Francis v Dental Aesthetics Ltd [2012] NIIT 02225

THE INDUSTRIAL TRIBUNALS

CASE REF: 2225/11

CLAIMANT: Annamarie Francis

RESPONDENT: Dental Aesthetics Limited

DECISION

The unanimous decision of the tribunal is that the claimant has not been dismissed by the respondent as defined under Article 127 of the Employment Rights (Northern Ireland) Order 1996 and dismisses the claimant’s claim of unfair dismissal. The respondent shall pay the claimant £732.35 in respect of holiday pay outstanding to her on termination of her employment.

Constitution of Tribunal:

Chairman: Ms M Bell

Members: Ms B Heaney

Ms N Wright

Appearances:

The claimant appeared and was represented by Mr Brian Monaghan.

The respondent was represented by Mr Sheridan of Peninsula Business Services Ltd.

1. The claimant complained that she had been unfairly dismissed by the respondent, by way of constructive dismissal, as a result of the handling of her grievance and appeal and that monies were owed to her. The claimant set out that after she had raised a grievance against her direct line manager, she was assured it would warrant a full and fair investigation. When her grievance was dismissed the respondent refused to hand over the statements she needed to form her appeal. Statements issued preceded her grievance and had no bearing upon it. Despite repeated requests she was not given the investigation report or individual statements relied upon so blocking her right to appeal. The claimant indicated her wish to appeal but that this was not possible without the documentation sought. The respondent proceeded with an appeal hearing which the claimant did not attend because of the lack of documentation and it dismissed the appeal in her absence despite her not actually lodging her appeal and she felt she had been forced to resign by the statements provided by unnamed colleagues and continued delaying tactics after her grievance.

2. The respondent in its response denied the claimant’s claims. The respondent acknowledged that it is a term of the claimant’s contract of employment that any grievance raised will be investigated thoroughly and answered in a full and considered way in line with its grievance policy. It also set out that in her appeal the claimant requested notes of meetings/interviews with staff members that had not taken place, the respondent explained that there were no such documents, and they were therefore not being withheld.

3. It was agreed at hearing that the claimant was employed by and the correct title for the respondent is Dental Aesthetics Limited. The title of the Respondent is accordingly amended from ‘Collon Dental Care’ to ‘Dental Aesthetics Limited’.

4. It was agreed at hearing that the claimant was entitled to £732.35 in respect of holiday pay at the date of termination and the respondent confirmed that it had arranged on 15 February 2012 for this payment to be transferred directly to the claimant.

ISSUES

5. The issues to be determined by the tribunal were:-

· Was the claimant dismissed? If so,

· Was the claimant unfairly dismissed?

SOURCES OF EVIDENCE

6. The tribunal considered the claim, response, agreed documentation from the parties and heard oral evidence from the claimant, Ms Ann Crawley the respondent’s operations manager and Dr Khalid Hussain, joint owner of the respondent company.

FINDINGS OF FACTS

7. The claimant was employed on 1 September 1997 as a dental surgery assistant by two dentists in partnership in a dental practice known as Collon Dental Care in Londonderry. Around 2008/2009 Collon Dental Care was purchased by Dr Hussain and his wife, their partnership subsequently incorporated at the beginning of 2011 and the claimant’s employer became Dental Aesthetics Limited. The respondent has three dental practices, two in Londonderry and one in Holywood.

8. Dr Hussain works as a dentist mainly in his Holywood and other practice in Londonderry known as Foyle Dental Spa.

9. Collon Dental Care is a managed dental practice with three dental surgeries which employs three dentists and approximately six full and part time staff including the claimant and a practice manager, Ms Erin Wright.

10. The claimant’s contract of employment and employee handbook provide for a grievance procedure to be followed where an employee feels aggrieved at any matter relating to their employment. The employee handbook also contains a personal harassment policy and procedure. The respondent in its response acknowledged that it is a term of the claimant’s contract of employment that any grievance raised will be investigated thoroughly and answered in a full and considered way in line with its grievance policy.

11. In April 2010 the claimant returned to work after a period of sick leave, new staff uniforms had been introduced by the respondent in her absence.

12. On 3 September 2010 Ms Crawley began a new job as a senior manager for the respondent, based in its Foyle practice.

13. On the morning of 12 October 2010 the claimant gave evidence that she was approached by Ms Wright, with whom she had worked for around nine years, and asked what was the problem as she had been very quiet for a couple of weeks, in response to which she raised with Ms Wright a number of work issues which she was unhappy about relating to the cleaning of toilets, new uniforms, the rotation of dental nurses between dental surgeries and removal and failure to replace stock in surgeries by staff.

14. The conversation between the claimant and Ms Wright broke down and ended with Ms Wright upset and stating that she would not be dealing with matters anymore.

15. On the morning of 12 October 2010 Dr Hussain received a telephone call from Ms Wright who was extremely upset and crying, she told him that there had been an incident with the claimant, that she felt she could not cope and asked could he give her assistance. Dr Hussain did not understand what had happened to make Ms Wright so upset and so arranged for Ms Crawley to look into what was going on.

16. The claimant gave evidence that she did not want any ill feeling and tried to speak to Ms Wright again after lunch at which point she was told that Ms Crawley was going to deal with matters.

17. At 3.30 pm on 12 October 2010 Ms Crawley arrived at the Collon practice, she was new to her job and did not know any of the staff there well. Before Ms Crawley spoke to the claimant she was approached by other staff members who asked if they could have a word with her, she told them she wanted to have a word with the claimant first and would speak to them afterwards.

18. Ms Crawley went into the surgery where the claimant was, she asked to speak with her and if she could record the conversation, the claimant agreed. A typed transcript of the conversation between Ms Crawley and the claimant was included in the agreed bundle of documentation provided and was accepted to be accurate. Ms Crawley asked questions of the claimant to ascertain if the claimant had a grievance with Ms Wright, the claimant was somewhat taken by surprise by the meeting and became upset so Ms Crawley suggested they adjourn the meeting for the claimant to have a think and they could then organise another meeting. No specific examples of unfair treatment or complaints were raised by the claimant about Ms Wright in the course of the meeting. Ms Crawley referred at two stages during the meeting to other staff wanting to talk to her and that there may have been incidents about attitude, that she would have to speak to the other staff and see if there was anything she would have to come back to the claimant about to discuss. Ms Crawley also referred the claimant to the respondent’s grievance procedure in the employee handbook. The meeting closed with Ms Crawley and the claimant agreeing to meet again two days later.

19. Later that afternoon Ms Crawley spoke individually with three members of staff asking each of them questions to ascertain how they thought Ms Wright performed as a manager, whether they had noticed any unfairness at the practice and how they felt the atmosphere at the practice was. A fourth staff member was asked the same questions on the following day, 13 October 2010, by Ms Crawley. Ms Crawley took notes of each of her conversations and from these prepared typed witness statements. In general the statements were complimentary of Ms Wright and her performance as a manager but indicated that the atmosphere in the practice was not good and attributed this to the claimant and her mood.

20. The claimant was due to work on 13 and 14 October 2010 but phoned in sick.

21. On 15 October 2010 the claimant wrote a letter to Dr Hussain raising a grievance,

‘with regard to the way I am being continually treated by Erin Wright. The way she speaks to me constitutes harassment and bullying.

A[p]prox 5/6 weeks ago the following happened:

After working hours, Heather was intending to treat her family member and despite me doing exactly what was instructed of me by the dentist, Erin accused me at reception of causing a deliberate delay in getting the patient treated.

This made me feel humiliated, especially as I was doing this as a favour to the dentist and not as part of my contractual duties.

Since then there have been numerous other incidents where I have felt degraded and humiliated by the way I have been treated and spoken to by Erin- both privately and publicly.

Whilst each and every incident taken alone may not look overly serious, these individual incidents have built on previous incidents and have left me in a position where I am not comfortable dealing with her. The combination of all these incidents resulted yesterday in the following:

While carrying out my normal duties on my own in the surgery, I was approached by Erin and asked if was everything ok. This was out of the blue because the dentist was off sick and I had worked on my own all morning having no conversation with anyone prior to Erin entering the surgery. Erin then started to say that I had been quiet and distant and that I had an ‘‘attitude’’- a point which had seemingly been discussed openly with the other nurse, and also made reference to the fact that I had declined to attend the last 2 social events organised with other practice staff.

This was a complete shock to me as I have worked for the company for 13 years and never before has anyone ever mentioned my attitude. In relation to the social events I do not think this should have any relevance to my work and my reasons for not attending are personal.

Erin left me in no uncertain terms that the company was not happy. On reflection, I was annoyed at the issue[s] that were presented to me and so after lunch I approached Erin for a private discussion to clarify the issues that she had brought up.

I asked Erin if we could talk in private and we went into the downstairs surgery. I told her how I was feeling and that I felt I was being treated unfairly, Erin told me it was all in my head and that I was going round in circles. Erin raised her voice and claimed that I was not the fastest nurse, and that she had a list of unfinished duties that I had not carried out. On request, Erin was unable to produce such a list and got extremely agitated – strenuously insisting that she was an extremely good manageress and that I was tarnishing her reputation. Erin finished the discussion by saying that she was not dealing with this issue anymore and that it was to be passed to another manager.

Around 3.30 pm, Ann arrived in surgery 2 with Erin, at which point Erin left us alone together. Ann then produced a dictaphone to record our conversation and without asking for my consent, began to immediately ask questions referring to my behaviour and to the concerns raised by Erin (outlined above.)

I cannot really remember much of what was actually said, as I became extremely upset, but I do know that the outcome was that I was to list issues that could be investigated and addressed in relation to my working relationship with Erin.

.…’

The claimant concluded by stating that the matter was having a continual detrimental effect on her health and wellbeing and she wished for it to be fully investigated and resolved so she could continue to work for the company.

22. The respondent wrote to the claimant on 22 October 2010 acknowledging her letter and arranged to hear her grievance on 2 November 2010 and advised her of her right to be accompanied.

23. The claimant was absent from work between 15 and 25 October 2010 on
pre-booked holidays.

24. On 25 October 2010 the claimant submitted a sick line to the respondent for work related stress.

25. The respondent wrote to the claimant confirming that it would reschedule their meeting for after her return from sick leave and provisionally suggested 23 November 2010.

26. On 2 November 2010 UNISON wrote to the respondent on behalf of the claimant requesting a copy of the company’s grievance procedure and claimant’s contract. It was confirmed that subject to medical advice the claimant would attend the meeting on 23 November 2010, and requested given the nature of the grievance the claimant be redeployed to work in the Foyle dental practice until the matter was resolved. The respondent replied by letter to the claimant on 4 November 2010 agreeing to redeploy her and providing the documents requested.

27. On 22 November 2010 the claimant commenced working in Foyle Dental Spa.

28. The claimant accompanied by her union representative Ms Anne Donnelly attended a grievance meeting on 23 November 2010 with Dr Hussain and Ms Crawley who took minutes. Handwritten and typed minutes of the meeting were included in the bundle of agreed documents and were accepted as accurate. The claimant’s list of concerns included:-

· Conflict in communication between dentists and staff and mentioned an incident where the claimant went to the bathroom and a staff member was sent up from reception to cover as the dentist was un-chaperoned whereas the same thing happened later the same day in another surgery and the nurse was not covered.

· Accusation by Erin of making a patient in the waiting room wait when she tidied up while the dentist spoke to a family member the dentist had in the surgery, in accordance with the dentist’s instructions ,and that when she tried to explain Erin wouldn’t let her and spoke to her like a child.

· A similar incident with a patient after hours.

· Having to leave the surgery when stock runs low.

· An incident when she was free and asked if there was anything she could do and was made to clean the toilet and sweep the floor which she did not feel was appropriate.

· Having put in a holiday request form and withdrawn it a few days later she was told that it had not been approved because she had not filled in the form, when she said she had she was told if it was not on Erin’s desk it was not valid.

· The staff rotation which affected only two surgeries.

· That she did not need to be told twice to not have a phone in the surgery.

· That she felt Erin was different towards her since she came back from being sick. Erin spoke to her about being unhappy and told her everyone was walking on eggshells. Erin also spoke to her about not going out on social events even though she had been unwell around the time. Erin told her that she was not happy with her, that she was not the fastest nurse in the world and said that there was a list of duties she had not carried out, however the claimant had never seen or been given this list and the dentist seemed happy with her.

Dr Hussain told the claimant that he was sorry that she felt she had these issues, that it was his job to get to the bottom of it and it would assist him if he had specific times and dates or witnesses to help him with the investigations. The claimant agreed to think about the specifics for a day or two and to return to Dr Hussain to arrange a further appointment.

29. On 15 December 2010 Ms Crawley spoke to the claimant after becoming aware that she had been discussing her grievance against Ms Wright with staff at the Foyle practice, the claimant confirmed she had explained to the Foyle staff that she would not be going to the staff Christmas party because of her grievance against the manager. Ms Wright asked the claimant not to discuss the matter until they had come to a conclusion in view of the claimant having in a previous meeting expressed discomfort at the Collon staff talking about her and now the Foyle staff were discussing her and the respondent had done all it could to keep the matter confidential.

30. In the absence of any further detail being provided by the claimant to the respondent a grievance conclusion meeting was arranged and took place on 21 December 2010 with the claimant, Ms Donnelly, Dr Hussain and Ms Crawley in attendance to take notes. At the meeting Dr Hussain explained that they had carried out investigations, they had been typed up in a letter and that Ms Crawley would give the claimant them. Dr Hussain confirmed that it had been difficult to investigate as there had been no witnesses or specifics, and that he had found nothing to substantiate the issues raised. Dr Hussain then suggested that having watched the claimant at work in Foyle as things were unfavourable at Collon it was best that she be placed there permanently to work, the claimant asked was she not going back to Collon and Dr Hussain replied as ,‘things are unfavourable for you in Collon she would do well here’. The respondent in response to the claimant’s questions confirmed that Ms Crawley did all the interviews ,that ,‘5-6 individuals’ were interviewed and the points raised at the grievance were addressed, that dentists were not interviewed but if she needed them to they could go back and do more interviews. The claimant and her union representative arranged to read over the grievance conclusion letter and to return to the respondent with any questions. The tribunal find that Dr Hussain simply put a proposal to the claimant that she consider a move to Foyle as a possible solution in the circumstances and that this was not an instruction in respect of which she had no choice.

31. The respondent in the grievance conclusion letter given to the claimant on 21 December 2010 stated, ‘I have interviewed most of the staff to get a fair overview of what may have happened as you failed to produce any specific witnesses or dates.’ The respondent’s findings on six matters of concern identified were set out and the conclusion for each was that the respondent could not find sufficient grounds to substantiate the claimant’s grievance. The findings detailed made reference to confirmation having been given or matters having been recollected by staff members or explanations given by the manager. The letter concluded advising the claimant of her right of appeal within 3 days.

32. On 22 December 2010 the claimant submitted a sick line and wrote to the respondent that further to the letter on the outcome of her grievance she wished to discuss matters arising and would like to meet Dr Hussain together with her union representative to discuss the situation.

33. A letter was sent by the respondent to the claimant on 17 January 2011 asking her to indicate whether she was fit for a meeting prior to her return to work from sick leave, or wanted to meet on her return, and to indicate the issues she wished to discuss.

34. On 7 February 2011 the claimant wrote to the respondent requesting an appeal to the grievance outcome ‘in the form of a personal hearing with any witnesses to attempt to substantiate the facts at issue in my case.’ The claimant requested that the appeal be held before her return from sick leave.

35. The respondent wrote to the claimant on 14 February 2011 confirming that her appeal would be heard on 3 March 2011 and asked her to ‘inform me of any witnesses you wish to bring to the meeting in advance…’

36. The claimant replied by letter on 1 March 2011 requesting that the appeal hearing be suspended until she ‘received the full file relating to the investigation by you into my grievance.

I have had no opportunity to view statements or documents that you have used to reach your decision and would need a reasonable time period to review this before the meeting is reconvened..’ and requested any other information taken into consideration for the respondent’s findings.

37. By letter dated 18 March 2011 the respondent wrote to the claimant advising that her appeal would now be heard on 31 March 2011 and in the same terms as its letter of 14 February 2010 asked that she inform the respondent of any witnesses she wished to bring to the meeting in advance. Evidence was given by the claimant and the tribunal find despite there being no direct reference to them in the letter of 18 March 2011, that the four witness statements taken from staff on 12 and 13 October 2010 with the witnesses names removed, were forwarded to the claimant with this letter. The tribunal accept the respondent’s evidence that the four statements taken on 12 and 13 October 2010 did not form part of the grievance process and were not taken into consideration by Dr Hussain in coming to his conclusion, but were forwarded to the claimant after her request for the full file, on advice received by the respondent that they should be disclosed.

38. On 28 March 2011 the claimant wrote and pointed out that the statements forwarded to her were taken before her grievance and that she had not been provided with any statements or minutes taken following her grievance and again requested minutes and statements relevant to it. The claimant in particular requested minutes of meetings on 23 November and 21 December 2010, the transcript of her meeting with Ms Crawley on 12 October 2010 and a copy of the staff handbook. The claimant informed the respondent that she did not feel it appropriate for the appeal meeting on 31 March 2011 to go ahead as this information had not been provided.

39. The respondent wrote to the claimant on 24 April 2011 enclosing copy minutes of the grievance meeting, minutes of the grievance conclusion meeting, the finding letter given on 21 December 2010, the transcript of the meeting between the claimant and Ms Crawley on 12 October 2010 and a copy typed document referred to as the ‘grievance investigation as sent to you on 18 March. This investigation was carried out after the meeting on 23 November 2010’. The content of this document was the same as the grievance outcome letter save that staff names appeared to have been removed at the points where confirmation or recollections by staff members were referred to. The respondent stated it felt that the claimant had all the relevant information regarding the grievance and that it wished to reschedule the appeal meeting on 10 May 2011.

40. The claimant had a letter hand delivered to the respondent on 10 May 2011 stating that her attendance would be pointless as she could not regard the planned meeting that day as a properly constituted appeal and that ‘Despite requests, I have not been supplied with copies of the statements which you say were made by other staff members and which have been used against me. In these circumstances, it would be unreasonable to expect me to present my side of whatever story is contained in these statements: if I do not know the detail, I cannot respond.

I see your refusal to supply me with copies of the statements in question as a refusal to follow proper procedure to ensure fair play.

My experience of this process makes it impossible for me to contemplate returning to my position as dental nurse at Collon Dental Practice. I would like you to know that it has not been easy for me to accept this position. I have been an employee of the practice since September 1997. But I have been forced to conclude with great regret that my continued employment with the Collon Practice has been made untenable….

I am sorry that we have arrived at this position. I have no wish to prolong the matter any further. At the same time, however, I must be mindful of my own rights and reputation and of my own interests in relation to finding future employment.

I would be interested in hearing any proposals you might have for resolving the matter in as speedy and amicable a manner as possible’.

41. The respondent replied by letter on 16 May 2011 referring to ‘the grievance investigation carried out on the 6 December 2010, where several members of staff were interviewed to obtain information for the points raised at your grievance meeting’, also the four pre- grievance statements which ‘were part of the ongoing grievance investigation.’ The respondent stated ‘I do not know of any statements you feel have not been disclosed to you. You have yet to produce evidence of times, dates or witnesses to your grievance and we have carried out as thorough an investigation as possible with the allegations you have provided.’ The respondent confirmed that the claimant was now in possession of all the minutes, transcripts and investigation records relating to her grievance and proposed to re-schedule the appeal meeting on 26 May 2011 and advised that if she should be unable to attend Dr Hussain would proceed to hold the appeal meeting in her absence and make a decision on the evidence available to him.

42. The claimant wrote to the respondent on 25 May 2011 referring it again ‘to statements taken from members of staff after my initial grievance meeting, these have not been supplied to me, yet you have assured me that you carried out an investigation and dismissed my complaint of bullying by Erin based on these.

Your refusal or failure to respond to the points I have made to you confirms that it would be unreasonable to expect me to return to work at the Collon practice. Please respond to my request for any proposals you might have for resolving the issue as painlessly as possible for all concerned.’

43. On 14 June 2011 the respondent wrote to the claimant outlining dates on which it considered that it had attempted previously to hold the appeal hearing which she did not attend because she kept referring to statements made by staff after her original grievance and continued ‘I have included twice now the details of investigation for this grievance. Due to the confidential nature of this process I have interviewed only relevant staff that could substantiate the evidence and I did not approach any other members of staff, as you failed to give me any witness names, times or dates to confirm your allegations.’ The letter confirmed that the appeal hearing was held on 26 May 2011 and the original decision that her grievance was not substantiated was upheld. The claimant was invited to attend a welfare meeting on 28 June 2011 to discuss anything the respondent could do to assist her in returning to work.

44. Applying the presumption that the respondent’s letter was delivered to the claimant in the ordinary course of post the tribunal find that the claimant received the appeal outcome letter from the respondent on 16 June 2011.

45. At no stage following the claimant raising her grievance was any documentary evidence produced to the claimant by way of notes or minutes of the interviews with each of the five or six witnesses confirmed by the respondent at the grievance outcome meeting as having been interviewed, with details such as who was present, the time and date of the interview, the questions put by the investigator in order to elicit relevant information and the actual responses given.

46. On 28 June 2011 a letter was delivered to the respondent from the claimant confirming that she would not be attending the welfare meeting as her experience of the last few months left her ‘in little doubt that nothing constructive would come from this meeting.’ The claimant stated that ‘the best course of action for myself is to tell you that I will not be returning to work at Foyle Dental Spa in the immediate future. It would be unreasonable in the circumstances which you have created to expect me to return. I inform you of this without prejudice to my rights in the matter which, of course, I retain.

I will in the meantime think on and take advice with regard to what I should do to remedy the situation in which I find myself’.

47. The respondent wrote to the claimant on 30 June 2011 and acknowledged that she was suffering from work related stress. The respondent stated that it would like to discuss how it could help accommodate the claimant’s return to work and requested her consent to approach her GP or a specialist who had treated her for a confidential medical report on the state of her health to enable it to properly assess her fitness for a likely return to work, the impact of her absence on its organisation and resources and whether there were any reasonable adjustments it might be able to make to assist her return to work. The respondent suggested meeting with the claimant on 4 August 2011. The respondent advised the claimant on her statutory rights regarding access to medical reports and explained once that process was complete it would arrange to meet and discuss the doctor’s findings and possible next steps with her. The respondent concluded ‘I trust you understand the reasons behind this letter, as we do have sympathy with your situation and I have no wish to worry you at this difficult time. However, we do need to consider the operational needs of the organisation and consider what decisions need to be made.

Consequently, I feel it is only fair to forewarn you that if the evidence indicates that you are unlikely to return to work in the reasonably near future we may, unfortunately, have to consider terminating your employment. I do hope this does not turn out to be the case.’

48. The claimant wrote to the respondent on 18 July 2011 stating that she resented the suggestion that she should agree to an approach to her GP or any specialist, and ,‘I have conveyed to you honestly what the state of my health is with regard to working at Collon Dental Care/ Foyle Dental Spa. The implication of your suggestion is insulting.

I do not believe that anything constructive could come from a continuation of this correspondence. You have been instrumental in creating a situation in which it would be unreasonable to expect me to return to work at Collon Dental Care / Foyle Dental Spa. I am therefore informing you now of my present position – that I will not be returning to work.

I inform you of this without prejudice to my statutory rights. I stress that I am not leaving because I want to but because the decision has been forced upon me.’

49. The respondent wrote to the claimant on 20 July 2011 expressing surprise at her resignation and asked her to make contact within five days if she wished to reconsider her decision, the claimant did not contact the respondent.

LEGISLATION

50. Under Article 126 of The Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.

51. Circumstances in which an employee is dismissed by his employer include at Article 127(c) of the 1996 Order if the employee terminates a 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.

52. Whether an employee is entitled to terminate his contract of employment is to be determined in accordance with contract law. It is established in case law that it is not enough for the employee to leave merely because his employer acted unreasonably but is a question of whether his employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or, which shows that the employer no longer intends to be bound by one or more essential terms of the contract.

53. Harvey on Industrial Relations and Employment Law /Division D1 Unfair Dismissal/3 discusses termination by the employee/constructive dismissal at paras [401]-[600] .At paragraph [403] Harvey sets out that in order for an employee to be able to claim constructive dismissal four conditions must be met:

‘(1) There must be a breach of contract by the employer. This may be an actual breach or anticipatory breach.

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

(3) He must leave in response to the breach and not for some other, unconnected reason.

(4) He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.’

54. Many forms of unreasonable conduct will constitute a breach of the implied term of trust and confidence in the employment contract and it is recognised that there is an implied duty such that the employer shall not without reasonable and proper cause conduct itself in a manner calculated and/or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee. Conduct needs to be repudiatory to breach the implied term of trust and confidence.

55. It is accepted that there is a general duty of co-operation on an employer and more specifically a duty to reasonably and promptly afford a reasonable opportunity to employees to obtain redress of any grievance they may have.

56. Harvey on Industrial Relations and Employment Law discusses the ‘last straw’ doctrine at paragraphs [480] to [481.1] and sets out :

‘[480]

Many of the 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. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the 'last straw' which causes the employee to terminate a deteriorating relationship.

[481]

A number of cases illustrate this, eg Garner v Grange Furnishing Ltd [1977] IRLR 206; Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347, [1981] ICR 666; and Lewis v Motorworld Garages Ltd [1985] IRLR 465, [1986] ICR 157, CA, where Glidewell LJ expressly commented that,

''… the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?''

[481.01]

However in Omilaju v Waltham Forest London Borough Council [2005] EWCA Civ 1493, [2005] IRLR 35, CA the Court of Appeal held 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 relatively insignificant. As a result, if the final act did not contribute or add anything to the earlier series of acts it was not necessary to examine the earlier history.’

57. Where the repudiatory breach is not the sole cause for the employee resigning, to claim constructive dismissal, the resignation must at least in part have been in response to the fundamental breach by the employer and the acceptance must be unequivocal.

58. It is important that an employee once aware of the breach of contract by his employer make up his mind soon after the conduct which he complains of if he is to resign and claim constructive dismissal because of it, as he will otherwise lose the right to treat himself as discharged and be considered to have waived the breach of his contract of employment. Either affirmation of the contract of employment or a waiver of a breach will defeat a constructive dismissal claim. A delay in resigning where the employee’s conduct is an attempt to remedy the grievance in accordance with the contract may be accepted as not affirming the contract, so long as the employee acts promptly once the employer’s behaviour has been clearly established.

59. Harvey sets out at paragraph [524] that, ‘There is no fixed time within which the employer must make up his mind. It depends upon all the circumstances including the employee's length of service … the nature of the breach, and whether the employee has protested at the change. Mere protest will not, however, prevent an inference that the employee has waived the breach, although a clear reservation of right might do so…’

APPLICATION OF LAW TO FACTS FOUND

On consideration of all the evidence before it and submissions made the tribunal find:-

60. The parties agreed that the claimant was still due £732.35 in respect of holiday pay following termination of her employment and the respondent confirmed at hearing on 15 February 2012 that payment had been transferred directly to the claimant’s bank account by it that day. If payment has not been received the respondent shall pay the claimant £732.35 in respect of holiday pay.

61. It is unclear whether the particular incident which the claimant left in response to was the respondent’s letter of 14 June 2011, received on 16 June 2011, or the respondent’s letter of 30 June 2011 whilst the claimant was ‘thinking on’ about her position.

62. Whilst a final act may not be blameworthy or unreasonable, it has to contribute something to the breach even if relatively insignificant. The tribunal considers that the respondent in its request to obtain relevant medical evidence to help assess matters was sensitive and reasonable in its approach, that it is incumbent on an employer to warn of the possible outcome of long term ill health absence and the respondent had reassured the claimant that this was not an outcome it wanted, that it had sympathy with her situation and no wish to worry her ‘at this difficult time’. The tribunal is not persuaded that the respondent’s letter of 30 June 2011 contributed, even relatively insignificantly, to the breach by the respondent. If the tribunal were to accept that the ‘last straw’ in response to which the claimant left was in fact the letter of 30 June 2011 and to follow OMILAJU V WALTHAM FOREST LONDON BOROUGH COUNCIL, then, as the final act did not contribute or add anything to the earlier series of acts the tribunal finds it would not be necessary to examine the earlier history and the claimant’s claim would fail.

63. If the tribunal however accept that the final act in response to which the claimant left was in fact the respondent’s letter of 14 June received on 16 June 2011, then, considering the four conditions required for an employee to be able to claim constructive dismissal in order:-

(1) There must be a breach of contract by the employer.

· There is an implied term in the contract of employment of trust and confidence and more specifically that the employer will reasonably and promptly afford a reasonable opportunity to their employee to obtain redress of any grievance they may have.

· The respondent acknowledged in its response that it was a term of the claimant’s contract of employment that any grievance raised would be investigated thoroughly and answered in a full and considered way in line with its grievance policy.

· There is no documentary evidence available in the form of witness statements or meeting notes despite reference to the five to six witnesses interviewed and upon which the respondent based its conclusions in the grievance outcome letter and which it would have been reasonable for the claimant to expect to exist to reassure her that the respondent had carried out a thorough investigation and that all appropriate information was objectively reviewed by Dr Hussain before arriving at the conclusions presented to her.

· When the claimant raised a reasonable request for statements upon which the conclusions were based to attempt to substantiate the facts at issue for her to appeal the decision made, the respondent did not address the legitimate point she raised but met her instead with requests that she inform it of any witnesses she wished to bring along in advance of the appeal hearing.

· The claimant continued to request the statements and documentation upon which the respondent had reached its decision on her grievance before proceeding with an appeal hearing so as to afford her fair opportunity to formulate her points for appeal.

· The respondent in its response to the claimant’s originating claim stated that the claimant requested notes of meetings/interviews with staff members that had not taken place and that it was explained that they were therefore not being withheld.

· There is no documentary evidence before the tribunal in which the respondent informs the claimant that the statements she was seeking ‘did not exist as no interviews had taken place’ save reference made in the appeal outcome letter that only relevant staff that could substantiate the evidence were interviewed and other members of staff were not approached .This does not however accord with the confirmation given to the claimant at the grievance outcome meeting and again at hearing by the respondent that five members of staff were interviewed in response to the claimant’s grievance or with references made to witnesses spoken to and upon which conclusions were based in the grievance outcome letter.

· The possibilities are that the respondent interviewed witnesses and omitted to take and retain witness statements / detailed minutes or that the respondent omitted to interview witnesses.

· Either way, the respondent then ploughed on with the appeal process without addressing the legitimate query the claimant had raised which it was clearly not then in a position to deal with because of its omission in its handling of the grievance investigation.

The tribunal are accordingly persuaded that the respondent in its handling of the grievance and appeal process breached its obligation to reasonably and promptly afford a reasonable opportunity to the claimant to obtain redress of her grievance, that without reasonable and proper cause it conducted itself in a manner likely to seriously damage the relationship of confidence and trust between it and the claimant in its handling of the grievance and appeal process and clearly breached the implied term of trust and confidence.

The tribunal are not persuaded that an express breach of contract has occurred in relation to the claimant being required to move work places, the tribunal find that a move to the Foyle Dental Spa was only a suggestion put to the claimant as a potential solution to matters, not a requirement being imposed upon her, whether or not her contract of employment is interpreted as requiring mobility in terms of her place of work.

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving.

The tribunal find that the respondent’s handling of the grievance and appeal process prevented the claimant from being able to deal with her appeal, culminating in the determination of the appeal in the claimant’s absence, and was a block to her returning to work. The tribunal is satisfied that the breach of the duty to redress grievances and implied term of trust and confidence went to the root of the employment relationship between the claimant and respondent and were of sufficient importance to justify the claimant resigning.

(3) He must leave in response to the breach and not for some other, unconnected reason.

· There may be a number of reasons for which an employee decides to resign and provided the fundamental breach by the employer was at least in part the effective cause, and the acceptance unequivocal, this will not prevent a constructive dismissal arising.

· In her evidence the claimant stated that she considered her contract of employment to have been breached by her being moved away from Collon after thirteen years, away from the patients and dentists she knew, because of the way she was being treated by the staff who had written statements that were untrue about her, and that what had happened there was not her doing.

· In her letter of resignation the claimant indicated insult at the suggestion of a report on her health having, ‘conveyed to you honestly what the state of my health is with regard to working at Collon Dental Care/ Foyle Dental Spa’ and that the respondent had, ‘been instrumental in creating a situation in which it would be unreasonable to expect me to return to work at Collon Dental Care / Foyle Dental Spa’.

· In her evidence the claimant referred to the warning by the respondent in its letter of 30 June 2011 that it may have to consider terminating her employment and that she, ‘was kind of given no option then to resign’ as she could not go back into the workplace with the way that she considered that she had been treated over the last few months and the respondent having indicated that it might have to consider terminating her employment.

· From the evidence presented the tribunal considers the effective cause of the claimant resigning was as a result of the content of the statements made by other staff members on 12 and 13 October 2010 to Ann Crawley about the claimant prior to the claimant raising her formal grievance which the respondent had revealed to her in response to her ongoing requests for statements used in her grievance investigation. The claimant in her evidence said the statements ‘totally devastated me’ and that she considered them ‘defamatory of her character’ and ‘vindictive’.

· The claimant in her letter of resignation referred to the respondent being instrumental in creating a situation in which it would be unreasonable to expect her to return to work at Collon Dental Care/Foyle Dental Spa.

· The tribunal accepts that the respondent’s handling of the grievance process inevitably contributed to the claimant’s realisation of the extent of the breakdown in her relationship with her other colleagues but is satisfied that the statements were taken with just cause in consequence of the incident between the claimant and Ms Wright on 12 October 2010 by Ms Crawley to try to find out whether there was a management issue behind what had happened that day and likewise that the respondent with just cause shared the pre-grievance statements with the claimant in response to the request by her for her full file and on advice that it ought to disclose them.

· The respondent is not responsible for the content of the statements which the claimant found offensive, questions put were neutral, open and queried the practice manager’s performance and atmosphere in the practice, the questions put by the respondent were not directed specifically at the claimant.

· The respondent is however responsible for failing to go about its investigation of the claimant’s subsequent grievance in a way so as to satisfy the claimant that her grievance had been genuinely and properly investigated, that relevant information was then reviewed objectively before a decision was made, and so as to allow her proper opportunity to appeal, and in so doing damaged the claimant’s trust and confidence in the respondent.

On balance, whilst the tribunal accept that the claimant’s resignation was, at least in part, in response to the respondent’s fundamental breach arising from its handling of her grievance it is not satisfied that her acceptance of the fundamental breach was unequivocal.

(4) He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.

· The tribunal is mindful that there is no fixed time within which an employee must resign, also of the claimant’s long service, that the breach by the respondent was one undermining of the claimant’s trust and confidence in the respondent, that the respondent’s breach was made up of a series of acts culminating with the letter of 14 June 2011, that the breach concerned in the claimant’s words a ‘refusal to follow proper procedure’ and was apparent to the claimant for some time. The tribunal consider the breach in this case was of the sort where, when it became clear that it would not be remedied, that the claimant might be expected to make her mind up relatively quickly after a reasonable opportunity to weigh up the potential consequences.

· The claimant on 10 May 2011 stated that her ‘experience of this process makes it impossible for me to contemplate returning to my position as dental nurse at Collon Dental Practice. I would like you to know that it has not been easy for me to accept this position. I have been an employee of the practice since September 1997. But I have been forced to conclude with great regret that my continued employment with the Collon Practice has been made untenable.’ In her letter of 25 May 2011 the claimant said ‘[y]our refusal or failure to respond to the points I have made to you confirms that it would be unreasonable to expect me to return to work at the Collon practice.’

· The claimant confirmed that her position was untenable before the 16 June 2011 although she reserved her position and the tribunal is satisfied that it was reasonable for her to remain and to allow the respondent the opportunity to remedy the breach up until the appeal outcome was communicated to her on 16 June 2011. The tribunal find that it became absolutely clear to the claimant on 16 June 2011 that her grievance and respondent’s breach would not be remedied at that stage.

· On 28 June 2011 the claimant stated in her correspondence that ‘the best course of action for myself is to tell you that I will not be returning to work at Foyle Dental Spa in the immediate future. It would be unreasonable in the circumstances which you have created to expect me to return. I inform you of this without prejudice to my rights in the matter which, of course, I retain. I will in the meantime think on and take advice with regard to what I should do to remedy the situation in which I find myself’. The claimant wrote her letter of resignation almost three weeks later on 18 July 2011, that is, four and a half weeks after the ‘last straw’ letter on 16 June 2011.

· The claimant gave very clear confirmation as early as the 10 May 2011 and again on 25 May 2011 that she would not be returning to her position at the Collon dental practice and the tribunal considers this places the claimant in a position where she might be expected to make up her mind quickly when it became absolutely clear on 16 June 2011 that the respondent’s breach would not be remedied. On 28 June 2011 the claimant confirmed that she would not be returning to work at Foyle Dental Spa in the immediate future and reserved her rights and indicated that she would think on and take advice. The claimant was clearly aware of the respondent’s fundamental breach and the tribunal taking into account the claimants reservation of rights consider that she, certainly by 28 June 2011, had had a reasonable period of time to consider the consequences if she were to accept the repudiation. The claimant however waited more than four and a half weeks after the ‘last straw’ until she accepted the repudiation.

On consideration of all the evidence before it the tribunal are satisfied on balance that the claimant has not acted sufficiently promptly in accepting the fundamental breach by the respondent, but that her delay in waiting over four and a half weeks is too long and in effect amounts to a waiver of the repudiation by the respondent.

CONCLUSION

64. The tribunal is not persuaded on a balance of probabilities that the claimant has terminated the contract under which she was employed in circumstances in which she was entitled to terminate it without notice by reason of the respondent’s conduct. It is the unanimous decision of the tribunal that the claimant has not been dismissed as defined in Article 127 of the 1996 Order and dismisses the claimant’s claim of unfair dismissal. The respondent shall pay the claimant £732.35 in respect of holiday pay outstanding to her on termination of her employment.

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

Chairman:

Date and place of hearing: 14 and 15 February 2012, 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 >> Francis v Dental Aesthetics Ltd [2012] NIIT 02225_11IT (04 April 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/02225_11IT.html Cite as: [2012] NIIT 2225_11IT, [2012] NIIT 02225_11IT

Industrial Tribunals Northern Ireland Decisions