter and advised Mr McKee that she knew nothing about it. According to the claimant he accused her of withholding information from him and of failing to make payments by not placing money in the Club's bank account on a particular day of the week. This was a reference to the claimant's failure to lodge monies on 1 February 2016 as referred to in paragraph 31 above. The claimant asserted that she was not required to lodge monies on a particular day or to make sure that suppliers were paid on time. The claimant did not provide this explanation when questioned about the matter by Mr McKee at that time. The claimant considered that Mr McKee had behaved to her in a hostile and aggressive manner in retaliation for the claimant having brought the letter to the attention of the Committee members. Mr McKee denied summoning the claimant to the stockroom and questioning her in a hostile manner. There were two witnesses to these events - Ms Orr and Mrs Griffiths. Ms Orr was present having asked the claimant to show her around the stockroom. According to Ms Orr the claimant got quite angry when she was asked about the letter and said that she wasn't the only member of staff with access to the mail and asked if Mr McKee had asked the rest of the staff about the letter. Mr McKee responded to the effect that the claimant was the bar steward and before leaving he said - "I will get to the bottom of this". Mrs Orr gave evidence that the claimant was not distressed when she came out of the stockroom but did become distressed later on. Mrs Griffiths gave evidence that the claimant was crying when she came out of the stockroom and that Mr McKee was standing in the doorway and looked angry. She did not hear raised voices and could not say whether Mr McKee was upset. The claimant viewed what she described as "accusations" and the way that Mr McKee spoke to her especially given the circumstances of the funeral/wake of a close family member, as a fundamental breach of the implied contractual term of trust and confidence.

 

39. It is not in dispute that the claimant was being untruthful when she denied any knowledge of the ABV letter. The claimant provided an explanation for her actions to the tribunal. According to the claimant, Ms Beattie's intention in delivering the letter to the claimant's home address was to bypass Mr McKee whom ABV feared would ignore their demands for payment.

 

40. Mr McKee also made enquiries about the letter. He spoke with Ms Beattie who advised him that the letter had been hand delivered to the claimant's house weeks and weeks ago.

 

41. According to the claimant, Mr McKee had taken on responsibility for finance despite it not being part of his role as committee chair. Mr McKee accepted that he had a degree of responsibility with regard to finance but that all financial matters were ultimately within the remit of the Finance Committee. The claimant felt that Mr McKee conducted business in a dishonest manner and that his expectation that she should conceal this from other committee members was a further breach of mutual trust and confidence. In our view there is simply no evidential basis for the allegation that Mr McKee conducted business in a dishonest manner and required the claimant to keep this hidden.

 

42. The claimant viewed Mr McKee's behaviour towards her on 13 March 2016 as the last straw in an ongoing campaign of bullying and intimidation.

 

43. On 15 March 2016, the claimant's partner, Mr O'Neill, returned the club keys to the premises and relayed a message from the claimant that she had resigned and would not be coming back to the job . According to Mr McKee, Mr O'Neill threw the keys on the counter and advised that she (the claimant) would not be back. The claimant regarded herself as unfairly and constructively dismissed as of this date.

 

44. According to the claimant she heard nothing from the respondents in response to her resignation and she sought advice from the Labour Relations Agency around the start of April 2016. The Labour Relations Agency advised the claimant to submit a resignation letter by way of confirming termination of employment with the club. The claimant submitted a resignation letter on 10 April 2016 which read as follows:

 

"To Millisle British Legion Committee

 

I have been advised by Labour Relations to list the reasons to this Committee why my job became untenable.

 

The Reasons are as follows:

 

1)     Overhearing Robin McKee talking to Bob Christie in Gents Toilets. He was criticizing Bar & Kitchen and Christmas Dinners. I returned to bar very upset - Maurice took me outside to calm me, where Robin McKee confronted me. A meeting was arranged between me, Robin and
Tommy Murphy, as I felt I was being Bullied.

 

2)     On Fri 6 ^th March 2016 Robin after asking Joanne who was working if I or Mark was at home as he needed to speak to me alone. He came to my home to tell me the Finance Committee (W. Bailie, J Munroe and Howard Cork) an (sic) Committee Members wanted to pay me off because they had no money. It was top of their list.

 

I felt very betrayed and heartbroken to be treated after the dedication and hard work during the year before Robin's return. I eventually had to be prescribed Anti depressants by Doctor, due to atmosphere in club.

 

3)     AGM 2016

 

Felt humiliated and frustrated over accusations which are unfounded, uncalled for and could be taken as defamation of character.

