THE INDUSTRIAL TRIBUNALS
CASE REF: 2819/04
CLAIMANT: Elizabeth Florence Blair
RESPONDENT: Chief Constable Of The Police Service of Northern Ireland
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly constructively dismissed by the respondent. The tribunal will reconvene to consider the remedy.
Constitution of Tribunal:
Chairman: Mrs Watson
Members: Ms Kennedy
Mr Nicholl
Appearances:
The claimant was represented by Mr N Martin B.L. instructed by
Mackenzie & Dorman, Solicitors.
The respondent was represented by Mr P Coll, Barrister-at-Law, instructed by The Crown Solicitor's Office.
CLAIMS OF THE PARTIES
- The claimant alleged that her resignation on 2 September 2004 from her post at the respondent's Police Training College was submitted because she considered herself to have been constructively dismissed by the respondent. She claimed that her treatment, especially by the Director of the College, Dr James Drennan, had been unacceptable. The respondent had decided to close the faculty in which the claimant had been employed and to transfer her to work in the Freedom of Information Unit. The claimant considered this to be in breach of the terms of her contract.
- The respondent claimed that the Formal Complaint it received from the claimant on 26 August 2004 was the first time the alleged difficulties in the workplace had been brought to its attention. Before it had an opportunity to investigate the complaint or the issues raised, the claimant had submitted her resignation.
SOURCES OF EVIDENCE.
- The hearing lasted almost ten days. The claimant gave evidence and called two witnesses, Jean Hinks and Carole Gordon. The claimant had trained Mrs Hinks and was initially her line manager. Mrs Gordon had been an Equal Opportunities Officer employed by the respondent at the relevant time. In addition, the claimant provided five files of documentation in excess of one thousand pages. Even though the documentation was voluminous, the tribunal found that there were certain documents which were not available to us that were highly relevant. We shall return to this below.
The respondent called Mr Joe Stewart, its Senior Director of Human Resources as its only witness. This was somewhat surprising.
- The originating claim in this case was lodged in October 2004. At that time, Dr Drennan was a named respondent. The claimant had requested that the claim should be case managed as there was so much documentation and there was a possible issue relating to confidentiality in that the respondent was, at that time, carrying out investigations which could result in disciplinary proceedings against staff members other than the claimant. While Dr Drennan ceased to be a named respondent at an early stage, it was always the respondent's case that he was their main witness and listing was discussed with his attendance from Canada in mind. The tribunal, and indeed the claimant and her representatives, was not aware until late in the hearing that Dr Drennan was not to be called. By that stage, the claimant's case had been presented.
- Mr Stewart's evidence, in the main, related to matters about which the claimant had no knowledge but which had led to his decision to close the faculty and suggest the transfer of the claimant, the event which triggered her resignation. However, the claimant had also claimed that this had been the last in a series of events relating to her employment subsequent to the arrival of Dr Drennan at the Police College. Mr Stewart in his evidence had stated that he had no personal knowledge of these events as Dr Drennan had been appointed to his post as Director of the College and Mr Stewart left him to 'get on with it.' Mr Stewart was Dr Drennan's line manager and the claimant's Countersigning Manager for performance appraisal purposes.
- As already stated, the claimant's representatives requested case management of this claim. The respondent's agreed. There are records of four sets of Case Management Discussions in the file, the first of which was held in June 2005. Mr Drennan QC, the chairman, informed the parties of the need for 'considerable work' to be done in relation to issues regarding Orders for Particulars/Discovery that might be necessary so that consideration could be given to the identification of the legal and factual issues for the assistance of the tribunal, including the exchange of witness statements. The chairman also advised that, if application for Orders was needed at the next Discussion, properly indexed and paginated bundles containing all relevant documentation should be lodged beforehand. The extensive documentation in the bundles for use by this tribunal did not comply with any of these specifications. The tribunal accepts that the bundles were prepared without guidance by the claimant and her husband in order to save costs. The first day of the period set aside for this hearing was lost because the respondent objected to comments that the claimant had written on some of the papers. The hearing was adjourned to allow for these to be removed. This could and should have been avoided.
There were further attempts to hold the Case Management Discussions but there was such a lack of progress that the parties were reminded of their obligation under Regulation 3 of the Industrial Tribunal (Constitution and Rules of Procedure) (Northern Ireland) Regulations 2005 to assist the tribunal in ensuring that the overriding objective was met. In April 2006, the Vice President, Mrs Price, noted that it was a waste of resources to hold any more such Discussions and the case would proceed to listing for hearing. At the hearing of this case, nearly two years after the first CMD, the parties had not agreed issues, exchanged witness statements or agreed bundles. This failure caused difficulty to the tribunal in this hearing.
- During cross-examination of the claimant and Mrs Hinks, Mr Coll rightly challenged elements of their evidence. However, no rebuttal witnesses were called, so the tribunal really only got to hear one side of this case. The tribunal was impressed by the way the claimant and Mrs Hinks gave their evidence. The tribunal found them to be credible witnesses whose evidence of having experienced very severe difficulties during the relevant period was consistent with the documentation provided. Both had wanted to continue in their employment with the respondent. Mrs Hinks had been able to do so.
Findings of fact
- The claimant took up her appointment to the post of Staff Development Officer with the Civilian Training Branch of the Royal Ulster Constabulary on 22 November 1999. The main duties of the post related to the training and development of civilian staff and their managers. Essential criteria for the post included three years' experience of identifying training needs plus the design, delivery and evaluation of training to meet the needs identified. Candidates were required to have the Certificate in Training Practice and D32/D33 qualifications. A relevant management degree and membership of the Institute of Personnel and Development (IPD) were desirable. The claimant had been employed by the Northern Ireland Housing Executive for over 16 years, ten of these as a Training Officer providing training for all grades of staff. She regarded this new appointment as an opportunity for career development.
