THE INDUSTRIAL TRIBUNALS

CASE REF:	  2672/14

CLAIMANT:			Trudi McBurney

RESPONDENT:		Positive Futures

DECISION 

The unanimous decision of the tribunal is that the claimant’s claim of constructive dismissal is dismissed.

Constitution of Tribunal:

Employment Judge:	Employment Judge Crothers

Members:	Ms M Mulligan
	Mrs M J McReynolds

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by 
Brian Kelly and Company Solicitors.

The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by 
J Blair Employment Law Solicitors.

The Claim

1.	The claimant claimed that she had been constructively dismissed by the respondent.  She withdrew her claim under the Working Time Regulations for holiday pay.  The respondent denied her allegations in their entirety.  

Sources of Evidence

2.	The tribunal heard evidence from the claimant and, on behalf of the respondent, from Anne Magee, Service Manager, Lorna Houston, Human Resources Manager for the respondent from July 2005 until August 2014, Nicola McCann, Operations Manager, Peter Hillier, Service Manager, and Julie Monahan, Human Resources Director.  The tribunal was also presented with a bundle of documentation and had additional documentation presented to it in the course of the evidence.

Findings of Fact

3.	Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact, on the balance of probabilities:-

(i)	The claimant was employed by the respondent as a Support Worker from 
3 August 2009 and worked at Crescent Support Living Services Project in Belfast.  Her effective date of termination of employment is 1 September 2014.  

(ii)	In her letter of resignation dated 1 September 2014 to Lorna Houston, the claimant states as follows:-

“As you are aware I have been employed with Positive Futures since August 2009.  An issue developed some time ago relating to my hours of work.  I was being required to work too many hours every week and this led to a breakdown in my health.  I was on sick leave from July 2013 until February 2014.

At a meeting with Anne Magee on the 20th December 2013, an agreement was made with regards to phased return and a 37.5 hour week.  This was by mutual agreement and was confirmed by letter of 
8th January 2014.

I returned to work on the 5th February 2014.

The week following the end of the phased return, the original pattern was clearly back in place with regards to hours and Sunday evening crossover shifts.  I was being required to work more than 37 and a half hours per week.  I tried to contact Peter Hillier to discuss the matter and left him a message, but he did not return by call.

Following GP advice I have been absent since March of this year.

I raised concerns/ a grievance seeking to have the matter redressed and resolved.  I attended a meeting on 7th July 2014, with Peter Hillier and Frances Baxter.  Peter produced another rota containing the same pattern for the following week after my phased return, illustrating that the original agreement had been broken and the Company was unprepared to facilitate me given the issues raised over the course of the last year.  The conduct that led to my sick leave is continuing and has caused me to again go on sick leave.

The organization and in particular Mr Hillier have been resistant to accommodating my reduced pattern of working-in breach of the agreement reached December 2013.

As there has been a continued failure to properly address these ongoing issues, which has led to a breakdown in my health and a second period of illness, failure to properly address and redress the matter in the course of the grievance, I feel that I have no alternative but to resign my employment.  I believe I have been constructively dismissed.  Consequently this is a letter of resignation as of the date of this letter.

Yours Sincerely”

(iii)	In his opening statement to the tribunal, counsel for the claimant stated that the claimant was making the case that during the meeting with Anne Magee and Lorna Houston on 20 December 2013 an agreement had been reached with the respondent that the claimant would not work in excess of 37.5 hours per week to include sleepovers and that this included a sleepover on Sunday into Monday, referred to as the “Sunday crossover”.  The respondent adamantly rejected the claimant’s evidence that the agreement included the Sunday crossover and maintained that the first mention by the claimant of an issue regarding Sunday crossovers was during a meeting held on 7 July 2014 with Peter Hillier.  In his opening statement to the tribunal counsel also stated that the claimant would be relying on a breach of the implied term of mutual trust and confidence pursuant to the alleged breach of the agreement as to hours.  This allegation was also rejected by the respondent.  

(iv)	The claimant went on sick leave on 24 July 2013 due to what she alleged was work related stress.  Following a report from her GP, Dr O’Hare, dated 26 September 2013, which referred to the claimant being too anxious to return to work, the respondent arranged to meet with her to discuss the report.  A meeting, rescheduled at the claimant’s request, was held with Lorna Houston and Anne Magee on 20 December 2013.  Having carefully considered all of the relevant oral and documentary evidence, including the claimant’s witness statement and oral evidence, and the evidence of Anne Magee, Lorna Houston, and Peter Hillier in the subsequent period, as reflected in the findings below, the tribunal is satisfied, on the balance of probabilities, that the agreement reached with the claimant at that meeting related to her not working in excess of 37.5 hours per week to include sleepovers, but excluded Sunday sleepovers/crossovers.  The tribunal is also satisfied that the first mention of Sunday crossovers as an issue was at the subsequent meeting held on 7 July 2014.  

(v)	The tribunal was shown correspondence dated 8 January 2014 from Lorna Houston to the claimant in which she states:-

“I am delighted that we have agreed your return to work.  As discussed 19 and 20 January 2014 will be treated as days off, following this you will take 2 weeks annual leave returning to work on 3 February 2014 for 3 days a week.  Your initial 2 weeks will be a reintroduction and include shadow shifts and following this you will have 3 weeks working 3 days a week.  Therefore you will return to full time hours from 10 March 2014.

During the meeting you identified that the maximum number of hours you wished to work in any week (including sleepovers) was 37.5 hours.  Anne will ensure that this information is communicated to your new Service Manager, Peter Hillier.

We look forward to welcoming you back to work.  If you have any queries please do not hesitate to contact myself.”

(vi)	The claimant did return to work on 3 February 2014.  However, on 4 March 2014, she telephoned Peter Hillier claiming that she was working over and above her contracted hours.  However she based this on her working hours over an eight day period and not the seven day working week period, also reflected in the rotas presented to the tribunal.  The tribunal is satisfied that no reference was made in the telephone conversation with Peter Hillier on 4 March 2014 to a rota issued on 28 February 2014 for week commencing 17 March 2014, which referred to 38 hours.  The reference to 38 hours was crossed out in one of the copies of the rota shown to the tribunal.  The claimant did not raise this issue in either her claim form to the tribunal, in her witness statement, in her evidence in chief before the tribunal, at the meeting on 7 July 2014, or in her resignation letter.  The issue was first raised during the cross examination of the claimant.  It was however put to Peter Hillier in cross examination that this was why the claimant resigned, that her contract had been breached, and that the respondent had never sought to address it.  The tribunal accepts Peter Hillier’s evidence that he did not have an opportunity of addressing this issue as it had not been raised.  Furthermore, pursuant to the telephone call with the claimant on 4 March 2014, Peter Hillier reviewed the rotas from 10 March backwards and concluded that the claimant had not worked in excess of 37.5 hours during any normal working week, as the agreement arrived at on 20 December 2014 did not refer to any seven day period but to the working week in the period between Monday and Sunday, excluding Sunday crossover work.

(vii)	Prior to her first period of sick leave on 14 July 2013, the claimant had not raised any formal complaint or grievance in relation to her hours of work although she had discussed her hours on several occasions on an informal basis with the respondent.

(viii)	Between 3 February 2014 and 18 March 2014, when the claimant went off on sick leave for a second time, she had in fact worked an average of 37.29 hours per week but was paid in full for 37.5 hours.  Furthermore the tribunal accepts that the rota for week commencing 17 March 2013 referred to 38 hours due to a rostering mistake.

(ix)	The tribunal also accepts Peter Hillier’s evidence that during the telephone conversation with the claimant on 4 March 2014, the claimant clarified that she was counting hours over an eight day period and not a seven day week.  Peter Hillier pointed out that although a working week runs from Monday to Sunday, if a shift begins on Sunday night and finishes on Monday morning, the hours are included in the previous week for pay purposes.  He also pointed out that the working week is counted as a seven day week and that it could not be changed without this resulting in a reduction in the claimant’s contractual hours.  Peter Hillier confirmed that he would review the claimant’s rota with Ms McCann to see if regularity of days off was a problem.  He also asked the claimant to consider what she felt he could do to assist her.  The claimant did not appear to raise any issues at all regarding “waking night” shifts.  The resident to whom she was assigned required support through such waking night shifts.  