 

4)     Sunday 13 ^th March

 

In Legion on Sunday Night, the night before we buried my father-in-law Robin took me into stock room and questioned me very angrilly (sic) and aggressively about a letter given to the Committee from ABV, accusing me of withholding information. Two weeks before this Robin had told me not to discuss ABV with any of the Committee as we had changed suppliers. I have been accused of not banking the money on a Monday one week and that was why ABV were not paid. ABV were owed money over several weeks, even when I banked on a Monday. Robin then went to Pauline Beattie's home after speaking with me and she was left physically shaken (Pauline works for ABV).

 

I enclose a statement from ABV showing money owed over several weeks to reinforce my statement.

 

I feel very sad and unhappy that things have come to this as I loved my job and have always worked hard for the club during the years I worked there.

 

I feel the atmosphere of distrust and disharmony within the club has forced me to leave and seek Legal Advice as recommended by Labour Relations.

 

As none of the committee even asked me why I felt I had to leave I have put it in writing.

 

C. McNarry"

 

45. On 25 April 2016 Mr McKee and Ms Orr met with Ms Beattie at ABV's premises. A further meeting with ABV subsequently took place involving Mrs Dowling, Ms Orr and Gwen Patterson of ABV. It is clear that there was considerable disquiet about ABV's behaviour. Ms Beattie followed up her meeting by writing to Mr McKee on 5 May 2016. In the letter Ms Beattie explained that the reason for delivering the ABV letter to the claimant on or about 19 February 2016. According to Ms Beattie the claimant phoned Ms Beattie and asked to give her information in relation to payments as she was being accused of theft and was going to lose her job.

 

46. On 3 May 2016 Mr Campbell responded to the claimant's resignation letter of 10 April 2016. He acknowledged receipt of her resignation letter and invited her to attend a meeting (on 6 May 2016) to discuss her resignation.

 

47. The claimant attended the meeting on 6 May 2016. According to the claimant, she was told that she was lying in her letter of resignation and that it was her fault that ABV had not been paid. The claimant felt insulted by this allegation and walked out of the meeting. The respondent's version of the meeting was that claimant was given the opportunity to express her concerns and that issues were discussed such as the claimant's failure to carry out her duties to a satisfactory standard. The claimant then became hostile and left the meeting. Her partner, Mr Murphy, remained and alleged that that the Committee was being managed incorrectly; made negative comments about Mr McKee and stated that the Committee was corrupted except for Tommy Murphy. He then left. It was denied that the claimant was told that she had been lying in her resignation letter.

 

48. On 21 May 2016 Mr Campbell wrote to the claimant and informed her that the club had yet to receive her resignation and that she would now be the subject of disciplinary procedure.

 

49. On 24 May 2015, the claimant responded saying that the disciplinary procedure was entirely inappropriate given that she was no longer their employee. The claimant also confirmed the reasons for her resignation and pointed out that the club had previously acknowledged her resignation in Mr Campbell's letter of 3 May 2016.

 

50. Mr Campbell replied on 30 May 2016 and reiterated that the claimant would be the subject of disciplinary procedure and that she was barred from the premises until they had been completed.

 

SUBMISSIONS

 

51. The tribunal had the benefit of both oral and written submissions from both parties. The written submissions are appended to this decision. The crux of this case is whether the claimant was constructively dismissed and the submissions rehearse the relevant law on this issue and draw attention to the evidence in support of their respective contentions. There was no dispute as to the applicable legal principles.

 

52. In the course of the submissions hearing Mrs Sheridan asked for the recording of the hearing to be considered in relation to two matters which she subsequently identified in an email the material portion of which reads as follows:

 

"1. 11.45am of R McKee's cross examination when I asked him about his role I am suggesting that he was very abrupt with his answer and I suggest that this was his attitude and demeanour towards the claimant.

 

2. In respect of the redundancy comments R McKee at around 13.40pm when asked about the redundancy and comments not on my watch when asked by the judge the claimant said you told her it would not happen on my watch. The claimant [Mr McKee] replied not at that time, one time but can't remember."

 

The relevant portions of the recordings have been checked. In respect of the first point we are unable to detect any abruptness on Mr McKee's part and this accords with our recollection of Mr McKee's demeanour throughout his evidence. The reference to the claimant in the final sentence of point 2 is erroneous. Mrs Sheridan intended to refer to Mr McKee. In any event having had recourse to both our notes and the recording we are satisfied that Mrs Sheridan's account of Mr McKee's evidence on this point is accurate. Indeed it was not strictly necessary to listen to the recording in order to be so satisfied save for an abundance of caution. As appears from our findings at paragraph 25 above Mr McKee accepted that he made the remark in question but was not sure when.