- The claimant's evidence was that she was told by Ann Burnett, Senior Personnel Officer with the respondent, that this position was a 'specialist' post. This was not rebutted by the respondent. She believed this meant that her employment would only be in training and development, her specialisation. Given the criteria for appointment, the tribunal find that this was a reasonable belief.
- In the Civilian Training Branch (CTB), the claimant trained civilians and police up to the rank of Superintendent. The Head of the CTB was Deputy Principal grade and the claimant was Staff Officer grade. In about December 2000, Ann Burnett asked the claimant to facilitate the planned amalgamation of CTB with the Police College. The claimant agreed. This resulted in the claimant 'Acting Up' to Deputy Principal (DP) grade. She was paid as such from that time until April 2003. The tribunal was not referred to any documentation relating to this change in the claimant's status or salary or how or why or by whom the decision to ask her to undertake this task was taken.
- Also in December 2000, the claimant was interviewed by a Selection Board for DP grading. She and two others were notified on 17 May 2001 that their applications had been successful and their names were placed from that time on a Reserve List for appointment to that grade. This notification came from Royal Ulster Constabulary Support Staff personnel and the tribunal was satisfied that an appointment resulting from this Board would not have required the claimant to transfer out of the Police College as suggested by the respondent. The claimant gave evidence that both the other successful candidates were subsequently promoted while she was not. One of these appointments was within the Police College in a different faculty but the claimant only became aware of that vacancy after it had been filled without any recruitment exercise. She believed that another DP post within the College was given to a Chief Inspector again without a recruitment exercise being undertaken.
- There were five faculties in the Police College. While it had other designations, the parties agreed to refer to the faculty where the claimant worked as Leadership and Management (L&M). In or about May 2002, Superintendent David Nairn was appointed Head of the faculty and the claimant agreed to his request to take on the role of his Deputy. She continued to be paid at DP grade. Again there was no documentation and no recruitment exercise.
- The work of the College was reviewed twice in 2002; by the Business Improvement Unit (BIU) and also the Staff and Organisational Review Team (SORT). The claimant gave evidence that her post was weighted by SORT as DP grade and that Superintendent Nairn informed her that she was to be promoted in post.
- The report of the BIU dated July 2002 was highly critical of Superintendent Nairn's role as Head of the faculty. It reported that he had achieved very little in terms of leadership and strategic direction and had added 'little value' to the overall training strategy. The existing structure had 'no effective linkages to share information, knowledge and skills with other training professionals or proper communication channels in place to facilitate this.' It also recommended that integration of Police and Support Staff trainers should be addressed 'urgently'.
- Regarding the claimant, the report referred to her external recruitment and her possession of 'relevant professional personnel and training qualifications' but noted that she had not been "properly empowered or given the responsibility" that her position of Deputy Head demanded. She had carried out much of the Training Needs Analysis for the faculty and delivered 16 out of 34 courses at the time. BIU recommended that the role and responsibilities of the Deputy Head be developed and defined "in order to utilise the skills and expertise of the post holder for the benefit of the organisation."
- As well as carrying out these two internal reviews, the respondent, on Mr Stewart's recommendation, had arranged the secondment of Dr James Drennan as a Consultant and he arrived at the College in that capacity in or about May 2002. Subsequently, in about September 2002, Dr Drennan was seconded to the Police College for six months to take up the position of Head of the L&M faculty. He had begun his career in the Ontario Force of the Royal Canadian Mounted Police attaining the rank of sergeant there before taking up a position in their Police Federation. He had also held academic posts. At the time of his arrival in Northern Ireland, Dr Drennan was Borough Commander, the (civilian) Head of Police Training for the Province of Ontario. Dr Drennan's abilities had been highly recommended to Mr Stewart when he was in Canada to study RCMP achievements in the area of training.
- Following discussions of the BIU report with Superintendent Nairn, Mr Stewart wrote on 17 September 2002 to the senior personnel of the College. In the letter, Superintendent Nairn is addressed as 'Head of Policing Services Faculty' while the claimant is addressed as 'A/Head of Leadership and Management Faculty.' This letter referred to one of the courses offered by L&M entitled 'Course for All'. The BIU report had said this was not suited to the L&M faculty and it had been decided that this was to be transferred 'with immediate effect' to Policing Services faculty along with the staff responsible for it, Inspectors Stevenson and Montgomery and Sergeant Graham. Inspector Montgomery and Course for All did not however transfer while the other two officers did. Mr Stewart could not remember exactly why this had happened but said he believed Dr Drennan had asked for Inspector Montgomery to be retained as he was so heavily involved in Course for All. Apparently this was agreed to, even though it was not in accord with BIU recommendations.
- The secondment of Dr Drennan to the College began around the end of September 2002. He was the Head of the L&M faculty while the claimant once again was Acting Deputy Head. The Director of Training and Education for the College was Chief Inspector Laird who decided around this time to leave. The post would previously have been filled internally by a police officer but a decision was taken to open the post to external competition. This was in keeping with the recommendation at Paragraph 10.23 of the Patten Report (1999) which said that a "… rigorous programme of civilianisation of jobs which do not require police powers, training or experience should be undertaken."
The implementation of many of the recommendations of the Patten Report had already resulted in major changes for policing in Northern Ireland, not least of which was the change of name from the Royal Ulster Constabulary to the Police Service of Northern Ireland. The amalgamation of the Police College and the CTB was another such change. (See Paragragh10 above.) The tribunal was aware that some police officers were not happy with the rate or extent of some of these changes.
- Dr Drennan was the successful candidate for the vacancy of Director of Training and Education (TED). His appointment was for a three year term beginning on 1 April 2003. Shortly before he assumed the role, Dr Drennan wrote a Memorandum to the Executive Leadership and staff of the L&M faculty headed 'Preparation for the Transition to New Structure : Clarification of Decision Process and Input.' Staff were to attend a meeting on 19 March 2003, "…to discuss the matter of titling fully and to clearly establish the jurisdiction of the new management structure." The claimant received this document at the same time as the staff and was unaware of its content beforehand even though she was at that time Deputy Head.
- The four page Memorandum refers to expressions of concern that the decision making process had not been inclusive but went on:-
"I want to clearly and unequivocally state that under my leadership, decisions will have to be made that will not always sit lightly with everyone, but that is leadership. …It has always been my practice to make every possible effort to avoid any such required forced decision making through consultation, and that is why no-one can criticise this office for not being open and at least listening to the issues. The ultimate responsibility for our vision, mission and goal achievement rests with me and I fully accept that responsibility."
- The document then sets out details of the roles and responsibilities of the claimant and Inspector Montgomery which were to be effective immediately. Inspector Montgomery was to assume the title of Senior Programme Co-ordinator. His responsibilities included the design, development and delivery of all required supporting programme materials including course outlines and lesson plans. All training staff, police and civilian, were to report to him. The claimant was to assume the title of Senior Programme Administrator whose responsibilities were to include programme administration, procurement, space allocation, agreements and contracts. Administrative support staff were to report to her.
- While Dr Drennan's view, as expressed to both Inspector Montgomery and the claimant on more that one occasion, was that the two post holders were equal in status, the tribunal was shown an extract from an interview of Dr Drennan in 2004 in relation to a grievance from a member of staff in which he explained that Inspector Montgomery had been 'selected' as the 'leader' because of his experience and credibility in talking to senior ranking police officers. The tribunal was not informed of any difficulty experienced by the claimant in her work with all grades of staff, civilian or police.
Before the March meeting, the claimant's role was Deputy Head of the faculty. She had trained the civilian staff and was their line manager with responsibility for their performance appraisal. The BIU report had recorded that her training, qualifications and experience were in training and development and that she had delivered 16 of the 34 courses to date. BIU had recognised that her 'skills and expertise' should be better utilised for the benefit of the organisation. The tribunal find that the role and responsibilities allocated to the claimant by Dr Drennan represented a diminution in her role and status within the faculty and the College. The tribunal also find that the respondent failed in its duty to the claimant in permitting such a variation in her duties without any consultation or agreement.
- Those present at the meeting did not fully endorse the proposals and this caused Dr Drennan to throw his pen across the room in anger. The civilian staff were particularly unhappy to be told that they were now to report to Inspector Montgomery. There was material provided to the tribunal which indicated that they were of the view that as trainers, their grade was analogous to that of the other trainers, irrespective of their police rank. This issue later took on great significance to some of the civilian staff and was a serious bone of contention for them. Jean Hicks' opinion at the end of this meeting was that Inspector Montgomery's position in the faculty was enhanced and the claimant's had been downgraded and undermined. The tribunal find that Dr Drennan's proposals had created new posts and structures without reference to the respondent's policies and procedures on Recruitment and Selection and/or Equal Opportunities.
- Apart from the Memorandum, there was no documentation relating to these posts or the staffing structure of the faculty. The tribunal know nothing of Dr Drennan's reasons for acting as he did or the decisions he took. In particular, we know nothing of the qualifications or experience of Inspector Montgomery or how his performance in the faculty had compared to that of the claimant. There is nothing to indicate the criteria used in the decision to have either assume their new respective roles. If there was a job description or personnel specification prepared for either role, the tribunal was not referred to it. Moreover, these changes were introduced at the beginning of a new reporting period for Performance Appraisal purposes but the claimant was not provided with any performance objectives or indicators against which her performance was to be appraised. This lack subsequently proved to be of significance.
- At the meeting, the civilian trainers made it clear that they wished to continue to report to the claimant. Inspector Montgomery asked each of them in turn if they would report to him and each declined. It was agreed that the claimant would continue line management of the civilian trainers temporarily. Mrs Hinks' evidence was that the trainers regarded Inspector Montgomery as a trainer rather than a manager. During discussions among the staff, Inspector Montgomery had expressed the opinion that the civilian trainers had been 'sold a pup' as a result of the Patten Report and they should never have been brought in to train police officers. Mrs Hinks found the atmosphere in the faculty after the March meeting was 'a nightmare.' She told the tribunal, "It was a terrible, terrible place to work. I can honestly say that Inspector Montgomery had no people skills whatsoever. In several talks I had with him he left me feeling very upset."
- On 15 May 2003, the claimant received a letter from the Civilian Personnel Department returning the claim form she had submitted for her Deputising Allowance for the previous month. She was informed that the allowance had not been approved because "civilian support staff cannot deputise into a police post." The claimant was assured by Dr Drennan that he would assist her to resolve the problem by confirming that her work and post were DP grade. Documentation provided to the claimant on Discovery included reference to a letter written by Dr Drennan to Mr Stewart on 28 May 2003 regarding the claimant's grading. Discovery of this letter was specifically requested by her legal representatives. The respondent said that it could not be located. The tribunal were very disappointed that such an important discoverable document was not made available to us and no-one was called to give evidence as to its content or why it could not be located.
- On 15 August 2003, on his return from leave, Dr Drennan sent an e-mail to the claimant and Inspector Montgomery on the subject. It says:_
"I understand that Joe (Stewart) has finally approved the appointment for Liz that was submitted on her behalf. This was to confirm what her role was when she was acting. I felt it only fair and reasonable to ensure some stability for Liz in her role, no one wants to be acting forever. There may be some misconceptions about the leadership structure now that this has happened and I want to clarify this for both of you in case some are confused as a result of the removal of the acting status. This approval will not change the reporting structure that I put in place and the role descriptions that I provided at that time. Nothing really changes in authority or hierarchy as a result of the change from acting to permanent for you Liz. It was essential that both of you understand that you are equals and there is no new hierarchy in place. Liz, you will continue the work as coordinator of administrative issues. Al, (Montgomery) you are programme coordinator and I see both of you in equal authority roles reporting to me. I am comfortable with this relationship and as a result, we have been supported in our structural efforts by (Joe).