(x)	The tribunal carefully considered the entries in the General Practitioner’s notes referred to it during the course of the hearing together with relevant medical reports, including the Occupational Consultant’s report dated 11 June 2014.  The Occupational Health report was arranged following an investigation into the claimant’s allegations, made during a telephone call with the Human Resources Manager on 21 March 2014, that a form of bullying had taken place towards her involving the allocation of excess hours by the person with responsibility for compiling support planners in the Crescent Supported Living Services Project.  The claimant alleged that this had impacted upon her health and she felt that she had no option but to take sick leave.  An entry in the General Practitioner’s records dated 21 March 2014 states that:-

“E: major problems at work, stressed 
S: new manager.  all major problems have returned.  extra hours over agreement.  feels victimised and bullied, insomnia.”  

(xi)	The Operations Manager, Nicola McCann, carried out the investigation into the allegations of excess working hours.  Although not aware of the agreement reached on 20 December 2013 in relation to the maximum limit of 37.5 hours, she carried out her investigation in the context of a contractual working week of 37.5 hours, as reflected in paragraph 5(i) of her findings within the investigation report.  In the course of her investigation Nicola McCann did consider the rota for week commencing 17 March 2014 even though the claimant had not made any specific complaint about this rota.  As previously stated, she referred to it for the first time during cross examination before the tribunal.  At any rate, Nicola McCann found no evidence of unfair treatment suggestive of bullying, harassment or victimisation as defined by the respondent’s Positive Future’s Policy. 

(xii)	During her telephone conversation with Peter Hillier on 4 March 2014, the claimant also raised an issue about a day’s leave requested for 24 April having been declined.  However, had she made it clear to Peter Hillier that she needed the day off to attend court he would have tried to facilitate her.  After the conversation Peter Hillier, in perusing the rotas discovered an error during week commencing 3 February.  Tuesday, 4 February 2014, should have been a day off for the claimant.  Instead it was allocated as a day’s annual leave.  The mistake did not mean that the actual number of hours to be worked by the claimant had increased during this particular week.  However the issue was rectified and 4 February was not deducted from the claimant’s remaining annual leave total.

(xiii)	The meeting held on 7 July 2014 was conducted by Peter Hillier.  Frances Baxter was the claimant’s support person and Lorna Houston was in attendance and was responsible for the minutes of the meeting.  The tribunal found Peter Hillier to be a careful and credible witness.  It has no reason to doubt the accuracy of the minutes of the meeting.  The brief minutes sent by email to the claimant by Frances Baxter on 6 October 2014 referred to 
Peter Hillier allegedly stating that he could not accommodate the arrangement made in December 2013.  The tribunal does not regard this as an accurate reflection of what Peter Hillier actually said.  There was also no mention at this meeting of the rota for week commencing 17 March 2014 and the Sunday crossovers were raised as an issue for the first time by the claimant.  Peter Hillier explained to her, given the fact that waking nightshifts had to be provided for a particular individual, that there was always going to be a crossover period and that the claimant needed to look at the average hours worked over a 17 week period.  The tribunal accepts that the rotas were available in advance for the weeks commencing 3 February 2014 until 17 March 2014, being the period of her phased return.  Peter Hillier explained to the claimant that he was considering introducing a three week rolling pattern and that he would be keen for the claimant to see and consider the new pattern.  The tribunal is satisfied that Peter Hillier did not produce a rota of the nature referred to by the claimant in the course of this meeting.  The three week rolling pattern was however produced but not agreed as it was still under consideration.  The tribunal is satisfied that the minutes are an accurate reflection of what was discussed, including the final paragraph which states:-

“Lorna identified that Positive Futures are keen to support Trudie to return to work.  Lorna suggested that a range of options could be considered eg fixed days, working in a different service with a different working pattern.  Trudie identified that she would like no Sunday crossover and Peter explained that this would not be fair to other staff.  Peter identified that he was happy to review the roster and look at fixed days off as an option.  Trudie identified that she would be visiting her GP on Thursday and following this would provide us with feedback.

The meeting ended.”

(xiv)	The claimant denied having received correspondence dated 8 August 2014 from Lorna Houston which identified the issues emerging from the meeting and ended by expressing the respondent’s keenness to hear the claimant’s views regarding “next steps”.  The correspondence also invited the claimant to contact Peter Hillier or the Human Resources Department by 25 August, to advise how the respondent could support her return to work.  Although the claimant denied receiving this correspondence, there was no evidence either that it had been returned by the Post Office at any stage, or, upon receiving correspondence from the respondent dated 2 September 2014, which referred to the letter of 8 August 2014, that she made any effort to obtain a copy of this correspondence.

(xv)	The General Practitioner’s notes show that the claimant attended the GP surgery on 10 July 2014 and 12 August 2014.  There are further entries for 18 and 27 August 2014 which appear to relate to telephone calls.  Lorna Houston received an email from the claimant on 10 July 2014 to indicate that she had been with her GP and that she had been given a further six weeks sick line.  However she never reverted to the respondent in relation to the suggestions put forward at the meeting held on 7 July 2014 regarding the three week rolling pattern or an agreement to work fixed days during the week, or indeed consideration of working in a different service.  Instead the claimant resigned in the terms referred to at the outset of this decision.  The tribunal also considered the correspondence sent to the claimant following her resignation, which is further referred to in the tribunal’s conclusions.

(xvi)	The tribunal considered evidence of the claimant’s alleged loss, subject to the issue of liability.    

Submissions

4.	The tribunal carefully considered the helpful written submissions from Mr Warnock together with further helpful oral submissions from both counsel.  The respondent’s written submissions are appended to this decision and contain reference to the relevant law on constructive dismissal.  The claimant’s counsel also submitted a folder containing various authorities.  

The Law

5.	(i)	Article 127 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) states as follows:-

		“127. – (1) for the purposes of this Part an employee is dismissed by his employer if … - (c) the employee terminates the 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”.

	(ii)	Article 156(2) of the Order states as follows:-

		“Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly”.

	(iii)	The Order further states at Article 157(6) as follows:-

		“Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding”.

	(iv)	Harvey on Industrial Relations and Employment Law (“Harvey”) states at Division D1 at 403 as follows:-

		“In order for the 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 either an actual breach or an 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”.

		(See also Western Excavating (ECC) Limited v Sharp 1978 IRLR 27).

(v)	Harvey continues:-
“(b)	The duty of co-operation
[461]  More recently the EAT has specifically followed the Post Office case on this point (Woods v WM Car Services (Peterborough) Ltd 1981] IRLR 347, [1981] ICR 666).  The Tribunal emphasised the significance of this duty for employers not to conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of mutual confidence and trust.  As it pointed out, it enables an employee who is ‘squeezed out’ of the company by the wholly unreasonable conduct of the employer to leave and claim that he has been dismissed even though he cannot point to any specific major breach of contract by the employer.
[462]  This duty not to undermine the trust and confidence in the employment relationship can be subsumed under a wider contractual duty which is imposed on the employer, to co-operate with the employee.”
(vi)	Once a tribunal has established that a relevant contractual term exists and that a breach has occurred, it must then consider whether the breach is fundamental.  Where an employer breaches the implied term of trust and confidence, the breach is inevitably fundamental (Morrow  v  Safeway Stores plc 2002 IRLR 9, EAT).  A key factor to be taken into account in assessing whether the breach is fundamental is the effect that the breach has on the employee concerned.

	(vii)	Unlike an anticipatory breach of contract, an actual breach of contract cannot be retrieved by the employer offering to make amends before the employee leaves.  Once the breach has been committed it is for the wronged party to decide how to respond (Buckland  v  Bournemouth University [2010] IRLR 445 CA).

	(viii)	In Mahmud and Malik  v  Bank of Credit and Commerce International SA [1997] IRLR 606, (‘Malik’) the duty of implied trust and confidence was affirmed by the House of Lords 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 trust and confidence between the employer and the employee.”

		Lord Steyn stated that:-

			“The implied obligation as formulated is apt to cover the great diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.”

	(ix)	The test for breach of the implied duty of trust and confidence is an objective one.  The duty of trust and confidence may be undermined even if the conduct in question is not directed specifically at the employee.  The duty may be broken even if an employee’s trust and confidence is not undermined.  It also follows that there will be no breach simply because an employee subjectively feels that such a breach has occurred, no matter how genuinely this view is held.

	(x)	The range of reasonable responses test is not applicable to constructive dismissal per se.  However it is open to the employer to show that such a dismissal was for a potentially fair reason in which case the range of reasonable responses test becomes relevant.

	(xi)	The breach of contract must be “sufficiently important” to justify the employee resigning or it must be the last in a series of incidents which justify his leaving.  It must go to the heart of the contractual relationship between the parties.  Harvey comments that where the alleged breach of the implied term of trust and confidence constitutes a series of acts, the essential ingredient of the final act is that it is an act in a series, the cumulative effect of which amounts to the breach.  It follows that although the final act may not be blameworthy or unreasonable, it must contribute something to the breach even if it was relatively insignificant (Harvey Division D, paragraph 481.01).  See Omilaju  v  Waltham Forest London Borough Council [2005] IRLR 35.

	(xii)	The employee must resign in response to the breach.  In the recent EAT case of Wright  v  North Ayrshire Council [2014] IRLR 4, (“Wright”) Mr Justice Langstaff (President) states at paragraph 20 of his judgment that:-

			“Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause.”

	(xiii)	In Western Excavating (ECC) Ltd  v  Sharp (1978) IRLR 27 CA, it was pointed out that an employee must make up his mind regarding resignation soon after the conduct of which he complains.  Should he continue any length of time without leaving, he will lose his right to treat himself as discharged from the contract.  However, where there is no fixed period of time within which the employee must make up his mind, a reasonable period is allowed.  This period will depend on the circumstances of the case including the employee’s length of service, and whether the employee has protested against any breach of contract.

	(xiv)	The tribunal also considered the recent case of Chindove v William Morrison Supermarkets Ltd (“Chindove”) UKEAT10201113 (26 June 2014, unreported).

Conclusions

7.	The tribunal carefully considered the law relating to constructive dismissal and the conditions which must be met in order for the claimant to be able to claim constructive dismissal.  Having applied the relevant principles of law to the findings of fact, the tribunal concludes as follows:-

(1)	The issue of the rota for week commencing 17 March 2014 was first raised by the claimant under cross examination.  It is not contained in the claim form to the tribunal or in the claimant’s witness statement.  Furthermore it was not raised during the meeting held on 7 July 2014 or in the claimant’s resignation letter.  It cannot properly be considered as being a reason for the claimant’s resignation and, at any rate, specified 38 hours and not 37.5 hours as a result of a rostering mistake.  Even if considered as not being a mistake, in the context of the claimant having worked for six weeks upon her return to work on 3 February 2014, some of which exceeded 37.5 hours, and in circumstances where there was a slight deficit in hours over that period, 30 minutes in excess of 37.5 hours cannot properly be considered as a fundamental breach of contract.

(2)	The tribunal’s finding of fact that the agreement reached between the respondent and the claimant on 20 December 2013 established a maximum working week of 37.5 hours, to exclude Sunday sleepovers/crossovers, leads to the conclusion that the claimant’s contract of employment was not fundamentally breached in this respect.  Although the claimant was calculating hours over an eight day period or any seven day period (and not the seven day working week) as evidenced by her conversation with Peter Hillier on 4 March 2014, the Sunday crossover did not in itself become an issue until it was raised at a meeting with Peter Hiller on 7 July 2014.  In the circumstances as presented to the respondent on that occasion, there was nothing exceptional in the approach taken or the suggestions made.  The fact is that the claimant did not revert to the respondent after consulting with her GP and chose to resign in the terms articulated in her correspondence of 1 September 2014.  Efforts were also made by the respondent after that date to discuss her resignation with a view to resolving the matter in order to enable her to return to work.  The correspondence from Julie Monahan to the claimant dated 2 September 2014 was followed by a reminder from her dated 16 September stating that as the respondent had not heard from the claimant her final pay was being processed at the end of September.  However an opportunity was still given at this stage for the claimant to contact the respondent by 30 September “if you wish to discuss your issue”.  No response was, however, forthcoming.

(3)	The claimant also relied on a breach of the implied terms of trust and mutual confidence pursuant to the alleged breach of the agreement as to hours.  However the tribunal is not persuaded on the evidence before it that the respondent without reasonable and proper cause conducted itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between itself and the claimant.  

(4)	In light of its findings of fact, when considered against its analysis of the relevant legal principles, the tribunal is therefore not satisfied that the claimant has established a repudiatory breach or breaches of contract which is/are sufficiently important to justify her resignation. 

(5)	The claimant’s claim of constructive dismissal must therefore be dismissed.

Employment Judge:       

Date and place of hearing:  15-17 April 2015, Belfast.	

Date decision recorded in register and issued to parties: