Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   950/14

 

 

 

CLAIMANT:                      Geraldine Christie

 

 

RESPONDENTS:              1.       Glasswater Lodge Retirement Home Ltd

                                        2.       Leslie Reid

                                        3.       Sarah Reid

                                       

 

 

DECISION

 

The unanimous decision of the tribunal is that the dismissal of the claimant was automatically unfair.  The tribunal is not yet in a position to deal with the question of remedy and the matter will be listed for a one-day remedy hearing. 

 

The claims for sick pay, holiday pay and unlawful age harassment are dismissed. 

 

The claim in relation to a failure to provide statutory particulars is allowed and the remedy reserved to the remedy hearing.

 

Constitution of Tribunal:

 

Vice President:                Mr N Kelly

 

Members:                        Ms M Mulligan

                                        Mr M Grant

Appearances:

 

The claimant was represented by Mr N Phillips, Barrister-at-Law, instructed by Thompsons NI, Solicitors.

 

The respondents were represented by Mr P Boomer.

 

Background

 

1.       The claimant had been employed by the first-named respondent since 2002 and had latterly been employed as the registered manager of the retirement home.

 

2.       The respondent limited company was effectively owned by the second and                   third-named respondents who were a married couple.

 

3.       In the period leading up to February 2014, the Regulation and Quality Improvement Authority (‘RQIA’) had expressed concerns about the running of the retirement home.

 

4.       Mr and Mrs Reid, and a health consultant, employed on behalf of the first-named respondent, attended a meeting with the claimant on 25 February 2014.  At that meeting the claimant stated that she was resigning with one month’s notice.

 

5.       On the next day, 26 February 2014, the claimant had delivered a letter to the                   first-named respondent which stated, inter alia, that she was exercising ‘my right’ to withdraw the resignation.  In that letter she also raised various grievances.

 

6.       The respondent did not write back or speak to the claimant in relation to the purported retraction of her resignation but did make arrangements for a grievance meeting.

 

7.       At that grievance meeting on 31 March 2014, Mrs Reid told the claimant that she was still an employee but again neither party specifically referred to the purported retraction of the resignation on 26 February 2014.

 

8.       In a letter dated 4 April 2014, Mr Reid stated that he was writing to confirm that he had rejected the retraction of the resignation and that her employment had ended on completion of the one month notice.

 

9.       The claimant alleged unfair dismissal.  She has also claimed that there had been an unauthorised deduction of earnings up to the date on which her P45 stated that she had left her employment rather than for the one month period of notice running from 25 February 2014.  She also claimed 13 days’ holiday pay and alleged that she had not been given a statement of employment particulars.

 

10.     A claim of age discrimination was not pursued.  However the claimant argued that her treatment at the meeting on 25 February 2014 amounted to unlawful harassment on the grounds of age.

 

11.     The respondents argued that the claimant had effectively resigned on 25 February 2014 and that she had been properly paid one month’s notice.  They argued that no holiday pay or wages were due and that the claimant had received a statutory statement of employment particulars.  The respondents also denied any unlawful harassment.

 

The hearing

 

12.     The claimant gave evidence on her own behalf.  Doctor William Jenkinson, an occupational physician, Mr Sean McKeever, her trade union representative and Ms Mandy Kearney, her daughter and fellow employee, gave evidence also on her behalf.  The statement of Mr Kevin McAdam, another trade union representative was not disputed and was entered into evidence by agreement.

 

13.     Mr Leslie Reid, Ms Catherine Kearney, a former interim manager, Mrs Sarah Reid and Mr Joseph McGuigan who had been employed part-time to provide advice on management and human resources issues and who heard the grievance appeal, gave evidence on behalf of the respondents.

 

14.     The witness statement procedure was used.  The witness statements took the place of oral evidence-in-chief.  Apart from brief permitted additional oral evidence-in-chief in some cases, witnesses swore or affirmed to tell the truth, adopted their witness statements as their evidence-in-chief and moved immediately to                   cross-examination and re-examination.

 

15.     A Witness Attendance Order had issued in respect of Ms Valerie Acheson, an independent health consultant who had been employed by the respondent and who had attended the meeting on 25 February 2014.  However that Witness Attendance Order had not been properly served on the stated address in Belfast which appeared to be unoccupied and after enquiries it appeared clear that Ms Acheson now lived and worked outside the jurisdiction.  The respondents did not seek a postponement for additional time to make other arrangements for Ms Acheson’s attendance.

 

16.     The hearing lasted for four days on 12, 13, 15 and 16 January 2016.  The panel met on 20 February 2015 to reach its decision and this document is the decision.

 

Relevant findings of fact

 

17.     On 22 October 2013 the RQIA carried out an unannounced medicines management inspection of the respondent’s residential care home.  That inspection included a discussion with the claimant in her role as registered manager.  The purpose of the inspection was:-

 

                        “To consider whether the service provided to residents was in accordance with their assessed needs and preferences and was in compliance with legislative requirements and current minimum standards, through a process of evaluation of available evidence.”

 

18.     The RQIA Pharmacist Inspector examined the arrangements for medicines management within the home.

 

19.     The home had previously been subject to a medicines management inspection in 2009 when six ‘requirements’ and three ‘recommendations’ were made by the RQIA.  In the 2013 inspection it was noted that only one of the requirements had been met in the intervening four years.  Another requirement was assessed as moving towards compliance and the remaining four requirements had not been complied with and were re-stated.  As far as the three recommendations were concerned, one was assessed as compliant, one as substantially compliant and the third as moving towards compliance.

 

20.     The 2013 inspection attracted a total of 10 requirements and three recommendations.  It is clear that there were significant difficulties within the residential home in relation to medicines management and that the previous inspection some four years earlier had not resulted in a significant improvement.  A detailed Quality Improvement Plan was prepared by the RQIA.  It was signed and dated by both the second-named respondent and by the claimant as the registered manager on 12 November 2013.

 

21.     A ‘Concerns’ meeting was held with the RQIA on 6 December 2013.  The second and third-named respondents and the claimant attended that meeting.  The purpose of the meeting was to discuss the outcome of the unannounced inspection on 22 October 2013 and of an announced inspection on 27 November 2013 and to seek reassurance that the issues identified were being addressed in accordance with the legislative standards.  Nine areas were identified for improvement.

 

22.     The claimant felt that she had been badly treated at this meeting and indicated to the second and third-named respondents that she was not willing to attend any further such meetings even though she retained the position as registered manager.  The claimant’s reaction to a proper statutory inspection by a regulatory authority was not satisfactorily explained and appears unreasonable.  Again, it seems clear that significant and longstanding concerns had not been addressed and that responsibility rested with the claimant as the registered manager. 

 

23.     A further medicines management RQIA inspection took place on 31 January 2014.  This unannounced inspection was undertaken to examine steps being taken by the respondents to improve the standards in place and the management of medicines to address the concerns raised at the previous medicines management inspections.  The report of that inspection stated:-

 

                    “The outcome of this inspection indicated that some aspects in the management of medicines are still not compliant with legislative requirements and best practice guidelines.  If improvements were implemented following the previous inspection, they had not been sustained; the home’s auditing system had failed to identify the shortcomings which were identified at this inspection.”

 

24.     Out of the 10 requirements and three recommendations made at the previous medicines management inspection on 22 October 2013, only three of those requirements were assessed as compliant, one was assessed as substantially compliant and six were assessed as not compliant.  It criticised in particular the home’s medicines audit system and its failure to identify shortfalls in the management of medicines.  It stated:-

 

                    “The registered manager must implement a robust audit to monitor all aspects of the management of medicines.”

 

25.     The report stated:-

 

                    “An ‘Urgent Actions’ letter was given to the registered manager requesting that the current medication regime for one resident was confirmed by the end of the inspection day and that medication regimens were confirmed for all residents by 4 February 2014.  The registered manager must review and revise the systems in place for the management of medication changes.

 

                    Immediate and sustained improvements in the management, in the standard of maintenance of the personal medication records are necessary.  The date of administration of all medicines must be accurately recorded.  The time recorded for the prescribing and administration of bisphospholate medicines must accurately reflect practice.”

 

26.     This medicines management inspection attracted a total of 11 requirements and four recommendations.

 

27.     A ‘Serious Concerns’ meeting was held as a result of this inspection on 13 February 2014.

 

28.     The claimant, although the registered manager, did not attend this meeting.  She stated in evidence that she had booked a holiday in advance of being notified of this meeting but there appears to be no documentary evidence to support her version of the timing of the booking of this holiday.  When the claimant was told by the second and third respondents that her attendance was required as registered manager at the ‘Serious Concerns’ meeting held by the RQIA, she put in a sick line for two weeks and still went on holiday.  The second and third-named respondents attended the meeting without her. 

 

29.     Separately from the RQIA involvement, the PSNI received a complaint of abuse made by a resident.  That complaint named, in particular, a member of staff who was the claimant’s granddaughter.  That member of staff was suspended pending investigation and potential disciplinary proceedings.  The PSNI advised Mrs Reid not to proceed with the internal investigation into that individual pending any decision in relation to a potential criminal prosecution.  The member of staff concerned eventually resigned.

 

30.     Given the involvement of the RQIA in critical matters involving the management of the home and given that the three inspections in 2009, 2013 and 2014 had not produced a satisfactory result, it is surprising that the claimant, given her important role as the registered manager for the purposes of the relevant legislation, took exception, in the manner in which she did, to those enquiries.  It is also remarkable that the claimant did not seek to effectively resolve those issues.  For example, implementing and checking an effective audit system for the administration of medicines was an important part of what the claimant was employed to do as the registered manager.  It clearly had not been done.  Finally, the tribunal notes with some concern that the claimant in her evidence sought to blame everyone else for these matters, eg Mrs Reid, Mr Reid, other employees, etc.  In her evidence to the tribunal, she totally failed to accept any responsibility on her part for, for example, instituting and supervising a proper audit control of medicines administration.  Any reasonable employer would have been entitled at that stage to have suspended the claimant and to have instituted disciplinary proceedings.  The respondents did neither. 

 

31.     In the light of the ‘Serious Concerns’ meeting, the second and third-named respondents engaged the services of a Health and Social Care Consultant, a Ms Valerie Atcheson.  The third-named respondent met with Ms Atcheson on 21 February 2014.  Both the second and third-named respondents met again with Ms Atcheson on 23 February 2014.

 

32.     At that stage the claimant was on the period of sick leave which coincided with the ‘Serious Concerns’ meeting.  She was due to return on 24 February 2014.  She telephoned and asked for a meeting and that was arranged for 25 February 2014.

 

33.     The claimant was not advised by the second or third respondents that Ms Atcheson would be present during that meeting.  It might have been better if she had been so advised.  However this was a residential home with serious and pressing issues to address and it is perhaps unsurprising that the second and third respondents moved quickly and that in light of the claimant’s absence from the premises, they had moved without her knowledge.  In any event, the tribunal accepts that Ms Atcheson had only confirmed her availability to attend that meeting on the previous evening and therefore it would have been impracticable to have issued any form of detailed notification to the claimant.  However the respondents could have simply notified the claimant of Ms Atcheson’s engagement when arranging the meeting on 25 February 2014.

 

34.     The second and third-named respondents stated that the claimant had addressed Ms Atcheson in an unnecessarily hostile manner and appeared upset at her presence.  The claimant accepted that she had queried who Ms Atcheson was and queried why she had not been informed that Ms Atcheson would be present at the meeting.  She disputed that she was unnecessarily hostile.  Having observed the witnesses, the tribunal, having considered the claimant’s previous reaction to the RQIA involvement and her absence from the ‘Serious Concerns’ meeting, concludes that there was an element of friction and hostility on the claimant’s part.

 

35.     The claimant’s reaction throughout this matter includes a significant element of overreaction and hypersensitivity.  She clearly felt, at the time, that her position within the residential home was at risk and some of her comments are extraordinary.  For example, the claimant alleged that she had been ‘deliberately kept in the dark about the discussions that the respondents were having with Valerie Atcheson’.  The claimant at that point was off sick and had absented herself from the ‘Serious Concerns’ meeting.  That left the second and third-named respondents in the position of having to deal with all these matters even though the claimant was the registered manager.  Things moved very quickly and it is unsurprising that the claimant was not fully kept in the loop.  Alleging that she had been ‘deliberately kept in the dark’ seems to be entirely unjustified.  Furthermore, the claimant initially alleged that a comment which she stated had been made by the second-named respondent to the effect that she looked ‘burnt out’ during a period on holiday was in some way an act of age discrimination.  Equally, an alleged enquiry about her retirement plans was alleged to be an act of age discrimination.  The claimant throughout this matter has displayed an unfortunate attitude.  Given her position as a registered manager of a residential home which was clearly in significant and continuing default in the eyes of the RQIA, that attitude is surprising. 

 

36.     The claimant further alleges that all of this was ‘a planned operation to oust me from my job’.  If there had been a planned operation to oust the claimant from her job, a much simpler and more obvious course of action for the second and                           third-named respondents to have adopted, in the light of the ‘Serious Concerns’ meeting after the third unsatisfactory inspection, would have been to have suspended her immediately and to have instituted disciplinary action.  They did not do so.  The tribunal therefore concludes that there was no such plan. 

 

37.     The claimant alleges that she was told by Ms Acheson that a manager should only be paid £15,000.00 per year; ie approximately half of what she was being paid.  The respondents denied that she was told that and having observed the witnesses, the tribunal concludes that she was not told this.  It would seem extraordinary that an independent health consultant, in the context of such a meeting, immediately following a ‘Serious Concerns’ meeting would have digressed from the matters at hand to that extent.  Furthermore, subsequent interim managers were paid at a similar level to the claimant.

 

38.     The claimant accepted in cross-examination that she had told Mr Reid that she would not be attending any more meetings with the RQIA.  She alleged that this had been taken out of context.  The claimant also accepted in cross-examination that she had objected to Ms Atcheson’s presence on 25 February 2014 as ‘I felt I had arranged the meeting’.

 

39.     The claimant further alleged that Ms Atcheson had been in her office at some stage prior to the meeting on 25 February 2014.  The second and                                third-named respondents denied that that was the case.  No evidence was produced to the tribunal other than the unsupported and hearsay assertion of the claimant to that effect.  The tribunal therefore concludes, on the balance of probabilities and to the extent that it is relevant, that Ms Atcheson did not inspect the claimant’s office. 

 

40.     The claimant objected to the conduct of the meeting on 25 February 2014 and stated that it had gone ‘straight into questions’.  Given the context in which this meeting had been arranged, ie in a failing residential home, immediately following a ‘Serious Concerns’ meeting, that seems unsurprising.  It was hardly going to be the case that the parties present during such a meeting would have discussed anything other than the matters immediately to hand.  The situation in the residential home was clearly urgent at that time.

 

41.     The claimant advised that she had been given a ‘questionnaire’ in the course of this meeting.  She felt it was from the RQIA.  That document was not produced by the other side.  A great deal of discussion was spent in relation to this matter to no significant effect.  It seems clear that some form of document was probably passed back and forth during the course of the meeting however it does not seem in any way significant and again this is an issue in which the claimant appears to have grossly overreacted to something which seems entirely understandable.  Given that she was the registered manager; that she had returned from a period of sick leave which coincidentally covered the same period as her booked holiday and in the context of a ‘Serious Concerns’ meeting, the claimant should have expected at the very least to have responded to questions either written or oral in relation to these matters. 

 

42.     There was a dispute about the number of times in which the claimant got up and left the meeting although it seems clear that she did so on at least two occasions.  It is again extraordinary, given the context of all of this that the claimant, as registered manager of the residential home in such an serious situation, behaved in this manner. 

 

43.     The claimant asked how much notice would be required if she left and asked if it was one month, two months or three months.  When the second-named respondent did not specifically respond, she stated ‘well, then one month’. 

 

44.     The tribunal therefore concludes that a clear and unambiguous notice of termination of employment was given by the claimant.  The tribunal does not accept that the claimant was forced or pressurised in any way to give such notice.  The claimant would have realised, given the involvement of the RQIA and their repeated and consistent dissatisfaction with the running of the home, that her tenure as registered manager was at risk.  She was certainly aware that she had repeatedly failed to address the concerns of the RQIA.

 

45.     The claimant left the meeting for the final time and went outside and got into a car which was registered in the name of the second-named respondent.  Her daughter who also worked for the first-named respondent, a Ms Mandy Kearney got into the driver’s seat of the car. 

 

46.     The claimant alleged that this car was her company car for her own personal use and that she took it home every day and used it during weekends.  Ms Kearney in her evidence stated that it was in fact the property of the claimant and not a company car at all.  The evidence of the second and third-named respondents was entirely different. They stated this was a car for the use of the home and that it should have remained at the home for use by day or night staff in the case of emergencies, eg to collect prescriptions etc.  They both denied that this was either the personal property of the claimant or a company car for her personal and private use.  Given the size of the claimant’s salary it seems unlikely that she would also have been provided with a company car for her private use.  Equally, it seems more probable than not that she did in fact take the car home and did in fact use it at the weekends.  Whether or not the second and third-named respondents were aware that this was the case is entirely another matter.  The tribunal therefore concludes that this was a situation where over the course of time the claimant appears to have regarded the car as her own company car for her own private use and to have acted accordingly.  This appears to have been entirely without the express permission or knowledge of the second or third-named respondents.

 

47.     The claimant stated that the third-named respondent followed her out and had told her daughter, Mandy Kearney, that she could not drive the car as it was the property of the first-named respondent and that her mother did not work for the   first-named respondent any more.  The claimant then got out of the car with her daughter and she said she was left to walk home for a distance of 16 miles although she accepts that her husband picked her up.  The third-named respondent stated that she had simply told Mandy Kearney that she could not drive the car as it was the property of the first-named respondent.  She stated that she did not tell her that the claimant no longer worked for the company.

 

48.     The claimant’s version of events is improbable.  At the height of the claimant’s evidence the claimant had just given a one month’s notice period and was still therefore employed by the first-named respondent for a further month.  It therefore seems highly unlikely that the third-named respondent would have told her at that stage, where the notice period had only just commenced, that she was no longer employed by the first-named respondent.  Furthermore, the claimant had clearly been upset and angry at this point.  It is much more likely that events transpired as alleged by the third-named respondent.

 

49.     The third-named respondent accepted that she saw Ms Mandy Kearney and the claimant leaving the home and walking over to get the car.  She went out and knocked on the car window.  Ms Kearney was in the driving seat and the                    third-named respondent stated that ‘sorry Mandy you cannot take car it is Glasswater property’.  She stated that the claimant and her daughter stormed out of the car and the claimant shouted ‘you better get in touch with your fucking insurance company’.  The second-named respondent said that he had heard this particular remark.  This was clearly a heated situation at this stage and the tribunal accepts that the claimant and her daughter were prevented from driving off in the car.  The tribunal concludes that the claimant was not told that she no longer worked for the company at that stage because that was clearly, on either version of the earlier meeting, not the case.  The tribunal concludes that it was more likely than not that the words alleged by the second and third-named respondents were actually used by the claimant.

 

50.     On the following day, ie 26 February 2014, the claimant’s husband then                    hand-delivered a handwritten letter from the claimant to the second-named respondent.  That letter was expressed in very trenchant terms.  It alleged, inter alia, that there had been a ‘verbal attack and interrogation’, ‘ageist questioning’ and ‘abuse and accusations’.  It alleged that the claimant had not been aware that her ‘professionalism or competence’ was to be challenged.  That remark in itself is surprising given the background to all of this and the involvement of the RQIA.  The letter further alleged that a ‘decision to employ a consultant to come in undercover at the weekend and check my work was underhand and has seriously undermined my position’.  The use of the words ‘undercover’ and ‘underhand’ are inappropriate. 

 

51.     The letter further advised that she was again going on sick leave and that in relation to the resignation she stated:-

 

                    “Due to the intensity of the abuse and accusations, I succumbed to the pressure and verbally agreed to go, effective in one month’s time, a decision I now regret and exercise my right to withdraw it.”

 

52.     The third-named respondent wrote back to the claimant on 3 March 2014 treating the matter as a grievance and setting up a grievance meeting.  There was no indication in that letter that the purported retraction of the resignation was being considered and there was no specific response to that purported retraction. 

 

53.     On 27 February 2014 the claimant wrote to the RQIA raising various concerns.  Again, given the context of all of this and given the focus of the RQIA on the management of medicines, the matters raised by the claimant seem odd.  She queried the availability of hot water; she queried why a ‘Polish man’ was painting a bedroom; she queried recycling of black bags; she argued that the registered provider should take a more active role in the home even though she was the manager registered with the RQIA; she queried the purchase of ‘cheap butter’ and she queried the money spent on staff training and the need for a wages structure.  This seems an extraordinary digression from the matters which had been identified by the RQIA which required immediate action.  It seems to have been no more than an attempt to deflect attention from her role as registered manager. 

 

54.     The claimant wrote to the RQIA to inform them that she was no longer the registered manager. 

 

55.     A letter was issued on 23 February 2014 on behalf of the second and third-named respondents but appears to have been drafted by Ms Atcheson in accordance with advice from an insurance company.  It stated that her resignation had been accepted and that, taking into account one month’s notice, her employment would terminate on 25 March 2014.  The second and third-named respondents were not aware that this letter had been issued and only became aware of it much later.  This letter was sent without proper authority and appears to have no significance. 

 

56.     The grievance meeting was held on 31 March 2014 and the claimant was accompanied by Mr Sean McKeever of Unite.  The third-named respondent conducted the meeting and Ms Catherine Kearney attended as a note taker.  It is clear that the third-named respondent accepted on at least four occasions that the claimant was still employed by the first-named respondent at that stage.  The               third-named respondent stated in evidence that she had simply misunderstood the position at that time. 

 

57.     Given that the third-named respondent and indeed the second-named respondent had not been aware that the letter of 25 February 2014 had been issued on their behalf from Ms Atcheson, and given the failure to respond in any way to the retraction letter of 26 February 2014 from the claimant, it was more likely than not that the responses of the third-named respondent during this meeting effectively represented the real position, ie that the respondents had, for whatever reason, decided to accept the retraction.  It would be extraordinary if someone in the position of the third-named respondent had gone into a grievance meeting in these circumstances without having been absolutely clear of the current employment position of the claimant. 

 

58.     The second-named respondent then issued a letter of 4 April 2014, some four days after the grievance meeting stating:-

 

                    “I am writing to you to confirm my decision to reject the retraction of your verbal resignation given with the confirmation of one month’s notice from Tuesday 25 February 2014.” 

 

59.     The tribunal concludes that this effectively was a dismissal since the respondents had previously accepted the retraction of the resignation, either expressly during the grievance meeting, by confirming that she remained in employment, or by implication by continuing discussions as if she was still an employee.  On the balance of probabilities, it seems clear that the respondents had had a change of heart and had decided to attempt to reject the retraction, even though it had already been accepted.

 

60.     The P45 was dated 7 April 2014 and it shows the leaving date as 7 April 2014.  The claimant mounted the argument that this meant that in any event she had been employed until that date.  This is not a tenable argument.  It cannot be the case that because someone in an accountants office, for some unknown reason, specified the date for leaving work as the same date as the P45 certificate, employment would have subsisted until then.  The tribunal accepts the explanation of the second and third-named respondents that the individual concerned in the accountants office simply had an incorrect practice.  The date on the P45 had no other significance.

 

61.     The grievance was not accepted.  The claimant appealed that grievance decision and that appeal was heard by Mr Joseph McGuigan. 

 

62.     The appeal against the grievance was conducted by Mr Joseph McGuigan.  It appears that the notes of the alleged interviews with the second and                           third-named respondents conducted by Mr McGuigan are suspiciously identical in several respects.  The tribunal therefore concludes that these interviews, while they may have taken place, in some form, were not properly recorded.  In any event the grievance appeal was not allowed.  To the extent it matters, the tribunal is not satisfied that there was an effective grievance appeal.

 

Sick pay

 

63.     The claimant alleged that she was entitled to full pay for the first six months of sick absence and half pay for the subsequent six months of sick absence.  That appears somewhat improbable.  In any event, the specific claim for sick leave was for six weeks from 26 February 2014 (the day after the original resignation).  That period would take the claimant up to 9 April 2014, ie some five days after the letter from the second-named respondent purporting to accept the resignation.  The claimant would also have been aware that the respondent paid her full pay during her notice period, up to 7 April 2014.

 

          It is difficult to understand the basis of this claim.  It did not feature in the final submissions of the claimant.

 

Holiday pay

 

64.     The claimant alleged that she had not been paid for outstanding holiday entitlement (13 days) in 2013/2014.  She stated that a record of holidays had been retained in a ‘green office diary’.  That was never produced and no documentary evidence was produce by the claimant to substantiate this part of her claim.

 

          The allegation of outstanding holiday pay had not been raised by the claimant in her grievance letter or in the grievance meeting on 31 March 2014 when the relevant leave year had concluded and when the claimant was concerned about whether her employment was still continuing.  That is surprising.

 

          It is also surprising that it was not raised as an issue even in the claimant’s written submissions for that meeting.  The first reference by the claimant to outstanding holiday pay was on 16 April 2014 in response to the letter of 4 April 2014 from the second-named respondent.

 

          The tribunal accepts the evidence of the second and third-named respondents that there was no record of holidays for the claimant.  It was her responsibility as manager to retain those records.

 

          This part of the claim did not feature in the final submissions.

 

Statement of Particulars

 

65.     The claimant alleged that she had not received the statutory terms and conditions of service on commencing employment or subsequently.  It was the claimant’s responsibility as manager to ensure that statutory particulars were issued.  The second-named respondent was not the claimant’s line manager as she states in her statement.  He was the part-owner of a limited company, ie the                             first-named respondent, which employed the claimant. 

 

          It was not sufficient that the claimant had had access to the staff manual at all times or that an attempt had been made in 2010 to formalise terms and conditions for employees.  While the claimant, as manager, should have ensured a statement had issued, the claimant was not issued with the required statement by the                first-named respondent, her employer.

 

Age harassment

 

66.     The claimant alleges that she was unlawfully harassed on grounds of age in the meeting on 25 February 2014.  The claimant alleges that there was some attempt to clarify whether the claimant intended to retire.  The respondents deny this.  In the grievance appeal meeting the claimant also objected to several types of questions including those relating to the number of residents, the RQIA reports, recruitment, etc.  In all of that, she included the alleged question as to when was she going to retire.

 

          It seems more likely than not that some question relating to the claimant’s future plans was put during the meeting.  It does not seem at all likely that any such question was put in an objectionable or harassing manner.

 

Relevant law

 

Basic unfair dismissal

 

67.     The Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides at Article 130:-

 

                    “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 (ii) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

                    (2)      A reason falls within this paragraph if it –

 

(a)      relates to the capability – of the employee for performing work of the kind which he was employed by the employer to do;

 

(b)      relates to the conduct of the employee.

 

                    ...

 

(4)      In any other case 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 reasons 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 the equity and the substantial merits of the case.”

 

68.     Article 130A of the 1996 Order, as amended by the 2003 Order, provides:-

 

“(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) [tribunal’s emphasis], 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.”

 

69.     Article 130A(2) can only be regarded as a clear legislative provision intended to discourage claims of unfair dismissal by unmeritorious claimants simply on the basis of technical breaches in procedure.  There was initial controversy within Great Britain as to whether or not that provision applied solely where the employer had failed to comply with general fairness in relation to procedure or whether it also applied where there had been a failure to follow the statutory three step procedure described above. 

 

70.     Where Article 130A(2) applies, it has the effect of overturning the House of Lords decision in Polkey  v  AE Dayton Services Ltd [1988] ICR 142 which itself had overturned the ruling in British Labour Pump Co Ltd  v  Byrne [1979] ICR 347.  Where that part of the Article applies, an employer can argue that, despite failure to follow a procedure, the dismissal was fair because he would have dismissed the employee even if the procedure had been followed.

 

71.     In two 2006 decisions, the EAT considered the GB equivalent of this provision.  In Mason  v  Governing Body of Ward End Primary School [2006] IRLR 432, concluded, inter alia, that the equivalent GB provision did not apply to breaches of the statutory dismissal procedure and that it reversed Polkey to a limited extent only.  In Alexander  v  Bridgen Enterprises Ltd [2006] IRLR 422, the EAT concluded that the equivalent provision applied to a situation where there had been a breach of any procedure which the tribunal considered the employer ought to have complied with. 

 

72.     In the later decision of Kelly-Madden  v  Manor Surgery [2007] IRLR 17 the EAT returned again to this issue and concluded that the GB equivalent provision applied to any procedure which the tribunal felt that the employer ought to have followed and that it reversed Polkey to that significant extent.  However, the EAT made it plain that it did not apply to cases where there is a wholesale breach of procedures or where there was a breach of the statutory three step procedure.  It stated:-

 

“As Section 98A(2) makes clear, it is not open to an employer who is in breach of the minimum statutory procedure to contend that, even if he had complied with them, the result would have been the same.  This is of course an important limitation restricting the scope of the Polkey reversal because the effect is that fundamental procedural defects are likely to involve a breach of statutory procedures and cannot then be saved by the                        sub-section.”

 

The position therefore is that in circumstances such as those in the present case, where the employer has not followed the minimum statutory procedure, the reversal of the Polkey doctrine does not take effect. 

 

In such circumstances the employer cannot argue that the dismissal was fair : he cannot dispute liability.  He can however deal with issue of remedy by:-

 

(1)      relying on Polkey (which has not been reversed) and by arguing for a percentage reduction in compensation to reflect the chance of dismissal; and/or

 

(2)      applying the principle of contributory fault arguing for a reduction in the basic and compensatory award by the percentage which is just and equitable.

 

A Polkey reduction and a contributory fault reduction can often reach the same result by a different route.

 

73.     In the Kelly-Madden decision, the Employment Tribunal had also reached an alternative conclusion that any compensation payable should be reduced by 100% on the grounds of contributory misconduct.  The EAT concluded that a finding of a 100% contribution was not sustainable in view of the tribunal’s criticism of the employer’s regulatory and administrative procedures and the tribunal’s recognition that this failure on the part of the employers had contributed to a relevant lack of communication which was in part to blame for what had occurred. 

 

In the present case, whether or not the breaches in procedure, and any lack of communication, have contributed to any dismissal is a question to be determined.

 

 

Contributory conduct

 

74.     If the tribunal concludes that an employee was guilty of culpable or blameworthy conduct which contributed to his dismissal, see Nelson  v  BBC (No 2) [1979] IRLR 346, compensation in respect of both the basic and compensatory awards may be reduced by an appropriate percentage.  In determining whether the conduct is blameworthy, the test is objective.  It does not matter whether the employee knew the conduct was wrong – see Ladbroke Racing Ltd  v  Mason [1978] ICR 149.

 

          If the employee is wholly to blame for the dismissal compensation may be reduced by 100% - see Hollier  v  Plysu Ltd [1983] IRLR 260.

 

Statutory uplift

 

75.     Article 138A of the 1996 Order as amended by Article 17(3) of the 2003 Order, provides that where an employer has failed to follow the statutory procedure, the compensatory award for unfair dismissal shall be uplifted by a minimum 10% and may, where it is just and equitable to do so, be uplifted by up to 50%.  The requirement of a minimum 10% uplift does not apply if there are exceptional circumstances which would make such an uplift unjust or inequitable.  In those cases there can be a lesser uplift or no uplift at all. 

 

          Article 154 of the 1996 Order, as amended by the 2003 Order, provides that where the is an automatically unfair dismissal the employee shall be entitled to a minimum basic award of four weeks’ gross pay except where the tribunal “considers that the increase would result in injustice to the employer”.

 

Sick pay

 

76.     The tribunal has jurisdiction to determine claims for unpaid sick pay as an alleged unauthorised deduction from wages contrary to the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’).

 

Holiday pay

 

77.     The tribunal has jurisdiction to determine claims for unpaid holiday pay as an alleged unauthorised deductions from wages contrary to the 1996 Order and as an alleged breach of the Working Time Regulations (Northern Ireland) 1998.

 

Age harassment

 

78.     The tribunal has jurisdiction to determine claims of alleged harassment on grounds of age under Regulations 6 of the Employment Equality (Age) Regulations (Northern Ireland) 2006.

 

          Under Regulation 6(2), conduct can only be regarded as amounting to harassment on grounds of age if, having regard to all the circumstances, including the perception of the alleged victim, it should reasonably be regarded as having that effect.

 

 

Statement of Particulars

 

79.     Under Articles 33(1) and 36(1) of the 1996 Order an employer is required to provide a statement of specified employment particulars.  Under Article 27 of the Employment (Northern Ireland) Order 2003 a tribunal shall make a minimum award of two weeks gross pay (up to the statutory limit) or up to four weeks gross pay where the employer is in default and where a finding of, inter alia, unfair dismissal has been made.

 

Decision

 

80.     The tribunal concludes that the claimant resigned on 25 February 2014.  That resignation was clear and was not made as a result of unreasonable pressure.  It was not a ‘special circumstances’ case.  The respondents, assisted by Ms Atcheson, were taking proper steps to address a long overdue issue; the clear failings of the residential home, under the management of the claimant, to comply with regulatory requirements to the satisfaction of the RQIA.

 

81.     The claimant attempted to retract her resignation on the next day, 26 February 2014.  While Ms Atcheson, unknown to the respondents, had written to the claimant on 25 February 2014 accepting the resignation, this was done without the authority of the respondents.  There was no written or other response to this purported retraction until the second-named respondent’s letter of 4 April 2014.

 

82.     The third-named respondent confirmed during the grievance meeting, in response to direct questions, that the claimant was still an employee at the date of the grievance meeting, 31 March 2014.  That was just outside the one month period of notice given on 25 February 2014 which would have expired on 24 March 2014.  The confirmation was in clear terms and was repeated.

 

          The third-named respondent stated first in response to a request by Sean McKeever to clarify the claimant’s current employment status:-

 

                              “She is still the registered manager who is currently off sick.”

 

Later in the grievance meeting, the claimant asked if she was still in employment.  The response was:-

 

                    “Yes.”

 

          Later, again, the third-named respondent said:-

 

                    “If you are fit to work, you can come back to work;” and

 

                    “Geraldine is currently on sick leave;” and

 

                    “Geraldine if fit to work will be able to return and report to RQIA everything.”

 

 

83.     The meeting ended with the claimant saying, without rebuttal:-

 

“I think another 2 weeks before to see my GP and will get in contact to you or Leslie for coming back.”

 

84.     None of this is consistent with the consideration of a grievance from a former employee whose notice period had already expired.  It can only be consistent with an employee who had resigned but whose retraction of that resignation had been accepted.  It is highly improbable that the third-named respondent went into a grievance hearing without a clear understanding of the claimant’s employment status and equally improbable that she had in any way misunderstood the position.

 

85.     The tribunal therefore concludes that the retraction of the resignation had been accepted by the respondents.  It was not open to the respondents to subsequently change their minds and to quickly issue the letter of 4 April 2014 and to decide not to accept the retraction.

 

86.     The letter of 4 April 2014 was therefore a dismissal.  It failed to comply with any of the statutory procedural requirements and was therefore automatically unfair for the purposes of the 1996 Order.

 

Sick pay

 

87.     There was no evidence of any financial loss.  The claimant had been paid in full up to 7 April 2014 and had been dismissed on 4 April 2014.  This part of the claim is dismissed.

 

Holiday pay

 

88.     The onus of proof is on the claimant to establish a failure to pay holiday pay.  It seems highly improbable that the claimant had actually been owed for 13 days but had failed to raise it as a grievance, during the grievance meeting, or until prompted by the wording of the letter of 4 April 2014.  Furthermore, it was for the claimant to create and to retain appropriate records.  She failed to do so.  The tribunal therefore concludes on the balance of probabilities that no such liability existed.  That part of the claim is dismissed.

 

Age harassment

 

89.     It appears probable that the claimant, in the context of the continued management of the home, was asked about her retirement plans.  Such a question, on its own, could not amount to unlawful harassment.  It would depend on the manner and tone of the question.  Given the claimant’s propensity to react badly to perfectly ordinary queries, the tribunal concludes that any query about retirement plans was perfectly normal and, in the circumstances, entirely justified.  It was not an act of unlawful harassment.

 

Statement of Particulars

 

90.     The first-named respondent is in default in this matter.  The question of an appropriate remedy will be reserved to the remedy hearing.

 

Remedy

 

91.     This claim raises several issues which have not been fully dealt with in evidence before the tribunal.  The overriding objective to provide a just and equitable verdict means that the tribunal is unable to determine an appropriate remedy in this case.  The matter will therefore be listed for a one-day remedy hearing.  A Case Management Discussion, which can be conducted by telephone conference call, will be arranged to issue directions for the exchange of any further witness statements dealing directly with remedy, the exchange of any documentation directly relevant to remedy and the listing of the remedy hearing.

 

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing:         12 – 13 January 2015; and

                                                  15 – 16 January 2015, Belfast

 

 

Date decision recorded in register and issued to parties: