Kearney v Drs. E McAuley, A W Irwin and ... [2012] NIIT 00733

THE INDUSTRIAL TRIBUNALS

CASE REF: 733/12

CLAIMANT: Angelena Kearney

RESPONDENT: Drs. E McAuley, A W Irwin and M Monaghan

t/a Irwin Practice

DECISION

The unanimous decision of the tribunal is that:

(A) The claimant’s breach of contract claim is well-founded and it is ordered that the respondents shall pay to the claimant the sum of £500 in respect of that claim.

(B) The claimant’s unfair dismissal claim is not well-founded and accordingly it is ordered that the unfair dismissal claim is dismissed.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Mr I O’Hea

Mr I Rosbotham

Appearances:

The claimant was self-represented.

The respondents were represented by Mr T Sheridan of Peninsula Business Services Ltd.

REASONS

1. In this Decision, we refer to the respondents collectively as “the employer”.

2. The claimant was employed by the employer, at a health centre which was located at Finaghy Health Centre, from 1 December 2001 until 3 February 2012, when her employment came to an end in acrimonious circumstances. She resigned with effect from that date.

The claims

3. In these proceedings, the claimant complains in respect of non-payment of a bonus. That is her breach of contract claim. She also complains of unfair dismissal.

The breach of contract claim

4. The claimant would certainly have been entitled to a £500 bonus, in respect of the financial year 2011/2012, if she had not ceased to be employed by the employer from 3 February 2012 onwards. In these proceedings, she makes a claim in respect of that £500.

5. The employer asserts that, in reality, because of the termination of the claimant’s employment in February, she lost her entitlement to the bonus. However, as a gesture of goodwill, and with a view to shortening the proceedings, the employer has conceded, for the purpose of these proceedings only, that the claim is well-founded. Accordingly, the claimant is entitled to succeed in the claim for £500.

The unfair dismissal legislation

6. The unfair dismissals legislation is to be found in Part XI of the Employment Rights (Northern Ireland) Order 1996 (“the Order”).

7. The right to complain of unfair dismissal is to be found in Article 126 of the Order.

8. Article 127 of the Order specifies the circumstances in which an employee is to be taken to have been dismissed for the purposes of the unfair dismissals legislation. Of the situations listed in Article 127, only that which is specified at Article 127(1)(c) is relevant. The effect of that sub-paragraph is that an employee is to be taken to be dismissed, for the purposes of the unfair dismissals legislation, if:

“the employee terminates the contract under which [she] is employed … in circumstances in which [she] is entitled to terminate it without notice by reason of the employer’s conduct.”

9. In essence, accordingly, the claimant can only successfully complain of unfair dismissal, in the circumstances of this case, if she was constructively dismissed.

The course of the proceedings

10. We heard all of the testimony which the claimant presented. At that point, Mr Sheridan (on behalf of the employer) asked us to dismiss the unfair dismissal case, on the basis that there was no case, in respect of unfair dismissal, to answer. He argued that, even if we were to accept all of the claimant’s evidence, in relation to all of the primary facts, we still could not be satisfied that the claimant had been constructively dismissed.

11. We have accepted those arguments, and acceded to that application, against the following background and for the following reasons.

Constructive dismissals law

12. In these proceedings, the claimant does not assert that she resigned because of any breach on the part of the employer of any specific term of her contract of employment. Instead, this must be treated as a case in which the claimant is asserting that she was constructively dismissed because of a breach of the implied term of “trust and confidence,” which is a term of every contract of employment.

13. In broad terms, the relevant legal principles in the context of this case can be summarised as follows.

14. An employee is entitled to treat herself as constructively dismissed only if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of that contract.

15. There is implied, into any contract of employment, a term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. (Any breach of this implied term is a fundamental breach amounting to a repudiation of the contract). Whenever a breach of trust and confidence is alleged, an employment tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its cumulative effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.

The evidence

16. We were provided with documentary evidence, which was contained in two separate bundles. We told the parties that we would have regard, for evidential purposes, to any document contained within a bundle only if our attention had been drawn specifically to that document by one or other, or both, of the parties. We also received lengthy oral testimony from the claimant.

The facts

17. The factual basis for the claimant’s complaint, in relation to the alleged breach of term of trust and confidence, was helpfully summarised by the claimant at paragraph 7.4 of her claim form.

18. She asserted that she was accused, during a Practice meeting, of fraudulent data input in clinical notes, approximately five years ago. She raised a grievance with her employer about the allegation and contends that she proved that the allegation was inaccurate. The person who had made the alleged allegation met with her at a grievance meeting where he stated that he had not really accused her. She said that she had put that incident behind her and continued with her employment.

19. She alleged that she had been accused, approximately three years ago, by a Doctor in the Practice, of cheating on her annual leave. She again submitted a grievance, and met with that Doctor, and with two other partners, and with her line manager (Ms Roisin Rafferty). She told us that this was a very unsatisfactory meeting and that no real apology was offered for what she considers to be a false allegation.

20. She told us about a third incident, which occurred approximately two years ago, when she attended a Practice meeting where Roisin Rafferty, she said, inaccurately stated that there were a number of outstanding patients on the Practice’s COPD register that she had not dealt with. She told us that she disputed that, and she was 100% sure that the list of patients was registered at the main site and that, accordingly, Ms Rafferty was mistaken. She said that she was ultimately able to prove that Roisin Rafferty was in error in relation to that matter.

21. Those allegations of mistreatment can be summarised as follows. The first occurred five years prior to the date of termination of employment. The second occurred three years before that date. The third occurred two years prior to that date. In each instance, according to the claimant, she had been unfairly accused of wrongdoing. In each instance the outcome of the resulting grievance/dispute was seen as unsatisfactory from her perspective. (Our understanding is that the employer strenuously disputes aspects of the claimant’s versions of events in relation to each of those incidents. However, for the purpose of determining this claim, we have assumed that the claimant’s versions of events are entirely accurate).

22. In February 2010, an employee at an entirely separate Health Service establishment, which also operated within the building in which the claimant worked for her employer, was convicted in court for criminal damage to the claimant’s vehicle. That person was dismissed by that person’s employer, because of that conduct.

23. During the course of her testimony in this case, the claimant asserted that she did not get adequate support from her employers in that situation. Specifically, she pointed out that, on one occasion, a request for special leave to attend court was rejected and she was instead asked to use annual leave for that purpose. However, it is clear that the particular court appointment was one of many that had occurred during the course of the criminal proceedings and the claimant was unable to point to any contractual provision which would have entitled her to special leave in those circumstances.

24. The claimant’s car was damaged. She reported the crime, which is entirely appropriate. The situation which resulted from that reporting caused tensions between the claimant and various ex-colleagues of the offender. The claimant asserted that the employer did not provide her with sufficient support in those circumstances. However, having listened carefully to her testimony, we consider that, even if we accept her version of events, in relation to all of the relevant primary facts, it is clear that the employer did what was reasonable, in terms of providing support and reassurance to the claimant, throughout that period.

25. It is clear that the claimant would still be employed by the respondent if complaints had not been made (in the autumn of 2011), in relation to her conduct, by three individuals within her work location who were employed by the other health service employer. Accordingly, we now turn to consider the issues relating to that matter. We think it will be helpful to set out some aspects of the claimant’s written account, in her claim form, in relation to that matter, in detail:

“The ultimate situation occurred in November 2011, when I received an email from Roisin Rafferty …, stating that there had been 3 complaints from individuals in the health centre about my “behaviour”. I was very upset about this and immediately left my workplace and remained at home for approximately three weeks. Roisin arranged a meeting to hear my side of the story. This meeting was very disappointing with a GP asking me why I was monitoring a health visitor’s vehicle and I was accused of being on “medication”. I was not supplied clear details of complaints and my queries as to what exactly I was being accused of. I proved that these complaints were malicious and unsubstantiated with written documentation. There was no truth behind the complaints and I believed that specific people were encouraged to complain by my employers in order to cause me hardship at work. They made no attempt to make the situation easy for me and I suffered considerably prior to leaving and this was clearly communicated to Roisin Rafferty.

