Murphy v Dr John Wilson, Dr Kathy Fergu... [2014] NIIT 1935

THE INDUSTRIAL TRIBUNALS

CASE REF: 1935/13

CLAIMANT: Mary Murphy

RESPONDENT: Dr John Wilson, Dr Kathy Ferguson & Dr Louise Beck

P/A Victoria Surgery

DECISION ON LIABILITY

The unanimous decision of the tribunal is that the claimant has not been dismissed by the respondent as defined in Article 127 of the Employment Rights (Northern Ireland) Order 1996, but resigned. Her claim of unfair dismissal is dismissed.

Constitution of Tribunal:

Employment Judge: Employment Judge Bell

Members: Dr C Ackah

Mrs T Kelly

Appearances:

The claimant was represented by Mr S Doherty, Barrister-at-Law, instructed by Worthingtons Solicitors.

The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by O’Reilly Stewart Solicitors.

1. The claimant complained in her claim that she had been unfairly dismissed by the respondent, by way of constructive dismissal, arising out of the respondent’s handling of a grievance raised by her on 3 September 2013 relating to an alleged incident of bullying and harassment by another employee, as a result of which she felt unsafe in her workplace following two previous complaints going back to January 2012 which the claimant believed were not dealt with adequately. The claimant believed that the respondent failed to fully investigate comments or take into account in disciplining the employee comments placed on the employee’s Facebook page which the claimant believed to be malicious comments directed at her. The claimant complained that the last straw in the chain of events was the respondent’s reply to her grievance by letter of 9 October 2013, in which the respondent stated in respect of concerns over safety in the workplace raised by the claimant ‘We feel this is unfounded as there is no evidence of any threat.’ which the claimant felt left her with no option but to resign which she did on 21 October 2013.

2. The respondent in its response denied the claimant’s claims in particular setting out that: The claimant’s grievance was dealt with in accordance with their policies and procedures having obtained advice from the British Medical Association. A disciplinary process was conducted and an appropriate sanction issued. The respondent attempted to remain fair to both the claimant and the employee involved who lodged a counter grievance against the claimant. They had sought to facilitate the claimants return to work and put in place various measures to assist this but the claimant refused to assist, including through mediation, expected the employee to be dismissed and the perception that her health and safety were at risk was unreasonable and misconceived.

3. An application by the parties for the hearing to proceed on liability only was granted on 27 February 2014.

ISSUES

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

(i) Was the claimant constructively dismissed?

That is,

(a) Did the respondent’s behaviour towards the claimant constitute a breach of the implied term of mutual trust and confidence, support and co-operation and or to promptly address grievances?

And if so,

(b) Was it a fundamental breach?

(ii) If the claimant was dismissed, was the dismissal unfair?

SOURCES OF EVIDENCE

5. The tribunal considered the claim, response, agreed bundle of documentation, witness statements and sworn testimony from all named parties.

FINDINGS OF FACTS

6. The respondent operates a General Practitioners Surgery in a medical centre. Prior to July 1998 the Practice was operated from a health centre with staff employed directly by the Trust including an overall Health Centre Supervisor. At the end of June 1998 when the Practice moved into new premises it took into direct employment Trust staff including the claimant who had first commenced in the Practice in October 1993. The claimant was promoted and became employed as the respondent’s Practice Manager from 1 July 1998 and in that role assisted in looking out appropriate job descriptions for all staff, including herself, to be provided with new contracts of employment.

7. The claimant disputed that the job description produced at hearing related to her in particular as it was for a different grade to that which had applied to her. The tribunal note the job description specifically relates to the post of ‘Practice Manager/Medical Centre Manager’ located at the respondent’s new surgery premises and responsible to ‘Dr Crory [the previous senior partner] and Partners’. We find credible the respondent’s evidence that the job description was present on and printed off the claimant’s computer where it appeared as an attachment to her contract of employment, that it bore the title ‘Job description Mary Murphy’ and showed the claimant as its author. On balance we accept the job description produced is the claimant’s correct job description.

8. The Claimant’s responsibilities as Practice Manager under her Job Description included:-

a. Ensure the daily administration of the Practice runs smoothly for both the benefit of the staff and the Public.

b. Overall responsibility for efficiency of all reception and office duties.

c. Devise and implement the Doctor’s, Nurse Practitioner and receptionist’s rotas.

d. To organise and attend regular staff meetings and Practice meetings to develop good lines of communication between all members of the team particularly Doctors and receptionists.

e. To deal promptly with any complaints by following procedures laid down.

f. Maintain staff relationships and morale amongst all staff reporting directly to the Manager.

g. Review the Practice policies regularly to ensure that they are adequate to meet all objectives and recommend change where appropriate.

h. Take such action as may be necessary in disciplinary matters, in accordance with procedures laid down and approve by the Practice.

9. The respondent’s policy for logging in and out of its clinical system states that it is an offence to knowingly obtain another person’s password and access the clinical system via this method.

10. The respondent’s disciplinary procedure sets out in its preamble that ‘Disciplinary procedures should not be viewed, primarily, as a means of imposing sanctions. They should be designed to emphasise and encourage improvements in individual conduct.’ Under Stage 1 provision is made for counselling whereby an employee could be asked to attend unrecorded proceedings to discuss the matter with the doctor in charge in the hope that it ‘will resolve any possible difficulties and lead to the required improvement’ but where considered inappropriate the disciplinary procedure may be invoked at any other stage. Under Serious Misconduct the respondent’s procedure provides that there are varying degrees of seriousness of misconduct, gives a few examples illustrative of gross misconduct which would justify summary dismissal as theft, abuse of medicine, serious breach of confidentiality, and sets out that ‘[i]n some circumstances where serious misconduct is thought to have occurred, the member of staff concerned may be suspended on full basic salary pending an investigation and a hearing.’

11. The respondent’s grievance procedure was not provided to the tribunal. The only reference made to it in evidence was by Doctor Ferguson, that there was no requirement under the policy for communications between parties to be in writing rather than oral which was not disputed.

12. The respondent has a Harassment and Bullying policy against harassment on prohibited grounds and under which bullying is defined as, ‘where any individual abuses a position of power or authority over another person.’

13. At the end of January 2012 the claimant reported to Dr Wilson an issue with one of the respondent’s receptionists Mrs Lesley Gausden arising from the receptionist being put on the receptionists’ rota to finish at 6.00 pm. The claimant reported that the receptionist had come into the claimant’s office on 24 January 2012 angry and shouting about the matter, had emailed the claimant again later that day apologising for her anger but complaining about the matter (the employee set out in her email she felt it was a bit justified and when she started the job that she did not have to go home at 6.30 and start doing home works with young children who were nearly ready for bed at that time) and that the receptionist again came in to the claimant’s office on 26 January 2012 and acted inappropriately by displaying anger and an aggressive stance toward the claimant in relation to the rota.

14. Dr Wilson asserted that he had asked the claimant’s opinion on what should be done, both had consulted the disciplinary procedure and the claimant stated informal counselling would be appropriate but preferred he do it, whereas the claimant in her evidence stated the decision was Dr Wilson’s and she felt that ‘a chat was not proportionate in the circumstances’. Either way, the tribunal find a decision was reached in accordance with the respondent’s disciplinary procedure that it would be appropriate to deal with the receptionist’s behaviour in the first instance through the use of informal counselling to be carried out by Dr Wilson. There is no evidence that the claimant raised any protest and the tribunal find that the claimant did not make known to the Respondent any objection or dissatisfaction in respect the use of informal counselling at that time.

15. On 6 February 2012 Dr Wilson met with the receptionist and carried out informal counselling. Dr Wilson in particular pointed out to her in relation to attitude and manner that staff are required to remain calm at all times and control feelings of anger, both verbal and physical including posture and gestures. Also, that the claimant was Practice Manager, dealt with staff issues and would pass on to the doctors’ meeting if there was the occasional issue that she was finding difficulty with.

16. The claimant’s working day usually overlapped with Mrs Gausden’s working hours for one hour on Monday, Tuesday, Wednesday and Friday and for six hours on a Thursday.

17. In June 2013 Mrs Gausden double booked three days holidays on the receptionists’ holiday board contrary to the agreed holiday system that two receptionists could not be off at the same time. The claimant spoke with Mrs Gausden about the matter and emails then passed between them on the afternoon of Friday, 14 June 2013 in which the claimant confirmed that she had hopefully arranged cover to allow her two of the days off but could not get cover for the third day and suggested other dates to take, the receptionist responded that she could come in on the morning of the third day, that she already had tickets booked for an event and did not realise it was already taken when she booked, also that she did not need the other dates suggested and did not want to take days off just for the sake of it.

18. On Monday, 17 June 2013 Mrs Gausden came into the claimant’s office annoyed about the holiday situation. The claimant recorded in a file note which she placed on Mrs Gausden’s file dated 17 June 2013, ‘ir[r]ate re hols - wouldn’t discuss - stormed out again. - stating I don’t know anything about reception - I leave at 3 pm - she works in reception and 2 can cope - I explained can’t forward plan- knowing only 2 receptionists in am/pm - does happen on occasions - sick- short notice etc. - but they are unplanned pointed out she double booked 3 days and I got 2/3 sorted’ and recorded that the next day one of the receptionists had come to her unhappy as she felt she was being put under pressure to cover as Mrs Gausden had asked her again.

19. There was a dispute between the parties as to whether the claimant made a report to Dr Wilson on 18 June 2013 of insubordination and inappropriate behaviour by Mrs Gausden or whether the respondent first became aware in September 2013 of there having been an issue on 17 June 2013. The claimant in her evidence set out that she was most insistent that the inappropriate behaviour needed to be addressed as this aggressive behaviour could not be tolerated any more. The tribunal note in particular that Dr Wilson promptly took action when the claimant reported the first issue with Mrs Gausden to him in January 2012, and consider if Mr Doherty’s suggestion were accepted that the report was made by the claimant and Dr Wilson then forgot about the matter or as per her claim form ignored her report, it was highly likely that the claimant would have raised it again for an update. The tribunal accept Dr Wilsons evidence that, whilst there were no management meetings over the summer and despite intervening holidays, that there were numerous opportunities for the claimant to again raise the matter as the claimant usually met with all the doctors every Monday lunch time and there were frequent ‘coffee-time meetings’ some lasting up to 45 minutes between late June and early September 2013. Dr Wilson emailed the claimant on 1 August 2013 specifically putting to her if she had any other issues he could do a coffee-time meeting the following day or following week but nothing was raised. In the absence of supporting evidence of a report by the claimant on 18 June 2013 to Dr Wilson, particularly any query being raised thereafter by the claimant on there being no apparent action by the respondent, the tribunal find it difficult to reconcile the claimant’s account with the evidence and on balance prefer Dr Wilson’s account that the claimant did not report an issue with Mrs Gausden in June 2013.

20. On 3 September 2013 Dr Ferguson who was due to return to work from annual leave on 4 September telephoned the claimant to ask her to reset her remote computer access password to allow Dr Ferguson to access her emails and update herself regarding clinical concerns within the practice, as she had forgotten her password, which the claimant attended to.

21. On the afternoon of Tuesday, 3 September 2013 just before Dr Wilson was due to see his afternoon surgery the claimant came in to Dr Wilson’s room annoyed about an incident with Mrs Gausden. Dr Wilson spent approximately 15 minutes listening to the claimant’s account of the incident and then because of the number of patients due to be seen and a house call to be attended to he arranged with the claimant that she would speak with Dr Ferguson the next morning to deal with the matter as Dr Wilson was not due to be in work the next day and then was to be in for only two more days before going abroad on annual leave until 23 September 2013.

22. On Wednesday, 4 September 2013 just before Dr Ferguson was to see her first patient the claimant’s daughter knocked on her door and delivered a letter to Dr Ferguson from the claimant which set out:-

‘I had sent you an email yesterday about needing to speak to you today. However I feel unable to go into the surgery today as the situation has become unmanageable. I feel unsafe and threatened in my own workplace. This is the 3^rd time that Lesley has been openly verbally abusive to me. She is very volatile and very aggressive in her manner towards me.

I spoke to Dr Wilson yesterday just after the 3^rd episode occurred and he advised me to speak to you as he was off today.

The first episode was in February 2012 when Dr Wilson then spoke to Lesley. Just recently in June Lesley again stormed into my room and was shouting and was abusive. I spoke to Dr Wilson but it was left unresolved as Lesley then was off sick and then was on holidays. This pattern is just repeating itself and she does not seem to be able to communicate without shouting and berating me at all opportunities.

Yesterday I had sent her an email about being careful about letters she was sending out to pregnant people re flu season (letter sent to a patient re flu in July). Nothing sinister no big problem however as Lesley was quite sharp in her reply I went to explain what I had meant as I thought she must have misunderstood. However she was totally uninterested and kept turning away. However I explained and then walked back to my office where Marion and I were discussing flu letters. After a few minutes she came barging in flew open my door and starting to shout at the top of her voice accusing me of ‘showing her up at the front desk and I was never to speak to her again like that….; ranting and raving is all I can describe it as. I have never raised my voice or shouted at anyone in the surgery and I cannot accept this type of personal verbal abusive attack again and again. Marion was totally stunned and Marion started to back out of the room, as Lesley continued to shout. I asked her to calm down, she then stormed off.

This situation has moved beyond talking to her as it did nothing the first time and I feel she has got anger issues. All I know is I cannot work in an environment where the threat of this happening again is very real. This is affecting my health and wellbeing and I cannot function stress free with the threat of another abusive attack.

I can speak to you after surgery.’

23. Following reading the claimant’s letter Dr Ferguson telephoned the British Medical Association (BMA) to arrange to obtain legal advice. Dr Ferguson then rang the claimant and assured her that they would be taking the matter seriously, would investigate it and take advice. The claimant advised Dr Ferguson that she had a file in her office with Mrs Gausden’s name on it with details of two previous incidents. Dr Ferguson was not previously aware of the file. Dr Ferguson informed the claimant that she might need to be contacted for further information, the claimant indicated that she did not feel able to come into work and felt that she was being verbally abused by Mrs Gausden. Dr Ferguson advised the claimant that they would support her, it was important that all staff feel secure at work and arranged that the claimant take the next three days off on full pay.

24. Later on 4 September 2013 Dr Ferguson and Dr Beck met with Ms Marion Maginness, the respondent’s Assistant Practice Manager, to advise her that the claimant might not be in for the rest of the week and to arrange for her to provide cover. Dr Ferguson then enquired whether Ms Maginness was aware of the situation the previous day, Ms Maginness confirmed that Mrs Gausden had come in to the claimant’s office while she was speaking to the claimant shouting and yelling, that she had tried to leave the office and had closed the door leaving the claimant and Mrs Gausden in the room. In response to questions from Dr Ferguson Ms Maginness confirmed she considered Mrs Gausden’s behaviour was not reasonable and that the claimant did not react by raising her voice. Ms Maginness also confirmed that she was aware of previous incidents of shouting by Mrs Gausden.

25. Dr Ferguson did not seek a response from Mrs Gausden on 4 September 2013 because was she still waiting upon advice from the BMA before doing so.

26. On 5 September 2013 Dr Ferguson was absent from the Practice on a training course.

27. After speaking with the BMA on Friday, 6 September 2013 Dr Ferguson considered the Practice’s disciplinary procedure and whether it would be appropriate to suspend Mrs Gausden. Dr Ferguson concluded that whilst the matter was serious that suspension would not be warranted because under their procedures suspension was to be considered only where there was serious professional misconduct.

28. Dr Ferguson met with Mrs Gausden on 6 September 2013 informally and enquired about the incident on 3 September 2013. Mrs Gausden stated that she felt provoked because she should have been spoken to rather than emailed by the claimant and was then embarrassed at being spoken to in front of a queue of patients. Mrs Gausden reported that a patient approached her afterwards and commented that her manager should not have spoken to her like that and asked if she was she alright. She then went to see the claimant in her office to say she had been humiliated by her and not to speak to her like that again and did not consider that she was shouting. Mrs Gausden raised a counter grievance that the claimant was harassing her in the way she was communicating with her and by mimicking her when she had a bad back and raised a complaint about being berated in public.

29. After her meeting with Mrs Gausden Dr Ferguson telephoned the claimant on 6 September 2013 and assured her she was taking the matter seriously, that they were progressing the investigation and liaising with the BMA. The claimant enquired if it was being dealt with as a disciplinary as she viewed it as serious professional misconduct. The tribunal accept as per the claimant’s own telephone note of the conversation that Dr Ferguson indicated she had received advice from the BMA that the alleged inappropriate behaviour was not gross misconduct, but confirmed that the respondent was interviewing and on completion of their investigation following their disciplinary procedures would decide on discipline. The claimant was asked about coming in to work but expressed concern that she did not know what Mrs Gausden would do next and felt threatened. Dr Ferguson assured the claimant if she came into work she would be supported and if she was concerned about assault that would be a police matter. Dr Ferguson made the claimant aware of the complaint by Mrs Gausden as to the claimant’s handling of her at the front desk. Finally Dr Ferguson arranged to meet the claimant at the surgery at 6.00 pm on Monday, 9 September 2013 to discuss matters further.

30. On 6 September 2013 Dr Beck was approached by a staff member of another GP surgery located in the same building and was advised they had heard from a member of their own staff that there might be inappropriate comments on Mrs Gausden’s Facebook page.

31. Over the weekend of 7 & 8 September 2013 Dr Beck attempted to view Mrs Gausden’s Facebook page and whilst not a Facebook friend of Mrs Gausden’s she was able to view part of her Facebook page and read a number of comments which although unclear whether they related to the respondent’s Practice or staff caused Dr Beck concern.

32. On returning to work on 9 September 2013 Dr Beck mentioned the Facebook postings to Dr Ferguson who asked Dr Beck if she could print off what she had seen for consideration.

33. After surgery closed on 9 September 2013 the claimant met with Dr Ferguson between 6 and 7.30 pm and they talked further about what had happened on 3 September 2013 and about Mrs Gausden’s counter grievance. The claimant put to Dr Ferguson that she did not tell Mrs Gausden to use her common sense in respect of the flu letters, that there was a man present at the front door but not at the desk and that she was leaning down to speak to Mrs Gausden and was not displaying any aggressiveness. The claimant suggested to Dr Ferguson that CCTV footage would show this. There was a CCTV camera (without audio) directed at the front reception. Dr Ferguson asked the claimant how she felt threatened and unsafe which the claimant indicated was because of Mrs Gausden’s shouting and waving her finger, that she felt next time she could lunge at her and that Mrs Gausden had so much anger. Dr Ferguson asked how the claimant would feel after any disciplinary procedure, the claimant wanted to know was Mrs Gausden going to apologise for her behaviour. On asking how they might move forward in a professional manner the claimant put to Dr Ferguson that she would find it difficult to work there if Mrs Gausden was still working there due to the threat of repeat inappropriate behaviour. On enquiry the claimant confirmed that she would be willing to participate in mediation conditional upon Mrs Gausden’s acceptance that her behaviour was inappropriate. Dr Ferguson advised the claimant that the disciplinary procedures would determine whether her behaviour was appropriate or not, that mediation was not about establishing that the behaviour was inappropriate but where possible establishing an effective and productive working relationship to move forward in a professional way. Dr Ferguson gave the claimant a copy of the minutes of their meeting and the disciplinary procedure. After the claimant left Dr Ferguson opened her post which contained a written grievance from Mrs Gausden claiming bullying and harassment in the workplace by the claimant.

34. Following her meeting with the claimant Dr Ferguson attempted to view the CCTV footage of the front desk to see whether the claimant was bending down to speak to Mrs Gausden as had been suggested by the claimant, however she was advised by another practice manager that it was not working which she accepted.

35. On 10 September 2013 Dr Beck sent an email to Dr Ferguson relating to posts made on Facebook by three of the respondent’s staff including Mrs Gausden, setting out:-

‘Kathy, when I went to print out those comments I had told you about on Lesley’s Facebook page I can no longer see them - either she has changed her privacy settings (as I’m not her ‘‘friend’’ on FB this means I can’t view them if her privacy settings are set high enough) or she has removed them from her Timeline, perhaps under advice if she has spoken to someone re making that grievance.

But so it’s on the record there was a post from March 13 where she wrote that she ‘‘needed a new job, anything would do’’. Last week’s posts included ‘‘Let the fan see the shit’’ with Pauline commenting ‘‘You go girl’’ and Gillian commenting ‘‘I’m surprised there’s any shit left’’. She had also written something about ‘‘the karma bus coming to deal with the bastard that I want sorted’’.

36. On 10 September 2013 after receiving Dr Beck’s email Dr Ferguson sought advice from the BMA relating to the Facebook postings and how best to proceed given her meeting with the claimant. She also sought and obtained information from the Labour Relations Agency about mediation.

37. On Wednesday, 11 September 2013 Dr Ferguson and Dr Beck met with Mrs Gausden and put the option of mediation to her, she agreed to put her formal grievance on hold pending mediation. They also explained that the claimant’s grievance was a separate complaint which they would still have to deal with and try to resolve.

38. Dr Ferguson subsequently telephoned the claimant on 11 September 2013 and advised her that Mrs Gausden had put a formal Grievance in against the claimant, that they had spoken to Mrs Gausden informally about it and she had agreed to put her grievance on hold pending participation in mediation. Dr Ferguson asked the claimant if she would be willing to agree to put any potential disciplinary proceedings on hold pending involvement in mediation. The tribunal accept Dr Ferguson’s evidence, in particular that her request was for grievances to be put on hold rather than withdrawn as stated by the claimant in her witness statement, the claimant having recorded in her own note of the telephone call that Dr Ferguson said, ‘she said Lesley would agree to put it on hold and go into mediation.’ The claimant replied no to Dr Ferguson’s question, stated that she was unhappy with the length of time it had taken to discipline Mrs Gausden, that it had happened three times and Mrs Gausden had to understand and apologise for her behaviour. Dr Ferguson told the claimant they did take her complaint seriously but that she needed to investigate before any disciplinary proceedings could be issued. Dr Ferguson advised the claimant she felt she should return to the workplace and they would support her but the claimant replied ‘Lesley should have been suspended’ before ending the call.

39. Dr Ferguson following her call to the claimant spoke further with the BMA. Dr Ferguson decided because the employee or employer was not named in the Facebook postings that they should not move forward with formal proceedings and obtained a draft social media policy to put in place along with a copy of the LRA Disciplinary and grievance procedures PDF.

40. Dr Ferguson completed a summary of her investigation on 11 September 2013 in which she noted concerns raised by the claimant that this was the third time she had been shouted at by Mrs Gausden and on receiving confirmation from Mrs Maginness of the incident and her awareness of previous incidents did not ask her for any explanation leading up to events, save the September 2013 incident. Dr Ferguson concluded ‘what seems apparent is that there has been a breakdown in the inter-personnel relationship between Mrs Gausden and this will need to be addressed. However there are standards of behaviour in the workplace that must be adhered to and the complaint that the matter of Mrs Gausden’s inappropriate behaviour should be referred for disciplinary proceedings.’

41. Dr Beck took responsibility for the disciplinary proceedings against Mrs Gausden. On Monday, 16 September 2013 Dr Beck informed Mrs Gausden verbally and issued a disciplinary invite letter to her. Mrs Gausden responded that she wished to proceed with her grievance against the claimant but was informed it would be dealt with separately. Mrs Gausden left work upset and in tears. Dr Beck emailed Dr Ferguson on 16 September 2013 ‘Upset and in a state and away home. People down the main st are apparently talking about it all. as I said to her the sooner we get it resolved the better’. Dr Ferguson responded ‘bound to be upset, if she hadn’t put on Facebook probably would not be so public […]’. Mrs Gausden returned to work on 17 September 2013 and a disciplinary meeting took place on Wednesday, 18 September 2013. Dr Beck concluded that a verbal warning was a proportionate disciplinary sanction for Mrs Gausden’s inappropriate behaviour and advised her accordingly.

42. On Wednesday, 18 September 2013 the claimant who had not heard further from the respondent used the new password which she had provided Dr Ferguson with on 3 September 2013 to access Dr Ferguson’s work emails whereupon she read the emails between Dr Ferguson and Dr Beck on 11 September 2013 about the Facebook comments posted and on 16 September 2013 that Mrs Gausden was ‘bound to be upset, if she hadn’t put on Facebook probably would not be so public.’ The claimant considered it was apparent the doctors assumed the Facebook comments were about her.

43. On 18 September 2013 Dr Beck sent a letter to the claimant confirming that further to her written grievance Dr Ferguson had investigated her complaint and referred it for disciplinary action, that she had held a Disciplinary Meeting with Mrs Gausden on 18 September 2013 and wished to advise her that appropriate disciplinary action had been taken. Dr Beck stated she would be grateful if the claimant would contact one of the GP partners on receipt of the letter so that a meeting could be arranged to discuss her return to work now that the matter had been dealt with.

44. The claimant telephoned and spoke with Dr Beck before her morning surgery on Thursday 19 September 2013. Dr Beck apologised for having missed a call from the claimant the previous day and informed her of the letter in the post to her and its content. On enquiry the claimant was advised that Mrs Gausden did not acknowledge that her behaviour was inappropriate but had been told it was unacceptable. The claimant expressed concern if Mrs Gausden did not accept her behaviour was abusive and threatening it could happen again. Dr Beck advised the claimant that she had agreed with Mrs Gausden that when the claimant returned to work that they should not be left alone together. The tribunal on balance prefer the claimant’s evidence that at this stage she asked Dr Beck about the Facebook comments by Mrs Gausden, Dr Beck said she was not aware of any and she was no longer a friend with her on Facebook, the claimant recorded in her telephone note ‘- asked LB - what about Facebook comments from Lesley - - she stated she hadn’t seen any - NO. - no longer a friend on FB’. Dr Beck disputed that the Facebook comments were raised and contended if they had been she would have noted it in her telephone note and would have informed Dr Ferguson the next morning, neither of which she did. Dr Beck then enquired whether the claimant was aware of Mrs Gausden’s grievance, the claimant confirmed she was. The claimant indicated to Dr Beck that whilst the respondent viewed the matter as dealt with she was uncertain about returning to work and would have to discuss it with her husband and the call ended.

45. On 19 September 2003 Mrs Gausden lodged with the respondent an appeal against disciplinary action against her.

46. Dr Wilson returned to work on Monday, 23 September 2013 following his holiday and in the absence of hearing from the claimant telephoned her that evening to ask about meeting to discuss her return to work. The claimant informed Dr Wilson she had intended to phone him but had instead decided to leave in a letter of resignation the next day. The claimant had received Dr Beck’s letter stating that the disciplinary process with Mrs Gausden was completed. Dr Wilson put to the claimant he would rather meet with her to discuss matters as they were keen for her to continue in her employment. The claimant then put to Dr Wilson she had heard rumours of Mrs Gausden having made upsetting comments about her on Facebook. Dr Wilson told the claimant he had hoped to meet her with Dr Beck at work the next day but the claimant told him she felt unable to return to their workplace.

47. On Tuesday, 24 September 2013 Dr Wilson had an appointment to see the patient identified as a witness to the interaction at the front reception desk between the claimant and Mrs Gausden on 3 September 2013. The patient on enquiry by Dr Wilson confirmed that the claimant, ‘was talking down to Mrs Gausden, that it should have been done in private, and that she felt embarrassed and had to look away’, she overheard the claimant say, ‘use your common sense’ and felt that other patients in the waiting room would have overheard the conversation.

48. On Tuesday, 24 September 2013 Dr Wilson telephoned the claimant for permission to visit her that evening at home which she agreed to. Dr Wilson accordingly met with the claimant with her husband present. The claimant told Dr Wilson that she was unhappy because she felt that three episodes of threatening behaviour by Mrs Gausden were not being taken into account, that just the most recent grievance raised against her was being looked at. Dr Wilson agreed that the three episodes were relevant but pointed out to the claimant that he did not remember her reporting the June 2013 incident to him. Dr Wilson put to the claimant they had to follow the BMA advice as this was far from their area of expertise. The claimant expressed unhappiness that Dr Ferguson offered mediation on two occasions and felt this meant they were not taking Mrs Gausden’s behaviour seriously. Dr Wilson told the claimant that this offer was made on the basis of BMA advice and that Dr Ferguson had been working late every evening over the last two weeks, along with Dr Beck trying to resolve these issues. The claimant was unhappy as she felt that Mrs Gausden did not seem to appreciate that she had done anything wrong despite her disciplinary warning. The claimant and her husband confirmed that she would feel unsafe returning to work, both considering Mrs Gausden to be volatile. Dr Wilson advised them that he felt the claimant would not be unsafe in work as other staff members are always present and Dr Ferguson had agreed that Mrs Gausden would be chaperoned in the claimant’s room. Dr Wilson asked if the claimant thought Mrs Gausden would physically hit her in response to which the claimant’s husband pointed out that threatening verbal abuse is also abuse. Dr Wilson agreed but pointed out that it was much less likely after the disciplinary warning and if it was repeated then further disciplinary action would be taken and that the point of disciplinary procedures are to deal with and prevent these occurrences.

49. The claimant asked Dr Wilson about alleged postings on Facebook by Mrs Gausden, Dr Wilson said he would ask her about this at her appeal hearing as she had appealed her disciplinary warning and stated that he was unaware of when this had come to light as he had only learned of it the day before. Dr Wilson advised that Dr Beck had printed a social media policy to prevent further occurrences. The claimant then mentioned that they might have a pre-existing staff protocol on IT with social media advice which Dr Wilson agreed to look into however on subsequent investigation it did not cover social media.

50. Dr Wilson asked the claimant again what she felt about a return to work; she reiterated that she felt unsafe to return due to her perceived ongoing concerns about Mrs Gausden bursting into her room in the future. Dr Wilson told the claimant he found it difficult to understand why she would feel unsafe in a work environment where she was never alone, in which Mrs Gausden had been disciplined, mediation had been offered and it had been agreed that Mrs Gausden could not go into the claimant’s room alone. Dr Wilson asked what they could do to facilitate her return to work as they valued her abilities and personality. The claimant said it was not for her to tell Dr Wilson how Mrs Gausden should be dealt with but that once she was dealt with she would decide whether to return or leave work. Dr Wilson reiterated that they were keen to facilitate the claimant’s return to work.

51. Dr Wilson recorded a post script in his meeting notes regarding the alleged threatening behaviour in June that,’ I told Mary tonight that I had no recollection of it ever having been mentioned to me’ and that they had agreed counselling was appropriate action in respect of the first incident and that the claimant had ample opportunity if there were any issues regarding Mrs Gausden to raise them between June and September 2013 pointing out that she meets the three doctors every Monday lunchtime.

52. On Friday, 27 September 2013 Dr Wilson wrote a letter to Mrs Gausden to acknowledge her letter of appeal. Mrs Gausden was off on leave so Dr Wilson confirmed that her appeal would take place at a mutually convenient time the following week.

53. Dr Wilson, also on 27 September 2013, spoke to Mrs Workman one of the respondent’s receptionists about the incident on 3 September 2013, she informed Dr Wilson she was using headphones so although aware of raised voices was not able to focus on what was going on.

54. Dr Wilson spoke with another of the respondent’s receptionists, Mrs Davidson on 30 September 2013, she informed Dr Wilson that Mrs Gausden was really cross about the claimant making a scene at the front desk, she was aware that Mrs Gausden was cross, did not note her bursting through the door, that Mrs Gausden’s voice was raised, but she could not hear what was said and she then had to cover the front desk and so did not observe anything else.

55. On Thursday, 3 October 2013 Dr Wilson heard Mrs Gausden’s appeal and explained after listening to her that regardless of perceived provocation, she must keep her temper at work and not raise her voice or give cause for any further complaints about her behaviour and reminded her of their conversation on 6 February 2012. Dr Wilson advised that her raised voice was not denied, and was confirmed by others, a degree of provocation was independently confirmed by a patient witness, therefore her verbal warning stood.

56. On Friday, 4 October 2013 Dr Beck met individually the three receptionists involved in the Facebook postings including Mrs Gausden and advised each of them that the respondent and the claimant were aware that comments had been posted on Facebook perhaps relating to the claimant and advised them that they should not be posting anything that was detrimental to the Practice or commenting about the people within the Practice and that a Social Networking Policy was going to be introduced, a failure to comply with which, could result in disciplinary action being taken.

57. The respondent introduced a Social Networking Policy on 4 October 2013 which in particular requires employees using social networking websites to take care not to allow their interaction on these websites to damage working relationships between members of staff and clients of the Practice and warns that a failure to comply will result in disciplinary action. A copy of the policy was signed by Mrs Gausden on 11 October 2013.

58. On Monday, 7 October 2013 Dr Wilson telephoned the claimant to arrange a meeting in the surgery after work on 9 October 2013 which was the first available time for all three doctors since the appeal hearing, the claimant agreed to attend.

59. At approximately 6.00 pm on 8 October 2013 the claimant arrived at Dr Wilson’s consulting room, informed him that she could not wait another day and asked for the outcome of Mrs Gausden’s appeal. The claimant put to Dr Wilson that that Mrs Gausden should apologise and that she would feel unsafe working with her. Dr Beck who was in the adjacent consulting room overheard the claimant’s voice and telephoned Dr Wilson, he agreed that she join them. Dr Wilson and Dr Beck informed the claimant that Mrs Gausden knew her behaviour was unacceptable and had been disciplined in accordance with BMA advice and the Practice’s disciplinary procedures. The claimant asked for a guarantee that the matter would not happen again. Dr Wilson and Dr Beck replied that they could not give a guarantee but strongly felt that mediation with the LRA for her and Mrs Gausden was the best way forward to minimize any chance of repetition and handed to the claimant a copy of their mediation process. The claimant asked about the Facebook postings and Dr Wilson confirmed Dr Beck had dealt with the matter. Dr Beck advised the claimant they had sought advice and because no names were mentioned they could not do anything about them, but advised she had spoken to the employees concerned and that they had introduced a Social Media Policy. The claimant stood up, walked to the door and left.

60. On the morning of 9 October 2013 Dr Wilson telephoned the claimant, there was no reply so he left an answer phone message asking that she still attend the arranged meeting with all three partners that evening because she had left the previous evening before they were finished. Dr Wilson explained he would be out at a training event all day, left his mobile number and asked that the claimant leave a message on his mobile.

61. On the evening of 9 October 2013 Drs Wilson, Beck and Ferguson all returned from their training event to the surgery to meet with the claimant. When the claimant did not appear the respondents together composed and sent to the claimant a letter dated 9 October 2013 setting out:-

‘We are disappointed that you did not attend the pre-arranged meeting on Wednesday evening. We returned specifically to meet with you from our educational meeting in Ballymena.

As you are aware, following your grievance letter received by Dr Ferguson on 4 September 2013 we have completed a disciplinary investigation with subsequent action taken against Mrs Gausden. The appeal has been heard and we consider the matter as concluded.

You also raise concerns about comments on social media. We have spoken to staff regarding appropriate use of social media sites and have introduced a social media policy. We also consider this matter as dealt with.

You have raised concerns over your safety in the workplace. We feel this is unfounded as there is no evidence of any threat. However in light of your concerns we have suggested you bring another member of staff in to your office when dealing with Mrs Gausden and also that neither of you would be left alone together in the reception area. Your office door can also be left open to reception as an added precaution if you prefer.

We have tried on a number of occasions to facilitate your return to work and indeed have raised the option of mediation with the Labour Relations Agency with you on several occasions in an attempt to address any issues between you and Mrs Gausden. We strongly feel that this would be helpful and as we have already informed you Mrs Gausden would be agreeable to mediation.

It was agreed at the outset that you could remain off work for the remainder of the first week due to your distress. We had advised you that we would support you in your return to work on 11 September 2013. Dr Beck wrote to you on 18 September 2013 confirming that the disciplinary process had been completed and asked you to contact one of the partners so that a meeting could be arranged to discuss your return to work.

Dr Wilson came out to your home on 24 September 2013 to discuss and advised that we are very supportive of you and were keen to facilitate your return to work. You stated that you wanted to wait until Mrs Gausden’s appeal had been heard and the social media issue finalised before you felt you would be able to return to work. The appeal was held and concluded on 3 October 2013.

Dr Wilson spoke to you on 7 October 2013 to arrange Wednesday’s meeting with all three partners to facilitate your return to work and advise you that all outstanding issues had been completed. Following your unexpected meeting with Dr Wilson and Dr Beck yesterday evening, you left before we could address any issues that we had, including how we could facilitate your return to work. As you are aware, Dr Wilson left a message on your answering machine this morning confirming that Wednesday’s meeting was still required.

We are a small business and your continuing absence is causing difficulties. Up to now you have been on ‘‘discretionary leave of absence’’ (although we had only agreed 3 days absence). We now expect you to return to work on Monday 14 October 2013 and will facilitate a meeting with you then. If you do not return to work on this date then you will be on ‘‘unauthorised leave’’ which could potentially be considered a disciplinary matter.

Please feel free to contact Dr Ferguson or Dr Beck (Dr Wilson will be on compassionate leave) should you wish to discuss. We look forward to seeing you on Monday.’

62. Dr Wilson subsequently on accessing his work emails received an email sent to him by the claimant on the afternoon of 9 October 2013 confirming she had received his message but because, ‘we met last night and had a discussion , I won’t attend again tonight. I would appreciate sometime to consider my position and I will be in contact with my decision.’

63. The claimant received the respondent’s letter of 9 October on 11 October 2013.

64. On 14 October 2013 the claimant did not return to work but left in a sick line to the respondent.

65. On 21 October 2013 the claimant’s daughter delivered to the respondent a four page letter of resignation from the claimant in which the claimant set out that she considered her position no longer tenable and their recent correspondence to be the ‘final straw’ in the chain of events which left her no option but to resign. In particular the claimant contended that:-

- The respondent had failed to provide her adequate support and protection leaving her feeling unsafe in the workplace.

- Their failure to respond adequately to the two incidents previous to 3 September 2013 had left her in that position.

- Dr Wilson on 19 September 2013 said he could give no guarantees of a
re-occurrence and Dr Beck contrary to her previous statement was then aware of the Facebook comments.

- The Facebook comments were clearly directed at her and in a public forum but the respondent sought not to fully investigate same despite being aware of the stress she was under.

- The comments should have been taken into account in disciplining Mrs Gausden.

- A social media policy was inadequate and too late.

- Their statement that she had ‘raised concerns over safety in the workplace. We feel this is unfounded as there is no evidence of any threat’ was nonsensical and without substance in light of the three incidents raised.

- The suggestion of bringing a third party as a witness to every discussion was not practical and would undermine her position as practice manager.

- She considered acts of insubordination had been committed which with bullying and harassment of your line manager would constitute gross misconduct.

- She on 9 September 2013 indicated she would not be against mediation but only if Mrs Gausden firstly recognised her behaviour was inappropriate.

- She did not understand why a grievance meeting was not scheduled in response to her letter of 3 September 2013.

- The three incidents were not fully or reasonably investigated otherwise the disciplinary sanction imposed would have been stronger.

- The respondent had breached the implied term of trust and confidence, and support, leaving her marginalised and without options.

In conclusion the claimant asked the respondent not to correspond with her any further save dealing with pay due and her P45.

66. Throughout her absence from work the claimant received full pay.

LEGISLATION

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

68. 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.

69. 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.’

70. 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.

71. Contractual terms may be express or implied. Recognised implied terms include a general duty of support and co-operation on an employer, subsumed under this an implied duty of trust and confidence and more specifically a duty to reasonably and promptly afford a reasonable opportunity to employees to obtain redress of any grievance they may have.

72. In Brown v Merchant Ferries Ltd [1998] IRLR 682 NICA, the Court of Appeal in Northern Ireland indicated that, although the correct approach to constructive dismissal is to ask whether the employer was in breach of contract and not whether the employer acted unreasonably, if the employer’s conduct is seriously unreasonable this may provide sufficient evidence that there has been a breach of contract.

73. The implied duty of trust and confidence in the employment contract was affirmed by the House of Lords in Mahmud and Malik v Bank of Credit and Commerce International SA [1997] IRLR 606 in the following terms:- ‘The employer shall 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 the employer and employee.’ As per Harvey at Division D1 paragraph 430 in Baldwin v Brighton and Hove City Council [2007] ICR 680, [2007] IRLR 232 the view taken by the EAT was that this use of the word 'and' by Lord Steyn in the passage quoted above was an error of transcription of the previous authorities, and that the relevant test is satisfied if either of the requirements is met, that is, calculated or likely. The test for breach of the implied duty of trust and confidence is an objective one. The House of Lords noted that the duty of trust and confidence may be undermined even if the conduct in question is not specifically directed at the employee. It may be broken even where an employee’s own trust and confidence is not undermined. Similarly, there will be no breach simply because the employee subjectively feels that such a breach had occurred, no matter how genuinely this view is held.

74. If a breach of a relevant contractual term is established the next question for the tribunal is whether the breach is fundamental. However where an employer breaches the implied term of trust and confidence the breach is inevitably fundamental since it necessarily goes to the root of the contract. The impact of the employer’s conduct and views of the particular employee are a relevant consideration as to whether a breach is repudiatory, but these matters must be assessed objectively. The Northern Ireland Court of Appeal, in the case of Brown v Merchant Ferries Limited [1998] IRLR 682 NICA set out “Thus in this case the question becomes did the appellant's conduct so impact on the applicant that viewed objectively the applicant could properly conclude that the appellant, his employer, was repudiating the contract?”

75. The breach of contract in a constructive dismissal must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents that justify his leaving. Harvey on Industrial Relations and Employment Law on considering the issue of repudiatory breach notes that at paragraph [484]:-

“The employment tribunal must decide objectively whether there is repudiatory breach by considering its impact on the contractual relationship of the parties. The fact that the employer may genuinely believe that the breach is not repudiatory is irrelevant, as the EAT recognized in Millbrook Furnishing Industries Ltd v McIntosh [1981] IRLR 309.”

76. Harvey 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 [….] 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.’

SUBMISSIONS

77. No case was made that the claimant had left for some other reason than the alleged breach of her contract of employment or indeed that she had delayed too long in doing so. Parties were in dispute as to whether there had been a breach of contract by the respondent or indeed which was sufficiently fundamental alone or as the last in a series of incidents, to justify the claimant resigning.

78. Mr Doherty submitted that the respondent breached three inter-related implied terms of the claimant’s contract of employment, namely those of mutual trust and confidence, support and co-operation and to promptly address grievances as a result alone of, or culminating with as a last straw, the respondent’s letter to her of 9 October 2013. Mr Doherty contended that it was not what the respondent did but what they failed to do that was of importance and given the serious impact on the claimant seen as the claimant unable to return to work or meet Dr Ferguson during practice hours in case she ran into Mrs Gausden, and was not reasonable or indicative of an employer complying with its duty to provide support and not undermine trust and confidence. The respondent did not deal with the matter with the seriousness it deserved and did not demonstrate to the claimant she would be safe in the workplace or could have trust and confidence in the respondent if she did return and that cumulatively taken the respondent’s letter amounted to a last straw entitling the claimant to resign. In particular; there was no investigation or disciplinary charge brought in respect of the incident in June 2013; the respondent had no intention of themselves making the claimant aware of the Facebook comments; the Facebook comments were never specifically dealt with or Mrs Gausden asked if they were regarding the claimant; the respondent’s letter to the claimant stating there was no evidence of any threat was entirely contrary to evidence available and the respondent had tried to suggest no threat of physical violence amounted to no threat; given the impact on and fear of the claimant a reasonable employer should have asked for an apology; the suggested measures of a chaperone and disciplinary warning were not sufficient given Mrs Maginness had been present in the claimant’s room on 3 September 2013 and Mrs Gausden had been previously spoken to in February 2013 and these did not prevent a re-occurrence.

79. Mr Warnock submitted that the respondent acted reasonably and at all material times wanted the claimant as a valued member of staff to return to the workplace listing seventeen points to illustrate that the respondent was taking the matter seriously and trying to address the issues with a view to taking matters forward. Mr Warnock contended that they were reasonable to conclude the workplace did not present a threat to the claimant; that the previous warning given had a material degree of efficacy having prevented anything further for sixteen months and the warning in 2013 was a step higher in the disciplinary process; in September 2013 Mrs Maginness had actually left the claimant’s office after Mrs Gausden came in; that a social media policy was a proportional and reasonable response; the verbal threat was acknowledged as an actual threat and measures were taken and put in place to prevent a re-occurrence; the claimant did not make clear that an apology/reassurance was so important to her that it prevented her return to the workplace; by 8 October 2013 Mrs Gausden had accepted her behaviour was inappropriate, this was communicated to the claimant and mediation suggested to garner a response was a proportionate response.

APPLICATION OF LAW TO FACTS FOUND

80. No case was made that the claimant had left for some other reason or delayed too long. The two conditions remaining to be met for the claimant to be able to claim constructive dismissal are that there was a breach of contract by the employer and it was fundamental. Having applied the relevant principles of law to the findings of fact the tribunal concludes as follows:-

81. The claimant was genuinely valued and respected by the respondent in her role as practice manager. The respondent on receipt of the claimant’s grievance took the matter seriously and acted promptly, sought advice from the BMA on the grievance, Facebook postings and from the LRA regarding mediation. Suspension of Mrs Gausden was considered and was not deemed appropriate in the circumstances based on their disciplinary procedure. The claimant had raised no issue with the respondent regarding the use of informal counselling to deal with the incident in January 2012 and the respondent had no reason to believe the claimant was unhappy with their handling of the matter .Following the informal counselling no difficulty arose between Mrs Gausden and the claimant for sixteen months thereafter until June 2013. The June 2013 incident recorded by the claimant as ‘ir[r]ate re hols - wouldn’t discuss - stormed out again….’ first came to the respondent’s attention in September 2013 and the tribunal do not consider the claimant’s own note of the matter conveyed a serious repeat occurrence of anger or shouting such that it was seriously unreasonable for the respondent not then to separately investigate or discipline Mrs Gausden in respect of. It is accepted that the claimant suffered upset and distress as a result of the behaviour of Mrs Gausden and which the respondent did not wish to add to when they became aware of the Facebook postings in circumstances where there was ambiguity as to whether the comments in fact related to her. It is noted the respondent sought advice and believed they could not successfully pursue disciplinary proceedings in respect of the comments and that the introduction of a clear Social Media Policy warning of disciplinary action if breached and speaking to the employees involved about the comments to be the best way to guard against any future occurrence. The tribunal do not accept in the circumstances Mr Doherty’s contentions that the respondent’s handling of the Facebook comments was seriously unreasonable.

82. The tribunal consider it was implicit in Mrs Gausden’s action of having appealed the disciplinary sanction imposed upon her and raised a counter grievance that she did not consider herself entirely in the wrong and do not accept the contention that it was unreasonable of the respondent given the impact upon the claimant not to seek an apology from Mrs Gausden. The tribunal consider that the respondent repeatedly tried to find out from the claimant what they needed to do to facilitate her return to work, communicated their support and wish to have her return. It was not clear that the absence of an apology prevented the claimant’s return to work and progressing to mediation as suggested might well have garnered this. The tribunal consider that the respondent was genuinely endeavouring to find a way forward so both employees could work together and so that the claimant would feel safe and return to the workplace and do not accept the measures suggested to prevent a
re-occurrence by way of a chaperone and formal disciplinary warning issued were likely to be entirely ineffective and were unreasonable as contended by Mr Doherty in view of Mrs Maginness having left the claimant’s office and closed the door after Mrs Gausden came in when the September 2013 incident occurred , the period without incident after the lesser sanction of informal counselling was imposed in February 2013 and noting the limited overlap in the claimant’s working hours with those of Mrs Gausden. The tribunal consider overall that the respondent took the claimant’s grievance seriously, dealt with the matter promptly and reasonably in genuinely trying to secure her return to work whilst balancing the need for fairness in the treatment of their other employee against whom the grievance was raised, who had raised a counter grievance and were trying to find a workable way forward.

83. It is unfortunate that all the parties did not have the opportunity to meet at the arranged meeting on 9 October 2013, the first time all three respondent would have been present and whilst the tribunal consider that the letter then written by the respondent in the absence of the claimant’s attendance, was not the most sympathetically drafted, objectively assessed the tribunal do not find it, in particular the reference therein to the respondent’s conclusion that there was no threat to the claimant’s safety in the workplace, viewed alone or cumulatively with prior events (including Dr Beck’s denial of knowledge of the Facebook comments) was calculated or likely to seriously damage the relationship of trust and confidence between the respondent and the claimant or that the respondent’s conduct so impacted on the claimant viewed objectively that she could properly conclude the respondent was repudiating the contract of employment.

84. The tribunal find assessed objectively the respondent’s conduct as a whole did not amount to a fundamental breach of contract of the implied terms of mutual trust and confidence, support and co-operation or to promptly address grievances.

85. As such the four conditions required for constructive dismissal are not met.

CONCLUSION

86. 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, but resigned and dismisses the claimant’s claim of unfair dismissal.

Employment Judge:

Date and place of hearing: 4, 5 and 19 March 2014, 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 >> Murphy v Dr John Wilson, Dr Kathy Fergu... [2014] NIIT 1935_13IT (22 May 2014) URL: http://www.bailii.org/nie/cases/NIIT/2014/1935_13IT.html Cite as: [2014] NIIT 1935_13IT

Industrial Tribunals Northern Ireland Decisions