Harper v Brooklands Healthcare Ltd t/a ... [2011] NIIT 437

THE INDUSTRIAL TRIBUNALS

CASE REF: 437/10 & 1229/10

CLAIMANT: Patrick Harper

RESPONDENT: Brooklands Healthcare Ltd

t/a Brooklands Nursing Home

DECISION

The unanimous decision of the tribunal is that the claimant was fairly dismissed for some other substantial reason namely because he refused to accept a reduction in his hours of work which the respondent introduced as part of an economic reorganisation due to a shortfall in the update of places in its nursing home in Kilkeel.

Constitution of Tribunal:

Chairman: Mr Ian Wimpress

Members: Mr John McAuley

Mr Raymond Lowden

Appearances:

The claimant was represented by Mr O’Neill of the Citizens Advice Bureau.

The respondent was represented by Mr Sheridan of Peninsula Business Services Limited.

The Claim and the Response

1. The claimant brought claims in respect of unfair dismissal, breach of contract, disability discrimination and post employment detriment in his claim form dated 24 February 2010. The post employment detriment claim arose from a reference given to Newry and Mourne Council after the claimant left the respondent’s employment. The respondent denied all of the claims made by the claimant and asserted that it sought to reduce the claimant’s hours due to economic necessity and tried to reach agreement in relation to alternative employment. The dismissal was admitted and the respondent contended that the reason for dismissal constituted “some other substantial reason”. The respondent also denied subjecting the claimant to post employment detriment.

Issues

2. At the outset of the hearing the claimant withdrew his claim of disability discrimination as contained in Claim No. 437/10 and the post employment detriment contained in Claim No.1229/10. Although there was no express claim of automatic unfair dismissal for failure to adhere to the statutory grievance procedure the proceedings self evidently gave rise to such a claim. During the course of the hearing Mr O’Neill also made clear that the claimant was not pursuing a discrete breach of contract claim and that the issues raised in relation to the claimant’s contract merged with the unfair dismissal claim. As a result of the withdrawal of the claims of disability discrimination and post employment detriment, the relevance of the complaint about the reference given by the respondent was confined to mitigation and future loss. Accordingly, the issues agreed at the Case Management Discussion on 28 July 2010 were substantially reduced and are as follows:

Legal Issues

3. Substantive Unfair Dismissal

(i) Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 why was the claimant dismissed?

(ii) Was the reason fair?

(iii) Was there a consultation process in relation to the reduction of hours?

(iv) Was the claimant offered alternative employment?

4. Automatic Unfair Dismissal

Did the respondent fail to follow the statutory grievance procedures?

5. Factual Issues

(1) Were the claimant’s working hours reduced due to him placing a

personal injury claim against his employer?

(2) Did the claimant raise a grievance in relation to his change of

working hours?

(3) If so, did the respondent fail to address the said grievance?

(4) Was the claimant consulted in relation to his reduction of hours?

(5) Did the claimant have an appeal to this decision to reduce hours?

(6) Did the respondent refuse to give a reference to Newry and Mourne District Council?

(7) Did the respondent give a verbal reference?

(8) If so, what impact did the verbal reference have on the claimant’s prospects of obtaining alternative employment?

Sources of Evidence

6. The tribunal received an agreed bundle of documents and heard oral evidence from the claimant and Therese Conway.

The Facts

7. The claimant was born on 30 April 1954. He was appointed as a maintenance person in a nursing home run by the respondent on 23 October 2006. It was a full time post with a 35 hour week remunerated at £6.50 per hour. The nursing home was located in Kilkeel, County Down and was one of four such homes run by the respondent in Northern Ireland. Ms Conway was one of five directors and was responsible for operational matters within the group.

8. Clause 27 of the claimant’s contract of employment made provision for changes in the terms and conditions as follows:

“From time to time your main terms and conditions of employment may be subject to change (e.g. by mutual consent). Should any change be agreed, this will be confirmed, within one month of the change taking effect, by personal written notification.”

9. In March 2009 the claimant’s hours were reduced from a five day week to a three day week due to reduced occupancy in the Kilkeel home. The claimant agreed to this reduction in hours to help out over difficult times. According to the claimant he was told that this would be temporary and would only be for approximately two weeks.

10. In his evidence to the tribunal the claimant stated that he sustained an injury at work when he received a cut to his knee from a branch of a tree while using electric shears to trim it and that this injury required a number of stitches. In his claim form the claimant attributed his injury to a fall. These descriptions are not necessarily inconsistent and the claimant was not challenged about his account. It is not in dispute that the claimant was subsequently off work on sick leave from 25 June 2009 to 17 November 2009 due to cellulitis and varicose ulcers.

11. On 26 June 2009, the Nurse Manager, Mrs Bernadette McArdle wrote to the claimant and invited him to attend a disciplinary meeting on 30 June 2009 in respect of nine allegations which encompassed the failure to obey instructions, a lack of awareness of health and safety issues and poor performance. In the event the hearing did not take place due to the claimant’s absence on sick leave. It was not in dispute that the disciplinary proceedings were never formally withdrawn. While it is not strictly relevant to the issues that the tribunal has to consider it is very unsatisfactory that there was no final resolution to these proceedings one way or the other.

12. On 17 November 2009 the claimant returned to work. Mrs McArdle spoke to the claimant and advised him of the prospect of having his hours further reduced and working a two day week. The claimant was clearly unhappy with this proposal and Mrs McArdle wrote to him on 23 November 2009 and indicated that she would like to follow up their conversation on 25 November 2009. It was clear the follow up was to be in the form of a meeting.

13. In the event the meeting took place on 24 November 2009. Mrs McArdle reiterated the proposal to reduce the claimant to two days. She stressed that the respondent still needed a maintenance person but could not afford more than two days. The claimant asked “why me?”. Mrs McArdle explained that it was because it would have least impact on the home. She could not cut the kitchen staff any more because the patients needed to be fed. The domestic staff and the care assistants had been cut as far as possible. Mrs McArdle went on to explain that she was required both legally and by health and safety requirements to meet ratios per patient in respect of nurses and care assistants and they had been cut as far as could be done. Although four patients were coming in for two weeks respite care this was not enough to sustain the business. Mrs McArdle also pointed out that the maintenance supervisor and several others had been made redundant. Mrs McArdle stated that the only alternative would be to contract out the work but would prefer not to go that way. Mrs McArdle concluded her opening statement by saying that if the claimant was not prepared to accept a two day week the respondent would accept the claimant’s resignation and take someone else on – on a two day week. The claimant protested that he could not afford to take a pay cut and thought that he had been fair about the reduction to three days although he had never signed anything to agree to that and was not given any notice. Mrs McArdle responded that she would ensure that it was done this time and that he would be given a month’s notice if he refused to accept a two day week. Mrs McArdle also raised the prospect of the claimant spreading his reduced working hours over five days but she did not think that this was a good idea and the claimant gave no indication that it would appeal to him. Some discussion about holiday pay ensued before they returned to the main business. Mrs McArdle asked the claimant whether he would be entitled to income support or family credits if he went on a two day week. The claimant said that he had checked and he would not be entitled to these. Mrs McArdle suggested that the claimant would therefore be better coming in for two days than nothing but the claimant countered that it would not be worth it and that he would have to leave. The discussion continued along these lines for some time and included a debate as to the appropriate notice period. Mrs McArdle also emphasised that the respondent was not going down the redundancy route as there was still a job for the claimant with the respondent. The meeting then concluded.

14. On 2 December 2009 Mrs McArdle wrote to the claimant and advised that due to reduced occupancy levels it was proposed to reduce his hours from three shifts per week to two shifts per week or fourteen hours. Mrs McArdle described these changes as being necessitated by compelling business needs and drew attention to the 20% reduction that had taken place in respect of domestic staff and care assistants. She referred to the consultations with the claimant and noted that he was not prepared to accept the proposed changes. She therefore advised the claimant that she was terminating his contract for these compelling business reasons and advised the claimant that this was known as a dismissal for some other substantial reason. She advised the claimant that based on his service he was entitled to four weeks notice and that this would take effect on 2 December 2009 which meant that his employment would end on 30 December 2009 and that he would be required to work the notice period. Mrs McArdle went on to formally offer the claimant re-employment on the revised terms and conditions proposed during the consultation with him. Mrs McArdle expressed her sincere hope that the claimant would accept the offer of alternative employment and advised him of his right of appeal. Mrs McArdle also indicated that the respondent was willing to continue to consult with the claimant and discuss any queries with him irrespective of whether he appealed or not.

15. On 11 December 2009 the claimant wrote to Mrs McArdle and advised that he would not accept the reduction in his hours by 60% and asked her to reconsider and allow him to return to work on a full time basis. The respondent treated this letter as an appeal and on 21 December 2009 Ms Conway wrote to the claimant and advised that she would hear his appeal on 11 January 2010. Ms Conway advised that she would be accompanied by a note taker and that the claimant had the right to be accompanied by a fellow companion or trade union official.

16. The claimant attended the appeal hearing but indicated that he was unwilling to proceed unless he could take an audio recording of the hearing. Ms Conway refused on the basis that this did not accord with the respondent’s procedures. The hearing therefore did not proceed and Ms Conway wrote further to the claimant on 14 January 2010 both to confirm the appeal decision and to ask the claimant to reconsider the offer of alternative employment. Ms Conway concluded the letter by saying that if she did not hear from the claimant by return she would assume that he was not prepared to accept this offer and that the termination of his employment still stood.

17. With the assistance of his solicitor the claimant replied by letter of 20 January 2010 in which he reiterated his position in relation to the offer of alternative employment. The claimant also set out his reasons for not proceeding with the appeal hearing as follows:

“In your letter you state inter-alia that I refused my right of appeal, as I did not wish to continue with the meeting without being allowed to record the event. I must stress that the reason why I wished to tape record the meeting was due to the fact that at the last meeting, contemporaneous notes that had been taken, did not truly reflect what was said. Indeed I believe that a deliberate attempt was made to transcribe the minutes to make me appear uncompromising and hostile.

I would again urge you to allow me a right to attend a future appeal hearing which can be recorded in order that we both have a verbatim record of what exactly is proposed at any such meeting.”

The claimant concluded the letter by stating his belief that he was being treated less favourably than other workers because he had injured himself at work and lodged a personal injury claim.

18. Ms Conway replied on 28 January 2010 and pointed out that the claimant was made aware that he was entitled to have a representative attend the appeal hearing who could have taken minutes on his behalf. Ms Conway also offered the claimant a further appeal hearing on 2 February 2010. In his evidence to the tribunal the claimant suggested that Ms Conway refused him permission to be accompanied by his solicitor or Miss McGinn a retired civil servant. It is notable that neither request was the subject of any correspondence from the claimant.

19. The claimant attended the further appeal hearing on 2 February 2010. There was some discussion at the outset about the minutes of the meeting. The claimant wanted a signed copy of the minutes that day but ultimately agreed to proceed on the basis that he would be provided with these on the following day. The meeting then moved to consider the substance of the claimant’s appeal. The claimant contended that it was unfair to be reduced from 100% to 60% and then to 40%.and that no other staff had been cut. In response Ms Conway rehearsed the evidence that domestic staff had been cut and that there were compelling business needs for the changes namely the reduction in occupancy levels. Although the most recent figures showed an increase in occupancy levels Ms Conway stressed that she would need to see a longer spell of high occupancy before she could increase hours for the claimant, the domestic staff and the carers. Ms Conway also pointed out that there were minimum legal standards to meet care levels and that other homes in the group had had to make cut backs. The maintenance in Belfast and Magherafelt was covered by one person and the respondent had been forced to let the maintenance supervisor go. There had also been a reduction in hours for domestic and kitchen staff. The claimant maintained that he was being unfairly picked on and that no-one else had their hours reduced from 35 hours to 14 hours. Ms Conway reiterated that there were minimum standards in respect of care workers and that the claimant was not comparing like with like. Ms Conway also informed the claimant that the respondent had to obtain two day temporary cover for maintenance after the claimant’s first appeal hearing did not proceed. The claimant restated that he could not accept two days. Ms Conway informed the claimant that the Southern Trust was reallocating funds to domiciliary care which was not the category of care that the respondent catered for and a proposal to open an Elderly Mentally Infirm (“EMI”) Unit had been rejected. In her evidence to the tribunal Ms Conway stated that an EMI facility would have required a new building and was therefore not financially viable. The claimant replied that he would only accept five days and the discussion continued in a similar vein as before. Ms Conway also told the claimant that senior staff had been let go, all the directors had taken reductions in pay and no bonuses were paid. She asked the claimant to consider the offer of two days and said that she would give her decision on the appeal within three to five days.

o20. Ms Conway gave her decision in writing to the claimant on 8 February 2009. Ms Conway set out the basis of the claimant’s appeal and stated that the decision to terminate the claimant’s contract was being upheld for the following reasons:

· The company had offered you a change in terms and conditions, these changes being a reduced working week, due to compelling business reasons.

· You decided not to accept the changes in terms and conditions, and as stated to you, failure to agree to the new terms and conditions would result in termination of your employment.”

21. In her evidence to the tribunal Ms Conway relied on print outs of the respondent’s profit and loss accounts and a document which set out the reduction in staff hours over the relevant period. The accounts revealed that a loss of £9,733.00 was incurred in respect of the Kilkeel home for the year ending 31 December 2009. The document prepared by the respondent in respect of staff hours showed that a number of care and domestic staff had significant reductions in their hours between April and June 2009. According to Ms Conway this situation prevailed until July 2010.

22. Following the termination of his contract the claimant sought alternative employment. In particular he sought employment as a Seasonal Gardener with Newry and Mourne District Council, a body that the claimant had previously been employed by in the same capacity as recently as February 2006 as well as for two previous periods. The application form completed by the claimant required him to provide two references one of which should be his most recent employer. The claimant gave the respondent as his most recent employer and a Mr Vincent Trainor, a primary school teacher, as his second referee. It is common case that the claimant did not ask for permission from the respondent to use it as a referee. On 11 March 2010 the Council wrote to the claimant and offered him the post. The offer was conditional upon satisfactory completion of pre-employment checks and a medical.

23. Ms Sweeney, the Assistant Director of Administration (HR) with the Council, sought to obtain a reference from Ms Conway. Ms Conway refused to provide a written reference as the claimant had not sought her permission to use the respondent for a reference and it was the respondent’s policy not to provide references unless requested to do so by the employee or former employee in question. A Council employee, Ms McCague, pursued the matter with Ms Conway in order to obtain a verbal reference. Ms Conway informed Ms McCague that the claimant had been dismissed because he would accept a reduction to a two week due to economic conditions. Ms McCague asked if there had been any disciplinary action taken against the claimant and Ms Conway replied that the claimant had been summoned to a disciplinary hearing but that it had not taken place because the claimant was off work on sick leave. Ms Conway was pressed as to the basis of the disciplinary charges and replied that they were related to competence and health and safety. Ms Conway indicated that the disciplinary proceedings did not take place because the claimant was off on sick leave. In her evidence to the tribunal Ms Conway stated that the disciplinary proceedings were no longer pending due to the lapse in time. There was no suggestion that any of what Ms Conway told Ms McCague was incorrect.

24. On 29 March 2010 Ms Sweeney wrote to the claimant withdrawing the job offer and giving the reason as the receipt of an unsatisfactory reference. On 31 March 2010 the claimant wrote to the Council and applied for a copy of the reference. On 14 April 2010, Ms Sweeney replied and enclosed a copy of Mr Trainor’s reference and indicated that she was unable to provide a copy of the respondent’s reference because it was received verbally. Ms Sweeney concluded by stating that both references were considered to be unsatisfactory. We were shown a copy of Mr Trainor’s reference which merely stated that the claimant was an acquaintance whom he had known for over thirty years and had no reason to consider the claimant unsuitable for the post. The claimant pursued the matter further with the Council and gave evidence to the tribunal that he had a letter from the Council stating that the respondent’s verbal reference was abysmal and one of the worst references that the Council had ever received. The claimant was given the opportunity to produce this letter but he was unable to do so and we are satisfied that no such letter existed. The claimant maintained that this was what he was told. Ms Sweeney was not called to give evidence. Since leaving the respondent’s employment the claimant has been in receipt of Jobseekers Allowance.

The Law

Substantive unfairness

25. Article 130 of the Employment Rights (Northern Ireland) Order 1996 insofar as relevant provides as follows:-

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

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

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

…………………………………………..

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

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

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

26. In Dobbin v Citybus Ltd [2008] NICA 42 the Court of Appeal provided guidance as to how an industrial tribunal should approach the task of determining the fairness of a dismissal. The judgment of Higgins LJ reads as follows:

“[48]…The equivalent provision in England and Wales to Article 130 is section 98 of the Employment Rights Act 1996 which followed equivalent provisions in section 57 of the Employment Protection (Consolidation) Act 1978.

[49] The correct approach to section 57 (and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

[50] In Iceland Frozen Foods Browne-Wilkinson J offered the following guidance –

‘Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the [Employment Protection (Consolidation) Act 1978] is as follows:

(1) the starting point should always be the words of section 57(3)

themselves;

(2) in applying the section an industrial tribunal must consider the

reasonableness of the employer's conduct, not simply whether

they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’

[51] To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he stated -

‘What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure,” as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt.” The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion’.”

This passage was cited with approval by the Court of Appeal in its recent decision in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47.

Procedural fairness

27. Article 130A of the 1996 Order makes provision in respect of procedural fairness as follows:

“130A. — (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—

(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.”

28. Accordingly, if an employer wishes to dismiss an employee it must follow the statutory dismissal procedure. This is the minimum procedure which must be followed in every case to which it applies. In the present case the standard grievance procedure applies which is as follows:-

Step 1: statement of grievance

The employee must set out the grievance in writing and send the statement or a copy of it to the employer.

Step 2: meeting

(1) The employer must invite the employee to attend a meeting to discuss the grievance.

(2) The meeting must not take place unless -

(a) the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6, and

(b) the employer has had a reasonable opportunity to consider his response to that information.

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the meeting, the employer must inform the employee of his decision as to his response to the grievance and notify him of the right to appeal against the decision if he is not satisfied with it.

Step 3: appeal

(1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the appeal meeting, the employer must inform the employee of his final decision.

Compensation

29. Article 157 of the 1996 Order makes provision in relation to compensation as follows:-

157. - (1) Subject to the provisions of this Article and Articles 158, 160 and 161, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

(4) In ascertaining the loss referred to in paragraph (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland.

(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

Submissions

Claimant’s Submissions

30. On behalf of the claimant Mr O’Neill submitted that it was a very simple case of a company which was making substantial profits unilaterally varying the claimant’s contract. Mr O’Neill relied on the cases of Miller v Hamworthy Engineering Ltd IRLR 461 [1986] R 1901 CA and Grix v Muntford Ltd (unreported) as providing guidance as to how changes in contracts should be effected. The employer must consult fully with the employee and must give reasonable and due consideration to any objections or alternative suggestions and prove that change is necessary. As the claimant was on the minimum wage the saving to the respondent was just over £10,000 per annum and to have another employee travelling from Magherafelt to Kilkeel once per week meant that the actual saving to the respondent was minimal. Furthermore when the claimant was dismissed there was a small increase in the number of residents. There was no evidence of previous periods when there were increases and decreases in the number of residents. Ms Conway’s evidence was of a reduction of only ten in the number of residents and did not warrant a reduction of 60% in the maintenance work and the reduction by 60% in the claimant’s hours did not constitute suitable alternative employment. Alternatively Mr O’Neill submitted that on the basis that the maintenance worker based in Magherafelt travelled to the Kilkeel home one day per week this represented an 80% reduction in maintenance. Mr O’Neill accepted however that some maintenance work was undertaken by other staff. Mr O’Neill submitted that the decision to dismiss the claimant was not based on his conduct or ability to perform his duties but rather he was dismissed because he failed to agree to a two day week. Mr O’Neill also referred the tribunal to the case of Paul Buckman v Bournemouth University [2010] EWCA Civ 121 in which the court was reluctant to treat an employee as dismissed merely because he continued to work at his job for a few months. Although the claimant agreed to a three day week it was only on the basis that it was to be for a very short time. The offer also failed to take into account that the claimant had to use his own car.

31. In relation to the reference Mr O’Neill submitted that there was no legal duty to give a reference but if one was given it must be fair and reasonable. Mr O’Neill submitted that the reference was not fair and reasonable. Mr O’Neill referred the tribunal to Spring v Guardian Insurance 1979 IRLR 306 EAT and Cox v Sun Alliance [2000] EWCA Civ 1010. Mr O’Neill submitted that Ms Conway’s verbal reference should not have included matters that were not the subject of a full investigation and that the claimant would have had the opportunity to rebut any allegations made against him. Mr O’Neill also submitted that Mr Trainor’s reference was not unhelpful.

32. In relation to the unfair dismissal claim Mr O’Neill pointed out that the claimant had not received either a written or verbal warning prior to the personal injury claim being lodged which led to a deterioration in their working relationship. Mr O’Neill also submitted that the documentary evidence regarding the reduction in hours did not make sense and did not cover all of the relevant period. In particular it did not cover Ms Conway’s evidence that staff were being re-engaged in July 2010.

33. Mr O’Neill accepted that the statutory grievance procedure was adhered to an extent, save for the representation issue that arose at the last appeal meeting. Mr O’Neill very properly accepted that the thrust of the case law was to that legal representation would only be required by law if a professional person such as a doctor was not able to pursue a career in the Health Service due to disciplinary action.

34. With regard to mitigation Mr O’Neill submitted that the claimant had endeavoured to minimise his loss but that it was a difficult economic time and the claimant’s age was a factor.

Respondent’s Submissions

35. Mr Sheridan firstly pointed out that the documentary evidence submitted in relation to staffing hours was provided in response to a request by the claimant’s representative for the period of April to June 2009 and was in connection with the disability discrimination claim. Mr Sheridan placed reliance on Ms Conway’s oral evidence that staff were re-engaged in July 2010.

Substantive Unfair Dismissal

36. Mr Sheridan submitted that the case made by the respondent in its pleadings and evidence was that there was a financial reorganisation of the respondent’s business and this equates in law to some other substantial reason. The question was whether this was a genuine economic reorganisation. According to Mr Sheridan, the respondent must show that there was economic necessity for the reorganisation and be prepared to adduce supporting financial accounts in accordance with Banjeree v City and Eastern London Health Authority [1979] IRLR 147 EAT. In this regard, Mr Sheridan drew attention to the financial records produced by the respondent and Ms Conway’s oral evidence on this topic. Mr Sheridan submitted that this evidence clearly showed that in 2009 the Kilkeel home was making losses of nearly £40,000. The respondent looked at the overall business and considered other measures that could save money. It also looked at its arrangements with the Southern Trust in order to fill empty beds. Mr Sheridan also drew attention to Ms Conway’s evidence that the respondent considered converting the premises into an EMI facility but ultimately decided not to pursue this option as it would have required a new building and was therefore not financially viable. The situation improved in 2010 when the Southern Trust allowed the home to take in people with special needs or learning disabilities. This increased the number of patients and brought the home back unto a level footing.

37. Such a reorganisation does not automatically give rise to a redundancy situation but rather goes to “some other substantial reason” which would require a dismissal. There is a process to be followed in dismissals and in accordance with the Court of Appeal’s judgment in Rogan v South Eastern Health and Social Care Trust it is not for the panel to step into the shoes of the employer but to adjudicate on the basis of the evidence placed before the tribunal. Mr Sheridan submitted that the respondent’s evidence on this issue was clear. Mr Sheridan also submitted that in working a three day week the claimant affirmed his contract.

Statutory Dismissal Procedure

38. Mr Sheridan submitted that the procedure commenced with the respondent’s letter of 23 November 2009 which referred back to a conversation with the claimant on 17 November 2009 after the claimant had just returned to work from sick leave. There was a discussion about the claimant being reduced from a three day week to a two day week. The Step 1 letter set out the position, gave reasons, invited the claimant to a meeting and advised the claimant of his right to be accompanied. The meeting took place and the record of the meeting included a detailed explanation of the rationale of the respondent’s position to the claimant and that other employees were having their hours reduced as well. The claimant refused the proposed changes and as a result the Step 2 letter of 2 December 2009 was sent to the claimant offering him employment after a period of notice, setting out the reasons for the decision and providing a new contract of employment. The letter terminated the claimant’s contract, set out alternative employment and invited the claimant to sign the new contract. The claimant was also advised of his right of appeal. The claimant appealed and the letter inviting him to the hearing contained all the necessary information. The appeal took place and there was no suggestion that the process was unfair.

Reference and Mitigation

39. Mr Sheridan relied on Harvey at D11, 580 – 586 in submitting that there was no duty to supply a character reference to an employee or ex-employee but if a reference is given it must be true, accurate and fair. As to whether an unresolved disciplinary matter should be mentioned Mr Sheridan relied on Bartholomew v London Borough of Hackney [1999] IRLR 246. Mr O’Neill commented that in the Cox v Sun Alliance case the employer added the opinion that the employee would probably have been found guilty of the offence but that is not the case here. Ms Conway answered a question put to her by Ms McCague. Although the letter of 29 March 2010 referred to an unsatisfactory reference it later transpired that the Council regarded both references as unsatisfactory. The claimant’s evidence that he had a letter sent to his solicitor to the effect that it was a bad reference, the worst ever seen and abysmal, was spurious as the claimant was unable to produce such a letter. In addition, there is no reference in the claimant’s letter to the Council, which was drafted by his solicitor, to any conversation with Ms McCague. Ms McCague could also have been called to give evidence by witness order if necessary but she was not and in these circumstances the tribunal should place no weight on this allegation or the claimant’s evidence.

40. In relation to mitigation, Mr Sheridan pointed out that the claimant only made four applications for work during a six month period. Mr Sheridan refuted the suggestion that the claimant could not use the respondent as there is no bar on the claimant obtaining such a reference if he requests one. Nor was there any evidence before the tribunal that the claimant was unlikely to obtain employment due to his age. In accordance with Norton Tool Co Ltd v Tewson [1972] ICR 701, the claimant is only entitled to the loss that actually flows from his dismissal and the compensation claimed has to be just and equitable. It must take account of the fact that the claimant was offered alternative employment of fourteen hours per week at £8.00 per hour. Mr Sheridan also submitted that any compensation should take into account that the case commenced as a discrimination case which had no prospect of success and it would have been heard sooner if it had properly been confined to unfair dismissal.

41. In response to this latter point Mr O’Neill drew attention to his difficulty in obtaining copies of the claimant’s general practitioner notes. The disability discrimination case was dropped once the notes were obtained. There were also difficulties in obtaining the respondent’s accounts.

Conclusions

42. We cannot help but feel that this case has been somewhat driven off course from the claimant’s perspective by a disability discrimination claim that had no basis in substance and was ultimately withdrawn. This resulted in undue emphasis being placed on the reference issue in both parties’ presentations and submissions. When this was raised by the tribunal the parties quite properly accepted that the tribunal has no freestanding jurisdiction in respect of references and its origins in the present case lay in the detriment component of the withdrawn disability discrimination claim and such a claim could only therefore be pursued in the context of a civil suit for negligent misstatement.

43. Turning to the issues that we need to determine our findings are as follows:

Factual Issues

(1) We are not persuaded that the claimant’s working hours were reduced due to him taking a personal injury claim against his employer. There was no real evidence to support this suggestion which seems to us to be speculative at best.

(2) There was no dispute that the claimant raised a grievance in relation to his change of working hours and we are satisfied that he did.

(3) Procedurally there was a considerable overlap between the grievance and the consultation that took place in relation to change in the claimant’s hours. It was not contended that the respondent had failed to comply with the three step procedure but rather that the respondent was at fault in not permitting legal representation at the appeal. However, as Mr O’Neill correctly accepted the claimant had no legal right to have a solicitor as a companion. It is not without significance that this complaint did not feature in the claimant’s claim form. It is ultimately a matter for the tribunal to determine whether the respondent addressed the grievance and on the basis of the unchallenged evidence that the respondent took all of the steps that were required of it we are satisfied that it did. Indeed it took these steps without the benefit of a written grievance by the claimant. In these circumstances it is clear that the respondent cannot be condemned for this minor technical flaw which was of the claimant’s own making.

(4) There was no substantial dispute that the claimant was consulted in relation to his reduction of hours.

(5) It is also undisputed that the claimant did have an appeal in relation to the decision to reduce hours. Again the claimant did not formally appeal but rather his letter of 11 December 2009 was quite properly treated as an appeal.

(6) Ms Conway did not dispute that she refused to give a written reference to Newry and Mourne District Council. This was on the basis that the claimant had not sought permission to nominate her as a referee. As the authorities make clear there is no obligation on an employer to provide a reference but if one is given it must be true, accurate and fair.

(7) Ms Conway accepted that she gave a verbal reference under pressure from Ms McCague. The verbal reference made reference to discontinued disciplinary proceedings which probably did not enhance the claimant’s prospects of securing employment with the Council but the reference could not be said to be anything other than true, accurate and fair. It is also material to note that the Council subsequently advised that both references obtained in respect of the claimant were unsatisfactory.

(8) Ms Conway’s verbal reference was regarded by the Council as unsatisfactory but the clarification subsequently provided by the Council that both Ms Conway’s and Mr Trainor’s references were considered unsatisfactory significantly diluted the effect of Ms Conway’s reference. In addition, we do not accept the claimant’s contention that he was informed by the Council that the verbal reference given by Ms Conway was abysmal and the worst ever received by the Council.

Legal Issues

Substantive Unfair Dismissal

(i) We are satisfied that the claimant was dismissed because he was not prepared to accept a reduction in his hours or work under the new contract that he was offered by the respondent as part of a business reorganisation and that the respondent genuinely and reasonably believed that the reorganisation was essential. We accept that the reasons proffered by the respondent fall within the scope of “some other substantial reason” in Article 130 (1) (b) of the 1996 Order.

(ii) The reason for the respondent’s decision to dismiss the claim was the pressing business need to reduce the claimant’s hours due to a significant drop in the occupation levels at the Kilkeel home. The respondent’s case was that this was a business reorganisation falling short of redundancy. The claimant’s case might have been stronger had he taken issue with the initial reduction from five days to three days which occurred in March 2009. There appears to have been no consultation in relation to the March reduction. The claimant acknowledged the difficult economic circumstances and accepted this reduction in hours which he believed would be temporary. However, the tribunal must judge the respondent’s actions in the context the claim that is made which arises from a reduction from three days to two days rather than from five days to two days. The core issue is whether the respondent acted reasonably in terminating the claimant’s employment and dismissing him due to his refusal to accept a new contract of employment. In determining an issue of this nature the tribunal must be careful not to substitute its view for that of the employer. The correct approach for the tribunal is to consider whether the decision to dismiss the claimant for his failure to accept reduced work was within the band of reasonable responses.

(iii) We are entirely satisfied that a consultation process was undertaken in relation to the decision to reduce the claimant’s hours. To a large extent this merged with the grievance process and it is not easy, and nor is it necessary, to determine the boundaries between them.

(iv) It was not disputed that the claimant was offered alternative employment in the form of two rather than three days employment. The issue for the tribunal is whether this represented suitable alternative employment. In view of the nature of the claimant’s job there could be no serious suggestion that other work was available for him at the Kilkeel home. It was very much a question of how much the claimant’s hours should be reduced by. Mrs McArdle mentioned the possibility of the claimant spreading his hours over five days but this would have been of no assistance to the claimant as he would still have received two days wages. This supports the respondent’s contention that it considered all the options but understandably neither the claimant nor Mrs McArdle were attracted to this suggestion.

(v) While we have considerable sympathy for the claimant, the respondent has satisfied us that the decision to dismiss him was fair and that the decision was within the band of reasonable responses open to the respondent.

Automatic Unfair Dismissal

44. As indicated above Mr O’Neill’s only complaint about the operation of the statutory grievance procedure was the alleged refusal to allow the claimant to be accompanied by a solicitor. As Mr O’Neill acknowledged the right to be accompanied does not extend to representation by a solicitor. Accordingly, even if the claimant is correct in his evidence that Ms Conway refused to allow him to be accompanied by a solicitor, she could not legitimately be criticised for this decision. The suggestion that Miss McGinn was also refused is at odds with Ms Conway’s offer of a companion to take a note rather than having the appeal hearing recorded by dictaphone. There was no telephone record of such a request and the claimant’s evidence on this topic was vague and unpersuasive. Irrespective of the limits of Mr O’Neill’s complaint it is incumbent on the tribunal to determine whether the statutory grievance procedure was complied with. We were a little troubled by the absence of a grievance letter initiating the process. In his claim form the claimant gave 11 December 2009 as the date when he raised a grievance about the reduction in his hours. In reality however the initial grievance meeting was with Mrs McArdle and took place on 24 November 2009. The claimant did not in fact issue a Step 1 grievance letter. While it could be contended that the grievance procedure was never commenced this would be of no assistance to the claimant as he has long since left his employment with the respondent. As we have indicated the grievance process and the consultation about the proposed changes to the claimant’s contract ran very much in tandem. Having given careful consideration to the matter we are satisfied that the respondent followed the statutory grievance procedure albeit that it was initiated without the benefit of a written grievance being submitted by the claimant.

45. In view of our conclusions as set out above the claimant’s claim must be dismissed.

Chairman:

Date and place of hearing: 1- 2 November 2010, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Harper v Brooklands Healthcare Ltd t/a ... [2011] NIIT 437_10IT (06 January 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/437_10IT.html Cite as: [2011] NIIT 437_10IT

Industrial Tribunals Northern Ireland Decisions