As a result of how this was handled I suffered severe embarrassment and was completely disappointed that my employers seem to be making it impossible for me to attend work and carry out my role. I sent an email to Roisin stating how depressed and humiliated I was and that I felt it was very poorly handled by her and she should have got written facts as to the complaints made rather than verbal complaints. I received a response from her offering support and did not have any further contact until approximately 10 days later, asking me for a sick line from my GP.

I returned to work on 23/12/11. The GPs based at the branch site were unfriendly and did not at any stage express any concern for my welfare. The atmosphere was very strained and I felt I could no longer continue my employment at the practice. I was suffering from extreme stress and anxiety and relationships with other persons within the building were difficult. Roisin Rafferty involved other staff members in the building which caused great embarrassment and I felt totally intimidated and shocked that she was acting in such a way. …

I met with Roisin for a “back-to-work” interview where I expressed my disappointment in my treatment and requested that the Practice considering offering me some type of redundancy as I could no longer cope with the situation. … I was offered alternative employment at [a telecommunications company] two days later, taking a significant drop in salary and employment benefits which I had no choice but to accept. I handed in my notice to leave on 03/02/12”.

Our conclusions on the facts

26. We have had the advantage of studying the exchange of correspondence, between the claimant and her employer, in relation to the November 2011 complaints.

27. There had indeed been three complaints, from three individuals about the claimant’s conduct.

28. Those complaints related to significant matters. A health service employer, such as the claimant’s employer, could not reasonably ignore complaints which were received from the staff of another health service employer. It was necessary, and entirely appropriate, for this employer to address those complaints.

29. In our judgment, it is clear that the claimant was given adequate information regarding the nature of the complaints.

30. The claimant did not prove that the complaints were malicious.

31. She frankly accepted, in the course of her oral testimony, that she had no evidence that any of the complainants had been encouraged by the employer to complain about her.

32. On the basis of the written documentation, we are satisfied that the employer thoroughly and fairly addressed the issues which had arisen because of the complaints.

33. The employer’s ultimate, written, conclusions in relation to the complaints were temperately phrased and were clearly designed to minimise embarrassment to the claimant, and to maximise the possibility of the claimant being able to continue working, at that location, in the best possible circumstances. In that connection, we consider that the following extracts from the “outcome” letter (in which Roisin Rafferty announced the outcome of the employer’s investigation of the complaints) is indicative of the measured and compassionate way in which the complaints were adjudicated upon:

“Having looked at all of the evidence from all of the complainants and indeed yourself we came away from the meeting feeling that this has undoubtedly been a very difficult situation for you to work through. The situation with the car scraping incident had been a very serious one and on a scale that nobody had ever seen before, given that it ended up in the Courts and the member of staff losing her job and being prosecuted. This will always by its very nature give rise to idle chat in the workplace… We feel that things will continue to go around in circles without any resolution if we are to continue to analyse every conversation and piece of communication. We do not feel that there is anything to be gained in apportioning blame for any of the behaviour as we feel all parties contributed to creating this breakdown of communication at some point or another, again all stemming back to the original incident. We feel that progress will not be made unless all parties agree to draw a line under what has happened and enter into some process of mediation which would hopefully allow a better understanding of how everybody is feeling. We believe that the Trust should be responsible for moving this forward and will be conveying this thought to them. I will be writing to each of the complainants explaining that their complaints have been investigated and dealt with. I will be explaining that our findings are that we cannot treat their complaints as isolated incidents but rather that they were the final straw at the end of a long line of incidents that all began with the car scraping incident. I will be asking them to try to understand how you have felt throughout this entire time and to try to understand why they could have interpreted your behaviour as aggressive and confrontational under the circumstances. [Our emphasis]”.

34. Accordingly, as that passage from the outcome letter shows, the employer was clearly expressing sympathy with the claimant regarding the context in which the complaints against her had arisen, was taking a broad view of what needed to be done in order to improve working relationships (as distinct from focusing on who was right and who was wrong), and was proposing a mediation process, with a view to improving relationships in the long term.

35. That general attitude is also illustrated by another passage in the outcome letter:

“What [each of the three complainants and the claimant herself] perceive as difficulty/hostility in communication we see as a direct result of lack of dialogue and mediation, that may have prevented the situation escalating to where it is now. We feel that there needs to be tolerance on all sides of each other’s feelings and a concerted effort to building new relations. We do not wish to detract or diminish in any way from the seriousness of the original incident and the stress that this obviously caused to you but we do hope that you too, like the others, can see that things do need to move on”.

36. In our view, the attitude of the employer, in the context of the complaints, (as outlined in the “outcome” letter) was entirely reasonable; it was proportionate and positive and appropriate. On the other hand, on the basis of the claimant’s testimony in these proceedings, it appears that she takes the view that the employer breached the implied term of trust and confidence by failing to adjudicate, on a point-by-point basis, in relation to every aspect of each complaint, and by failing ultimately to apportion all blame to the complainants. We reject that view. It is clear to us that, in taking the approach which it did in relation to the complaints, the employer was acting reasonably, proportionately, and in a manner which was likely to foster an improvement in working relationships and thus (indirectly) to promote an improvement in the claimant’s own working conditions.

37. On the basis of the claimant’s own testimony, it appears that she was not “accused” of being on medication. (She was on medication, because she suffers from depression). Even on the basis of the claimant’s own testimony, it appears that the reference to “medication” was an observation, as distinct from being an accusation.

38. The claimant asserts that her meeting with the people who were adjudicating in respect of the complaints, on 23 November, ended abruptly. Perhaps it did, but according to the claimant, it may have lasted for approximately an hour.

39. The claimant instigated a grievance regarding the outcome of the complaints. By letter dated 30 December, she was invited to a grievance hearing. However, while that grievance was still pending, and before the employer had the opportunity to address that grievance, the claimant announced her resignation.

Our overall conclusions

40. We do not see the earlier incidents (as described at paragraphs 18-20) above as constituting part of a course of conduct, which can be considered to form part of an overall pattern of events. Instead, those earlier instances were entirely unrelated to the November 2011 complaints incident. In particular, we note that the latest of those earlier incidents occurred more than a year prior to the November 2011 incident.

41. In our view, overall, the employer acted entirely appropriately and proportionately in its handling of the investigation and adjudication in respect of the November complaints. We of course accept that the employer’s handling of those complaints has to be considered in the context of, and against the background of the earlier incidents (the incidents referred to at paragraphs 18-20 above). However, even when that is done, we are clear that the claimant’s contention that the handling of the November 2011 complaints constituted a breach of the implied term of trust and confidence is an argument which is untenable.

General comments

42. We have considerable personal sympathy for the claimant. She clearly suffers seriously from depression. On the basis of her oral testimony in this case, it appears that that depression has been caused by, or seriously exacerbated by, an incident which occurred at her workplace.

43. We do not doubt that the claimant believes that the employer’s behaviour in respect of the November 2011 complaints was entirely unreasonable. That is her subjective view, and one which is honestly held. However, in determining whether there has been a breach of the implied term of trust and confidence, the test to be applied is whether the employer’s conduct so impacted on the employee that, viewed objectively, the employee could properly conclude that the employer was repudiating the contract. In the circumstances of this case, the claimant is clearly unable to satisfy the requirements of that test.

44. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 7 November 2012, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
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Industrial Tribunals Northern Ireland Decisions