- The tribunal did not find clarification in this message. What "appointment" did Mr Stewart approve? Nothing was communicated by him or anyone else in his department to the claimant. Which acting role was confirmed? Was it Deputy or Head of faculty as she acted in both? In any event, the claimant did not need confirmation of her role. She needed confirmation of her grade. That is not mentioned. He goes on to refer to the 'removal of the acting status.' Does this mean that she has reverted to her substantive Staff Officer grade? That was in fact what had happened. It would also explain why Dr Drennan felt he needed to comment that nothing had changed in authority as a result of the change from acting to permanent. In the absence of any explanation from Dr Drennan or documentation from him stating clearly that the claimant's role and work should have been graded as DP the tribunal drew an inference that he misled the claimant regarding his representations relating to her grading.
- On 3 September 2003, the claimant e-mailed Dr Drennan and thanked him for his (purported) efforts on her behalf with her grading problem. She requested a copy of her 'agreed role description' that she had been told had been sent by him to Mr Stewart but not to her. The claimant suggested that she, Dr Drennan and Inspector Montgomery should have monthly management team meetings. Nothing happened as a result of this message. The tribunal accepted the evidence of the claimant that, to her knowledge, no management meetings took place. There were several e-mails from her to Dr Drennan asking to meet with him but to no avail.
She and Inspector Montgomery shared an office and on occasion had lunch together but she got on with her job and he got on with his. At one stage, the claimant returned from leave to find that Sergeant Majury, one of the trainers, had moved his desk in to the office and the two officers worked together closely. This was confirmed by Mrs Hinks who believed that Inspector Montgomery favoured Sergeant Majury over the other trainers even to the extent of having him deliver classes for which she had done the preparation. She also said that Sergeant Majury had prepared a new Job Description for the trainers at the request of Inspector Montgomery which the trainers refused to accept because it differed from the one they had received at appointment.
- A further source of staff discontent related to overtime payment. The trainers had attended a special Grid Management training event in Canada during the summer. On their return, Sergeant Majury informed his colleagues that he had claimed and received overtime payment for that period. No other member of staff received such payment. Their claims were refused causing discontent. Dr Drennan exhorted the claimant and Inspector Montgomery to stress to the staff that they had to decide if 'they are on the bus or at the bus stop.' They were to be reminded that they did not run the show and could all be replaced if they did not 'share the vision'.
- The claimant continued to press for DP grading. Dr Drennan sent her an e-mail on 21 August 2003 to say he had still not received confirmation that her position (not grade) was permanent as 'was set out in my direction to HR'. Presumably this is a reference to the document of 28 May 2003 that cannot be located. However, Paul Traynor from Appointments and Postings Branch, sent the claimant an e-mail to say that Mr Stewart had asked their department to have Dr Drennan confirm whether his report dated 28 May 2003 sought to have a DP post 'created'. That confirmation had been sought but not received. Instead, Dr Drennan met with Gillian Faulkner who was in charge of the Appointments Branch. The result was that SORT was requested to carry out a Job Evaluation of the claimant's role. The claimant was not interviewed nor asked to complete any questionnaire about her position but she subsequently received a terse Memorandum from Dr Drennan dated 24 March 2004, nearly a year after her payments had stopped, which informed her that the post "will remain at Staff Officer level." (emphasis added) There was no documentation in relation to this evaluation or the SORT report given to the claimant or provided to the tribunal.
- The claimant was increasingly unhappy in her job. During August 2003, she went to see Carol Gordon in Equal Opportunities and told her about her difficulties. She was advised she had three options; do nothing, move, or try to change her situation. Carol Gordon corroborated this and also the fact that the claimant returned a short time later with Jean Hinks and Stuart Young who were both very unhappy and feeling undervalued in their work. She confirmed that both had subsequently lodged Grievance Procedures which she had passed to another member of staff to deal with. The tribunal would expect an organisation such as the PSNI to have in place policies and procedures to ensure that any staff reporting such workplace problems could rely on their complaints being followed by appropriate action.
- The claimant raised some of the staff's complaints with Dr Drennan who wrote to Inspector Montgomery to tell him that his team needed to be put in line. They were to be told to "stop their whining and snivelling. …If this gets to me in the written form that it apparently is, I will have no hesitation in moving the lot out of here and bringing in some people who are prepared to get on with the job". The tribunal found this direction from a senior manager to be unacceptable.
- In October 2003, Stuart Young and Jean Hinks each lodged a Grievance Procedure and went to see Dr Davies in Occupational Health and Welfare who certified them unfit for work due to stress. Sergeant Maggie Irwin was also on stress related sick leave. Dr Davies wrote to Ann Burnett, who was then Head of Employee Relations to express his concern at the number of trainers who were on sick leave within the faculty. Dr Davies advised that there appeared to be "genuine and serious management issues" that needed to be addressed. This letter was copied to the claimant who wrote to Dr Drennan to ask that a Health Surveillance Check be carried out. No evidence was provided of any action being taken by Ann Burnett, Senior Personnel Officer as a result of Dr Davies' concerns.
- The response from Dr Drennan, copied to Mr Stewart and his deputy, Michael Cox, asked the claimant what actions she had taken to assist staff members as 'that may become an important consideration for any questions regarding your proactive management of the situation'. Considering that line management of these staff had been transferred to Inspector Montgomery, this response was, at best, inappropriate. No evidence was provided to the tribunal as to any steps being taken by either Mr Stewart or Mr Cox as a result of this communication.
- The claimant continued to request a meeting with Dr Drennan. In one of his e-mails to her, Dr Drennan had referred to problems in her working relationship with Inspector Montgomery. Since she had not had an opportunity to speak to him about this, the claimant believed that the information must have come from Inspector Montgomery during one of their regular meetings. This served to heighten her feelings of being isolated and her belief that Dr Drennan regarded Inspector Montgomery as the senior manager. Her response that she had no problem sharing departmental management with Inspector Montgomery did not indicate to the tribunal that the claimant had no problems with him as Mr Coll's submissions suggested.
- Dr Drennan met with Jean Hinks on 9 December 2003 to discuss her fitness to return to work in the College. She agreed to return in January, but only to a different faculty. Mrs Hinks wrote an aide memoir of this meeting as she did after all her meetings with senior staff in the faculty. Dr Drennan made a disparaging remark about the claimant that Mrs Hinks later passed on to the claimant in August 2004. The note she made was provided to the tribunal.
- The claimant eventually got to meet with Dr Drennan on 4 May 2004 for her Performance Appraisal preparation meeting. They had not had a review meeting in or about October which would have been accepted practice to review the work objectives/targets and ensure they were being met and to discuss any difficulties the appraisee was having. In previous years, the claimant had prepared for the preparation meeting by drafting a document which set out how she felt her performance had met the standards agreed the previous year. This would have formed the basis of the discussion at the preparation meeting following which the Performance Appraisal form would be completed and signed. Since she had not had any performance standards agreed with her appraiser, the claimant used Policing Skills and Standards as a guide. However, at this meeting, Dr Drennan gave the claimant a typed document which he had prepared setting out his views on her performance. When she asked about the absence of proposed targets for the incoming year, the claimant was told that Dr Drennan did not have a crystal ball. They then talked about the content of his document for a time. Dr Drennan informed the claimant that if she was not happy with the content she could appeal to Mr Stewart as the Countersigning Officer. The claimant took the document away to read and reflect on its content. The tribunal find that the claimant's surprise and dismay at the conduct of such an important meeting by her appraiser was reasonable. The meeting was not conducted in accordance with the requirements of the respondent's Performance Appraisal Policy. Mr Stewart gave evidence that this was probably the first Performance Appraisal that Dr Drennan had ever done.
- When she had an opportunity to read the document, the claimant did not consider it was a proper or true record of her performance for the period. Dr Drennan referred to her work in a 'hybrid' grade when he should have known that the claimant had been a Staff Officer throughout the reporting period. His assurances that he supported her claim for DP grading were not reflected in the report. The claimant believed that there was a lack of evidence for or substantiation of the appraiser's comments which she considered largely negative and of the Box Mark 3 he awarded. Dr Drennan did not agree and refused to alter any element of his report. He suggested that she would need to provide feedback from people she worked with to disprove his comments failing which she should take the report to Mr Stewart. This e-mail was copied by Dr Drennan to Mr Stewart and Stephen Reid in Personnel.
- On 17 May 2004, Dr Drennan informed the claimant by e-mail that he had approved her application for funding and support to undertake a work related PhD course. He had also increased the Box Mark to 2. He said he was 'happy' with that. However, in his evidence, Mr Stewart informed the tribunal that Dr Drennan had changed the Box Mark only because he had been ordered to do so. When asked by the tribunal whether he had ordered the increase because he thought the claimant's performance merited it, Mr Stewart replied that he did it because most people got this score and he thought it could be seen as unfair if the claimant got less than the usual. As far as Mr Stewart was concerned, the claimant was satisfied with the increase in her Box Marking and that her concerns with the Performance Appraisal Report were thereby addressed. The tribunal were quite surprised with the views expressed by Mr Stewart in relation to Performance Appraisal. He said that in his experience, it was "more honoured in the breach. Appraisals were often not done, assessments were not made and objectives were not set." Considering his position and responsibilities, the tribunal found these comments surprising.
- So far as the Performance Appraisal of the claimant was concerned, Mr Stewart was sent the documentation for review in his role as Countersigning Officer by the claimant on 2 June 2004. Its receipt was not acknowledged so she wrote again on 1 July 2004 and asked for the form to be returned so that she could benefit from the increase in salary. This was duly done but Mr Stewart did not record on the form that there was a disagreement between the appraiser and appraisee regarding the content or his role in respect of the Box Mark. The tribunal find that the conduct of this Performance Appraisal by Dr Drennan and Mr Stewart was unacceptable.
- The claimant did not know at the time that Mr Stewart had much more serious matters to concern him than her appraisal. It had been brought to his notice that the Open University's input to courses was to cost £700,000. There was no provision in the budget for any such costs, so Dr Drennan was asked to look into the matter. He advised Mr Stewart that the cost should have been £300,000. Apparently no explanation was provided to explain the gross inflation of the original figure. The tribunal was informed that there was no documentation relating to this matter.
- At their request, Inspector Montgomery and Sergeant Majury met Mr Stewart on 24 May 2004. They put a proposal to him that they should be engaged privately to deliver the same course for less money than the Open University proposed to charge. Inspector Montgomery was due to retire from the PSNI in November so he would then be in a position to be a private provider with the assistance of Sergeant Majury who would still be in the Service. They proposed to use the course materials they had been working on at the time. Mr Stewart was rightly outraged. He had been informed a short time before by Ann Burnett that she and other Human Resource managers had had complaints about the Leadership for Life Programme currently being delivered. They had been told that the programme did not appear to meet the needs of the organisation. In July 2004, Dr Drennan, who was in Canada, asked the claimant and Inspector Montgomery to meet the Human Resource managers to identify the problems with the programme. They were told that more elements of basic management skills were needed so they worked together on its review.
- Mr Stewart was also aware that the faculty was not being very productive. He asked the BIU to carry out a 'quick and dirty' review of the L&M faculty to ascertain the potential impact of its closure. During this time, Dr Drennan was on approved personal leave in Canada. In his absence Superintendent Nairn deputised but it is clear from the e-mails seen by the tribunal that Dr Drennan was aware of the closure proposal and that he was involved in discussions with Chief Inspector John Little who was carrying out the BIU review and Mr Stewart about the closure and, perhaps of more relevance to the tribunal and the claimant, what should happen afterwards.
- From the e-mails to which the tribunal were referred, the following was extracted. It was clear that this did not represent the totality of the communications but the tribunal considered that these gave an indication of how these events developed:-
(i) 13 July from Jim Drennan to Joe Stewart Cc David Nairn
Dr Drennan (in Canada) is assisting in the preparation of a submission to Toronto Police for delivery of all training programmes to sergeant and above ranks by a college/ university partnership. He hopes to link this to the PSNI programme. It is clear that he and Mr Stewart have been working closely on the development of other such programmes, especially in relation to Grid Management. PSNI had adopted Grid Management programme for the Service.
(ii) 14 July from Joe Stewart to Jim Drennan
'I want to talk more about re-engineering the leadership stuff how we close it down and open it up again etc. There is some other news re our concerns but I will wait until I see you in person'.
(iii) 22 July from Charles Edwards (Open University) to Jim Drennan, Joe Stewart, Cc Liz Blair
Mr Edwards had spoken to the claimant in Inspector Montgomery's absence in relation to concerns about the continuation of their partnership on Certificate in Police Leadership Skills.
(iv) 22 July from Jim Drennan to Charles Edwards Cc Joe Stewart and Stephen Reid
Dr Drennan seeks to reassure Mr Edwards about continuation of their relationship. He explains that the relevant contract has not been signed as they are reviewing what is being delivered and why 'as some feel the programme is too academic and not relevant to front line staff.' The use of university tutors was said to have been necessitated by staff on stress leave. Dr Drennan says that 'somehow the materials and content moved away significantly from the content used and delivered by me and the others from October 02 to October 03 and that has led to the relevance issue.' He then explains that the intention for the future is to incorporate the Leadership Grid programme into the current programme as had been the original intention but was 'somehow lost and not done'
(v) 23 July from Charles Edwards to Jim Drennan and Joe Stewart.
Mr Edwards thanks Dr Drennan for the explanation. They have also spoken by telephone. Mr Edwards has had difficulty regarding payment of his staff due to the contractual situation.
(vi) 23 July from Jim Drennan to Charles Edwards Cc Joe Stewart and Stephen Reid.
Dr Drennan tells Mr Edwards that he and Mr Stewart are 'very concerned at the message on this issue being sent to you by Liz. Please ensure, as we agreed on the phone, to keep the issues we discussed confidential.'
(vii) There is the end of a message from Mr Edwards to Dr Drennan on the same page above the e-mail at (vi) above. The beginning of the message with the date is not included but Mr Edwards asks about the formal communication to staff of final decisions on the issues discussed.
- From these extracts, the tribunal find that Dr Drennan was involved closely with Mr Stewart in the decision, not only to close the faculty, but also in the plans for the programmes to be offered on its restart. It is also clear that a major factor in the decision to close related to the programmes being delivered. The claimant, after Dr Drennan's new structure, had no involvement in the content or delivery of the programmes. That was Inspector Montgomery's remit. Mr Edwards only contacted the claimant in relation to his problems in the absence of Dr Drennan, Inspector Montgomery and Mr Stewart. Thereafter it was made clear to him that she was to be excluded from any involvement in their discussions. The tribunal noted that Dr Drennan's 'concern' about the claimant's conversation with Mr Edwards was discussed in their telephone conversation.
- On 10 August 2004, Dr Drennan e-mailed Mr Edwards who now appears to know of the closure and restart proposal. Dr Drennan outlines the plan to reorganise the office and team. (emphasis added) "We have had a history of problems since I became Director. People have not got along at all that we thought would, they have gone off track in relevancy …and our leadership in controlling this was lacking."
He explains that the Grid programme will be incorporated in to Leadership for Life to ensure more relevance to front-line staff supervisory responsibilities and activities.
- That same day, Dr Drennan e-mailed Mr Stewart. He refers to the 'shutting down of Leadership and restart' and suggests they brief Mr Edwards and the Open University on the adjustments. He then goes on:-
"All of this will depend on our ability to move the existing players and Michael (Cox) will be key to this. If we can move them, John Little (BIU) would consider it and work with me. I think I can control John's strong autocratic tendencies but he won't do it if the team presently there is still in place. John Majury should stay on for the transition and I will ensure he is in the classroom and that he works with John L to coordinate our own guest speakers. … I am open to discussion about John L for the Foundation Program but still would rather see him in the Leader area. "
- The following day,11 August, in an e-mail to Mr Stewart, Dr Drennan writes of waiting to confirm arrangements with Charles Edwards 'until you and I had made a decision on a course of action'.(emphasis added) Mr Stewart queried with Dr Drennan the arrangements discussed with Mr Edwards about continuing the sessions in August as they had not taken place as expected. Dr Drennan referred to the claimant's telephone calls with Mr Edwards and says, "who knows what she has said to them…I can tell you Liz Blair has and will continue to do all the damage she can to us, particularly me because she did not get a '1' rating in her performance appraisal with me, and don't think that issue has gone away. At least with Al M and John M I had support, even if they did screw up more than once, who else is out there?"
- This e-mail goes on to state that the cancellation of the August sessions was due to Inspector Montgomery and Superintendent Nairn who was deputising for Dr Drennan and who had "acted with good intent." Mr Edwards was said to have cancelled for his own interests "as a result of Liz Blair I am sure. You can see how they work. No-one spoke to me following the sessions with Liz except for Liz to call Charles Edwards and say WHO KNOWS WHAT to him."
- Mr Stewart wrote to Michael Cox, Deputy Director of Human Resources on 12 August 2004 regarding the request for significant civilian staffing in the Freedom of Information Unit. Dr Drennan would redeploy Police staff from the Leadership faculty on his return but Mr Stewart considered that civilian faculty staff should be transferred to fill the Freedom of Information vacancies.
- When the claimant came out of a meeting on 17 August 2004, she was contacted by Inspector Montgomery who informed her that the faculty was closing and she was being transferred out. This was the first time the claimant had heard of the proposal. She went to see Superintendent Nairn who advised her that he had received an e-mail from Mr Stewart that morning. Arrangements were in hand to seek suitable places for the civilian staff while police staff would remain in the College. The claimant informed him of her wish to remain in the College. He asked her to provide an outline of the work she was engaged in which she later left on Mr Stewart's desk.
- The claimant was 'distraught' and went to see her doctor who certified her unfit for work due to occupational stress. She submitted a Formal Complaint dated 26 August 2004 in which she alleged that since he had been her line manager, Dr Drennan had bullied harassed and victimised her and had orchestrated a campaign to discredit her. She referred to the Grievance Procedures that had been lodged against him and alleged that he sought to deflect attention away from himself by discrediting and undermining her. That same day, the claimant received a letter from the respondent's Personnel Department informing her that her transfer had been 'approved' and she had been allocated a position at her current grade in the Freedom of Information Unit. There was no indication who had given this approval and no information regarding the new position.
- The claimant made contact with other staff who told her about the work of this Unit. It was quite apparent to her that this post would not involve any elements of training or development for which she was qualified and well experienced. She had been accepted to and made preparation for a 6 year part-time course of study for a PhD which required her to be working in that field for coursework purposes. Her accreditation to IPD would be invalidated and she would therefore find future employment in her chosen career difficult to obtain. As far as she was concerned, this action was in breach of her contract of employment. Her resignation claiming constructive dismissal was submitted on 2 September 2004.
- Inspector Montgomery received an e-mail from Ann Burnett on 23 August 2004 requesting information on the status of the Leadership for Life programme. In his response, the Inspector took the opportunity to tell Ms Burnett that participants had described his programme as 'exactly what was needed' for the service. On his advice, she wrote to ask Mr Stewart for information about what was happening. His reply informed her that the delivery was stood down because of the dissatisfaction expressed by her and another officer to Dr Drennan. He also said the future work would be based on the Grid. Ms Burnett was happy that their concerns had been listened to and addressed. She and others had already met with the claimant and Inspector Montgomery and had altered the basic management skills element of the programme but not what she described as the 'MBA part', which she identified as the part that had been queried. Indeed, she went on to say that while she was in favour of the Grid, ' it will not fully address particular skills necessary for first line managers in respect of managing resolutions/grievances, H&S, sick absence appraisals etc and this is the area we had the problems with (in) Leadership for Life.' These were the skills that the claimant's training programmes had covered and were the training needs addressed in the review she and Inspector Montgomery had been carrying out of the 'Leadership for Life' programme.
- During the cross-examination of the claimant, Mr Coll produced a document headed 'Mobility.' This came from the Northern Ireland Civil Service Staff Handbook section on General Employment Issues. This document is also referred to in the opening paragraph of his written submissions on behalf of the respondent. These contend that the claimant was a Mobile Officer who could be transferred between both geographical locations and job posts. The tribunal rejects that submission and finds that this document was not part of the Terms and Conditions of the claimant's contract of employment.
The document begins by saying that it is the Northern Ireland Civil Service which is divided into mobile and non-mobile grades. The claimant was not an employee of NICS but even if she had been, this mobility requirement had not been made clear to her in her letter of appointment as required. The claimant's evidence, which was not rebutted by the respondent, was that Ann Burnett had informed her that her post was a specialist post. The tribunal find that the job description and personnel specification of the claimant at her appointment support that view. The tribunal also took a dim view of the production of this document and an assertion relating to such a potentially fundamental flaw in the claimant's case at such a late stage in the proceedings. We were mindful of the lengthy period allowed by the tribunal for the production of discoverable material and the fact that other material that would have been of assistance to us did not exist or could not be located. Mr Coll was asked by the tribunal to seek specific instructions from the respondents about Discovery. He was quite clear that his instructions were that Discovery had been provided in full and that no further discoverable documentation existed. The tribunal accepted this assurance, but remained dissatisfied.
The Relevant Law
- The right of an employee not to be unfairly dismissed is set out in Article 126 of the Employment Rights (Northern Ireland) Order 1996. Constructive dismissal is described as when "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." [Article 126(1)(c)].
The respondent denies that the claimant was dismissed, either unfairly or constructively. In such circumstances, it is settled law that the onus is on the claimant to prove the following on the balance of probabilities :-
(a) there has been a breach of contract by the employer;
(b) the breach must be sufficiently important, or be the last in a series of incidents, to justify the employee resigning;
(c) the employee must leave in response to the breach;
(d) the employee must not delay too long in terminating the breach or will be taken to have accepted the breach.
The claimant claims that she was subjected to ongoing unacceptable treatment from March 2003 by the respondent's staff causing her to loose faith and trust in her employer and that the decision to transfer her without consultation to a post which was not a reasonable alternative was a significant breach of her contractual terms. She claims that her treatment satisfies these requirements.
The Tribunal's Conclusions
- The treatment of the claimant by Dr Drennan was appalling. When he had first come to the College, the claimant was Acting Deputy Director of the L&M faculty. Her superior, Superintendent Nairn's performance did not impress BIU while that of the claimant did to the extent that she replaced him as Director, albeit in an acting and temporary capacity. Despite the findings in the BIU report, the claimant's work and contribution to the faculty was designated by Dr Drennan as administrative which ignored her managerial role, expertise and experience.
- On behalf of the respondent, Mr Coll contended that the claimant had accepted this position 'without demure.' The tribunal accepts that the claimant did not lodge any formal grievance but that is only part of the picture. Dr Drennan had just been appointed to his post. He had arrived the previous year on strong and impressive recommendations and as a world renowned expert on Grid Management and police training. His Memorandum setting out his titling and duties indicated there could be some changes and she was assured that she was still a member of the Executive Management in the faculty, equal in status with Inspector Montgomery as deputies to the Director. As demonstrated in the documentation and in his reaction at the meeting to objections to his decisions, Dr Drennan did not come across as a man who brooked dissention or criticism. The tribunal drew this inference in the failure of this witness to attend the hearing.
Shortly after she had been given her new duties, which were still within training and development, the claimant needed the support and assistance of Dr Drennan in having her post designated DP grade. Despite his many assurances to the claimant in writing and orally, the tribunal concluded that Dr Drennan was responsible for the claimant remaining a Staff Officer.
- The tribunal also conclude that the claimant was treated very badly by the respondent's personnel representatives. The reason given for refusing the payment request, which had been authorised by Dr Drennan, was that a civilian could not act up to a police post. The claimant had been receiving an Acting Up allowance for over two years but had never been given anything in writing to reflect this de facto promotion. She had also been successful in her DP Board. The tribunal did not find that application for this promotion was any indication of a willingness on her part to move from the Police College as suggested by Mr Coll. Other staff were promoted and remained. The claimant was not told why or when or by whom her post was designated as a 'police post'. Nor was she involved in any way with the 'Job Evaluation' allegedly carried out. The tribunal considered that an oral communication of the outcome of a job evaluation to which the claimant had not been allowed to contribute, nearly a year after she first objected, was disgraceful.
To add insult to this injury, Dr Drennan in his Performance Appraisal Report considered the claimant's performance met the requirements of her grade, ie Staff Officer, and she could improve with training. The claimant's dissatisfaction with this report was addressed to Mr Stewart the Countersigning Officer who did not even speak to the claimant to find out from her the exact nature of that dissatisfaction or his response. Indeed he did not even acknowledge its receipt. Why would any employee have faith in their employer to address a Grievance after having been subjected to such treatment.
- The findings of fact above indicate clearly that the working atmosphere within the faculty was unsatisfactory. The respondent's submissions contend that the relationship between the claimant and Inspector Montgomery was not too bad. The tribunal did not agree. We found the evidence of Mrs Hinks and the claimant compelling in this regard. The workforce in the faculty was not large. It would have been impossible for the claimant to work there without being affected by it especially since the trainers were coming to her for assistance with their problems as their former manager and senior member of the faculty staff. The claimant was also affected by the fact that she too was a civilian. The other trainers were being treated less favourably by Inspector Montgomery, generally because they were not police officers but we were aware that Sergeant Maggie Irwin apparently had problems too. Stuart Young in particular raised the matter of analogous grades as did the claimant. The tribunal concluded that the respondent's policy of civilisation resulted in ranking officers carrying out the same duties as the civilians but the civilians were graded at a level which paid a lot less. The trainers in L&M were also prevented from carrying out training where the Inspector and Dr Drennan considered it inappropriate due to the rank of the police students. While Dr Drennan was not a PSNI officer, his background and previous employment had all been police or related so he shared that ethos and culture. The tribunal accept that a ranking police officer, with weapon and police training and experience, is not an analogous grade to civilian trainers but their roles in that faculty were in training staff in management, not policing duties. The claimant was aware that Dr Drennan met with Inspector Montgomery from time to time whereas her communication was mostly e-mail. The tribunal concluded that the claimant felt, and was, isolated by her colleagues and managers.
- At their meeting to discuss her return to work, Dr Drennan described the claimant to Jean Hicks as 'that woman up the passage who does not exist.' E-mails that he wrote portray the claimant as actively involved in doing damage to him, the faculty and the College and denigrated her personally and professionally. The tribunal have no idea why he did so. Mr Stewart gave evidence that he ignored these assertions that the claimant was out to do damage but he arranged her transfer out of the faculty and the College and her chosen career, as Dr Drennan insisted.
- With regard to the closure of the faculty, Mr Stewart informed the tribunal that the decision was his, prompted by several factors; Inspector Montgomery's business proposal; the unsatisfactory situation in relation to the costs of the Open University with no budgetary provision for such items; staff absence on work related stress resulting in little internal delivery; the reported dissatisfaction of staff with the relevance of the courses. He did not mention the fact that in addition to the grievances from Jean Hinks and Stuart Young, Dr Drennan was under investigation in relation to other complaints against him. None of these matters were within the remit or responsibility of the claimant but it was she who suffered as a result. Inspector Montgomery left on 'gardening leave' until his severance. Sergeant Majury moved to another faculty. Dr Drennan resigned to take up another senior post in Canada. The tribunal applied the test established by the House of Lords in Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606 and concluded that the respondent by its conduct destroyed the trust and confidence that the claimant was entitled to have in her employer.
- The tribunal also concluded that the claimant tried twice to bring the working difficulties in the faculty to the attention of the respondent by telling Carol Gordon of Equal Opportunities. She also tried to meet with Dr Drennan her line manager on several occasions to no avail and to have the departmental health check carried out following Dr Davies raising his concerns about the serious managerial issues with Ann Burnett, Senior Personnel Officer. In addition she was not interviewed by her Countersigning Officer, Mr Stewart regarding her Performance Appraisal. The tribunal consider that these failures indicate a potential problem in the respondent's implementation and monitoring of its personnel practices, policies and procedures.
- The tribunal was referred by both Counsel to the decision in Land Securities Trillium Ltd v Thornley [2005] IRLR 765. The tribunal noted a strong similarity between the situations of these two cases. In Ms Thornley's case, the EAT found that the effective cause of her resignation was the imposition of a new job description which fundamentally breached the terms of her contract and would have had the effect of deskilling her, " in effect, to cease doing her principal job and take up a new one."
In this case, the tribunal conclude that the post offered to the claimant in the Freedom of Information Unit represented a substantial change in the nature of the work that she would be required to do compared to that of her original position as Staff Development Officer. We conclude that the claimant was entitled to resign and be treated as having been dismissed unfairly. The matter will be listed for a hearing to decide the remedy.
Chairman:
Date and place of hearing: 5 – 9 February 2007, 16 & 20-23 March 2007, Belfast
Date decision recorded in register and issued to parties:
