Bradford v Leathem [2004] NIIT 297_04 (15 September 2004)

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URL: http://www.bailii.org/nie/cases/NIIT/2004/297_04.html
Cite as: [2004] NIIT 297_4, [2004] NIIT 297_04

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THE INDUSTRIAL TRIBUNALS

CASE REF: 297/04

APPLICANT: Ann Marie Bradford

RESPONDENT: Linda Leathem

DECISION

The unanimous decision of the tribunal is that the applicant was not constructively dismissed.

Appearances:

The applicant appeared in person and represented herself.

The respondent appeared in person and represented herself.

Summary Reasons

The tribunal found the following facts and in so doing preferred the evidence of the respondent as being more consistent.

The applicant worked for the respondent for a period of twenty two months in the capacity of a florist.

Some considerable number of months before the events of 7 January 2004, the applicant had lent a book to a friend of the respondent. The applicant had required its return, and it was returned to the applicant by the respondent with a note inside saying that a new second hand copy had been ordered through the internet because the original book had been damaged by water.

There was a divergence in evidence between the parties as to precisely how the events of 7 January 2004 unfolded. It was alleged that foul language was used in the return of the book. On the balance of probabilities, the tribunal accepts that it is more likely than not that foul language was not used in the return of the book, as it would be unlikely that anyone who had taken the care both to return the book from a third party and to ensure that there was proof of an order of a fresh copy given that the original book had been damaged would return the book in the manner described by the applicant. Both parties to the case know what transpired on 7 January 2004. After the return of the book an argument erupted between the parties. Again there was a divergence in the evidence between the applicant's version and the respondent's version. The tribunal has preferred the respondent's version which was that she had asked the applicant not to lend out her possessions any further because the delay in the returning of the book to her by her friend had obviously caused her great concern. The respondent expressed embarrassment about being involved in a matter that was irrelevant to her business. Although the recipient of the book was her friend, she had not asked for the book to be lent to her. The applicant did admit that the book had been freely offered by her.

The applicant has difficulties with her mental health. She said that she had felt humiliated by the manner in which the book was returned on 7 January 2004 and felt that she had no alternative but to resign. She felt she was pushed into this. She went to the diary of the shop and wrote her name into the entry for 17 January 2004 and the entry said "Ann leaving". The tribunal considers that on the balance of probabilities it was more likely than not that the applicant was by this act of going to the diary giving her notice.

To support a claim for constructive dismissal any applicant must establish the following points:-

(i) Was there a fundamental breach of the contract of employment?

(ii) Did the applicant leave in response to the breach?

(iii) Did the applicant delay in so doing?

The tribunal considers that if the applicant had been so upset and humiliated by the events of 7 January 2004 (and it was common case that the applicant had been reduced to tears) the applicant would have walked out immediately from her employment, and not offered notice. The tribunal does not find that in the returning of the book Mrs Leathem acted in any way to cause a fundamental breach of the applicant's contract of employment.

The next significant event in the situation occurred on 16 January 2004. The respondent asked the applicant to confirm her resignation in writing. The applicant said that it was unnecessary. The applicant then re-opened the events of 7 January 2004 alleging that the respondent had used foul language to her in the return of the book and had made comments about her medical condition.

The respondent agreed that she had asked the applicant to seek help. She said that she had not used foul language in the return of the book and had said that she was "carrying the can" for the applicant in her employment because there were times when the applicant's work performance was not wholly satisfactory. However, it was manifest from the evidence of both parties, that there had been at least a degree of unusual support from an employer to an employee on the grounds of health. The respondent displayed in the giving of her evidence an understanding of the effects of the applicant's condition and a concern for her. It was plain that the respondent had tried to work with the applicant through the time of her employment and had tried to encourage her and support her, by repeatedly asking her to obtain further help. The tribunal finds that the employer was supportive of the applicant in connection with the effects of her condition. The applicant herself said that she believed the respondent knew what she was going through.

The events of 16 January 2004 proceeded in such a fashion as to render the respondent incoherent with distress at things said to her by the applicant to the point where she had to phone her husband for help. It was common case between the parties that Mr Leathem did instruct his wife to tell the applicant to leave the premises and spoke directly to the applicant asking her to leave the premises. He said that he was not interested in listening to any of the details; he was only interested to protect his wife's health and was concerned at the level of distress that she was manifesting. Mr Leathem indicated that they were not dismissing the applicant on 16 January 2004, because they considered that she had already given notice of her intention to leave on 17 January 2004. As such, they made no attempt to contact the applicant other than by letter after 16 January 2004. The letter dated 19 January 2004 recorded that the applicant had given a verbal request and written notification to terminate her employment on 17 January 2004 and enclosed a P45 and (despite the events of 16 January 2004) full payment of wages up to and inclusive of 17 January 2004 and for unused holiday allocation.

In conclusion, the tribunal accepts the version of events of 7 January 2004 of the respondent. The tribunal is not able to find that the respondent was anything other than supportive to the applicant throughout her employment until the applicant behaved in such a way on 16 January 2004 that the respondent became so distressed that she had to ask her to leave. The tribunal does not consider that the applicant was constructively dismissed by the events of either 7 or 16 January 2004.

Chairman:

Date and place of hearing: 15 September 2004, Belfast.

Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2004/297_04.html