 

THE LAW

 

53. Article 126 of  the Employment Rights (Northern Ireland) Order 1996 sets out the right not to be unfairly dismissed and Article 127 in so far as relevant  provides as follows:-

 

"127(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2), only 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."

 

54. In order for an employee to establish that he/she has been constructively dismissed, an employee must show that his employer had committed a serious and repudiatory breach of contract, that the employee had left because of that breach and that he had not accepted and had not waived that breach. A relevant serious breach of contract can include not just the breach of a specific or written contractual term but a serious breach of the implied term of trust and confidence. Such a breach of the implied term would occur if an employer had acted in a manner which was calculated or was likely to destroy or seriously damage the relationship of trust and confidence.

55. The authors of Harvey at D1 [403] describe four conditions that an employee must meet if he/she is to claim constructive dismissal.

 

(1) There must be a breach of contract by the employer. This may either be 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 of a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting repudiation in law.

 

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

 

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

 

56. The leading case in relation to constructive dismissal is Western Excavating  (ECC) Ltd v Sharp  (CA)   [1978] ICR 221  in which it was held that an employee's entitlement to terminate his contract of employment by reason of his employer's conduct was to be determined in accordance with the law of contract and not by applying a test of unreasonableness to the employer's conduct. However, the courts mitigated the impact of this approach by recognising that there is an implied contractual term to the effect that the employer should not behave in a manner that would undermine the relationship of trust and confidence between employer and employee.

 

57. As to the nature of the duty of trust and confidence, it was described by
Lord Steyn in   Mahmud v Bank of Credit and Commerce International SA   [1997] ICR 606 ,   [1997] IRLR 462   in the following terms:-

 

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

The precise terms of this formulation have been the subject of comment and refinement. In   Baldwin v Brighton and Hove City Council   [2007] ICR 680 ,   [2007] IRLR 232   the Employment Appeal Tribunal had to consider the issue as to whether in order for there to be a breach the actions of the employer had to be calculated and likely to destroy the  relationship of confidence and trust, or whether only one or other of these requirements needed to be satisfied. The view taken by the  Employment Appeal Tribunal  was that the use of the word 'and' by Lord Steyn in this passage was an error of transcription of the previous authorities, and that the relevant test is satisfied if either of the requirements is met. In  BG plc v Mr P O'Brien [2001] IRLR 496, Mr Recorder Langstaff QC in giving a decision of the Employment Appeal Tribunal in a constructive dismissal case formulated a test as follows:-

"The question is whether, objectively speaking, the employer has conducted itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee."

 

58. The courts have also considered situations where a series of incidents has occurred and the employee resigns in response to the last actions of the series which constitute the so-called "last straw". In   Lewis v Motorworld Garages Ltd [1986] ICR 157, Glidewell LJ stated at page 169 F:-

 

"The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulated series of acts taken together amount to a breach of the implied term?... This is the 'last straw' situation."

 

59. The Employment Appeal Tribunal considered the so called last straw doctrine in   Thornton Print Ltd v Morton [2008] UKEAT/0090/08/JOJ. In that case Judge Serota QC endorsed the judgment of the Court of Appeal in  Omilaju v London Borough of Waltham Forest   [2005] 1 All ER 75   and stated that:-

 

"The principle, if it be one, means no more than that the final matter that leads to the acceptance of a repudiatory breach of contract when taken together and cumulatively with earlier conduct entitles a party to accept a repudiatory breach of contract, whether that last matter is in itself a breach of contract or not."

 

60. 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. For a claim of constructive dismissal to succeed it must also be unfair.

 

DISCUSSION

 

61. There are four separate sources which may be drawn upon in considering the basis if any for the claimant's complaint of constructive dismissal - (1) The grievance letter, (2) the resignation letter, (3) the matters set out in her claim form, (4) the claimant's evidence to the tribunal. The first two sources are of particular significance being contemporaneous accounts of the claimant's feelings at the time of writing.

 

62. The grievance letter begins with a complaint about a committee meeting on 16 February 2015 during which Mrs Munro asked the claimant to justify the hours that she worked which the claimant found very strange. Mrs Munro then went on to ask the claimant how long it took her to do the admin work and why she went to Bangor to lodge the money on a weekly basis as it could be lodged in Donaghadee.
Mrs Munro also told the claimant that she should be doing 17 hours behind the bar as stated in her contract. Although Mrs Munro provided a witness statement she was not called to give oral evidence The letter went on to say that the claimant felt that over the last 10 weeks she had been victimised and bullied by certain members of the committee and she had heard on a number of occasions that they are trying to push her out of my job role. The claimant concluded by saying that she truly enjoyed and was committed to her job and felt that it was impossible to continue due to a bad atmosphere and lack of trust. It is noteworthy however that the claimant nonetheless continued to work for the respondent.

 

63. In her resignation letter of 10 April 2016 the claimant gave four reasons why her job had become untenable - (1) Overhearing criticism of the quality of her work by
Mr McKee, (2) Mr McKee attending at her home on 6 March 2016 and advising her that the Committee wanted to pay her off, (3) Feeling humiliated and frustrated at AGM in 2016 over unfounded accusations and (4) Being questioned angrily and aggressively by Mr McKee in the stockroom on 13 March 2016 on the eve of her father-in-law's funeral about a letter from ABV to the Committee accusing the claimant of withholding information and not banking money on time.

 

64. In her claim form the claimant refers to an ongoing series of minor breaches of trust and confidence on the part of Mr McKee whom she alleged told her not to trust other members of the committee. It is significant that the resignation letter makes no mention of Mr McKee telling her not to trust other members. This may be because it was a minor matter. In her witness statement and oral evidence to the tribunal the claimant referred to Mr McKee criticising her work in November 2015 and this would appear to tie in with the first matter relied upon in the resignation letter. The claim form also contained an unequivocal statement by the claimant that Mr McKee's behaviour towards her on 13 March 2016 was the last straw in an ongoing campaign of bullying and intimidation which finally destroyed any remaining trust and confidence.

 

65. The first, second and fourth reason given in the resignation letter are referred to in the claim form. The third reason was not addressed in the claimant's evidence. Nor is there any mention in the claim form of the claimant's feelings during the AGM. This does not strike us as amounting to a reason as such but is simply an expression of how the claimant may have felt at that time. Given that it did not feature in the claimant's witness statement or her evidence to the tribunal it cannot be regarded as a significant matter.

 

CONCLUSIONS

 

66. As appears from the discussion above there are essentially three basis upon which the claim of constructive dismissal is advanced. We shall set out our conclusions on each in turn.

 

(1) Breach of contract

Although the respondent took no steps at any time which would have been a precursor to making the claimant redundant it is clear from the record of the meeting on 27 February 2015 that the claimant's post and the nature of her duties were under active consideration. The Finance Committee discussed making significant alterations to the claimant's terms of employment including a substantial reduction to her hours. There was some doubt or confusion as to whether the Committee's deliberations resulted in a decision to reduce the claimant's hours or a recommendation to do so. Mr McKee was instructed to inform the claimant that the Finance Committee wished to meet with her about the matter. Mr McKee regarded it as a recommendation and at its height the claimant's case was that Mr McKee on the occasion of his visit on
28 February 2015 informed her that the Finance Committee were intending to make her redundant and that Mr McKee said that she would not be made redundant on his watch. Mr McKee denied saying anything about redundancy when he visited the claimant on 28 February 2015 but conceded that he may have said that she would not be made redundant on his watch in a separate conversation with the claimant. What is absolutely clear however is that the claimant was not made redundant and her hours were not reduced. Alterations were made as to her duties during those hours but there is no basis for any suggestion that this amounted to a breach of contract. We have also considered whether the respondent's behaviour could amount to an anticipatory breach of contract. Were we to accept the claimant's evidence about what was said to her by Mr McKee on his visit this conduct could amount to an anticipatory breach of contract. Be that as it may the claimant did not resign in response to any perceived threat to reduce her hours and continued to work for the respondent. Moreover this was not the first occasion on which the claimant's hours were raised by the Finance Committee. It was also raised at the meeting on 16 January 2015 in response to which the claimant composed a grievance letter in which she referred to a number of matters including her contracted hours. In fairness to the claimant she did not seek to put forward the case that she resigned in response to any breach or anticipatory breach of contract at this juncture and given the date of her resignation it would not have been feasible for her to do so. Rather the claimant's case was that she later discovered that the threat of redundancy was untrue but she regarded Mr McKee's behaviour as a further incident in an ongoing campaign of bullying and harassment by him and it is to this that we will turn to next.

 

(2) Breach of Duty of Trust and Confidence

 

The main thrust of the claimant's case was that her employer had acted in breach of its duty of trust and confidence in its treatment of her. As indicated above the claimant considered that she had been subjected to a campaign of bullying and harassment. In her resignation letter the claimant broke this down into four components which we will look at both individually and cumulatively. We will then consider the matter through the prism of the last straw doctrine.

(i)             Overhearing criticism of the quality of her work by Mr McKee

It is not in dispute that Mr McKee criticised the quality of the claimant's work. The claimant accepted that the criticism of her work was justified and the essence of her complaint was that she overheard Mr McKee's comments to a Club member about it. Mr McKee did not dispute this and maintained that he was simply giving an honest answer to a question. We do not regard this occurrence as evidence of a campaign of bullying and harassment.

(ii)           Mr McKee attending at her home on 6 March 2016 and advising her that the Committee wanted to pay her off.

 

The Finance Committee undoubtedly considered that the claimant's hours should be reduced and that her position as bar steward should be done away with. This was described in the Finance Committee's record as a recommendation. It is also clear that sometime after the committee meeting either during Mr McKee's visit or shortly thereafter he told the claimant that she would not be made redundant on his watch. The Finance Committee was quite entitled to make recommendations about staffing but as is clear the recommendations to do away with the bar steward role and to reduce the claimant's hours were not followed through. For Mr McKee to say that the claimant would not be made redundant is something that on the face of it is good news. It suggests that Mr McKee was sticking up for her. An alternative interpretation might be that he was seeking to sow seeds of doubt in the claimant's mind but this strikes us as rather fanciful. We do not therefore see this as part of a campaign of bullying and harassment by Mr McKee.

 

(iii)          Feeling humiliated and frustrated at AGM in 2016 over unfounded accusations

There is no evidence that anything untoward occurred during the AGM. This is therefore no more than an expression of how the claimant says she felt at the time and cannot be said to contribute anything to the alleged breach of trust and confidence.

(iv)          Being questioned angrily and aggressively by Mr McKee in the stock room on 13 March 2016 on the eve of her father-in-law's funeral about a letter from ABV to the Committee accusing the claimant of withholding information and not banking money on time

It is clear that the claimant did wrongfully withhold a letter from ABV that was addressed to the Club Secretary, Mr Campbell and failed to bank money on time. Mr McKee denied questioning the claimant angrily and aggressively as did those who witnessed the incident. The respondent's case was that he merely expressed disappointment. It is possible that Mr McKee acted with commendable restraint but this seems unlikely to us given what had occurred. We consider it more probable than not that Mr McKee was angry with the claimant for withholding the ABV letter and for not banking money on time. The claimant considered Mr McKee's questioning to be aggressive. This may have been influenced by her knowledge that she was in the wrong. In our view Mr McKee would have been justified in being angry with the claimant and questioning her about the matter and for the purposes of this issue we are prepared to accept the claimant's case at its height and proceed on the basis that Mr McKee was angry and that his questioning was aggressive. We do not however consider that this would have constituted a breach of trust and confidence in the circumstances. The claimant was very much the author of her own misfortune by improperly withholding correspondence. It was not
Mr McKee's fault that this issue came to a head on the eve of a family funeral.

 

67. None of these incidents either individually or cumulatively strikes us as giving rise to a breach of trust and confidence. While we are satisfied that Mr McKee alerted the claimant to the threat of redundancy this was not followed through by the respondent. Nor was the possibility of the claimant's hours being reduced. While a number of matters may well have caused the claimant annoyance the matters of which she complains do not have the flavour of bullying, intimidation or harassment. It is also of note that there was a nine month break in the activity complained of between 2015 and 2016. Whatever the reason for this it would appear that matters settled down for a substantial period based on the claimant's case. It was submitted by the respondent that the claimant had waived or accepted the alleged breaches of contract in 2015. There is some force in this submission but we prefer to view this period as a lull in events rather than any waiver by the claimant even though she failed to follow up her grievance letter.

 

68. Finally, we have considered whether the incident in the stockroom on
13 March 2016 could be regarded as a last straw. We are mindful that a last straw in the context of constructive dismissal need not in itself constitute a separate breach of contract. As appears from our findings at paragraph 66 above we do not regard the incident taken at its height as amounting to a breach of trust and confidence. We must also look at it against the backdrop of the claimant's complaint that the respondent was responsible for a series of matters which destroyed her trust and confidence. Having regard to our findings at paragraph 66 above we do not consider that the incident in the stockroom can properly be regarded as a last straw.

 

69. While we have criticised some of the claimant's actions we believe that she was genuinely upset about the events that occurred and this came across strongly when she was giving her evidence. That does not mean however that the respondent behaved badly or unlawfully towards her.

 

70. Having regard to our findings as set out above the claimant's claim must be dismissed.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 20-21 October 2016 and 20 February 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: