McCarron v Manpower UK Limited Daniel Johnston Una Mallon [2011] NIIT 01429

THE INDUSTRIAL TRIBUNALS

CASE REFS: 1429/10

1642/10

CLAIMANT: Deirdre McCarron

RESPONDENTS: 1. Manpower UK Limited

2. Daniel Johnston

3. Una Mallon

DECISION

The unanimous decision of the tribunal is that the claim of constructive unfair dismissal against the first-named respondent is dismissed; and that the claims of sex discrimination against the second and third-named respondents are also dismissed.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Ms G Ferguson

Mr J Welsh

Appearances:

The claimant was represented by Mr D Bell, of the Communication Workers Union.

The first and third-named respondents were represented by Mr M McEvoy, Barrister-at-Law, instructed by Field Fisher Waterhouse LLP, Solicitors.

The second-named respondent did not appear and was not represented.

Background

1. The claimant was employed in a BT Call Centre by the first-named respondent (‘Manpower’) for approximately three years until she resigned on 20 April 2010.

2. Manpower provided casual workers to BT PLC as an employment agency. Those workers remained employees of Manpower and were managed both by managers employed by Manpower and managers employed by BT PLC.

3. On 20 May 2010, the claimant, with the assistance of the CWU, lodged a claim of sex discrimination and religious belief/political opinion discrimination against Manpower, the second-named respondent, the third-named respondent, BT PLC and two named BT PLC employees. Under the heading ‘opinion’, that claim stated that the actions of the respondents were ‘potentially discriminatory’ and ‘may amount to unlawful sex discrimination’.

4. On 25 June 2010, the claimant, again with the assistance of the CWU, lodged a claim of constructive unfair dismissal against Manpower.

5. The claims against BT PLC and their two named employees were resolved and then withdrawn before the hearing. The claim of religious belief/political opinion discrimination was not pursued against any respondent. The tribunal hearing therefore dealt with the claims of constructive unfair dismissal against Manpower and the claim of sex discrimination against Manpower, and the second and third-named respondents.

6. In his final submissions at the conclusion of the hearing, Mr Bell withdrew the claim of sex discrimination against the third-named respondent (Ms Una Mallon) and that claim was dismissed in an oral decision delivered at that point in the hearing.

The issues

7. The issues for the tribunal to determine were:-

(i) Was the claimant constructively and unfairly dismissed by Manpower?

(ii) Did the first, second or third-named respondents unlawfully discriminate against the claimant on the ground of gender?

The hearing

8. The hearing was over two days on 8 – 9 August 2011. The witness statement procedure was used and each witness went straight to cross-examination and re-examination after having sworn or affirmed to their statements. The tribunal had read the statements in advance. The claimant gave evidence and Mr Bell gave evidence on her behalf. Ms Una Mallon and Ms Justine Dyson gave evidence on behalf of Manpower and the third-named respondent. The tribunal did not read or refer to the statements which had been lodged on behalf of witnesses who were not called to swear or affirm to those statements. Final submissions were made on second day of the hearing.

Relevant law

Constructive unfair dismissal

9. To succeed in a claim of constructive unfair dismissal, the claimant must establish:-

(i) that the first-named respondent had committed a serious breach of contract entitling the claimant to regard the contract as having been repudiated. In Brown v Merchant Ferries Ltd [1988] IRLR 682, the Northern Ireland Court of Appeal said that, although the correct approach to constructive dismissal was to ask whether the employer was in breach of contract and not whether the employer had acted unreasonably; if the employer’s conduct is seriously unreasonable, that may provide sufficient evidence that there has been a breach of contract;

(ii) that she left her employment with the respondent because of that breach of contract and not for any other reason; and

(iii) that she did not delay in resigning and thereby affirm any breach of contract or repudiatory conduct that might have occurred.

In Tullett Prebon PLC & Others v BGC Brokers LP & Others [2011] IRLR 420, the Great Britain Court of Appeal held that:-

“The question of whether or not there has been a repudiatory breach of the duty of trust and confidence is a ‘question of fact for the tribunal of fact’. It is a highly context-specific question. The legal test is whether, looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract. The issue is repudiatory breach in circumstances where the objectively assessed intention of the alleged contract breaker towards the employee is of a paramount importance. In the present case the judge had approached the issue correctly. He had not applied a subjective approach. He had objectively assessed the true intention of Tullett, and had reached the conclusions that their intention was not to attack but to strengthen the employment relationship. That was a permissible and correct finding, reached after a careful consideration of all the circumstances which had to be taken into account insofar as they bore on an objective assessment of the intention of the alleged contract breaker.”

Sex discrimination

10. The legislation in relation to discrimination on the ground of gender provides for a shifting burden of proof. If the claimant proves acts on which, excluding any explanation from the respondents, a tribunal could reasonably infer that there has been unlawful discrimination, the burden of proof will shift to the respondents.

The Northern Ireland Court of Appeal, on considering the shifting burden of proof in relation to race discrimination, held in McDonagh & Others v Royal Hotel [2007] NICA 3 that the guidance given by the Great Britain Court of Appeal in Igen v Wong can be applied to all forms of discrimination and stated:-

“For the purposes of the present case, the first question the judge should have articulated was ‘have the complainants proved on the balance of probabilities facts from which I could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against them’?.”

In Madarassy v Nomura International PLC [2007] EWCA Civ 33, the Great Britain Court of Appeal stated:-

“The court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent ‘could have’ committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which the tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

11. The correct approach for tribunals to adopt has been discussed in a series of cases; for example, in Nelson v Newry & Mourne District Council [2009] NICA 3. At Paragraph 24 of that decision, the Northern Ireland Court of Appeal stated:-

“This approach makes clear that the complainant’s allegation of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination.”

In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying [the provisions relating to the shifting burden of proof]. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

12. In Hussain v Vision Security Ltd and Mitie Security Group Ltd [2011] EqLR 699, the EAT considered a tribunal decision in an age discrimination claim. The tribunal had found that two younger employees had been treated more favourably than the older claimant and that an untruthful explanation had been advanced for that disparity in treatment. The EAT held that those primary facts were sufficient to establish a prima facie case of discrimination and to shift the burden of proof onto the employer. Underhill J stressed that whether or not the burden of proof passes to the respondent is a matter for factual assessment in each case and is situation-specific.

13. In Rice v McEvoy [2011] EqLR 777, the Northern Ireland Court of Appeal concluded that the tribunal at first instance had been entitled to conclude that a prima facie case of unlawful discrimination had been established and that the burden of proof had passed to the respondent to persuade the tribunal that he had not acted with discriminatory intent. There had been a finding of fact that the respondent had treated a male employee more favourably than the female claimant in relation to sick pay; that he had done so shortly after a protected act; and that he had done so in circumstances where it would have been reasonable to infer that the respondent would have wanted to show fairness and equality of treatment between employees.

Relevant findings of fact

14. The claimant’s BT line manager at the Call Centre was Ms Nicola Mulrine; the claimant’s Manpower line manager was Mr Daniel Johnston, the second-named respondent.

15. The claimant accepted that there had been difficulties with her performance while she had been employed at the call centre. She argued, however, that these were minor difficulties.

16. The claimant’s performance was the subject of a series of Formal Performance Improvement Plans (‘PIPs’). These were initiated and conducted by Ms Mulrine, the claimant’s BT line manager.

17. The first PIP document was dated 6 April 2009 and identified poor interaction, lack of enthusiasm, and other difficulties with the claimant’s work. The claimant was advised that her calls would be monitored in accordance with the plan and that targets were set. She was advised in writing that if the targets were not met by the review date the plan would move to an initial warning stage. The claimant signed the PIP document and there is no record or evidence of her ever having disputed its contents.

18. The second PIP document was dated 11 May 2009. It identified poor interaction, poor voice tone, not completing actions as promised, unclear resolution at call closure and not escalating matters where appropriate. The PIP document recorded Ms Mulrine’s comments:-

“Deirdre has been on a performance plan for approximately 11 weeks now, four weeks in formal coaching plan, four weeks formal plan and three week plan. Unfortunately I can see no marked improvement throughout this period despite receiving weekly feedback. I will continue to work with Deirdre, however I expected to see some improvement during this and past monitoring periods.”

The PIP document concluded by stating:-

“If targets are not achieved by the review date the formal plan will move to the next stage, written warning.”

19. The claimant signed that PIP document and again there is no record or evidence of her ever having disputed its contents.

20. The next PIP document was dated 22 June 2009. It referred to, again, poor interaction, poor voice tone, not taking ownership, not following through on actions and unclear resolution at call closure. It stated that all these issues had been discussed with the claimant and that she had declined any offer of ad hoc coaching as she stated that she understood the process. Again it set out targets and a review date. It concluded by stating:-

“If targets are not achieved by the review date, the formal plan will move to the next stage, written warning.”

The claimant signed this document and again there is no record or evidence of her ever having disputed its contents.

21. The next PIP document was dated 20 July 2009. It stated:-

“This is now Deirdre’s final stage of the Performance Management Process. The PIP will last two weeks and eight calls will be monitored.”

It referred to continuing difficulties with her performance and stated that:-

“I’ve spoken with Deirdre on several occasions and highlighted my concerns regarding her voice tone and lack of ownership.”

It dealt in detail with a series of calls and commented on the claimant’s performance in those calls. The document stated:-

“This was a four week maintenance plan to ensure Deirdre’s noted improvement was a consistent one. Deirdre recently completed a two week PIP where the target was six gold or higher, five gold and three silver were awarded. As Deirdre just fell shy of the target I placed her on this four week plan. Unfortunately in Week 3 it was identified that the improvement was not consistent as three calls out of six resulted in silver awards. This is 50% of calls monitored being below target. In light of this I’m placing Deirdre back on a two week PIP. She clearly understands that if the set target is not met a decision will be made about her employment.”

The claimant’s signature appears immediately below the quotation set out above. Again, there is no record or evidence of the claimant ever having disputed the contents of this document or the validity of the criticisms made about her.

22. The next PIP document was dated 3 August 2009. This document stated that:-

“Deirdre needs to show she can be relied upon to consistently provide a high level of service – during two week PIP Deirdre failed to promote NDD – poor call control led to a customer becoming frustrated and led to an approximately 25 minute call.”

Again the claimant signed this document and there is no record or evidence of her ever having disputed its contents.

23. The final PIP document was dated 24 August 2009 and again records difficulties. This document was not signed by the claimant.

24. The claimant’s position throughout the tribunal hearing was that she did not realise how serious matters were in relation to her performance; she had not been given sufficient opportunity to improve and that if it had been made clear to her how serious matters were, she would have improved. She stated that she would have:-

“Bucked her ideas up.”

25. The basis of this argument was that, while the Performance Management Process was proceeding with BT, there had been no parallel disciplinary process undertaken by Manpower. However, the claimant had signed the 20^th of July 2009 PIP document which recorded:-

“She clearly understands that if the set target is not met a decision will be made about her employment.”

The tribunal therefore concludes that the claimant was fully aware, at the latest in July 2009, that her poor performance was putting her continued employment in the BT Call Centre at risk.

26. On 8 September 2009, Ms Mallon, the contracts manager in Manpower, invited the claimant to attend a disciplinary hearing in relation to her performance. This was to be a meeting at Stage 4 of Manpower’s internal procedure which carried a sanction up to and including dismissal.

27. The claimant argued that she had not been the subject of any disciplinary warnings as required before Stage 4 could properly be reached under the terms of the procedure.

28. Mr Johnston, the third-named respondent, informed the claimant that she had received the necessary warnings and provided copies of those warnings which had apparently been signed by the claimant. The claimant disputed the authenticity of these documents.

29. On 16 September 2009, the claimant lodged a grievance with Manpower alleging that she had never received the necessary disciplinary warnings.

30. The claimant was invited to an initial disciplinary hearing on 29 September 2009 with Ms Mallon. Ms Mallon discussed the claimant’s performance during two telephone calls she had handled on behalf of the client, BT PLC, at the call centre. At the end of the meeting the claimant was suspended on full pay for continuing poor quality after failing her PIP.

31. The claimant’s grievance was dealt with separately at a meeting on 5 October 2009. The claimant was represented by a Mr Gavin McDaid and the meeting was conducted by Ms Mallon. The claimant made it plain that her position was that she had not been aware of any warnings under the disciplinary process. Ms Mallon showed the records of the warnings which apparently bore the claimant’s signature. The claimant stated to Ms Mallon:-

“Yes it is my signature but I’ve never seen them before.”

The claimant also stated in relation to her performance that:-

“I knew I wasn’t doing the best I should.”

32. At the close of the meeting, Mr Bell asked what codes had been recorded for the claimant when the meetings allegedly took place at which the warnings were supposed to have been given. Those codes refer to the entries which might have been recorded in respect of the claimant under the time-recording system to show her attendance at a meeting with Mr Johnston to receive the warnings.

33. Ms Mallon’s evidence was that following her grievance meeting with the claimant she had spoken to Ms Mulrine, the BT line manager, and with Mr Johnston, the Manpower line manager. Mr Johnston had assured her that the warnings had been issued and received. She had telephoned BT to check whether the codes for the claimant’s relevant days would be available. She had been told that BT’s records they may well not be accurate and that they could not be provided. She accepted this and did not follow it up in writing. Ms Mallon stated that she was satisfied that she had done enough to investigate the matter at this stage and that she had had no reason to doubt that the claimant had received disciplinary warnings. The claimant had identified her signature on the warnings acknowledging receipt. Ms Mallon had not checked the calendar to ascertain whether any of the dates shown on the warnings were non-working days and it would not have been her practice to do so.

34. Ms Mallon wrote to the claimant on 5 October 2009 stating that she had decided not to uphold her grievance. Ms Mallon stated that she had investigated the allegation that the claimant had never received copies of any warnings or attended meetings in regard to the disciplinary process but had been provided with copies of the letters on file which verified that the meetings had taken place and that she had checked the signatures and the signatures had been verified by the claimant.

35. On the same date, 5 October 2009, the claimant was invited to attend a disciplinary meeting, initially set for 7 October 2009.

36. There followed a telephone conversation between Ms Mallon and Mr Bell, the claimant’s representative. Ms Mallon became upset at Mr Bell’s tone and stated that he had in fact been aggressive and patronising during that telephone call. She was not prepared to deal with Mr Bell at the disciplinary hearing and did not want him to represent the claimant. This particular issue is no longer relevant to this case since any allegation of unlawful discrimination against Ms Mallon was withdrawn at the end of the tribunal hearing.

37. The claimant lodged an appeal against the outcome of her grievance on 9 October 2009. She referred in that grievance to what she described as ‘the lack of professionalism’ displayed by Ms Mallon and her ‘cavalier dismissal of my allegation without an apparent serious investigation’. She also pointed out that Mr Johnston, who had recently been promoted, was senior in rank to Ms Mallon and that she should not have continued to investigate the allegations into Mr Johnston when she was now subordinate to him.

38. The grievance appeal was heard on 17 November 2009 by Ms Justine Dyson, the employee relations manager in Manpower.

39. Following the grievance appeal meeting, Ms Dyson conducted further enquiries, including interviews with Mr Johnston. Following those interviews and her further enquiries, Mr Johnston was suspended from duty pending disciplinary proceedings. He resigned before those disciplinary proceedings could take place; but the disciplinary proceedings proceeded in his absence and Manpower concluded that he had been guilty of gross misconduct in falsifying documents and altering records to establish that the claimant had in fact received disciplinary warnings and had attended disciplinary meetings when that in fact had not been the case. The date of Mr Johnston’s resignation was 10 February 2010.

40. On 26 February 2010, Ms Dyson wrote to the claimant with the outcome of her grievance appeal. She stated that she had been satisfied from her investigation that records of the disciplinary proceedings had been fabricated. She stated that she was not satisfied that Ms Mallon had displayed a cavalier approach in her investigation of the initial grievance. She did find it had been inappropriate for Ms Mallon to carry out an investigation into allegations against an employee who was senior to her; but that Ms Mallon had done so on instructions.

41. It is clear that at some point, BT PLC, following the PIP process which had been conducted by their manager, Ms Mulrine, instructed Manpower that they did not want the claimant to continue on the contract. The claimant felt that this occurred in September 2009. The respondents’ position was that it occurred in January 2010. It does not appear to the tribunal to be of any significance. It is clear from the contractual provisions, and as a matter of common sense, that BT PLC, like any client of an employment agency, was entitled to request Manpower to remove any particular employee from a site. It was not within Manpower’s power to ignore such an instruction.

42. The uncontested evidence from Ms Dyson was that that Manpower had tried on two separate occasions to persuade BT PLC to change their mind in relation to the claimant and to allow Manpower to return the claimant to her post in the BT Call Centre for further performance management, given, in particular, the actions of Mr Johnston. Those requests were unsuccessful and on 12 March 2010, Ms Dyson wrote to the claimant to confirm that BT PLC had requested that she be removed from her assignment in the call centre.

43. The claimant resigned in an undated letter in April 2010. She stated that:-

“Your continued refusal to provide me with the full details of your investigation into my grievance together with the names of the BT managers who had instructed my removal from their contract and the reasons for so doing have resulted in my loss of faith in the obligation of mutual trust and confidence in the contractual relationship. I therefore resign with immediate effect and will seek to claim constructive unfair dismissal at an industrial tribunal.”

Decision

Constructive unfair dismissal

44. The evidence given by the claimant in this respect was confusing. She gave several different reasons for her decision to resign. She stated at one point that she felt that Manpower, having dismissed Mr Johnston, had not gone far enough. To her mind, Manpower should have gone further and examined his behaviour in relation to every other employee with whom he had contact. This, firstly, was not an issue which had been raised in the pleadings or indeed in her witness statement and was in any event, in the tribunal’s view, an unreasonable position for the claimant to adopt. The claimant also stated that simply having to appeal against the initial decision on the grievance had undermined her trust and confidence in Manpower and this had led her to resign. She further suggested that she was obliged to resign because there was nowhere else for her to work for Manpower in the Derry area. Finally, in oral evidence, she stood over the statement in the April 2010 letter that it was in fact the refusal of Manpower to disclose documents in relation to the grievance appeal and the failure to identify the BT managers who had requested her removal, which had led her to resign.

45. The tribunal’s conclusion is that these reasons, taken separately or together, cannot amount to a proper basis for a constructive unfair dismissal claim. As indicated in the case law, referred to above, it is for the claimant to establish some form of repudiatory conduct on the part of Manpower. She has to establish conduct which, objectively viewed, indicates that Manpower wanted to bring the employment relationship to an end and to repudiate the employment contract. The fact that a grievance appeal was afforded and was determined in her favour cannot on any logical basis amount to repudiatory conduct or form part of repudiatory conduct. The fact that Manpower investigated, on the grievance appeal, Mr Johnston’s activities, and pursued disciplinary action against him; even after he had resigned, cannot be regarded as repudiatory conduct. If it shows anything, it shows how seriously Manpower were treating the issues raised by Mr Johnston’s conduct. As far as providing further details of the grievance investigation is concerned, it is clear that Manpower were operating under some constraint. It would not have been appropriate for them to have disclosed details of pending disciplinary action against Mr Johnston or details of disciplinary action against any employee to another employee. Equally, there is no contractual or other right to open disclosure of all grievance investigation documents. The fact that such documents were not openly disclosed and the fact that the BT managers were not identified to the claimant or to Mr Bell cannot amount to repudiatory conduct on the part of Manpower.

46. Therefore, the unanimous decision of the tribunal is that the constructive unfair dismissal claim must fail.

Sex discrimination

Daniel Johnston

47. Mr Johnston did not respond to the claim and took no part in these proceedings. The tribunal cannot be sure that Mr Johnston, who obviously no longer works for the first-named respondent, has ever received these proceedings or that the address given for Mr Johnston is current. Nevertheless the presumption is that documents sent to Mr Johnston’s last known address were received.

48. That said, it is clear from the evidence before the tribunal, that Mr Johnston was guilty of gross misconduct. On the evidence before the tribunal, he falsified documents and computer records. There is, however, absolutely no evidence to establish any element of sex discrimination in his actions. The claimant was asked, on more than one occasion, why she felt that Mr Johnston’s behaviour was motivated by gender. She stated that she felt that this was the case because he was a man in authority and she was a woman. This belief of the claimant, entirely unsupported by any evidence, is simply not sufficient for a tribunal to draw an inference of unlawful discrimination. There was no evidence of any sort of any other inappropriate behaviour on the part of Mr Johnston and no evidence of any male employee being treated differently in analogous circumstances.

49. There is also a time-limitation issue in relation to Mr Johnston. The misconduct on the part of Mr Johnston occurred in August and September 2009 and the complaint of unlawful discrimination was not lodged in the tribunal until 20 May 2010. The claimant was obviously aware from September 2009 that Mr Johnston had falsified documents. The tribunal has heard no satisfactory explanation of her failure to lodge proceedings within the three month statutory time-limitation period.

50. The tribunal therefore concludes the complaints against Mr Johnston are out of time and therefore outside the jurisdiction of the tribunal. If the tribunal is incorrect in its conclusion in this regard, there is in any event no evidence on which a tribunal could reasonably infer sex discrimination such as to shift the burden of proof onto Mr Johnston. There is a prima facie case of misconduct but not a prima facie case of sex discrimination.

51. The complaint of unlawful sex discrimination against Mr Johnston is therefore dismissed.

Manpower

52. Mr Bell withdrew the complaints against Ms Mallon. Ms Dyson thoroughly investigated the claimant’s appeal against Ms Mallon’s original decision. The tribunal should say, at this point, that it is satisfied, that in all the circumstances, Ms Mallon had made a reasonable effort to properly investigate the claimant’s grievance. She can hardly be faulted for accepting Mr Johnston’s word that warnings were given when confronted with what were clearly the claimant’s signatures on the relevant documents. Against the background of a employee who was clearly performing poorly over a consistent period, it was reasonable for her to assume that the warnings had been given, as stated by Mr Johnston, in the absence of any evidence to the contrary.

53. There is absolutely no evidence of any action on the part of Manpower or its employees which would allow a reasonable tribunal to draw an inference of unlawful sex discrimination. Mr Bell argued that there had been procedural failings which pointed to sex discrimination. In particular, he argued that Mr Johnston should have participated in the PIP process and should have countersigned the documents. The evidence of the respondent was that this procedural step was not a requirement and was often ignored. There was no evidence to rebut that evidence of the respondent. In any event, there is nothing to suggest that any alleged procedural defect had any link with gender. The initial actions of Mr Johnston, on the evidence before the tribunal, were clearly reprehensible; but there is nothing to point towards gender being the motive. The claimant complains of a lack of transparency and delay on the part of the Manpower. However, the matters raised by Mr Johnston’s conduct and by the claimant’s grievance had not been easy to resolve. The disciplinary process against Mr Johnston had to be determined before the claimant could be kept up-to-date with developments. Once that had been completed, the outcome of the grievance appeal was promptly notified to her and all necessary information provided. The claimant, for whatever reason, chose to resign from Manpower before allowing Manpower an opportunity to try to place her elsewhere or to seek some other resolution of the matter. Manpower tried, on two occasions, to persuade the client, BT PLC, to allow the claimant to return to the call centre for further performance management. Manpower cannot be faulted because those efforts were unsuccessful. BT PLC took the view that the performance of the claimant was unlikely to improve after the already lengthy efforts made in that respect had been unsuccessful and there is no obvious evidence of sex discrimination in any of that.

54. The complaints of unlawful sex discrimination against Manpower must therefore fail.

Vice President:

Date and place of hearing: 8 – 9 August 2011, Belfast

Date decision recorded in register and issued to parties:

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Industrial Tribunals Northern Ireland Decisions