Gibson v SHS Group Ltd [2013] NIIT 00555

THE INDUSTRIAL TRIBUNALS

CASE REF: 555/13

CLAIMANT: Elizabeth Ann Gibson

RESPONDENT: SHS Group Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly constructively dismissed by the respondent on 17 December 2012. The respondent is ordered to pay to the claimant the sum of £13,748.83, as set out at paragraph 4.13 of this Decision.

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Members: Mr H Stevenson

Mr A Crawford

Appearances:

The claimant was represented by her husband, Mr R Gibson.

The respondent was represented by Mr Sean Doherty, Barrister-at-Law, instructed by Pinsent Mason Solicitors.

1. ISSUES

1.1 The issues for the tribunal to consider were whether the claimant was constructively dismissed when she resigned from her employment with the respondent by letter dated 17 December 2012?

1.2 Whether the respondent has fundamentally breached its duty of implied trust and confidence or the duty of care and support which should exist between an employer and an employee in its treatment of the claimant during the summer and autumn of 2012?

1.3 Whether the breach of the implied duty of trust and confidence was fundamental, such as to justify the claimant’s resignation in response to it, and whether the dismissal was unfair?

2. FACTS

2.1 We had the benefit of considering witness statements from the claimant, from Mr Arthur Richmond, the Group Finance Director of the respondent company and from Mr Robert Hair, the Finance Shared Service Manager of the respondent company. In addition a number of documents in relation to the issues in the case were opened to us.

2.2 The claimant commenced employment for the respondent in April 2004 as a receptionist. She moved to a role as receptionist at the respondent’s current headquarters at Airport Road West in Belfast in October 2005. There are about 100 people employed at the respondent’s headquarters and about 500 people employed in its subsidiaries. She was a senior receptionist and therefore had responsibility for supervising other receptionists, arranging cover during their leave and ensuring that work was carried out properly. It was clear that the claimant took her responsibilities very seriously and set a high standard. On occasion this appeared to lead to a certain degree of friction between the claimant and some other receptionists who did not meet her standards.

2.3 In December 2010 the claimant had arranged a number of physiotherapy appointments as she had injured her shoulder. She had arranged with her line manager, Joanne Byrne, that she could take time off to attend the appointments. The claimant indicated that she missed a number of the appointments due to work commitments as she was not able to leave a temporary receptionist on her own. This however appears to have been the claimant’s decision rather than a specific direction from Ms Byrne. The claimant was frustrated about the fact that she had been unable to attend the appointments and was suffering a fair degree of discomfort due to her shoulder injury. The claimant arranged to rearrange her appointments, but the following week on 8 December 2010 she was asked by Joanne Byrne to rearrange a physio appointment so that her colleague in reception, Cheryl Patterson, could leave the office early to get ready to attend the Christmas party. Given that the claimant’s physiotherapy appointment had previously been approved by Joanne Byrne she was upset about this. She spoke to Cheryl Patterson about the matter, expressing her upset and Ms Patterson’s response was that she supposed she would have to cover reception, which the claimant found disrespectful. The claimant then spoke to Joanne Byrne, saying amongst other things that she felt the company, including Cheryl Patterson, were showing no concern for her health and in particular, expressing her upset that she had been asked to change a previously approved appointment to facilitate someone else leaving the office to prepare for a party.

2.4 After these exchanges the claimant left the office for her physiotherapy appointment and subsequently was given a sick line by her doctor due to the stress and pain in her shoulder. The claimant also had a period of leave arranged over Christmas and when she returned to work a few weeks later she was advised that Cheryl Patterson had brought a grievance against her for the way the claimant had spoken to her and also that she would be disciplined by the company in relation to her “unprofessional attitude”. The claimant indicated verbally to Joanne Byrne that she intended to raise a grievance in relation to the way that Cheryl Patterson had spoken to her, given that she believed that Cheryl Patterson had been disrespectful towards the claimant in her attitude over the claimant’s physiotherapy appointments.

2.5 The respondent’s grievance procedure refers to the fact that the object of the procedure is to provide an employee who has a grievance regarding his or her employment with the opportunity to have it examined quickly and effectively and to have it resolved if possible, at the earliest possible moment.

2.6 The relevant part of the procedure reads as follows:-

“Informal Procedure

Grievances can generally be resolved quickly through informal discussions with your manager, as that person in most cases will be best placed to deal with the complaint. If the complaint is about your manager or you feel unable to speak to your manager, you should speak informally to a more senior manager. If this does not resolve the problem or you wish to have the grievance dealt with formally, you should follow the standard procedure set out below.

Stage 1 – Submission and hearing of the grievance

An employee who feels aggrieved on any employment matter should discuss the problems initially with his/her Line Manager or supervisor making it clear that the first stage of grievance procedure is being invoked. He or she will attempt to resolve the issue consulting where necessary with other members of management. The supervisor or Line Manager should reply to the grievance as soon as possible, and in any case within five working days from the time the grievance was first raised. We will attempt to meet the timeframe set out throughout this procedure but where the personnel involved in hearing grievances are unavoidably not available due to holidays etc we will ensure that a new time line is agreed and communicated.

Stage 2 – Appeal (where applicable)

If the employee with a grievance is not satisfied with the reply from the supervisor/Line Manager or has not received a reply within five working days a request may be made that the matter be raised with a Director. At this stage, the grievance should be in writing.”

2.7 The procedure also sets out the right to be accompanied at all meetings and stresses the confidentiality of the process and the request for all involved in a grievance to treat the process as confidential.

2.8 When the claimant returned to work after a period of sick leave early in January 2011, she was advised that a disciplinary procedure was being brought against her in relation to unprofessional conduct and initially also advised that she was being disciplined for an unauthorised absence from the office on 8 December. This was subsequently withdrawn, as it was clear that the reason for the claimant’s absence was to attend a pre-arranged physiotherapy appointment. The claimant was e-mailed by Joanne Byrne on 11 January 2011 and requested to attend a disciplinary meeting at 11.00 am on 13 January 2011. The claimant replied by e-mail to Joanne Byrne on 12 January at 8.45 am, asking for details of exactly what allegations were being made against her and requesting copies of all statements. She also asked for clarification as to what level of misconduct was being considered. She was told that she could be accompanied at the meeting, but no information was given to her in advance of the hearing. The claimant’s unchallenged evidence was that she went to the disciplinary meeting believing that she was being disciplined in relation to her exchange with Cheryl Patterson. She also pointed out at the outset of the disciplinary hearing that she didn’t feel that she had been given sufficient time to prepare, given that the meeting was about a different matter to what she had understood. She also pointed out that no statements had been taken at the time and she felt that five weeks later was too late and that perceptions of events would be tainted.

2.9 The record of the meeting was prepared by Elaine Bingham as “witness for Joanne Byrne” and Ms Eileen Gilliland attended with the claimant. Ms Byrne’s reply was that no other witness statements were required as she herself had witnessed the incident and the delay in dealing with the matter was due to the fact that the claimant had been off sick on sick leave.

2.10 The claimant gave a full account of the incident. She indicated that she was unhappy that another member of staff, who had overheard the discussion between her and Cheryl Patterson, had already drawn the attention of staff on the second floor to the argument before the claimant had come upstairs. She conceded that she had been upset and that she had spoken louder and that she talked louder when upset. She agreed that when she was speaking to Joanne Byrne in the meeting room on 8 December, she had raised her voice because of the way that Cheryl Patterson had spoken to her, the fact that she had missed physio appointments due to work and that she hadn’t been sleeping properly due to pain in her shoulder but had still attended work. She also was upset that she had been asked to reschedule an appointment which she felt should take priority over the Christmas party. She indicated that she had been told by her doctor that missing appointments would increase both the pain and length of further treatments.

2.11 The meeting took place at 2.00 pm and at 3.40 pm that day the claimant was advised by Joanne Byrne that she would receive a verbal warning in relation to her conduct which would remain on her record for three months. Ms Byrne advised the claimant of her right to appeal. The claimant’s attitude was that at no time had she been unprofessional on the second floor. Ms Byrne reminded the claimant of the apology she had given to some staff, including Arthur Richmond on her return, but the claimant indicated that this was because of the incident with Cheryl Patterson and had nothing to do with conduct on the second floor. Ms Byrne’s answer was that if necessary, further witnesses could be called and depending on their statements, the level of action may be more severe. The claimant’s evidence was that she felt this had been done with a view to trying to dissuade the claimant from bringing an appeal.

2.12 The claimant subsequently took an appeal which was dealt with by Arthur Richmond. The claimant’s grounds of appeal were first of all that a thorough investigation had not been carried out in that no proper witness statements had been taken. Secondly, she indicated that the disciplinary hearing should not have been conducted by Joanne Byrne. The claimant stated in her appeal letter that she believed that Ms Byrne had been placed in a position of not being able to be impartial as it was her word against the claimant. The claimant also raised the issue that she was being discouraged from bringing an appeal in that she was told that the matter would no longer remain confidential and that if she was to appeal the result, ten statements would be produced against her.

2.13 Arthur Richmond dealt with the claimant’s appeal at an appeal hearing on 31 January 2011. As part of that appeal he interviewed a number of witnesses in relation to the events of 8 December. These interviews took place mostly on 26 January 2011, but they were not apparently provided to the claimant in advance of the appeal hearing. When Mr Richmond was asked how he decided who to interview, he said that he selected a number of people who were likely to have been present, who were objective and who were some of his most trusted colleagues. When he was asked if he had tried to speak to everyone who might have been there, his answer was that he couldn’t speak to all 50 people on the floor. While this may be correct, it does appear that Mr Richmond did not carry out an objective examination of the matter. In particular it was noted that while he had spoken to Joanne Byrne regarding the issues after the appeal and read the notes of the disciplinary hearing, there was no actual written complaint from Joanne Byrne. He said that he felt it was not necessary based on the written records that he had, and he did not consider the claimant’s concerns that Joanne Byrne should not have carried out the disciplinary hearing. The outcome letter from the appeal hearing states that “Joanne Byrne experienced the situation personally and after review I believe she was trying to minimise the number of personnel who knew of the disciplinary hearing to protect you. I would also note that the disciplinary hearing was investigating your behaviour on the day, not specifically any alleged personal attitude directed at Joanne. Therefore I do not agree with you that Joanne should not have conducted the disciplinary hearing.” The outcome of the appeal was that the original decision to impose a verbal warning was upheld.

2.14 In the meantime Cheryl Patterson’s grievance against the claimant had been dealt with, also by Joanne Byrne. She had received a letter of outcome on 21 January 2011. The relevant parts of this letter indicate:-

“The exact wording of the conversation was not able to be independently verified and from investigation it is clear that both parties contributed to the discussion. Having said this we are satisfied that there was an unprofessional exchange and that you were indeed spoken to in both an unprofessional and aggressive manner. Behaviour of this nature is totally unacceptable in SHS. This has been subject to internal disciplinary procedures and I can confirm that action has been taken … .

“Any further reoccurrences of this nature must be brought to my attention immediately and in my absence Arthur Richmond should be notified. I trust this matter has been dealt with to your satisfaction.”

2.15 It is noted that this outcome was provided to Cheryl Patterson on 21 January. The letter gave the clear impression that the claimant’s behaviour towards Cheryl Patterson had been the subject of internal disciplinary procedures and that the claimant had been disciplined as a result of them. This is completely at odds with the actual grounds for disciplining the claimant. It also ignores Ms Patterson’s contribution to the argument. This appears first of all to compromise the confidentiality of the disciplinary procedure and secondly, to provide Ms Patterson with completely erroneous information. It is not clear whether the claimant was made aware of the content of this letter at the time, but it is also clear that her appeal was still outstanding at this time.

2.16 Following the outcome of the appeal, the claimant went on sick leave due to work related stress. While absent from work on sick leave, she did not receive a bonus and when she queried this, she did receive a bonus of £250 for 2010. In 2011, due to the written warning and only working approximately half a year, she received a bonus of £500, a substantial drop on her bonuses in previous years. During her sick leave the claimant received a letter from Joanne Byrne to arrange a meeting. They discussed the disciplinary matter and the claimant asked why she had not heard anything in relation to her grievance against Cheryl Patterson. Ms Byrne indicated that the claimant had decided not to go ahead with her grievance. The claimant was shocked by this and pointed out that she had not said this. She also pointed out that she was not obliged to put the grievance in writing at that point. Ms Byrne had indicated that she would be in touch with the claimant once she spoke to Arthur Richmond. Mr Richmond then asked to meet the claimant and again she raised the issue of her grievance. The advice she was given by Mr Richmond was to “wipe the slate clean” and to move on and start again.

2.17 The claimant was clearly unhappy about the fact that her grievance had not been progressed. She did not however take the matter any further, and she indicated in her evidence to the tribunal that her faith in the company’s procedures had been diminished by the attitude taken by her employers in relation to these matters. In her submission to Arthur Richmond on her appeal she indicated that she was “rapidly losing faith” in there being any possibility of justice in this internal process. This was confirmed in the claimant’s evidence to the tribunal.

2.18 The claimant resumed work on 3 June 2011 and appears to have continued in work without any major incident until June 2012, at which time Cheryl Patterson applied to work on a part-time basis in the PR department. The claimant was not aware of this until about 20 minutes before Ms Patterson went for her interview. At that stage Ms Patterson was unsuccessful and another candidate was appointed. However, this candidate then left the firm approximately six weeks later and Ms Patterson was moved to the PR section to work with Kelly-Ann Hoey in the mornings from 9.00 am to 1.00 pm. The claimant was notified of this by Deborah McMahon, another supervisor, not by her line manager Robert Hair. She was not consulted about when the move would take place or its impact on the reception work. She was only given a few days’ notice of Ms Patterson’s move, which meant the claimant had to arrange temp cover. The whole matter was only told to the claimant once it was all settled, so the claimant was sidelined from a significant development in her department.

This meant that Ms Patterson was working in reception in the afternoon from 2.00 pm until closing. Ms Berry who was the temporary receptionist initially appointed, stayed for about three weeks and at that stage (late July 2012), the claimant had expressed to Robert Hair (now her Line Manager) that she was experiencing some difficulty in training Ms Berry as she had only the morning with her which was also the period when the administration work in reception was busiest. The claimant pointed out that she had not been trained to teach others how to do the job. In addition she believed that Cheryl Patterson was not being helpful in dealing with reception work in the afternoon, as she was carrying on doing administration work from her morning job. The claimant said she was worried about approaching Cheryl due to “our history” and indicated that when she tried to approach Cheryl about the matter she became defensive. Mr Hair indicated that he had spoken to Cheryl Patterson about these matters, that Ms Patterson indicated that she believed she did do the administrative work and the other reception duties and she did not feel that the workload was excessive. Mr Hair was content that the work was being carried out properly and there were no complaints from any of the firm’s customers that the administration work was not being carried out correctly and promptly.

2.19 A new temporary receptionist, Jennifer Miller, was then employed and subsequently was appointed on a permanent basis. The claimant got on well with Jennifer Miller and it had been agreed that the claimant could have some extra time with her to train her, but this was limited. There was a charity theme day arranged for late September and the claimant was left on her own at some point in reception in the afternoon in the days leading up to this event as Cheryl Patterson was spending more time working for Kelly-Ann Hoey due to it. The claimant felt that she was not being properly supported during this period. There was a conference in October arranged by the PR Department which again involved Cheryl Patterson and the claimant was left to cover reception on her own in the afternoon. Subsequently, Jennifer Miller handed in her notice, having indicated to the claimant that this was due to not being able to spend time with her elderly mother and that she got another job which allowed her to work from home. The claimant indicated that she raised her concerns in relation to proper cover for the reception area on a number of occasions with Robert Hair and he described these as being “ad hoc” meetings. He did not however take any formal notes and at the hearing advised that he may have taken some notes but was unable to find them and would need to go and look for them.

2.20 However, on 14 December at 12.30, Mr Hair called the claimant to a meeting. This was after Jennifer Miller had left and after an exit interview which he carried out with her. He started by restating Jennifer Miller’s reasons for leaving as she had explained them to the claimant. He went on to say however that Ms Miller felt that the claimant was not approachable and that she was always looking over Ms Miller’s shoulder. Mr Hair’s note of his meeting with Ms Miller refers to this, but in his statement to the Tribunal, he said that Ms Miller had raised concerns about the Claimant’s manner and “aggressiveness when all was not going well”, which is much more forceful than his contemporaneous note. In particular he said that the claimant had told Ms Miller of the history of the relationship between Cheryl Patterson and the claimant and felt that this put Ms Miller in an awkward position. The claimant pointed out that in fact it was Ms Miller who had raised the issue by asking questions about the relationship between the claimant and Ms Patterson. The claimant’s account was that this was a “heart to heart” conversation and she expressed her surprise and shock that it had not been treated as confidential as she had asked Ms Miller to keep it in confidence.

2.21 The discussion then turned into a more general discussion regarding the reception duties. The claimant expressed her concern at approaching Cheryl Patterson as she felt that Ms Patterson was extremely defensive with her and Mr Hair assured the claimant that he would speak to Cheryl. At that stage he hoped to find someone to replace Jennifer Miller and intended that that person should move upstairs to do administration work and the claimant would then work in reception in the morning on her own. There was a discussion about the Christmas holidays and the fact that it appeared that Cheryl Patterson was to take some of that year’s holidays early in the New Year, which was in the new leave year. The detail of this is not relevant in relation to this case, what is however relevant is that that afternoon, when Cheryl Patterson came down to reception, the claimant (as her supervisor) asked her about her holidays and to fill out the necessary paperwork which had to be completed. Ms Patterson’s reply was that she was told not to fill out the forms or to tell the claimant. The claimant felt very uncomfortable about this and that she was being undermined as supervisor, but did not say anything to Ms Patterson about it. She went home shortly afterwards, as had been planned.

2.22 At this stage the claimant felt she was not being offered proper support from management in terms of carrying out work at reception. She believed that temporary help was causing more stress than it relieved and she felt that her supervisor’s role was in name only. Her evidence to the tribunal was that she felt that management “did not care” and that the only option left open to her was to resign rather than to wait for a further incident to develop or for her to become more stressed.

2.23 On Monday, 17 December, the claimant left a letter of resignation on Mr Hair’s desk. The following day she received a text from Mr Hair asking her to meet him to discuss the matter. The claimant’s letter of resignation states:-

“Dear Robert

Notification of Resignation

After much consideration, please accept this letter as official notification of my resignation with effect of today’s date, 17 December 2012.

I intend to work my notice of 28 days and therefore my final day of employment will be 11 January 2013.

Yours sincerely

Liz Gibson”

2.24 At a meeting with the claimant the following day, Mr Hair asked the claimant if this was what she really wanted. Her reply to him was “Robert, I’m done”. She pointed out that she was tired of “walking on egg shells”. She said that she didn’t believe that she was getting proper respect from Cheryl as her supervisor and was concerned that if she said anything to Cheryl that another grievance would be put in against her. She also pointed out her concerns about the workload, that Cheryl was doing work for the PR Department in the afternoon and when she was in reception she was only answering the phones and not doing reception work. The claimant pointed out that she was still waiting on changes which had been discussed in August. She also referred to the meeting on 14 December and pointed out that she had requested part-time work and that this offer had been refused. She also explained to him the exchange she had had with Cheryl Patterson on the afternoon of 14 December in relation to holidays, that Ms Patterson had refused to fill out the forms and had been told not to tell the claimant. Mr Hair told the claimant this had not come from him and that he had not spoken to Cheryl about it. The claimant commented to Mr Hair that someone was lying to her and he emphasised that it wasn’t him.

2.25 The claimant did not work the full period of her notice due to issues which arose in January 2013 but which are not relevant to the issue of her termination of employment. Her employment with the respondent was ended on 11 January 2013.

2.26 Subsequent to this the claimant made various applications for alternative work and was successful in obtaining employment with Templeton Robinson Estate Agents as a receptionist from 31 January 2013 until 20 May 2013. In that post the claimant’s pay varied depending on the hours that she worked, but was on average around £650 per month net. There was some dispute as to the reason why the claimant had left this employment. She indicated that the nature of the post was changing and was due to become a sales role. She was not trained to do this and Templeton Robinson indicated that they would provide training, but the trainer was off sick at that stage. The claimant’s evidence was that it had been a mutual decision for her employment to end and there was no clear evidence to the contrary. The claimant had no further employment since her employment with Templeton Robinson ended until the date of the hearing, although she had applied for a number of jobs. She was not in receipt of any benefits. While employed by the respondent her pay had been £1,494 gross per month - £1,168 net per month.

3. THE RELEVANT LAW

3.1 This is a claim of constructive dismissal where the claimant argues that the respondent has behaved in such a way that there has been a fundamental breach of her contract, such that she is entitled to resign in response to it. The relevant statute law is Article 127(1)(c) of the Employment Rights (Northern Ireland) Order 1996 which provides as follows:-

“1. For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph 2(2) … only if

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

This is usually referred to as constructive dismissal. In a case of constructive dismissal we have to consider the following:-

1. What are the terms of the contract of employment?

2. Do the facts found by us as a tribunal constitute a breach of contract by the employer?

3. Was that breach a fundamental breach of contract?

3.2 In this case the claimant argued that there had been a breach of a duty of care and also a breach of the implied duty of trust and confidence. The claimant’s evidence was that it was her meeting with Robert Hair on 14 December and followed by a discussion with Cheryl Patterson in relation to her holidays when Cheryl Patterson said she had been told not to speak to the claimant about her holidays and not to fill in the necessary paperwork, which were the “final straw” in relation to her decision to resign. The claimant expressed her dissatisfaction at the way her concerns in relation to the running of the reception department had not been addressed by the respondent over a period of months, as she saw it.

The respondent’s representative indicated that steps had been taken to support the claimant in relation to the working environment. They indicated that the respondent had appointed temporary receptionists, and that Mr Hair had spoken to Ms Patterson in relation to her work in the reception area. They had also proposed to move work to the Administration Department. In that situation the respondent’s representative asked, what more could they reasonably have done?

3.3 In considering the obligations of the employer to the employee, we note that according to Harvey, Volume 1, Division D1 at paragraphs 429 and following, a number of implied duties are set out. In this case the two most relevant duties appear to us to be the duty of trust and confidence and the duty of co-operation and/or support.

3.4 The duty of implied trust and confidence was affirmed by the House of Lords in Mahmud and Malik v Bank of Credit and Commerce International SA [1997] IRCR 606 in the following terms:-

“The employers shall not without reasonable and proper cause conduct itself in the manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee”.

Lord Steyn commented that:-

“The implied obligation is formulated is apt to cover the great diversity situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interested in not being unfairly and improperly exploited”.

In Mahmud and Malik the House of Lords rejected three suggested limitations to the scope of the duty of trust and confidence. It will be recalled that this was in the context of a claim by two former employees at BCCI who said that they considered that they had suffered loss and damage when that bank collapsed as they had been tainted by BCCI’s poor reputation and had been unable to find other work. First of all the House of Lords held that the duty of trust and confidence may be undermined even if the conduct in question is not directed specifically at the employee. Secondly, the Court held that it was not necessary for the employee necessarily to be aware of the wrong doing whilst still employed, however the question of when the breach is discovered is highly relevant to question of remedy; if a breach is not discovered until after the employment ends, the employee cannot rely on it as grounds for terminating the contract and thus it will not provide a basis for an unfair dismissal claim. Thirdly, the duty of trust and confidence may be broken even if an employee’s trust and confidence is not undermined. Similarly it follows there will be no breach simply because the employee objectively feels that such a breach has occurred no matter how genuinely this view is held. If, on an objective approach, there has been no breach then the employee’s claim will fail (Omilaju v Waltham Forest London Borough Council [2005] IRLR 35 EWCA).

3.5 In Omilaju the Court of Appeal noted that many constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time, and as Lord Justice Dyson stated:-

“Suppose an employer had committed a serious act which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment, instead he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act he seeks to rely on is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle”.

3.6 Harvey comments that where the alleged breach of the implied term of trust and confidence constituted a series of acts, the essential ingredient of the final act was that it was an act in a series the cumulative effect of which was to amount to the breach. It followed that although the final act may not be blameworthy or unreasonable, it had to contribute something to the breach even if it was relatively insignificant (Harvey Div D, para.481.01).

3.7 It is also notable that the standard of the repudiatory breach of contract required is such that it must - objectively speaking - if not destroy, then seriously damage the trust and confidence between employer and employee. Mere damage is not enough. The term is there to protect the employee’s interest in not being unfairly and improperly exploited. In Buckland v Bournemouth University [2010] 4 All ER 186 the Court of Appeal in England cited with approval the comments of His Honour Judge Clarke in the EAT as follows:-

“In summary, we commend a return to settled authority, based on the following propositions.

(1) In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Mahmud test should be applied.

(2) If, applying the Western Excavating (ECC) Ltd v Sharp [1978] ICR 211 principles, acceptance of that breach entitled the employee to leave, he has been constructively dismissed.

(3) It is open to the employer to show that such a dismissal was for a potentially fair reason.

(4) If he does so, it will then be for the Employment Tribunal to decide whether dismissal for that reason, both substantially and procedurally (see J Sainsbury PLC v Hitt [2003] ICR 111) fell within the range of reasonable responses and was fair”.

3.8 In relation to the duty of co-operation and/or support, Harvey suggest that this is a wider contractual duty on the employer to co-operate with the employee. In Associated Tyre Specialists (Eastern) Limited v Waterhouse [1976] IRLR 386, the employee was a supervisor who was the subject of a number of complaints from female staff she supervised because she imposed strict discipline. Management indicated that she must change her ways and the position would be reviewed within four weeks. Further complaints were made, but she was not notified of them nor was she given any guidance as to whether her efforts to improve were proving successful. The women under her supervision ultimately walked out and she resigned. She complained that she had been unfairly dismissed and the tribunal found in her favour. On appeal, the Employment Appeal Tribunal accepted that it was a term of her contract that she was entitled to management support in carrying out the employer’s policy.

3.9 In Seligman and Latz Limited v McHugh [1979] IRLR 130, the employee was a hairdresser who was assisted by a junior. When the junior assigned to her left, no replacement was provided and she frequently complained about this. Finally, she advised her manager that she could no longer do the job unaided and was told that either she did her work or she went. So she went. The EAT upheld the Tribunal’s view that this constituted a constructive dismissal. The Court’s note however was whether or not a breach of the duty of co-operation and/or support is a fundamental breach will depend on the gravity of the breach and the period over which it extends.

4. REASONS AND DECISION

4.1 The claimant was employed as a senior receptionist by the respondent in an organisation which, according to Mr Richmond’s evidence, had approximately 100 direct employees at its premises at Airport Road West and roughly 500 employees in its various subsidiaries. It was therefore a substantial organisation and might be expected to follow proper policies and procedures in the way that it dealt with its staff. The claimant was a senior receptionist who had supervisory responsibilities and as such she was entitled to support from the employer in carrying out those responsibilities.

4.2 The events of late December 2010/January 2011 form the background to the events which led to the claimant’s resignation in December 2012. The respondent appears to have taken a fairly robust approach in relation to the claimant’s complaints regarding the disciplinary matter. First of all there is the issue of the claimant’s absence for her physiotherapy appointments. It was arranged that the claimant would take time off for these appointments, and this had been approved. It appears that a number of the appointments were missed because the claimant did not feel that she could leave the reception desk which was not covered. To a certain extent this was therefore her own responsibility as she had arranged the time off and was entitled to go to her appointments. It is clear however that the claimant was an extremely conscientious employee and if anything, may have been over particular in ensuring that work was carried out to the highest standards. This was of itself commendable, but it appears that it led to a certain amount of tension between her and some of her colleagues. The incident on 8 December 2010 appears to have grown out of the claimant’s frustration at not having been able to attend earlier appointments, and being asked to rearrange an appointment to facilitate what she saw as a much less important request for Cheryl Patterson to get away earlier to prepare for the Christmas party. It is in the circumstances perhaps understandable that she was frustrated by this.

4.3 The main issue however in relation to these events is that the claimant was subsequently disciplined, not in relation to her exchange with Cheryl Patterson but in relation to the discussion which she had with Joanne Byrne in that she was alleged to have behaved in an unprofessional manner in the office environment. The way that this was dealt with by the employer is in our view completely unsatisfactory. The person complaining of the claimant’s behaviour was Joanne Byrne, her line manager, who subsequently dealt with the disciplinary hearing and sanction. It is completely contrary to the rules of natural justice that the person making the complaint in this matter should deal with the sanction, especially when there was a substantial organisation and a number of other staff members who could have dealt with the matter. Secondly, the claimant was not told until she arrived at the disciplinary hearing exactly what she was being disciplined for. There does not appear to have been any proper investigation or any witness statements sought and the claimant was not asked to provide a witness statement setting out her side of the story in advance. Even the records of the procedure are unsatisfactory: the note taker records her role as “witness for Joanne Byrne” rather than an independent note taker.

4.4 All these issues were raised by the claimant on her appeal, but do not appear to have been addressed properly or at all by Mr Richmond who heard the appeal. Indeed he simply dismisses the idea that Ms Byrne as the complainant was not the proper person to carry out the disciplinary hearing. He also appears to have dismissed the claimant’s concerns about the inadequacy of the investigation. His own efforts in this regard were also in our view unsatisfactory. He indicated to the tribunal that he had identified a number of “trusted colleagues” he believed he could trust to be objective. In other words, he hand picked the witnesses, rather than carrying out a thorough investigation and seeing everyone who might have been able to assist.

4.5 The outcome of the disciplinary procedure was clearly embarrassing for the claimant. The situation however was compounded by the fact that the respondent dealt with a grievance raised by Cheryl Patterson at the same time as the disciplinary procedure was ongoing. While the claimant’s appeal was still pending, Miss Patterson received the outcome of a grievance letter referred to at paragraph 2.14 above. Whilst she was not told the actual outcome of the disciplinary procedure against the claimant, she was told (quite incorrectly) that the subject matter of her grievance had been subject to internal disciplinary procedures and that action had been taken. This was untrue. This letter gave us – and no doubt Miss Patterson - the clear impression that the grievance she had raised had resulted in disciplinary action against the claimant, which was not correct. The outcome letter also referred to the fact that the wording of the conversation had not been independently verified and that it was clear that both parties contributed to the discussion. Miss Patterson’s role in the matter however was not investigated, in spite of the claimant having raised a verbal grievance with Ms Byrne. The subsequent assertion by Ms Byrne that the claimant had indicated that she had not wished to continue with the grievance was, the claimant said, completely untrue. Even following the conversation between the claimant and Ms Byrne in relation to this matter, Ms Byrne did not offer to address the grievance nor did she ask the claimant to put it in writing at that point. Indeed when the claimant met Arthur Richmond to discuss her return to work in or about May 2011, his advice to her was to put the matter behind her and to start afresh.

4.6 It is perhaps not surprising that at that stage the claimant felt that she had little cause for confidence in the internal procedures. We think it important that we put on record that we believe that these procedures as carried out were totally unsatisfactory, contrary to good practice and that indeed they constituted a fundamental breach of the employer’s duty of support to the claimant. We also believe that they constituted a breach of the implied duty of trust and confidence. An employee is entitled to expect that an employer would follow proper procedures, which would follow good industrial relations good practice and comply with the rules of natural justice. We take the view that had the claimant decided to resign in response to the way that the appeal, Cheryl Patterson’s grievance and her own grievance against Cheryl Patterson were addressed, she would have been entitled to do so in early 2011. However she did not do so. In the words of Lord Justice Dyson, she “soldiered on” and in so doing she affirmed the contract. The issue we have to consider is whether those acts in December 2010 and January 2011 form part of a series of acts up to and including the events of the summer and autumn of 2012, ending in December 2012 with the claimant’s resignation, the cumulative effect of which was a repudiatory breach of contract ?

4.7 The claimant returned to work after a period of sick leave due to work related stress in early June 2011. While she indicated that she had expressed some concerns to Joanne Byrne about going back to work with Cheryl Patterson, and had asked if it was possible for her to work apart from Cheryl Patterson, she was told this was not possible. The claimant did resume work and continued to work alongside Miss Patterson until the Summer of 2012 without any incident. The claimant had expressed her reservations to Joanne Byrne and indicated to us that she believed there was a certain tension and frostiness in their relationship.

4.8 The events which led up to the claimant’s resignation originated from Cheryl Patterson’s application to work within the PR Department on a part-time basis, which seems to have started in or around July 2012. We have already set out above our finding that the claimant was sidelined in relation to Cheryl Patterson’s move from reception to PR on a part-time basis (see para 2.19 above). From working with another full-time receptionist, who was familiar with the duties having had three years’ experience in the job, the claimant was put in a position where she was dealing with training a new or a temporary receptionist in the mornings, while having to deal with the major part of the administration workload in the mornings as well. She found this stressful and expressed her concerns about this to Robert Hair on a number of occasions. While he agreed that there were a number of “ad hoc” meetings, he did not appear to have given these meetings a great deal of attention and certainly did not record them in any detail.

4.9 Both Mr Hair and Mr Richmond made comments about the claimant’s exacting standards and that she had a reputation of being difficult to get on with. Mr Hair noted this again in the context of his conversations with Jennifer Miller and on his own account, accepted her word on the matter without actually asking the claimant for her side of the story. This leads us to wonder whether both Mr Hair and Mr Richmond saw the claimant as “ difficult “ and were therefore less inclined to give weight to any concerns she raised.

4.10 This seems to be borne out by the fact that Mr Hair took the claimant aside after Jennifer Millar left to speak to the claimant about Jennifer Millar’s comments about the claimant’s lack of approachability and her attitude. He also raised with her the discussion which the claimant had had with Jennifer Miller in relation to the claimant’s history with Cheryl Patterson. While the claimant was upset that Ms Miller had discussed this matter with Mr Hair, she did agree in cross examination that it would perhaps have been better had she not discussed it with Ms Miller. Her explanation was that Ms Millar had questioned the claimant about the tension in the relationship between her and Cheryl Patterson, and that the issue had not been raised by the claimant directly. It is, we believe, significant that Mr Hair made notes of his conversation with Jennifer Miller, but did not make any notes of the various concerns raised by the claimant in her “ad hoc” discussions with him nor did he make any notes of the conversation he had with her either on 14 December or on 18 December following her resignation letter.

4.11 The claimant has raised the issue of the lack of support at reception. The employer at this time had appointed a permanent member of staff (Jennifer Miller) who had resigned at the end of November. It was not clear to us whether temporary staff were then put in place or not, but it is clear that the claimant would have been engaged in training the third receptionist in approximately five months. No fault can be ascribed to the respondent in this regard. It was important that the claimant received support in the reception area and the respondent clearly was taking steps to deal with this. The claimant’s main objection was that she was overloaded in terms of work, in that she was trying to train up her receptionist while dealing with the administration work at the busiest part of the day. She also maintained that Cheryl Patterson was not helpful in terms of dealing with the administration work in the afternoon and that this therefore left the claimant overloaded. No precise evidence was adduced to show that this was the case, but the respondent’s witnesses acknowledged that the morning was the busiest time of the day as regards administration work at the Reception area. No evidence was led by the respondent to show how the workload had been reallocated to ease the burden for the claimant. Robert Hair said that he had raised this with Cheryl Patterson on a number of occasions and that she was well aware of her responsibilities. He also said that Cheryl Patterson believed that the work was being covered and that there were no complaints from any customers that the work was not being covered adequately. These comments are not decisive either way, and we note that Ms Patterson’s view on this may not have been the most objective.

The other main part of the claimant’s complaint was in relation to Cheryl Patterson’s attitude to her in her role as supervisor. The claimant said, and it was not contested in any way, that on 14 December after she had a conversation with Robert Hair about leave, she had mentioned to Cheryl Patterson that she understood she had some days outstanding to take. Cheryl Patterson said that that was correct. When the claimant indicated that she had not received the paperwork in relation to her leave request, Cheryl Patterson’s answer was that she had been told not to mention it to the claimant and that she would not be filling in the forms. The claimant felt undermined by this act. She did not raise it immediately with her line manager or with anyone else. She went home that evening and over the weekend decided to resign her position. Although she did not serve out any detail in her resignation letter as to the reasons for her resignation, she did tell Robert Hair in some detail how she had felt over the last number of months and that she felt she had not been properly supported in her role.

4.12 The issue which we have to consider is whether, viewed objectively, the acts of December 2010/January 2011 and the subsequent acts of summer and autumn of 2012 ending in December 2012 constitute a series of acts which taken
cumulatively, constitute a fundamental breach of contract. It is our view that they do. Primarily, we believe that there has been a breach of the duty and trust of confidence which an employee is entitled to receive from his/her employer. In this case, we believe that the claimant’s trust in her employer was badly damaged when she was disciplined over a matter involving her Line Manager. That matter was dealt with by the Line Manager, which is a breach of the rules of natural justice when the claimant protested about this and protested about the way the disciplinary matter had been dealt with in her appeal, her appeal was dismissed. Furthermore, a grievance which had been brought against her was upheld and the person bringing the grievance was told that the claimant had been disciplined, when in fact she had not been disciplined for that matter at all. This untruth clearly sent a signal to the employee concerned that Mrs Gibson had been punished for the way that she had treated her, even though the employer has noted in the outcome of the previous letter that both parties were involved in the altercation. The claimant’s grievance in relation to this matter was not progressed by the employer and when she raised the matter again with both Miss Byrne and Mr Richmond was told to put it behind her and “start afresh”. This gave the claimant a clear (and arguably, justified) impression that any complaint that she raised in relation to the matter was being dismissed and the concerns of another staff member, for whom she acted as supervisor, took priority over her concerns. Clearly, although the claimant continued to work for the respondent for a further year and a half after this, she still had concerns about the way that her employer viewed the relationship with Cheryl Patterson.

The events of the summer and autumn of 2012 did nothing to diminish this. First of all, the claimant was sidelined in relation to Cheryl Patterson’s application work in the PR Department nor was she involved in the changeover by Miss Patterson from reception to PR. It seems to us that it would have been at the very least courteous to make the claimant aware of this and to involve her in the arrangements for the move, given that she was Miss Patterson’s supervisor. Instead the claimant was presented with a “fait accompli” and had no input into the timing of Miss Patterson’s move or the arrangements to cover the reception area. Furthermore, when she raised concerns about how the work at reception was being covered, her own workload, a request for part-time working and her concerns in relation to Cheryl Patterson bringing the PR work down to the reception desk in the afternoon, this was not treated particularly seriously by Mr Hair. The one issue which he did raise with her was in early December 2012, when he spoke to the claimant regarding her attitude to Ms Miller. It is clear from his witness statement and his evidence to the tribunal that he accepted Ms Miller’s account of matters without even waiting to see what the claimant’s version of events was. When the claimant again raised with him at that meeting some of her own concerns in relation to the reception desk and Miss Patterson’s holidays, she did not receive any great reassurance on the issue. When she spoke to Miss Patterson that afternoon in relation to holidays, Miss Patterson’s answer was that she would not be filling out the holiday leave form which was part of the usual procedure and that she had been told not to talk to the claimant about it. This was another clear example of the claimant being sidelined. While Mr Hair denied that this had come from him, it would be surprising that if Miss Patterson thought up this comment herself and she presumably had been told by someone in authority that it was not necessary to fill out the form or to consult the claimant, her supervisor, in relation to it. From the claimant’s
point of view this was the final straw and we consider that, viewed objectively, all of these events did indeed undermine the claimant’s position. We consider that there has been a fundamental breach of both the implied duty of trust and confidence and also the duty of support as set out in the case law at paragraphs [3.2-3.8] above, such that the claimant was entitled to resign her post and claim constructive dismissal.

4.13 We believe that it would be appropriate to make an award of compensation to the claimant in relation to her unfair dismissal as follows:-

Basic Award

The claimant had worked for the respondent from April 2004 until January 2013 namely eight complete years. She was aged 46 at the date of dismissal and therefore she had five years’ service when she was not below the age of 41 and three years’ service below that age. Accordingly she was entitled to 10½ weeks gross pay	=	£3,619.98

Compensatory Award While working for the respondent the claimant’s pay was £1,494.00 gross per month, £1,168.00 which translates to a weekly pay of £344.76, gross, £269.53 net. The claimant was paid up to 18 January 2013 by the respondent. From the date of termination of her employment to the date of the hearing is a period of 24 weeks. We calculate her loss as:-
24 x £269.53 =	£6,468.72


Earnings

When working for Templeton Robinson (net)		£2,722.23

Sub Total:		£3,746.49


Loss of Statutory Rights		£500.00

Future Loss We consider it would be appropriate to award 26 weeks future loss at the rate of £269.53 per week, i.e., £269.53 x 26 =		£7,007.79


Sub Total:		£11,254.28

Reduction for failure to follow grievance procedure
In this case, we acknowledge that the claimant failed to follow the grievance procedure before she actually resigned, although we also note that she had raised the issues complained of with the employer on a number of occasions and that they did not appear to have been treated particularly seriously. In this case we consider it would be appropriate to reduce the compensation award by 10% for failure to follow the grievance procedure.		- £1,125.43
Sub Total		£10,128.85

Total Award:		£13,748.83

The claimant did not receive any social security benefits after the termination of her employment with the respondent.

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

Chairman:

Date and place of hearing: 8-9 July 2013, 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 >> Gibson v SHS Group Ltd [2013] NIIT 00555_13IT (21 August 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/555_13IT.html Cite as: [2013] NIIT 00555_13IT, [2013] NIIT 555_13IT

Industrial Tribunals Northern Ireland Decisions