Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 7291/17IT

 

 

 

 

 

CLAIMANT: Marie Tierney

 

 

RESPONDENT: McCambridge Duffy LLP

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant's claims of unfair constructive dismissal and sex discrimination are not well founded and are dismissed in their entirety.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Knight

 

Members: Mrs D Adams

Mrs A Gribben

 

 

Appearances:

 

The claimant appeared and represented herself.

 

The respondent was represented by Mr Dennis McGettigan of Peninsula Business Services.

 

 

ISSUES

 

1.             The issues to be determined by the tribunal were:

 

Unfair Dismissal

 

1.1 Whether the claimant was unfairly constructively dismissed contrary to the provisions of Article 127(1)(c) of the Employment Rights (NI) Order 1996.

 

1.2          Whether the respondent's actions amounted to a repudiatory breach of contract.

 

Sex Discrimination

 

1.3          Whether the respondent and/or servants or agents subjected the claimant to discrimination on grounds of her gender contrary to Article 3(1) of the Sex Discrimination (Northern Ireland) Order 1976 as amended.

 

1.4          Whether the respondent and/or servants or agents sexually harassed the claimant contrary to Section 6(a) of the Sex Discrimination Order.

 

1.5          Who are the claimant's comparators in relation to her claim of sex discrimination?

 

1.6          To what extent can the respondent rely on the statutory defence in relation to the claim of sex harassment (Article 42(3) of the SDO)?

 

1.7          In the event that the claimant's claims of constructive dismissal and/or sex discrimination are found to be well founded what is the appropriate remedy?

 

1.8          During the hearing it became apparent that there may be a time limitation issue in relation to the claimant's claims under the Sex Discrimination Order (NI) 1976 and the parties were asked to address the tribunal on these issues.

 

EVIDENCE

 

2.             The tribunal considered the written statements and oral evidence of the claimant on behalf of herself; and of the respondent's witnesses: Mr Conor Duffy, Director of the respondent company; Mr Charles Nash, Manager of the NDR department and the claimant's line manager; Ms Orla McLaughlin, Human Resources Officer; Ms Grainne McCafferty, Administrative Assistant in the NDR Department and Ms Roisin Duffy, Senior Manager of the Supervision Team who investigated grievances raised by the claimant. The tribunal also took into consideration documents to which it was referred contained within an agreed bundle and additional documents introduced with the leave of the tribunal during the course of the Hearing. Where there was a conflict of interest the tribunal preferred the evidence of the respondent's witnesses as it found the claimant's evidence to be contradictory, self-serving and unreliable.

 

FINDINGS OF FACT

 

3.             Having considered the written and oral evidence of both the claimant and the respondent and considered documentation to which it was referred, the tribunal found the following relevant facts to be proven on a balance of probabilities:

 

3.1 The claimant was employed by the respondent from 11 November 2009 as the Case Administrator in the National Debt Relief Team ("NDR") based in the respondent's Derry Office until her resignation on 19 July 2017. She was promoted in early 2016 to the position of Team Leader.

 

3.2 The respondent is an insolvency and accountancy practice. In 2014 due a change in legislation the respondent was required to apply for a licence from the Financial Conduct Authority (FCA) to allow the NDR department to continue to operate. The FCA proved to be a much more "hands on" regulator and the lengthy approval process necessitated the introduction of more formal working practices to comply with regulatory standards. Staff members were aware that failure to obtain the full operating licence could have led to the closure of the department and redundancies. This had detrimental effect on the morale of staff within the department.

 

3.3 Team meetings were held on a regular basis to identify areas for improvement in performance. On 8 August 2016 Mr Conor Duffy, held a meeting of Case Administrators, including the claimant, during which he discussed individual performances on an anonymised basis. Each employee was given a code which was not disclosed to anyone else. The purpose of the meeting was to highlight discrepancies in actual performances in order to improve standards.

 

3.4 Following this meeting the claimant raised a complaint against Mr Duffy with HR, which she initially presented as a group grievance. When other staff members advised that they did not wish to pursue any complaint, the claimant confirmed that she wished to pursue an informal individual grievance. She alleged that in or about June 2016 it was reported to her that Mr Duffy had referred to members of the National Debt Release Team as being "lazy bastards" and that the meeting in the training room held on 8 August 2016 had been conducted unfairly. Ms Duffy was appointed to investigate the claimant's informal grievance. Following her investigations, the outcome was that Ms Duffy made several recommendations to improve standards of communication and professionalism between staff members, team leaders and managers, about team working and additional training and to improve staff morale. Ms Duffy discussed her recommendations with the claimant. In cross examination the claimant confirmed that she had accepted this outcome at the time. The claimant alleged that she was intimidated afterwards by Mr Duffy who she said asked her what had she expected to achieve as he was hardly going to be sacked. She did not raise any further grievance about him at the time.

 

3.5 In November 2016, the claimant informed Ms McLaughlin in HR that she had overheard one colleague "A" ask another "B" " If someone walked into this office right now and asked you to sign up to IRA would you?" to which B had replied "F**king right I would". The tribunal accepted Ms McLaughlin's evidence that the claimant informed her that she regarded the comment as being "silly", had not been offended by the comment and did not want any further action taken. She agreed that she would keep an eye on this and report any further comments. No further reports of comments of this nature were made by the claimant.

 

3.6 Also in November 2016 the claimant reported to HR that fellow colleagues verbally abused the claimant and her line manager in a staff meeting. The claimant's previous line manager tendered her resignation towards the end of 2016 with effect from January 2017. It appears that although she had a difference of opinion with Mr Duffy, the claimant's previous line manager worked her one month's notice and trained her successor before she left the respondent company.

 

3.7 Mr Charles Nash was seconded into the NDR department and became the claimant's Line Manager. He wanted to address the lack of morale and underperformance of staff within the department. On 30 and 31 March 2017 Mr Nash, accompanied by Mr Duffy and Ms McLaughlin, held individual meetings with employees so that they could air any work concerns. Employees were assured that their comments would be kept confidential.

 

3.8 During these meetings a number of employees expressed negative views about the claimant in her role as Team Leader. Someone called the claimant a "lazy bitch". He asked this person to mind their language and tone. It was stated that the claimant had distanced herself from her colleagues apart from Mr X and that the claimant and Mr X were whispering and passing handwritten notes to one another throughout the day. One of the comments recorded about Mr X was " Not sure if stuff going on outside of work". It was also stated that the claimant had commented to other colleagues about Mr Nash "Wouldn't it be great if you could just leave the office every day at 5pm like him". Mr Nash recorded these comments in his personal diary.

 

3.9 After these meetings had taken place, Mr Nash and Ms McLaughlin discussed the negative feedback made about the claimant in her role as team leader. Mr Nash complained to Ms McLaughlin that he felt hurt and let down by the claimant's comment about him, which he felt was unjustified. Ms McLaughlin asked Ms Duffy to meet with the claimant to discuss the issues which had arisen. Ms Duffy met the claimant on 3 April  2017 and discussed her approach as Team Leader and her comment about Mr Nash. The claimant disclosed that Mr X had confided in her about a personal issue, without going into detail. Ms Duffy confirmed with the claimant that this issue was "outside work". The claimant also volunteered that Mr X was unhappy and applying for other jobs. Ms Duffy advised the claimant that in her role as team leader there was a need to communicate with and be approachable to all the members of her team. The tribunal did not accept the claimant's evidence that Ms Duffy asked her questions about her relationship with Mr X outside work. The tribunal considered that there was no basis whatsoever for the claimant's later contention that it was insinuated to her at this meeting that she was involved in an inappropriate relationship with Mr X.

 

3.10 On 4 April 2017 the claimant asked to meet again with Ms Duffy as she said she was upset by the discussion the previous day. Ms Duffy tried to reassure the claimant that her intention in holding the meeting had been constructive and she was encouraged in the absence of her Line Manager to go to Roisin Duffy for assistance if she had any work related issues. A further meeting was held on 5 April 2017 between the claimant, Mr Nash and Ms Duffy. Mr Nash explained to the claimant that he had felt "gutted" by her comment. The claimant apologised which was accepted by Mr Nash. It was agreed that they would move on and work together.

 

3.11 The claimant and Mr X talked to each other about what had been discussed at their respective one to one meetings. They also texted and messaged each other over a period of time, expressing dissatisfaction with the respondent and various work colleagues. On 16 June 2017 at approximately 2.36pm Mr X sent the claimant messages on Messenger which contained photographs of notes made by Mr Nash in his personal diary at the staff meetings. The claimant informed him that she would not read his messages immediately but would wait until after 5pm. She then rang Mr X who told her where to locate Mr Nash's diary. In cross examination she admitted that she then went into Mr Nash's office as she wanted to take better photographs of the diary with her own mobile phone. The tribunal did not believe the claimant's evidence that Mr Nash had left his personal diary lying in the office for anyone to see. The claimant also admitted at the hearing that she had previously lied to and misled the respondent about how she had received the photographs because she wished to protect Mr X. The claimant and Mr X subsequently messaged one another about the notes of the meeting. The claimant also showed the notes to her brother and sister. One of the comments was "Not sure if something is going on outside work". She asked Mr X what he thought this meant as she was not sure. She informed him that her brother thought it meant that she and Mr X were in a relationship but that she had interpreted it in a different way. Mr X's reply to the claimant that he agreed with the claimant's interpretation and that the comment suggested that either he or the claimant had "stuff" going on outside work.

 

3.12 The claimant took annual leave between 19 and 29 June 2017. While she was on holiday she sought advice from the Labour Relations Agency about constructive dismissal. On Friday 30 June 2017 the claimant asked to meet with Mr Duffy. He told her that he could see her at 11.45am before he met his wife for lunch. She said she wished to raise matters which were difficult to chat about. She told him that there were rumours that she and Mr X had "Something going on outside work" and that she wanted Mr Duffy to look into it. He expressed shock to hear about this "terrible rumour". He assured her that he would look into it but that he himself had not heard the rumour. She asked Mr Duffy to check the notes from the individual staff meetings which had taken place at the end of March. Mr Duffy said that he had been at the meetings and had not heard of this but that he would look over the notes again and come back to her. The claimant said at this stage she did not want to tell him where she had heard this rumour and repeated that he should check the notes from March's meetings. She did not tell him that she herself had photographed the notes.

 

3.13 The claimant then told Mr Duffy that her colleague Ms Grainne McCafferty, some months previously, had read out to the claimant and Mr X a text message which she had received from Mr Duffy's wife which made derogatory comments about a person related to Mr and Mrs Duffy, who was joining the staff of the NDR department. Mr Duffy told the claimant that he would speak to his wife and tell her to be more careful about what she said. Mr Duffy confided in the claimant about difficulties in the relationship between his wife and the new member of staff. He expressed the view that this was a personal and not work-related issue and that he would like to ensure that it was not brought into the workplace. The conversation then moved onto the issue of general morale within the department and the claimant mentioned to Mr Duffy the conversation she had overheard in November 2016 between A and B and that she had reported this to HR but had not raised a grievance at the time. Mr Duffy told the claimant that he was unaware of this comment, which he regarded as being very serious and that he would look into it. Mr Duffy thanked the claimant for coming to speak with him about the issues and that he would follow up with HR and have the work issues investigated thoroughly.

 

3.14 Mr Duffy contacted Ms McLaughlin and reported the claimant's complaints. He asked her to check the notes of the meetings as had been requested by the claimant. Mr Duffy also spoke to his wife about the text message which had been read out by Ms McCafferty. He did not mention the claimant's name to his wife. Mr Duffy wished to avoid the matter becoming a work issue. He agreed to his wife's suggestion that she should send a further text to Ms McCafferty. She did so shortly after 1pm believing that Ms McCafferty would have left work. She expressed disappointment that Ms McCafferty had broken her confidence.

 

3.15 Ms McCafferty was still in work when she received Mrs Duffy's text. She deduced that it was the claimant who had told Mr Duffy that she had read out his wife's message. Ms McCafferty was angry with the claimant who she had regarded as a friend. She did not understand why the claimant had decided at this stage to tell Mr Duffy about the text message which had been sent to her back in February 2017. Ms McCafferty went to find the claimant in the office and confronted her as she was covering the phones at lunchtime with another colleague, Ryan McCay. Ms McCafferty asked Mr McCay to leave the room and a heated argument between the two women ensued. A cleaner was vacuuming the room while this was going on and was unable to hear what was said. Ms McCafferty denied using bad language or threatening the claimant. The tribunal accepted that both women were angry and upset and raised their voices at one another. Afterwards Ms McCafferty went to HR and reported the incident to Ms McLaughlin.

 

3.16 The claimant immediately telephoned Mr Duffy and told him that she had been verbally abused by Ms McCafferty. Mr Duffy told the claimant that she could leave the office early, that he was taking the matter seriously, and would deal with it on Monday morning. The claimant left work early. She later emailed Ms McLaughlin from her personal email account giving her account of the exchange with Ms McCafferty. The claimant asserted to the tribunal that she considered that the events of 30 June 2017 were for her "the last straw" causing the breakdown of her employment relationship with the respondent.

 

3.17 On 3 July 2017 the claimant arrived into work earlier than usual at approximately 7.40am. Mr Nash was already in the office. He asked the claimant if she had had a good holiday. She informed him that she was not staying. Mr Nash was taken back and asked if she was ok and was she sick. He had been on annual leave on 30 June 2017 and was unaware of the events of that day. The claimant informed him that she had been verbally attacked by Ms McCafferty the previous Friday. She then gathered her personal items from her desk and put them out in her bag and left the office. Mr Nash tried without success to persuade her to stay. Mr Nash informed HR.

 

3.18 The claimant sent an email to Ms McLaughlin at 8.02am on 3 July 2017 advising that she was unable to stay at work as she had suffered extreme anxiety over the weekend and was going to see her doctor that day. She asked Ms McLaughlin to contact her to arrange a suitable time to meet. Ms McLaughlin asked Ms Duffy to contact the claimant as she had a good overview of the department and was most experienced in holding grievances. She told Ms Duffy that the claimant and Ms McCafferty had had "a falling out" and were both upset about it.

 

3.19 Ms Duffy telephoned the claimant on 3 July 2017 to speak to the claimant about the incident which occurred on 30 June 2017 and why she had left the office that morning. The claimant agreed to meet Ms Duffy and said that she would put everything in an email. Ms Duffy advised her that she would investigate the claimant's issues but that the claimant should give her as much information as possible. The claimant informed Ms Duffy that:

 

(a) She had not enjoyed her holidays from 19 to 29 June 2017 as she had received picture messages by text of statements written about her. She said that the contents of the messages were humiliating.

 

(b) Family members had advised her to obtain legal advice and that she liked her job, didn't want to leave or give up her job and that she had been there for approximately 8 years.

 

(c) There were issues which stemmed from April 2017 and that matters she had raised had been ignored. She stated that she would elaborate on these issues in her email.

 

(d) The previous Friday she had met with Mr Duffy and discussed a matter involving a family member.

 

(e) At approximately 1pm on 30 June 2017 Ms McCafferty had burst into the office and confronted her using bad language.

 

Ms Duffy assured the claimant that she would investigate these matters and interview those involved.

 

3.20 On 5 July 2017 the claimant sent an email to Ms Duffy outlining her discussion with Mr Duffy and her subsequent altercation with Ms McCafferty on 30 June 2017. She stated that she would deal with the "events leading up to that date" in a separate email. She stated that just before her holiday on 16 June 2017 she had received "unsolicited" photographic images of notes taken from meetings which took place with NDR staff at the beginning of April 2017 and that she would provide details of these at a later time "with representation".

 

3.21 Ms Duffy arranged to meet with the claimant on 6 July 2017 at a café in Muff, County Donegal. She was accompanied by Ms McLaughlin. The claimant raised the following additional matters during this meeting:-

 

(a) The "lazy bastard" comment allegedly made by Mr Duffy which had previously been dealt with by Ms Duffy in August 2016.

 

(b) That a colleague had allegedly likened a manager to a prison officer.

 

(c) That on 8 June 2017 she had not been informed about a colleague's dismissal until 10 minutes prior to the dismissal and that this had left her feeling very "out of touch with things" and that she felt excluded by Mr Duffy since last year.

 

(d) That she was described as a "lazy bitch" in the notes of the meetings which had been left out and this amounted to a data protection breach.

 

(e) That on 30 June 2017 Mr Duffy claimed to have no recollection or denied being told in 2016 about the IRA comment made by a previous colleague.

 

3.22 The claimant handed a fit note to Ms Duffy and told her that she did not think she would be returning to work. She said that she had received legal advice about these matters and had to decide within a short period of time whether she was going to leave her employment. She felt that she was being forced to leave by a combination of these factors.

 

3.23 Ms Duffy assured the claimant that she would investigate her grievances and that she hoped that the claimant would feel able to return to work. Ms Duffy asked the claimant to send her the images she had received so that she could fully investigate the matters raised by the claimant. The claimant indicated that she would take legal advice before she provided any information.

 

3.24 Ms Duffy carried out investigations of the claimant's grievances. On 7 July 2017, she interviewed Ms McCafferty, Mr Duffy and Ms Carla Bonner, the cleaner and Ryan McCay about the events on 30 June 2017. Ms Duffy telephoned the claimant on 12 July 2017 seeking further information. The claimant indicated that she had not yet been able to speak to her solicitor as she was unwell. She confirmed that she wished to pursue a formal grievance. She said she would be unable to provide Ms Duffy with the images and information sought until the following Monday. The claimant raised an additional grievance that she had heard that colleagues had been "chatting in the canteen" about her having taken legal advice. She would not tell Ms Duffy who had given her this information.

 

3.25 Ms Duffy telephoned the claimant again on 17 July 2017. The claimant informed Ms Duffy that she had been advised to "call it quits and basically to resign so it's as a forced resignation". She said she would email Ms Duffy who pointed out that it was three weeks since she was made aware of the claimant's grievance but could not progress it due to lack of information. The claimant told Ms Duffy that she would have "what she needs" when she received her email and that the attachments had "sent her over the edge".

 

3.26 On 19 July 2017, the claimant sent an email to Ms McLaughlin and Ms Duffy to confirm her resignation, which she stated should be read in conjunction with her email of 5 July 2017 concerning the reasons for her resignation. She attached the photographs of the meeting notes which she said had been sent to her by Messenger. She asked them to note that the notes were critical of her and one referred to her as a "lazy bitch" and suggested that she was in an inappropriate relationship. She alleged that the notes had been left "lying around the office for staff to view" in " a clear breach of data protection" and that they had damaged her reputation and opportunity to advance further within the company. She also complained that the events following her meeting with Mr Duffy were fundamental breaches of trust and confidence as he had assured her that the issue relating to his wife would be dealt with privately and appreciated that she had kept it away from HR. She stated that following the events of the 30 June 2017, "the relationship has completely broken down" and these matters amounted to "a breach of data protection, trust and confidence and that there is a fundamental breach of terms and conditions of my employment. I therefore accept the company's repudiation of my contract and consider myself to have been constructively dismissed".

 

3.27 The claimant sent a second email on 19 July 2017 to Ms Duffy and Ms McLaughlin in which she alleged that she received a Messenger request from an NDR client who stated that he wished to thank her for all her help in the past and wish her good luck in her new job. Ms McLaughlin acknowledged receipt of the claimant's emails. She confirmed that no announcements had been made to staff regarding her employment status and said that she would pass it to Ms Duffy to see if it could be investigated further.

 

3.28 On 20 July 2017 Ms McLaughlin wrote to the claimant asking her to reconsider her decision to resign. She invited the claimant to a meeting 27 July 2017 to discuss her grievances. The claimant replied on 24 July 2017 that she was not available to attend the meeting and that she was not prepared to retract her resignation. She said she could be contacted by email concerning any matters relating to the investigation of her grievance. Also on 24 July 2017, Ms McLaughlin forwarded an email from Mr Duffy to the claimant which was sent at the same time to all employees of the respondent which advised that the FCA licence had been granted and thanking them for their contribution to this achievement. The claimant told the tribunal that this was like rubbing salt into her wounds and that she considered that this amounted to harassment by the respondent. On 25 July 2017 Ms McLaughlin sent an email to the claimant confirming that the respondent now accepted her resignation but again invited her to retract the resignation. She requested the claimant's cooperation with Ms Duffy's ongoing investigation. The claimant again responded that she would not change her mind and her resignation was later formally acknowledged by the respondent on 28 July 2018.

 

3.29 Ms Duffy interviewed Mr Nash on 25 July 2017 about the alleged data protection breach. He informed her that he had two diaries. One was a department diary kept open on the desk to be used by employees for tasks and requests. The other was his personal private diary, in which he had made notes at the staff meeting and which contained other sensitive information. He kept his personal diary in a locked drawer behind his desk when it was not in use. He denied that he ever left his personal diary lying about unattended in his office. He kept the key for the drawers behind his stationery tray during the day and would usually take the keys with him after work, although he accepted that on occasion he would forget to take the key home. Apart from HR no member of staff is authorised to go into his drawer and there was no sign of any break in.

 

3.30 On 28 July 2017 Ms Duffy wrote to the claimant confirming that she was still in the process of investigating her grievances. She enlisted the assistance of the respondent's IT manager. She requested further information from the claimant about the identities of staff members she alleged had engaged in "idle chit chat" about her and the source of the documents allegedly sent to her by Messenger and how they had accessed the particular pages of the diary.

 

3.31 The claimant replied by email dated 2 August 2017. She alleged that the images had been sent to her on 17 June 2017 and that she had no knowledge of how and when they were taken. The tribunal notes that this statement was patently untrue and considers that it was deliberately intended to mislead the respondent. She advised that she had sent to her solicitor full details of the source and that "he would act accordingly when he takes this matter further". She also alleged that she had emails between Mr Duffy and Mr Nash outlining opinions of certain staff members, that these were printed and not under lock and key and were with her solicitor. She suggested that the main issue which required investigation were the matters which she said she had tried to resolve privately with Mr Duffy when she had spoken with him in June 2017.

 

3.32 Ms Duffy carried out further interviews with Mr Duffy and Mr Nash on 3 August 2017 into the allegations of the emails. Both denied having printed out any emails of the nature described by the claimant. On 4 August 2017 Ms Duffy sought further clarification from the claimant about the dates upon which she had received the documents and requested copies of the documentation she had provided to her solicitor, including copies of the emails between Mr Duffy and Mr Nash referred to by the claimant. She advised the claimant that she was working with the IT manager in her investigation into both the emails and photographs of the diary pages. She informed the claimant that she had completed her investigation of the incident on 30 June 2017. In relation to the claimant's allegation that the events which followed the meeting with Mr Conor Duffy constituted a fundamental breach of contract, she concluded that he did not act inappropriately by informing his wife that her email had been read out and could not have anticipated that there would be a confrontation between the claimant and Ms McCafferty. He had acknowledged that he had appreciated that the claimant did not go to HR about his wife's text message as he wanted to keep the personal matter out of the workplace. However he had promptly reported to HR the claimant's work related complaints, namely the alleged rumours that she was having an affair and that she had asked for notes to be checked, even though neither Mr Duffy nor Ms McLaughlin had any recollection of any such comment having been made. She concluded that it had been intended to investigate the claimant's work-related allegations the following Monday. She did not uphold the claimant's allegation that Ms McCafferty had subjected her to abuse and threatening behaviour. She advised that other staff members who had witnessed the incident had only heard raised voices from both the claimant and Ms McCafferty. Her conclusion was that the claimant and Ms McCafferty had interacted with raised voices. She therefore concluded there was no misconduct either by the claimant or Ms McCafferty and that no disciplinary action would be taken.

 

3.33 Ms Duffy shared with the claimant some further findings in relation to the photographed extracts from Mr Nash's private diary. The first matter related to the claimant's assertion to Mr Duffy that the notes recorded an allegation that she was having an affair with Mr X. She stated that no one had any recollection of such an allegation having been made and that the only conclusion from the first attachment to her email was that the claimant had misinterpreted the last line to suggest that something was going on between her and Mr X. However Mr Nash had confirmed that it actually says that Mr X had things going on outside of work and he would only speak about these matters with the claimant. Ms Duffy's view was that this corroborated the claimant's own statement made to her on 3 April 2017 that Mr X had discussed personal matters with her. Ms Duffy informed the claimant that the negative comments made by staff about her and the "lazy bitch" comment contained in the second and third attachments to her email were extracts from Mr Nash's diary which were never intended for any member of staff to see and that it was confidential information locked away in the manager's drawer. Mr Nash had asked the staff member who had made this particular comment to be more "factual" and that this was said in frustration. Ms Duffy informed the claimant that she was still investigating some parts of her original grievance and she would provide her further findings in due course.

 

3.34 Ms Duffy wrote to the claimant again on 14 August 2017 following on from investigations by the IT manager which showed that the images provided by the claimant were taken on 16 June 2017 at 5.12pm with an IPhone 6s+ and that the time system recording of NDR staff showed that on Friday 16 June 2017 the last NDR employee to clock out of the office was the claimant at 5.33pm. Ms Duffy informed the claimant that she concluded from this information that the claimant had taken the images with her own mobile phone and that she did not receive them in the way that she had stated in her correspondence. She invited the claimant and/or her solicitor to provide any information to the contrary so that she could further investigate.

 

3.35 The claimant responded to this on 20 August 2017 to advise that she had been informed by her solicitor that she was not at liberty to respond any further. She said that a copy of the emails would be attached to ET1 forms to be completed at the end of September 2017. The claimant then advised that she had received these photographic images from a fellow employee of McCambridge Duffy. She stated: "I actually received them at 14.26pm on Friday 16 June 2017. I was made aware briefly of the content and decided not to view them until I finished work as I knew it was going to cause upset. When all the staff members left the office I read the content. I then saved a screenshot these images to my phone and sent them to my brother who is the only other person I have shared these with apart from my solicitor and yourselves".

 

3.36 Ms Duffy emailed the claimant again on 21 August 2017 and informed her that further tests had been carried out on the images which showed that the images sent with the claimant's email on 19 July 2017 are actual photo images and not screenshots as was claimed by her. She also advised that a review of the PCs of all potential parties involved in the data protection breach had shown that a receipt for an IPhone purchased by the claimant in November 2016 matched the images sent by the claimant. From this evidence Ms Duffy confirmed that there was only one reasonable conclusion which was that the claimant had taken images of the actual diary itself. As is stated above the claimant admitted in cross examination that this was in fact correct.

 

3.37 Ms Duffy informed the claimant that she was unable to find sufficient grounds to substantiate her grievance that the respondent had breached data protection, neither could she substantiate her grievance that the diary was left out on a desk and that the notes would have damaged her reputation and an opportunity to advance further within the company. In addition the claimant was the only one who shared the notes with anyone outside of management and the company. She could not find sufficient grounds to substantiate the claimant's grievance that Mr Duffy had breached her confidentiality, trust and confidence because he had informed her that he intended to speak to his wife and could not have anticipated the incident with Ms McCafferty. She could not find sufficient grounds to substantiate the claimant's grievance that he prevented her from visiting HR as she chose to go to him first and not to approach HR. Also she referred to a statement from HR that Mr Duffy had reported the work related issue immediately. Ms Duffy emphasised that she required actual evidence to support any grievances or allegations made in order to progress the grievances any further. She again invited the claimant and her solicitor to provide any further relevant information which they would wish her to consider. No response was received and accordingly on 29 August 2017 Ms Duffy emailed the claimant again with the formal outcome of the grievance. She attached a detailed outcome letter setting out her findings and conclusions. She notified the claimant that she was unable to substantiate her grievances and informed the claimant that she could appeal her decision to another senior manager.

 

3.38 The claimant did not lodge an appeal. The claimant lodged her originating complaint with The Office of the Industrial Tribunal and the Fair Employment Tribunal on 17 October 2017 in which she claimed compensation for breach of contract, constructive unfair dismissal, compensation for financial loss and injury to feelings, interest as appropriate, any other award or declaration deemed appropriate by the tribunal and sex discrimination. The respondent lodged a response denying the claimant's claims on 6 December 2017.

 

3.39 At a Case Management Discussion on 17 April 2018 the claimant's case in relation to the claim of constructive unfair dismissal was that the respondent engaged in repudiatory conduct which entitled her to terminate the contract and that conduct was the cause of the termination of that contract by her. The claimant clarified in the CMD that the repudiatory conduct she was complaining about consisted of the following matters:

 

(i)         Being confronted with her alleged relationship with Mr X.

 

(ii)        Mr Duffy allegedly informing his wife of a workplace discussion.

 

(iii)       Ms McCafferty's statements and actions on 30 June 2017.

 

(iv)       Insulting comments in the diary.

 

(v)        A client of the business was allegedly told that the claimant had resigned prior to the information becoming public knowledge.

 

3.40 At the hearing the claimant informed the tribunal and raised further matters which she alleged amounted to repudiatory conduct by the respondent, namely:

 

(i)         Intimidatory behaviour by Mr Duffy following her grievance against him in 2016.

 

(ii)        An alleged failure to deal with bullying and intimidation which comprised the abusive comments allegedly made by colleagues to the claimant and her former line manager and the alleged political comment in November 2016.

 

(iii)       That the respondent harassed her by sending her the email on 24 July 2017 informing staff members that the FCA had granted the respondent's licence application.

 

(iv)       That the respondent had suggested that she had lied about receiving Messenger images from a colleague.

 

3.42 The claimant clarified at the Hearing that her complaint of direct sex discrimination was based on her contention that at the one to one meetings she was questioned about her outside work relationship with Mr X but he was not asked similar questions. In her originating claim form, the claimant asserted that she was horrified when she saw the "lazy bitch" comment and references to her having an affair with Mr X. She alleged that she regarded these comments to be "sexist and that they created an intimidating workplace for her". The claimant put little emphasis upon this aspect of her claim during the course of the hearing.

 

THE LAW

 

4. Constructive dismissal

 

4.1 An employee has the right not to be unfairly dismissed pursuant to Article 126 of the Employment Rights (NI) Order 1996 ("the 1996 Order"). Article 127 of the 1996 Order provides that:

 

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

 

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

 

4.2 Harvey on Industrial Relations and Employment Law ("Harvey") states at Division 1 Paragraph 403 as follows:

 

"In order for the employee to be able to claim constructive dismissal, four conditions must be met:

 

(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

 

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

 

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

 

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

 

4.3 If the employee leaves in circumstances where these conditions are not met, he will be held to have resigned and there will be no dismissal within the meaning of the legislation at all.

 

4.4 In deciding whether there has been undue delay, there is no fixed time within which an employee must make up his mind to resign in response to a breach of contract and each case must be decided upon its surrounding circumstances.

 

4.5 Under the "last straw" principle, an employee can be justified in resigning following a relatively minor event if it is the last in a series of acts one or more of which amounted to a breach of contract, and cumulatively the acts amounted to a sufficiently serious breach of contract to warrant resignation amounting to dismissal. Omilaju v Waltham Forest London Borough Council [2005] IRLR 35.

 

4.6 There is an implied term in the employment contract that the employer will not conduct itself in a manner likely to damage the relationship of trust and confidence between the employer and the employee. If the employer breaches that term, it can amount to repudiation of the contract. Malik and Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23

 

4.7 If the claimant proves the fact of dismissal, the tribunal must then consider whether the dismissal is fair or unfair.

 

5. Sex Discrimination

 

5.1 Direct Sex Discrimination

 

Article 3 (2) of the Sex Discrimination (NI) Order 1976 ("the 1976 Order") provides that in any circumstances relevant for the purposes of a provision other than which this paragraph applies, a person discriminates against a woman directly if -

.

"(a) On the ground of her sex, he treats her less favourably than he treats or would treat a man; ..."

 

5.2 Harassment, including sexual harassment

 

Article 6A of the 1976 Order provides:

 

"(1) For the purposes of this Order, a person subjects a woman to harassment if-”

 

(a)     he engages in unwanted conduct that is related to her sex or that of another person and ] has the purpose or effect-”

 

(i) of violating her dignity, or

 

(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,

 

(b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect-”

 

(i) of violating her dignity, or

 

(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,

 

(2)  Conduct shall be regarded as having the effect mentioned in paragraph (1) (a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect."

 

5.3 Discrimination in the Employment Field

Part III of the 1976 Order prohibits discrimination by employers in the employment field.

 

Article 8 (2) provides that:-

 

"It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her - ...

 

(b) by dismissing her, or subjecting her to any other detriment."

 

5.4 Burden of Proof: Industrial Tribunals

 

Article 63A of the 1976 Order as amended provides in relation to any complaint presented under Article 63 to an industrial tribunal:-

 

"(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent - 

 

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part III, or

 

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant,

 

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."

 

Guidance on application of the burden of proof is set out in Wong v Igen Limited and Others [2005] 3 All ER 812.

 

5.5 Time Limits for Bringing Proceedings under SDO

 

Article 76 (1) of the SDO provides that an industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.

 

A tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

 

CONCLUSIONS

 

6. Applying the relevant law to the facts found the tribunal concludes as follows:

 

Unfair Constructive Dismissal

 

6.1 The claimant resigned on 19 July 2017 and the reasons for her resignation are the alleged repudiatory conduct of the respondent as set out in her emails dated 5 and 19 July 2017. The claimant submitted that the respondent had committed a series of acts dating from 2016 culminating in the "last straw" events of 30 June 2017 which amount to a breach of the implied term of trust and confidence. The tribunal rejects this argument as it considers the claimant cannot now rely upon the earlier matters which arose in 2016 because she did not act further upon them at the time. She did not pursue any further grievance or complaint against Mr Duffy about his alleged intimidatory behaviour or against any of her colleagues. At the time she expressed no dissatisfaction with the manner in which the matters were dealt with by HR.

 

6.2 The tribunal does not consider that the claimant has shown, on a balance of probabilities, the conduct alleged by her amounted to a breach of contract by the respondent. There was in fact no allegation or insinuation that the claimant was having an affair with Mr X and at no stage was she confronted with this by the respondent or any of her colleagues, either in the one to one staff meetings or recorded in the diary. The fact that the claimant misinterpreted the comment was not the fault of the respondent. While it is perhaps unfortunate that Mr Nash wrote down the words "lazy bitch", the claimant only became aware of this and other comments of her colleagues because she and Mr X, had deliberately sought out and photographed the notes in Mr Nash's diary. It was clear in discussing the issues raised by her colleagues with the claimant, at the time, that the respondent sought to address issues with her performance as a team leader. The tribunal concluded from the claimant's deliberate attempts to mislead as to the provenance of the images and in not providing them to the respondent until after she had resigned, that the claimant realised that her own actions were unauthorised and culpable. Similarly, the claimant did not ever provide copies of any emails. The tribunal did not accept that Mr Nash had left his personal diary unattended and accordingly the tribunal concluded that the claimant had not proven that there was a breach of her confidentiality or data protection by the respondent.

 

6.3 The tribunal did not accept the claimant's assertion that Mr Duffy had breached her confidentiality or acted inappropriately by informing his wife that he had been told by the claimant that Ms McCafferty had read out her work message. The claimant reported this to Mr Duffy as a personal matter and she agreed with him in the first instance that HR should not be involved. Mr Duffy informed the claimant of his intention to speak to his wife about the disclosure and she did not object to this course. The tribunal considered that perhaps more careful consideration could have been given as to how this matter should have been handled by Mrs Duffy and it was accepted that Ms McCafferty should not have confronted the claimant in the way she did. However the tribunal accepted that Mr Duffy could not have foreseen Ms McCafferty's reaction to the claimant, given their previously good working relationship. The tribunal noted that Mr Duffy did report the other work related matters raised by the claimant for investigation. The respondent carried out an investigation into the actions of Ms McCafferty, the outcome of which was notified to the claimant after her resignation. Therefore the tribunal concluded that his actions on 30 June 2018 did not amount to a breach of the duty of trust and confidence as was alleged by the claimant.

 

6.4 The tribunal has disregarded the matters raised by the claimant which post-dated 19 July 2017 as these obviously did not influence her decision to resign. The tribunal therefore finds that the claimant has not proven on balance of probabilities that she was dismissed. She resigned and her claim for unfair dismissal is dismissed.

 

Direct Sex Discrimination

 

6.5. The tribunal has found as a fact that the claimant was not asked questions by the respondent about her relationship with Mr X outside of work. Therefore the claimant's claim of sex discrimination must fail as she has not proven facts from which it could infer that she has been treated less favourably than an actual or hypothetical male comparator.

 

Harassment, including sexual harassment

 

6.6. The case raised in the claimant's originating claim form was not vigorously pursued by the claimant during the hearing. This was based on the alleged comments that the claimant was having an affair with Mr X (which the tribunal has found did not happen) and the "lazy bitch" comment. The tribunal did not consider that the claimant had proven facts to show that the "lazy bitch" comment created an intimidating environment for her as she alleged.

 

6.7 The tribunal raised during the hearing that some of the matters complained of came to the claimant's attention more than three months' prior to lodging her originating claim form with the Office of the Industrial Tribunals and the Fair Employment Tribunal. The claims under the 1976 Order were therefore made outside of the statutory time limit. The tribunal considered the representations of the parties, including the fact that the claimant had the benefit of legal advice prior to lodging her originating claim form with the tribunal. The tribunal took into account the way in which these matters had come to the claimant's attention and her attempts to mislead the respondent in this regard. In the circumstances the tribunal did not consider that it was just and equitable to extend the time limit for presenting her sex discrimination claims and these are dismissed in their entirety.

 

 

Employment Judge:

 

Date and place of hearing: 25-27 July 2018, Belfast.

 

Date decision recorded in register and issued to parties: