Patterson v Arnold Courtney and James Stin... [2013] NIIT 01182

THE INDUSTRIAL TRIBUNALS

CASE REF: 1182/13 & 1425/13

CLAIMANT: Helen Isobel Caroline Patterson

RESPONDENTS: Arnold Courtney and James Stinson

T/A WM Courtney & Co

DECISION

The unanimous decision of the tribunal is that the claimant’s claim for unfair constructive dismissal is dismissed. The tribunal does not have jurisdiction to determine the respondent’s counterclaim.

Constitution of Tribunal:

Chairman: Ms J Knight

Panel Members: Mr S Devlin

Mr P McKenna

Appearances:

The claimant was represented by Mr N Philips Barrister-at-Law instructed by Worthingtons Solicitors.

The respondent was represented by Mr Barry Mulqueen Barrister-at-Law instructed by Hewitt and Gilpin Solicitors.

Issues

1. The issues for the tribunal relating to the claimant’s claim of unfair constructive dismissal were as follows:

(i) Did the actions of the respondent on the 7 December 2012, and subsequently, amount to a breach of the implied term of trust and confidence?

(ii) Was the breach of contract sufficiently serious to warrant the claimant treating herself as dismissed?

(iii) Did the claimant resign in response to the breach and not for some other unconnected reason?

(iv) Did the claimant delay too long in resigning and should she have therefore been deemed to have waived any breach of contract?

(v) If successful, did the claimant mitigate her loss?

2. The issues for the tribunal to determine relating to the respondents’ counterclaim were:

(i) Does the tribunal have jurisdiction to determine the respondent’s claim?

(ii) If so, is the respondent contractually entitled to recover from the claimant an alleged overpayment of £1538.75 in respect of 17.5 days leave and sick leave taken by the claimant during 2012?

Evidence

3. The tribunal heard evidence from the claimant on her own behalf. For the respondent the tribunal heard from Mr William James Stinson, one of the two partners in the respondent firm and Mrs Jennifer Courtney, an employee of the respondent and a former work colleague of the claimant. The tribunal also had regard to documents to which it was referred during the hearing.

Findings of Fact

4. The tribunal made the following findings of relevant fact to be proven on a balance of probabilities.

5. The respondents, Mr William James Stinson and Mr Arthur Courtney, are partners in a firm of chartered accountants, employing eight employees. The claimant was continuously employed from 1975 until she tendered her resignation in April 2013. The claimant worked as receptionist/administrator in the front office. Her duties included answering the telephone, dealing with customers calling into the office, typing accounts and photocopying. She was not given a written statement of the terms and conditions of her employment.

6. The claimant’s normal working hours were Monday to Thursday 9am until 5pm and 9am until 1pm on Fridays. She was entitled to take 15 days annual leave per annum plus statutory holidays. The annual leave year runs from April to April.

7. Prior to April 2008 employees on sick leave received full pay. In April 2008 the respondent introduced a scheme, which was accepted by the claimant, whereby employees would be paid full pay during absences on sick leave and for other leave taken in access of annual leave entitlement but in return were expected to “work up” the absences in addition to their normal working hours after their return to work. It was envisaged that deductions would be made from an employee’s pay where leave was not worked up.

8. Until early December 2012 there was a generally a good working relationship between the claimant and the respondent, although it appears that over the previous few months the respondent had some concerns that the claimant sometimes appeared lacking in concentration and application to her work. These matters were not raised with the claimant as Mr Stinson thought there may be a link with the illnesses of her mother and her husband. In November 2011 the partners informally discussed between themselves the amount of holidays and sick leave that had been taken by the claimant and which had not been worked up by her.

9. On 6 December 2012 Mr Stinson mentioned to the claimant just before she was about to go home that there were some problems with accounts which she had typed up and that he would discuss it with her the next day. Around 12.30pm on 7 December 2012 a meeting took place between Mr Stinson and the claimant. Although the claimant said that she found it strange that he did not simply talk to her at her desk and that he got up to close the door of his office behind her, the tribunal accepted that Mr Stinson wished to respect the claimant’s privacy. It was common case that Mr Stinson spent several minutes discussing a number of errors on accounts which had been prepared for a client and changes that had to be made to them to bring them up to an acceptable standard. He then informed her that there were other issues he would like to raise with her.

10. There was a dispute between the claimant and Mr Stinson about the remaining discussion which ensued. The tribunal doubted the accuracy of the claimant’s recollection of this meeting and did not find her version of events to be reliable or consistent. By contrast the tribunal found Mr Stinson to be a credible witness and accepted his account of the meeting.

11. It was clear that although the accounts were the trigger for the meeting, Mr Stinson took the opportunity to discuss other performance matters with the claimant. Mr Stinson told the tribunal that he did not consider these matters to be particularly serious and it was not intended to be a disciplinary meeting. After he called the claimant into his office he jotted down on an A4 sheet four matters that he wished to discuss with the claimant which were that she had been seen shopping and making private telephone calls during office hours, that she had abused her holiday entitlement, that she had taken a large number of sick days and had not worked up lost time. Mr Stinson also raised other matters with the claimant including that the callers’ book was not being properly maintained and keeping the front desk tidy. The claimant was not at all happy and was in a state of “disbelief” that Mr Stinson should have called her into his office to raise these matters with her instead of speaking to her about them at her desk. Mr Stinson made further notes on the A4 sheet as the meeting progressed but this was not a verbatim note of what was discussed. The tribunal did not accept the claimant’s assertion Mr Stinson made no notes whatsoever during the meeting.

12. Mr Stinson discussed with the claimant the number of sick days and holidays she had taken. In the context that it appeared that she needed to take time off due to her personal circumstances, he suggested that part time work may be of assistance to the claimant. She indicated that she would consider this but would have to speak to her husband. Mr Stinson mentioned that there had been a change in some of her duties in that she was no longer required to do as much word processing as before with more jobs being finished on the computer upstairs. The claimant asked whether there was a redundancy. Mr Stinson replied that there was not and he discussed with the claimant generally about his understanding of when a redundancy situation might arise. Mr Stinson was also concerned to find out from the claimant if she intended to work up the sick leave and days taken in excess of annual leave. The claimant said that she was unable to work days up and that the respondent should deduct sums paid to her for these days from her wages. Mr Stinson’s stated preference was that she had been able to work up the days rather than having to make deductions from her salary. The claimant was angry and annoyed and accused Mr Stinson of trying to get rid of her. The meeting ended after approximately 20 minutes when the claimant asked Mr Stinson “Are you finished with me because I’m leaving”.

13. It was the unchallenged evidence of Mrs Jennifer Rowntree that when the claimant came downstairs after this meeting she stated, “That bastard is wanting rid of me”. Mrs Rowntree queried that this could be the case as December and January are traditionally busy months for the respondents and another employee was on maternity leave. The claimant did not have a clear recollection of this because she said she was so distressed when she left the meeting. The claimant left approximately 15 minutes later at her normal going home time.

14. The following Monday and Tuesday the claimant went into work as normal. On Monday morning the claimant asked Mr Stinson for a copy of the points which he had discussed with her on the Friday and he gave her a copy of the A4 sheet.

15. On Wednesday the 12 December 2012 the claimant left work early at approximately 3pm complaining that she felt unwell. In a conversation with Mrs Rowntree, who had noticed that she did not look very well the claimant said that she was going to see the doctor and that she wouldn’t be back as “Harry and the girls don’t want me working here after the way I have been treated”. Before she went he claimant removed her personal belongings including a cushion, brush and mirror from her desk. The tribunal accepted Mr Stinson’s evidence that before she left the claimant did not raise any issue with him arising out of the meeting on 7 December 2012.

16. She consulted her GP the next day and was given a two week sick line for work related stress which was delivered to the respondent by the claimant’s husband on Friday the 14 December 2012. The entry in the GP records for the 13December 2012 records: “Extreme stress at work. Has been there 30 years, work review took place, suggesting redundancy- has never had any problems before”.

17. On the 19 December 2012 claimant’s husband telephoned Mr Stinson. In response to Mr Stinson’s enquiry after the claimant, he responded that she was not good and asked Mr Stinson to put a figure on a redundancy payment and said that he would be checking any calculations. Mr Stinson responded that he was not sure that there was a redundancy situation and that he had already discussed this with the claimant. He found Mr Patterson’s demeanour to be quite aggressive and he brought the conversation to an end by stating that he would speak to his partner about it.

18. The claimant continued to submit lines from her doctor certifying her as unfit for work due to work related stress. The record of her attendance at the surgery on 27December 2012 states: “work related stress, hoping to get redundancy as feels employer relationship irrepairably (sic) damaged”.

19. On the 31December 2012 Mr Stinson wrote to the claimant acknowledging receipt of her latest doctor’s certificate. He suggested that this was the first indication that the respondent had received that the reason for her absence was “work related stress”. Referring to his telephone call with the claimant’s husband, he further informed her that having discussed the matter with his partner he could confirm that redundancy “is not appropriate in the current circumstances and therefore I am unable to consider this further.” He clarified that although he had previously suggested in his discussion with the claimant on 7 December 2012 that with some reorganisation of reception and telephone answering procedure it may be possible to do without a receptionist, other word processing and general office duties still existed in what was a very busy period for the respondents’ business. He asked the claimant to confirm with regard to her absences from work that it was still her preferred option that deductions be made from her pay. Upon receipt of her written confirmation he said that he would send her details of the absences concerned for her consideration. He asked her to keep him informed regarding her illness and to let them know how they could help with her return to work when she was able to do so.

20. The claimant sought legal advice around this time. She replied to Mr Stinson by letter dated the 8 January 2013 which was drafted by her solicitor and husband. She pointed out that she had provided a doctor’s certificate stating the reason for her absence “at the earliest possible opportunity”. She disputed that the purpose of the meeting on the 7December was to discuss her work performance “the purpose and intent of that meeting remains entirely unclear as numerous issues were raised including redundancy” and complained that the meeting did not follow any procedure or comply with minimum industrial standards in terms of content or process which had resulted in further absence and ill health”. Further it was stated “I feel that your behaviour is a deliberate attempt to try and remove me from the work place and to avoid the payment of redundancy as I have been singled out and victimised by you when other members of staff have not been approached in relation to levels of absence and performance”. She stated that she did not agree to any deductions being made from her pay in relation to her absences from work. She suggested that Mr Stinson had raised the subject of redundancy at the meeting on the 7 December and that she was not fit enough to return to work due to ill health at the present time. She requested that her letter be treated as a grievance under the Labour Relations Agency Code of Practice and that no further meetings should be arranged without notice as she felt this was “an attempt to remove me from the work place and any further action will be considered a fundamental breach of contract of employment and will result in a claim for constructive dismissal”.

21. Mr Stinson responded by letter dated 22January 2013 repudiating the allegations and responding to the points raised in her letter. He denied that she had been singled out and victimised, that the discussion which developed on 7 December 2012 had arisen out of a preconceived plan on his part or that there was a deliberate attempt to remove her from the work place. He reiterated that her position had not become redundant. Referring to leave taken by the claimant he reiterated that the claimant had told him that this should be deducted from her pay. He enclosed a schedule listing the claimant’s absences in 2012 and stated that the respondents had hoped that she could have worked them up in December and January “to the mutual benefit off (sic) all”. He noted that the claimant’s letter should be considered a grievance and that “we will strongly defend these false allegations”. Mr Stinson asked the claimant to inform him as to the cause of the “work related stress”.

22. Mr Stinson wrote again to the claimant on 4February 2012 enclosing her January payment with a breakdown of how this was calculated. He informed her there was an overpayment for the month of December and requested her proposals to repay wages paid to her for sickness absences and a two week absence in or about August 2012. At the time of writing this letter it appears that Mr Stinson was unaware that the latter period of absence was due to a bad back. The claimant self certified for the first week of absence and the second week was covered by a certificate from her doctor certifying her as unfit to work due to back pain, although Mr Stinson personally only saw the certificate when it was produced for the purpose of these proceedings. Mr Stinson offered to arrange a consultation with a suitably qualified medical expert in stress related matters in order to assist the claimant. He indicated that the respondent was willing to meet with the claimant to discuss any issues relevant and asked her to suggest some possible dates. He advised her that she would be entitled to be accompanied at any such meetings.

23. The claimant responded to Mr Stinson’s letter of the 22January 2013 by letter dated 5 February 2013 which clearly crossed in the post with his later letter. She expressed shock and distress at and took issue with the contents and set out her objections to each of the responses contained in his letter. She asserted that “your accusations and your failure to afford me support and notice in relation to any alleged issues of performance have resulted in a breakdown of our relationship”. She further asserted “After 38 years of service and given that I have never been spoken to before in relation to performance matters I have been shocked and upset to the degree that this has affected my mental health. It is your treatment of me which has caused the condition”. She concluded that she “looked forward to hearing from the respondent with a view to resolving matter however should you continue to correspond with me in a threatening and inappropriate I will have no alternative but to consider that you wish to constructively dismiss me by making my position untenable”.

24. On the 8 February 2013 the claimant wrote again to Mr Stinson in response to his letter of the 4February 2013. She disputed the calculation of her December pay and declined the offer of a referral to a mental health professional as she had been referred for counselling by her GP. This letter which again was drafted by the claimant’s husband was confrontational and challenging in tone. The claimant indicated that despite the state of her health she was prepared to meet with one of the partners and suggested that this should be Mr Stinson. She stated she would be accompanied by her husband who would speak and act on her behalf. She advised that her husband is a trade union member and has received training in employment law the correct processes and proper conduct of performance related meetings and the resolving issues between employers and employees. She indicated that her husband was only available to meet after 6pm on week days due to commitments during working hours. The letter clarified as follows:

§ “I will agree to a meeting with one of the partners with an independent note taker present.

§ All notes taken at the meeting will be agreed and signed by all present before we agree and we will recognise them as an accurate record of same.

§ The meeting will take place after normal office hours.

§ I receive copies of any notes, papers etc that you may wish to refer to at any such meeting five working days in advance.

§ I will be accompanied by my husband who will speak and act on my behalf. “

The claimant concluded by stating that she looked forward to hearing how the respondent as her employer of 38 years proposed to resolve “the present issue”.

25. Mr Stinson wrote to the claimant on the 7March 2013 offering to meet with her on either the 13 or the 20 March 2013 at 6pm at the respondent’s office. He asked her to suggest alternative dates if these dates were unsuitable. He agreed that she could be accompanied by her husband. He did not object to an independent note taker being present at the meeting provided that the claimant made and met the expense of this arrangement. He agreed that all notes could be scrutinised and signed off as an accurate record. He also set out matters upon which the claimant would be invited to comment upon at the meeting. These were whether she had informed any clients that she had left the respondent’s employment, why she had allegedly told staff in relation to her intentions to work up her leave and the events of 7 and 12 December 2012, her basis for saying that she had been victimised and her grounds for disputing that she was liable to repay wages paid for absences not worked up by her. The reason that Mr Stinson included these matters in this letter was because he had by this stage sought advice from the Labour Relations Agency about how to conduct the meeting and had been told that he should inform the claimant in advance of any matters he wished to discuss with the claimant. The letter clarified that the meeting on the 7 December 2012 was “not a disciplinary meeting but an informal approach regarding your lack of application and in particular, that day’s very poor work performance for a person of 38 years experience”.

26. The claimant told the tribunal that when she received this letter she felt this was “last straw”. She told the Tribunal that she felt that the respondent was calling her in to have a meeting to raise with her further issues of a performance and disciplinary nature. She felt that the respondent did not want a resolution of her grievance. She felt she had no future with the respondent and that there was no respect and trust left between her and her employer. She did not reply immediately to this letter.

27. On the 28 March 2013 Mr Stinson wrote to the claimant enclosing her March pay cheque. He asked her to suggest a date and time for a meeting convenient to herself as the dates suggested by the respondent had passed. He asked that she let them know of her intentions.

28. The claimant informed the respondents in her letter of 29 March 2013 that the contents of 7 March letter had upset and distressed her and consequently it was clear to her that the respondent had no intention in dealing with her grievance. She considered her position untenable and she tendered her resignation with one month’s notice. She stated’ “Your behaviour has made it impossible for me to return to the work place and you have removed all trust and confidence that must exist between employee and employer.” She enclosed a further medical certificate certifying her unfit to work her notice due to work related stress.

29. The respondent wrote to the claimant on the 22April 2013 acknowledging her letter of resignation and enclosing her final pay slip with 22 days statutory sick pay and accrued holiday pay of 10 days.

30. The claimant lodged her complaint of unfair dismissal with the Office of the Industrial Tribunals and the Fair Employment Tribunal on the 21 June 2013 claiming that she had been unfairly constructively dismissed. The respondents lodged a response with the tribunal on the 29 July 2013 disputing that the claimant had been dismissed and lodging a counter claim, which was disputed by the claimant, that they were contractually entitled to recover the sum of £1538.75 paid to the claimant as salary for 17.5 days taken as sick and unauthorised leave but not worked up by her.

The Law

31. A termination of the contract by an employee will constitute a dismissal pursuant to the provisions of the Employment Rights (NI) Order 1996, if she is entitled to so to terminate it because of the employer's conduct. This is colloquially and widely known as a 'constructive dismissal'. The Court of Appeal made clear in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27, [1978] ICR 221, it is not enough for the employee to leave merely because the employer has acted unreasonably; his conduct must amount to a breach of the contract of employment.

32. In order for an employee to establish constructive dismissal, four conditions must be met:

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

(ii) 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.

(iii) The employee must leave in response to the breach and not for some other, unconnected reason.

(iv) The employee 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.

33. If the employee leaves in circumstances where these conditions are not met, he will be held to have resigned and there will be no dismissal within the meaning of the legislation at all. [Harvey Division D1.3 paragraphs 401-405.]

34. The case of Mahmud v Bank of Credit and Commerce International SA [1997] 3All ER 1 established that there is an implied term that an employer “will not without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.

35. In Baldwin v Brighton and Hove Albion City Council [2007] IRLR 232 the EAT clarified that the use of the word “and” instead of “or” was an error and was not intended; and that “in order to establish a breach of the implied term. it is sufficient for a claimant to show conduct by a respondent which, if objectively considered is likely seriously to undermine the necessary trust and confidence in the employment relationship.

36. The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 enables tribunals to hear specified breach of contract claims arising or outstanding on the termination of employment.

37. Article 4 of the 1994 Order (“the 1994 Order”) provides that “proceedings may be brought before an industrial tribunal in respect of a claim of an employer for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if—

(a) the claim is one to which Article 57(2) of the No.2 Order applies and in respect of which a court in Northern Ireland would under the law for the time being in force have jurisdiction to hear and determine an action;

(b) the claim is not one to which article 5 applies;

(d) proceedings in respect of a claim of that employee have been brought before an industrial tribunal by virtue of this Order”.

Conclusions

The Claimant’s Claim of Unfair Constructive Dismissal.

38. The tribunal concludes that the facts do not support the claimant’s contention that the respondent set out destroy or seriously damage the relationship between employer and employee or that the respondent was trying to “get rid of her”. Mr Stinson as the claimant’s employer and line manager was entitled to speak to claimant informally about her performance. There was a genuine basis for Mr Stinson addressing the claimant about her performance and whether she intended to work up her leave. He did not act unreasonably in conducting the meeting in the privacy of his office. The performance issues raised with the claimant were not serious in nature and the respondent in any event was not treating them as disciplinary matters.

39. The tribunal has found as fact that Mr Stinson suggested the possibility of part time working in order to assist the claimant in the context of the discussion which developed about the claimant’s apparent need to take time off work. Further it was the claimant who initially raised the issue of redundancy. The facts support the proposition that the claimant did not intend to return to work after she left on 12 December 2012 and that she wished to be made redundant. By contrast the respondent consistently asserted at all stages, that there was not a redundancy situation in the circumstances and consequently this was not an option available to the claimant.

40. The tribunal took into account that the claimant raised her grievance only after the option of redundancy was ruled out by the respondent. The tribunal is of the view that the claimant exaggerated the distress and upset experienced by her as a consequence of her discussion about performance related issues with Mr Stinson on 7 December 2012. The tribunal concludes that the claimant was more angry and annoyed than upset and distressed as was demonstrated by her robust reaction on 7 December 2012. The tribunal considers that the claimant’s reaction was out of all proportion to the events of 7 December 2012. Therefore the tribunal does not accept that the claimant has shown that Mr Stinson’s actions on 7 December 2012, objectively viewed, were such that they were likely seriously to undermine the necessary trust and confidence in the employment relationship.

41. The claimant’s case was further that although she considered that there was a repudiatory breach by the respondent on 7 December 2012 she did not resign at that point in order to give the respondent an opportunity to resolve her grievance. The tribunal concluded that the claimant’s letters to Mr Stinson, which were confrontational in tone and some of which explicitly threatened the respondent with a claim of constructive dismissal, were intended to bring the respondent to a position where they would be prepared to declare the claimant redundant and pay her a redundancy payment. Mr Stinson, although clearly on the defensive, was making genuine efforts, in the tribunal’s view, to resolve the claimant’s grievance and the dispute that had arisen concerning the claimant’s pay. The tribunal considered that there was a genuine desire on the part of the respondent to facilitate the claimant’s return to work. Mr Stinson offered to meet with the claimant and agreed to all of the requirements set out in her letter of 8 February 2013, with the proviso that she should meet the const of an independent note taker, which was not unreasonable. The tribunal considered that the matters of which Mr Stinson gave notice that he wished the claimant to comment on were not entirely new matters but were related to issues already raised between the parties. We do not consider in these circumstances that Mr Stinson’s letter of 7 March 2013 could be objectively regarded as the “last straw” which justified the claimant’s resignation at that point.

42. The tribunal considers that if the claimant had genuinely wished to pursue her grievance she would have accepted the respondent’s offer to meet with her and awaited the outcome of that process before deciding whether to resign. The tribunal therefore concludes in relation to the timing of the resignation, that the claimant if anything resigned too soon and that there was neither a repudiatory not an anticipatory breach by the respondent.

43. The tribunal therefore concludes that the claimant’s claim of unfair constructive dismissal is not well founded and dismisses her claim in its entirety.

The Respondent’s Counterclaim

44. As the claimant in the present case has not made an equivalent claim under the 1994 Order against the respondent, the tribunal does not have jurisdiction to determine the counterclaim made by the respondent. The tribunal therefore dismisses the counterclaim without any making any determination.

Chairman:

Date and place of hearing: 10-11 September 2013, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Patterson v Arnold Courtney and James Stin... [2013] NIIT 01182_13IT (01 November 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/1182_13IT.html Cite as: [2013] NIIT 01182_13IT, [2013] NIIT 1182_13IT

Industrial Tribunals Northern Ireland Decisions