Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

 

CASE REF: 2691/16IT

 

 

 

CLAIMANT: Louise Linda Ross

 

 

RESPONDENT: Town and Country Care Homes Limited

 

 

DECISION

 

 

The tribunal dismisses all claims.

 

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Travers

 

Members: Mr C McIlwaine

Ms E McFarline

 

 

Appearances:

 

The claimant was represented by Mr N Phillips, Barrister-at-Law instructed by
Fisher Law.

 

The respondent was represented by Mr B Kearney, Barrister-at-Law instructed by Quinn & Heron Solicitors.

 

 

REASONS

 

Issues

 

1.             At the outset of the hearing Mr Phillips on behalf of the claimant withdrew her claim for disability discrimination and her claims against Marina Lupari in her personal capacity. On withdrawal, both sets of claims were dismissed and the title of the proceedings amended to delete reference to Dr Lupari.

 

2.             In closing submissions it was conceded by Mr Kearney on behalf of the respondent that under regulation 4(2)(a) the Transfer of Undertakings (Protection of Employees) Regulations 2006 ['TUPE'] the obligations of a transferor to hear a pre-transfer grievance transfer to the transferee under TUPE.

 

3.             The following issues fall to be considered in this case:-

 

(i)         Did the claimant suffer an unlawful deduction of wages?

 

(ii)        Was the claimant unfairly dismissed by reason of constructive dismissal?

 

Facts

 

4.             Having considered all the evidence and the submissions presented to the tribunal, the following findings of fact have been arrived at on the balance of probabilities.

 

5.             On 13 December 1996 the claimant commenced employment as a care assistant in the nursing home latterly known as Ladyhill Lodge ['Ladyhill'].

 

6.             During the period of the claimant's employment Ladyhill has had three different owners. The respondent contends that it formally took over ownership on 8 July 2016 when regulatory approval was finally given. The takeover process had been protracted. The guiding lights behind the respondent are Marina Lupari and
Peter McMullen. Following the takeover Dr Lupari assumed managerial control of Ladyhill.

 

7.             Prior to the formal completion of the takeover, and in readiness for its completion,
Dr Lupari became involved in aspects of the management of the home with the full consent and authority of the then owner.

 

8.             The respondent was anxious to emphasise that it did not take over Ladyhill until 08/07/16 but there is evidence which indicates that in reality the respondent became increasingly involved in the home prior to that date.

 

9.             Seventy seven new staff uniform tunics were ordered by Dr Lupari on 04/06/16 in the respondent's name for collection on 16/06/16. The claimant's payslip dated 27/06/16 shows the respondent's name as her employer.

 

10.          The claimant's Statement of Main Terms of Employment dated 04/05/05 under the heading 'Hours of Work' states that: 'Your normal hours of work are 38 hours per week. Due to the nature of the work, however you will be required to work shifts over a seven day period and will required [sic] to work such hours as are necessary for the proper performance of your duties' [emphasis added].

 

11.          Over many years the claimant had worked three night shifts per week. On 02/06/16 when the claimant received her rota for the week commencing 06/06/16, she was surprised and upset to discover that her shift pattern had been changed to include twilight shifts.

 

12.          On Friday 03/06/16 the claimant contacted the then owner of Ladyhill and told him of her concerns. He said that he would have the nurse manager, Lisa Davison, sort it out. The claimant expected a telephone call from Ms Davison that day, but as the day went on she did not receive a call from her.

 

13.          The claimant took the sensible precaution on 05/06/16 of arranging with a casual worker to cover the claimant's shifts on 6 and 7 June. The claimant informed the nurse in charge of her shift and was led to understand that the arrangement she had made with the casual worker was satisfactory.

 

14.          Unfortunately, a last minute change of mind by the casual worker meant that the claimant's twilight shift on 06/06/16 was not covered. This could not have been anticipated by the claimant and was not her fault.

 

15.          On 06/06/16 the claimant was contacted by telephone by Ms Davison about the problem over the staffing issue. The claimant explained her position and the arrangements which she had made to have the shift covered. Ms Davison asked the claimant to attend a meeting with Dr Lupari to discuss the issue.

 

16.          The claimant was deeply upset by her conversation with Ms Davison and the suggestion that she should attend a meeting with Dr Lupari. The claimant was aware that she was not the only employee who was unhappy about being required to do twilight shifts and she felt that she was being singled out.

 

17.          In a distressed state she contacted her union representative and was told to ring work to say that she was ill and she was also advised to contact her doctor. She attended her doctor on 08/06/16 and was signed off work for four weeks.

 

18.          On 08/06/16 the claimant's husband personally sought out a meeting with Dr Lupari in order to deliver the doctor's certificate and a grievance letter from the claimant dated 06/06/16. The grievance expressed the claimant's concerns about being required to undertake twilight shifts and about being called to a meeting with Dr Lupari. The letter explained that the situation had caused her stress and worry and that she felt that she was being pushed out of her job.

 

19.          The outcome of the exchange between Mr Ross and Dr Lupari on 06/06/16 was that it was arranged that Dr Lupari and Mr McMullen would attend the claimant's house on 10/06/16 to discuss the issues with the claimant and her husband.

 

20.          The meeting on 10/06/16 was a success. The claimant ventilated her concerns about the abrupt change in her rota and the anxiety which it had caused her concerning her employment generally. The meeting was amicable and at one point Dr Lupari even suggested that the claimant would be suitable for a senior carer position. Ultimately however a senior carer position was not something which was of interest to the claimant. Dr Lupari agreed to carry forward five service days which the claimant had accrued under previous owners of Ladyhill.

 

21.          Following the meeting on 10 June the claimant was reassured and decided to return to work on the week commencing 20/06/16, some two weeks before the original expiry date of her doctor's sick note. The claimant accepted the new rota.

 

22.          On 12/06/16 Dr Lupari contacted the claimant to ask why she was being paid
10 pence per hour more than the other care assistants. It added up to £3.60 per week. The claimant explained that she had always received the 10p uplift because she had a NVQ. Dr Lupari said that what she really wanted was to have all of the care assistants on the same rate of pay. The claimant says that she felt embarrassed and just said to Dr Lupari that, '£3.60 never reared me, just pay me the same as the rest'. Dr Lupari thanked the claimant and that was the end of the conversation.

 

23.          In cross-examination Dr Lupari initially said that she did not remember having a conversation with the claimant about the £3.60 weekly pay differential. This assertion contrasted sharply with the respondent's response form dated 31/01/07. The response form fully acknowledges that a conversation took place between the claimant and Dr Lupari about the £3.60 pay gap. It is stated that Dr Lupari raised the subject in order to establish why the claimant received the extra pay. When
Dr Lupari's attention was drawn to the content of the response form she adopted it as reflecting the conversation which she had had with the claimant about the subject.

 

24.          The tribunal was troubled by the fact that on 31/01/17 Dr Lupari retained a clear recollection of a conversation which had taken place seven months before, yet by the date of the hearing initially she could not remember the conversation at all.

 

25.          The claimant says that following the conversation she felt, 'gutted and worthless. My loyalty of nearly 20 years didn't matter to this woman'. The tribunal readily accepts that the claimant suffered disappointment when she was asked about the longstanding pay differential. The tribunal does not accept however that the conversation left the claimant feeling 'gutted and worthless'.

 

26.          The tribunal notes that it was the claimant who volunteered that she would forego the £3.60 per week, in response to an enquiry from Dr Lupari as to why the differential existed. This conversation took place on 12/06/16 when the claimant was still on sick leave. Despite the conversation the claimant chose to return to work on 20/06/16. Subsequent text messages sent by the claimant to Dr Lupari in July and early August were signed off with an 'x'.

 

27.          The disappointment suffered by the claimant was no doubt tempered by the fact that she was in any event to receive a wage increase from £6.90 to £7.30 per hour. The claimant's first payslip issued by the respondent on 27/06/16 showed her rate of pay to be £7.30 per hour, an increase from the £6.90 per hour paid by the previous owner in the month before.

 

28.          On the evidence presented, the claimant has failed to establish that she suffered a reduction in her wages under the respondent's ownership. On the contrary, her rate of pay increased. No evidence was adduced to support a contractual entitlement vested in the claimant to the maintenance of a 10 pence per hour differential between herself and her colleagues.

 

29.          The claimant was paid five days late in June.

 

30.          When the claimant received her 28 July payslip she immediately noticed that it was short by around £500 and she texted a screenshot of her payslip to Dr Lupari writing, 'Hi Marina, sorry to bother you but could you please take a look at my pay when you get a minute, I've only been paid £438.41 and there's no rate of pay or hours on the slip. Thank you x'.

 

31.          A short time later Dr Lupari replied, saying 'Will do...sorry about this'. In turn the claimant texted, 'Much appreciated x'. On 02/08/16 Dr Lupari texted the claimant to tell her that she would ring her the next day.

 

32.          The respondent's wage function is dealt with by a third party company. It is the same company which the former owner of Ladyhill had used. Unfortunately mistakes have occurred from time to time. On this occasion four other employees as well as the claimant were affected.

 

33.          It was to be 26 August before the shortfall in the wages was made up. On the balance of probabilities the tribunal rejects the contested evidence of Dr Lupari that on 3 August she offered to pay the shortfall in the claimant's wages out of her own pocket in the interim. In her witness statement Dr Lupari addressed the circumstances surrounding the shortfall in wages but made no mention to any such offer. It is unclear why this offer would have been omitted from Dr Lupari's witness statement if indeed it had been made to the claimant.

 

34.          The claimant suggested that on Sunday 14 August she met Dr Lupari at Ladyhill and that when the issue of the shortfall in the payment had been raised Dr Lupari caused the claimant upset by joking about having used the outstanding wages as drinking money for her holiday. Dr Lupari had returned from a short holiday in Malta the day before. She was adamant that she had not attended the nursing home on 14 August because that day she had gone to visit a close family friend who had cared for Dr Lupari's late son for 10 years. The tribunal found the manner and substance of Dr Lupari's evidence on this point compelling and is not satisfied that the comments suggested by the claimant were made.

 

35.          On 16 August one of the claimant's colleagues made a drug error which resulted in a resident being admitted to hospital. The drug error was a serious matter which required appropriate investigation. Subsequently the nurse responsible for the error contacted the claimant by text and enquired about the condition of the resident. The claimant replied to that request. In cross-examination she said that she did not recall the exact content of the texts. The claimant said that she did not delete the text exchange with her colleague, she just doesn't have the texts.

 

36.          Dr Lupari's initial investigation into the drug error identified the claimant as someone she wished to speak to as part of the fact-finding investigation into the nurse's conduct. On 19 August 2016 the claimant was interviewed about the text exchange with her colleague which it was to be said represented a potential breach of confidentiality. The meeting was conducted by Mr McMullen who took a handwritten note which was signed by the claimant and dated 19/08/16. Subsequently a typewritten version of the note was prepared which differed in certain respects to the signed handwritten note. The typed version was dated 24/08/16 and was signed by Mr McMullen alone.

 

37.          The preparation of the notes and the difference between the typewritten and handwritten versions is unsatisfactory. No adequate explanation was given for the difference or the fact that it was the typewritten version, unsigned by the claimant, which was subsequently sent to the Northern Ireland Social Care Council.

 

38.          At the date of the claimant's resignation on 20/08/16 she was however unaware of the typewritten version which had yet to be created.

 

39.          The handwritten version signed by the claimant states, 'Marie K txt me over the weekend to ask me about [x] I then replied by txt to inform her how [x] had been over the weekend'. It is acknowledged by the claimant that she was in text contact with the nurse about the condition of the victim of the drug error.

 

40.          On taking over Ladyhill the respondent introduced new uniform tunics for the staff. There was a problem with fitting of the tunic for some of the staff. In particular the claimant and a nurse manager called Colleen McWilliams required a tunic which was larger than the maximum size produced by the uniform supplier.

 

41.          On 04/07/16 the claimant texted Dr Lupari to highlighting the continuing problem with the uniform. The tenor of the texts was friendly. The claimant texted, 'Hi Marina sorry to bother you but those uniforms are xxl there is a number 6 on them but that is nothing to do with size, they are the same as Lisa ordered [tearful emoji inserted] I would def need at the least 4xl I think x'. Dr Lupari replied a minute later, 'Ok will sort this 4 u'. This was followed by the claimant's response, 'Thank you, sorry for giving you bother, if it is more costly I will pay for them x'.

 

42.          On 19/08/16 the claimant was on duty. So too were Dr Lupari and Ms McWilliams. It is not in dispute that the claimant raised the issue of the uniform with Dr Lupari. At this time the claimant was still wearing her former uniform polo shirt while most of the rest of the staff had been wearing the new tunics for many weeks.

 

43.          There is a dispute as to the nature of the conversation about the uniform which took place between the claimant and Dr Lupari that evening and as to who was present during that conversation.

 

44.          The claimant alleges that Dr Lupari told her that she could not find a uniform in the claimant's size and then proceeded to make personal comments about the claimant's weight. Telling her that, '...in this day and age, no-one should be your size. Look at me I was a size 22, it's achievable!'. The claimant says that Dr Lupari went on to refer to the claimant's wedding photos which she had seen when she visited the claimant's home and in which the claimant was 'a lot thinner'. The claimant states that Dr Lupari asked her whether she knew anyone who could sew and then went on to say, 'Well if you know anyone I will give you two of the biggest uniforms and you can get them sewed together'. The claimant says that she felt, 'completely ashamed, hurt and humiliated at the vile thing she had said to me. I don't know how I did it but I didn't let on she had annoyed me'.

 

45.          The claimant says that although she worked in the company of Dr Lupari and Colleen McWilliams at one point during her shift, that was not when the conversation about the uniform took place. This conflicts with the evidence of both Dr Lupari and Ms McWilliams who say that Ms McWilliams was present when there was a discussion about the uniform. Ms McWilliam's evidence that the atmosphere among the staff on the shift was good, is consistent with the claimant's evidence that she did not demonstrate annoyance while on her shift that evening. There was nothing in the claimant's demeanour at work that evening to indicate that she felt, 'completely ashamed, hurt and humiliated'.

 

46.          Dr Lupari acknowledges that there was a problem with obtaining a uniform of suitable size for the claimant. She says that the only option put to her by the company was that she could buy two uniform tunics and out of that create one which fitted suitably. She was adamant that she had not made the comments alleged about the claimant's weight nor did she speak to her about her own weight loss. She spoke emotionally about the reason why she would not have spoken about her own weight loss as alleged by the claimant. Her weight loss was associated with the grieving process following the death of her son. The tribunal accepts her evidence on this point.

 

47.          Colleen McWilliams described a conversation between herself, Dr Lupari and the claimant about the practicalities of obtaining a uniform of suitable size. It was devoid of gratuitous or abusive references to weight loss. During the course of that conversation Dr Lupari referred to the possibility of purchasing two tunics to make into one. She said that if Ms McWilliams knew anyone who could do the work that the respondent would pay for it.

 

48.          Ms McWilliams was challenged on a number of grounds including the fact that her statement had been prepared on the basis of questions asked by Mr McMullen. Having considered the evidence of Ms McWilliams carefully, the tribunal is satisfied that her evidence is reliable and honest. She gave her evidence in a relaxed, spontaneous and moderate fashion.

 

49.          In the circumstances the tribunal is not satisfied on the balance of probabilities that on 19/08/16 Dr Lupari made the gratuitous references about being overweight as the claimant alleges.

 

50.          Although the claimant did not say so or indicate to Dr Lupari at the time, she was in fact upset at the suggestion of sewing two uniforms together. It was a sensitive issue. Ms McWilliams was not upset at the suggestion, but the claimant was. There was nothing abusive in what Dr Lupari said, but perhaps she should have thought more carefully about how to approach what was a potentially sensitive issue.

 

51.          The tribunal heard evidence from the claimant's husband and the nurse responsible for the drug error, and both describe conversations with the claimant where she expressed distress at comments allegedly made by Dr Lupari during the shift on 19/08/16 about the claimant's weight and the subject of weight loss. The evidence of both witnesses was based on what they had been told by the claimant rather than on what they personally witnessed or heard. The tribunal prefers to rely on the evidence of Ms McWilliams and Dr Lupari which is based on first-hand experience.

 

52.          On 20/08/16 the claimant sent a letter of resignation. It said simply, 'Dear Lisa/Colleen, Please accept this letter as my formal resignation, I am hereby giving my contractual one month notice. Can you please minus any accrued annual leave out of this period and let me know as soon as possible. Ps. I would appreciate all outstanding monies which is owed to me be up to date in my pay. Thanks'.

 

53.          Dr Lupari replied on 22/08/16 noting the claimant's resignation with effect from 20/09/16. The claimant worked her next shift on 23/08/16 but felt deeply stressed and on 26/08/16 she received a doctor's certificate on the basis of stress. The doctor's certificate covered the duration of her notice period.

 

54.          Following receipt of the claimant's resignation letter Dr Lupari states that she received advice from the Northern Trust highlighting that there was an issue of a potential breach of confidentiality. Consequently she wrote to the claimant on 30/08/16 notifying her of a disciplinary meeting scheduled for 01/09/16 in respect of the claimant's alleged breach of confidentiality.

 

55.          A solicitor acting for the claimant wrote to Dr Lupari on 08/09/16 to complain about the scheduling of a disciplinary meeting while the claimant continued to be signed off sick by her doctor. The solicitor requested a copy of the grievance procedure.

 

56.          A grievance letter was raised on behalf of the claimant dated 02/11/16. It complained of:-

 

•                 Failure to respond to her grievance letter dated 06/06/16.

 

•                 The change of shift pattern in June without warning.

 

•                 An implied threat of disciplinary action when Dr Lupari first raised the issue of the claimant not working the new shift pattern in June. This was said to be evidence of an orchestrated policy to harass the claimant out of her employment.

 

•                 Dr Lupari asking the claimant about the apparent £3.60 wage differential between herself and the other staff. This was said to be further evidence of an orchestrated policy to harass the claimant out of her employment.

 

•                 The short payment of wages in July which was not remedied until 26/08/16.

 

•                 Dr Lupari believing that the claimant was a whistle-blower to the Regulation and Quality Improvement Authority and consequently treating the claimant as outlined in the grievance letter.

 

•                 Being summoned to the meeting on 19/08/16 with Mr McMullen to discuss a possible breach of confidentiality.

 

•                 Dr Lupari on 19/08/16 commenting that, 'in this day and age no-one should be your size' and suggesting that she would give the claimant two of the biggest uniforms to sew together.

 

57.          The grievance letter went on to state that the issues set out in it gave rise to claims in respect of harassment, bullying, constructive dismissal, disability discrimination on the basis of an underactive thyroid, and personal injury which was foreseeable given the medical certificate issued by the doctor when the problem over the shift pattern arose.

 

58.          The tribunal's findings of fact do not support there being an orchestrated policy to harass the claimant out of her employment.

 

59.          There is no evidence that Dr Lupari thought that the claimant was a whistle-blower.

 

60.          Dr Lupari subsequently referred the claimant to the Northern Ireland Social Care Council in respect of her alleged breach of confidentiality concerning her text communication with the nurse who had made the drug error. This must have been a very worrying time for the claimant. It will have threatened her registration. Happily from the claimant's perspective the Council was satisfied that there was insufficient evidence to substantiate the allegations made against her and the case was closed.

 

Law

 

61.          In closing submissions counsel were in agreement that under regulation 4(2)(a) the Transfer of Undertakings (Protection of Employees) Regulations 2006 ['TUPE'] the obligations of a transferor to hear a pre-transfer grievance transfer to the transferee.

 

62.          The Employment Rights (Northern Ireland) Order 1996 ['ERO'] provides as follows:-

 

At article 126:-

 

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

 

At article 127:-

 

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

 

(c) The employee terminates a contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."

 

63.          The claimant asserts that she was constructively dismissed by reason of one or more of the issues she complains of and/or by the cumulative effect of a combination of some or all of them.

 

64.          Mr Phillips referred the tribunal to the decision of the Court of Appeal in England and Wales in the case of London Borough of Waltham Forest v Omilaju [2004] EWCA Civ 1493, [2005] IRLR 35. The tribunal was referred to the following paragraphs of the decision of Dyson LJ:

 

'14. The following basic propositions of law can be derived from the authorities:

 

1 . The test for constructive dismissal is whether the employer's actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761.

 

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 calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA [1998] AC 20, 34H-35D (Lord Nicholls) and 45C-46E (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] ICR 666, 672A. The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship (emphasis added).

 

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 page 35C, 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" (emphasis added).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 series of incidents. It is well put at para [480] in Harvey on Industrial Relations and Employment Law:

 

" [480] 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 his taking that action, but when viewed against a 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."...

 

15. The last straw principle has been explained in a number of cases, perhaps most clearly in Lewis v Motorworld Garages Ltd [1986] ICR 157. Neill LJ said (p 167C) that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. Glidewell LJ said at p 169F:

 

"(3) 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 cumulative series of acts taken together amount to a breach of the implied term? (See Woods v W. M. Car Services (Peterborough) Ltd. [1981] ICR 666.) This is the "last straw" situation."


16. 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 ...

 

20. I see no need to characterise the final straw as "unreasonable" or "blameworthy" conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.

 

21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.

 

22. Moreover, an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee's trust and confidence has been undermined is objective (see the fourth proposition in para 14 above).' 
 


65.          Article 45 of the ERO sets out the right of a worker not to suffer unauthorised deductions of wages.

 

Conclusion

 

TUPE

 

66.          Counsel's agreement in respect of the effect of the TUPE regulations means that it is unnecessary for the tribunal to reach a conclusion about the precise date on which the respondent assumed ownership of Ladyhill.

 

Unauthorised deduction of wages

67.          The claimant failed to satisfy the tribunal that she has suffered an unauthorised deduction of wages. In fact the claimant's hourly rate of pay rose under the respondent's ownership.

 

68.          No evidence was adduced in support of a contractual entitlement to an ongoing 10p per hour differential between her pay and that of her colleagues. The fact that in the past she may have been the beneficiary of such a differential does not of itself establish a contractual entitlement to its continuance when the hourly rate increased for the claimant and her co-workers following the respondent's takeover.

 

Constructive dismissal

 

69.          In oral submissions which supplemented his very helpful written submissions,
Mr Phillips summarised as follows the issues in respect of which he submitted that the respondent's conduct supported a finding of constructive dismissal -

 

•                 The change of shift pattern.

 

•                 The issue over the £3.60 differential in the claimant's pay.

 

•                 The late payment by 5 days of the claimant's wages in June.

 

•                 The £500 underpayment of the claimant's wages in July.

 

•                 The alleged comments concerning the claimant's weight and provision of a uniform for her.

 

70.          The list at paragraph 69 above is a shorthand summary. In fact Mr Phillips helpfully set out in his written and oral submissions a more extensive exploration of the detail of the allegations which it is said support a finding of unfair dismissal. Mr Phillips also directed the tribunal's attention to factual matters which he says impact on the approach which the tribunal should take to the credibility of the witnesses. The tribunal has considered all of these matters in reaching its findings of fact.

 

71.          The tribunal finds that none of the matters complained of by the claimant support a finding of constructive dismissal on their own.

 

72.          The claimant's contract of employment did not prohibit the respondent from changing her shifts. The short notice of the change of the claimant's shift pattern was however a source of understandable unhappiness for the claimant. As a matter of good management it would clearly have been better and more courteous to have given a long-standing employee better notice of the change in her shift pattern. It cannot however be properly characterised as a repudiatory breach of the claimant's contract of employment, when under that contract the claimant can be required, 'to work shifts over a seven day period and will required [sic] to work such hours as are necessary for the proper performance of your duties'.

 

73.          Dr Lupari's conduct in seeking to visit the claimant at home and her successful soothing of the claimant's anxiety about the issue is entirely inconsistent with there being an orchestrated policy to harass the claimant out of her job as suggested in the 02/11/16 grievance letter.

 

74.          It is understandable that the claimant should have felt discomforted when Dr Lupari raised the issue of the apparent differential between the claimant's pay and that of her colleagues. Nonetheless the tribunal finds that Dr Lupari was entitled to ask the question of the claimant in circumstances where there was no immediately apparent contractual entitlement to such a differential. Asking the question was not of itself a repudiatory breach of contract and the tribunal has not heard any evidence to suggest that the manner of asking the question rendered it a repudiatory breach. The tribunal notes the friendly tone of subsequent text messages between the claimant and Dr Lupari.

 

75.          It was the claimant herself who volunteered to forego the wage differential. As matters unfolded however, it is clear that the claimant in fact suffered no reduction in her hourly rate under the respondent. In fact her rate of pay increased.

 

76.          The claimant received her pay 5 days late in June. No doubt this was very frustrating for the claimant. It was not however the result of an unwillingness or refusal of the respondent to pay the claimant. The tribunal notes that it was not one of the issues raised in the 02/11/16 grievance letter.

 

77.          The delay of one month in paying the claimant the £500 approximately which was outstanding in respect of her July pay was unfortunate to say the least. The claimant can rightly feel aggrieved about the issue. While problems with a third party company may have caused the problem, no compelling explanation was given as to why it took a month to sort out.

 

78.          At no time after the matter had been drawn to Dr Lupari's attention did the respondent seek to justify the failure to pay or indicate any intention not to honour the claimant's contract in that regard. The respondent did however fail to pay the claimant on time in accordance with her contract and was very slow in sorting the issue out. The claimant continued to work notwithstanding the slow resolution of what was acknowledged by the respondent to be an error on its part. The claimant did not treat the late payment as a repudiatory breach of contract on its own.

 

79.          The tribunal has found that Dr Lupari did not make the comments about the claimant's weight as alleged. In putting to the claimant the uniform supply company's suggestion in respect of the two tunics the claimant was simply advancing a practical solution which had been presented to her by a specialist supplier in order to resolve a problem. As noted above, while Ms McWilliams was not offended, the claimant was upset although she did not demonstrate it at the time of the discussion. A greater sensitivity by Dr Lupari to the potential for upset on the part of the claimant may have avoided the difficulty entirely. The tribunal finds however that judged objectively the discussion with the claimant about the uniform cannot be regarded as breaching the implied term of trust and confidence.

 

80.          The claimant resigned on 20/08/16. Unquestionably she was unhappy personally with events at work. The tribunal is unable to find however that the cumulative effect of some or all of those events amount to a repudiation by the respondent of the claimant's contract of employment.

 

81. In the circumstances the claim for unfair dismissal is dismissed.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 26, 27 & 28 June 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: