THE INDUSTRIAL TRIBUNALS

CASE REF:   454/16

CLAIMANT:			Joseph Hamill

RESPONDENT:		Almac Clinical Services Ltd

DECISION
The unanimous decision of the tribunal is that the claim of constructive unfair dismissal is dismissed.  

Constitution of Tribunal:
Vice President:	Mr N Kelly
Members:		Mrs T Hughes
			Mr J Pollock

Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Ms K Moore, of
Engineering Employers’ Federation Northern Ireland.

Background

1.	The claimant was employed by the respondent, latterly as a senior operative, for approximately eight years.

2.	The respondent is a pharmaceutical company with an industrial plant in Portadown.  

3.	Following notification of the results of an annual appraisal review, the claimant resigned.  He claimed constructive unfair dismissal.

4.	The respondent denied that there had been a constructive unfair dismissal.  

Relevant law

Constructive dismissal

5.	In London Borough of Waltham Forest  v  Omilaju [2005] IRLR 35, the Court of Appeal (GB) set out the basic propositions of law relating to constructive dismissal.  It stated that they were:

“1.	The test for constructive dismissal is whether the employers’ actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1998] IRLR 27.

2.	It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA [1997] IRLR 462, 464 (Lord Nicholls) and 468 (Lord Steyn).  I shall refer to this as ‘the implied term of trust and confidence’.

3.	Any breach of the implied term of trust and confidence will amount to a repudiation of the contract; see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347; 350.  The very essence of the breach of the implied term is that it is ‘calculated or likely to destroy or seriously damage the relationship’.

4.	The test of whether there has been a breach of the implied term of trust and confidence is objective.  As Lord Nicholls said in Malik at p464, the conduct relied on as constituting the breach must “impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer”.

5.	A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last throw in a serious of incidents.  It is well put at para 480 in Harvey on Industrial Relations and Employment Law:

	‘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 him taking that action, but when viewed against the 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’.”

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

Unfair dismissal

To ground a successful claim, a constructive dismissal must, of course, also be unfair.  

7.	Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

“130-(1)	In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a)	the reason (or if more than one, the principal reason) for the dismissal and

(b)	that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

			    (2)		a reason falls within this paragraph if it – 

						(b)	relates to the conduct of the employee, 

(4)	where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – 

(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b)	shall be determined in accordance with equity and the substantial merits of the case.”

Procedure

8.	This case had been case-managed.  The parties had been directed to exchange witness statements in advance of the hearing.  The witnesses, including the claimant, swore or affirmed to tell the truth, adopted their witness statements as their evidence-in-chief, and moved immediately into cross-examination and                     re-examination.  

9.	The claimant gave evidence in this manner and was cross-examined.  He did not raise any issue on re-examination.  The claimant called no witnesses in support of his claim.

10.	Two witnesses gave evidence on behalf of the respondent.  They were:-

		Mr James McCusker, Head of Products; and

		Dr Susan Bill, Global Vice President of Human Resources

	The claimant did not cross-examine either witness.  

11.	The claimant was cross-examined by Ms Moore up to 12.50 pm when the tribunal rose for one hour.  The claimant expressed surprise at that point that he was expected to ask questions of the two respondent witnesses, if he wished to do so.  This was despite the case having been case-managed and despite having just been cross-examined himself.  The procedure was explained.  He had had the two respondents’ witness statements for some time at that point and he had one hour to prepare any questions if he had not already prepared them.  When the tribunal resumed one hour later at 1.50 pm, the respondents’ witnesses were sworn in turn and he did not ask them any questions by way of cross-examination.  He did not ask for further time to prepare any questions.  He simply indicated that he had no questions.  

12.	The hearing therefore concluded with submissions from both parties.  After those submissions the panel met to reach a decision.  This document is that decision.

13.	The hearing therefore was heard in one day on 8 June 2016.  

Relevant findings of fact 

14.	The claimant started work with the respondent company in 2007 as an operative.  He was subsequently promoted to senior operative.  

15.	After that promotion to senior operative, he complained, in or about April 2014, to the respondent that he had been sworn at by Mr Neil Armstrong, his supervisor.  

16.	Ms Heather Cummings, who was Mr Armstrong’s supervisor, asked him if he wanted to deal with this matter informally.  The claimant regards this request as in some way sinister.  The tribunal does not.  It was a perfectly standard question in the circumstances.

17.	The claimant wished to proceed formally with his complaint against Mr Armstrong.  The complaint was upheld and Mr Armstrong was disciplined and required to apologise.  He did apologise.  The tribunal sees nothing wrong in the way that the respondent dealt with the claimant’s complaint against Mr Armstrong.  

18.	The claimant alleged that following this incident, Ms Cummings took ‘umbrage’ against the claimant and victimised him.  

19.	The claimant received six warnings.  Five were verbal warnings and one was a written warning.  Verbal warnings were the lowest possible warning in the respondent’s disciplinary procedure.  The claimant did not allege in the course of the relevant disciplinary hearings that he was in any way being victimised.  

20.	Before the tribunal, the claimant alleged that the six warnings were all caused by his complaint about Mr Armstrong, and that none of the warnings had been deserved.  According to the claimant, the warnings had been issued because Ms Cummings wanted to victimise him.  

21.	The six warnings, five at the lowest level, were decided on at disciplinary hearings.  At least eight separate people had been involved in this process from the management side.  There had been no written or other instruction from Ms Cummings to those eight people to act in any particular way towards the claimant.  The claimant alleged that those eight people had separately and independently decided to follow her wishes, or at least what he perceived as her wishes, to victimise him.  

22.	There was no evidence before the tribunal that Ms Cummings had any animus against the claimant following his complaint against Mr Armstrong.  There was no evidence that the eight separate people had acted in concert or independently to fulfil her wishes or her perceived wishes.

23.	The first warning was a verbal warning.  It was issued on 4 September 2014 after a disciplinary hearing held by Mr Damian Farragher and Ms Lois Craig.  The claimant was represented by a trade union representative.  It concerned an allegation that he had taken an excessive amount of time, ie three hours, to clean a room.  He did not appeal.  He did not allege victimisation.  He did not point to any individual who had taken excessive time to clean a room and had not been disciplined.

24.	The claimant produced no evidence to the tribunal that anyone else in similar circumstances had been treated any differently by the respondent or had been treated more leniently by the respondent.  

25.	The second warning, again a verbal warning, was issued on 25 September 2014, following a disciplinary hearing conducted by Mr James McAleavey and Ms Danielle Walker.  The claimant accepted that he had been checking a mobile phone for messages while in a work area.  That had clearly been a breach of the respondent’s written procedures.  The claimant did not give evidence at the disciplinary hearing, or indeed to the tribunal, of anyone else having been treated differently or more leniently.  He simply said that he would not do so.  He did not appeal this warning and he did not allege victimisation in the course of the disciplinary hearing.

26.	The third warning, again a verbal warning, was issued on 10 November 2014 following a disciplinary hearing held by Mr Darren McAvoy and Mr Michael Freeland.  It concerned an allegation that the claimant had failed to correctly check a label count.  The claimant had been the senior person on the job.  It had been his responsibility to ensure the job was conducted properly.  The original mistake had been made by Mr Grimley, an operator, who was, at that stage, in training.  The claimant accepted that he had failed to spot the mistake.  In the circumstances, the respondent decided not to issue a warning to the trainee.  The claimant did not appeal his warning.  He did not allege victimisation in the course of the disciplinary hearing.

27.	The fourth warning was a written warning issued on 15 January 2015 following a disciplinary hearing conducted by Mr Darren McAvoy and Mr Michael Freeland.  It concerned an allegation that the claimant had ‘miscompiled’ a medical kit.  The charge was upheld.  Mr McAvoy and Mr Freeland took into account the verbal warning which had been issued earlier.  In the course of the investigation, it was noted that:-

“Joe can’t really remember the operation but can only assume he was rushing to achieve pack rates and had just missed it in error.”

	The claimant signed those investigation notes.  

28.	The fifth warning was a verbal warning issued after a disciplinary hearing conducted by Mr Gareth Corey and Ms Eleeze McCann on 30 October 2015.  It concerned seven incidents of lateness on the part of the claimant.  He did not dispute, before the disciplinary hearing; or indeed before the tribunal, that he had been late on those occasions.  He did not complain to the disciplinary hearing that he was being victimised.  He did not produce any evidence to the disciplinary hearing of anyone else not being disciplined in those circumstances or having been treated more leniently in those circumstances.

29.	Before the tribunal the claimant complained that he had not been warned that he was at risk of a warning.  Again he produced no evidence to the tribunal that anyone had been treated differently or more leniently in such circumstances.

30.	The sixth warning, again a verbal warning, was also issued on 30 October 2015 following a disciplinary hearing conducted by the same two individuals, Mr Corey and Ms McCann.  The claimant had been absent with a GP sick note for a period of eight days.  That had triggered the respondent’s sick policy.  The claimant produced no evidence to the disciplinary hearing; or indeed to the tribunal, that anyone had been treated any differently or more leniently in such circumstances.  He did not allege to the disciplinary hearing that he had been victimised.  He alleged to the tribunal that Ms Cummings, when being notified by him on the telephone of his absence from work, said that it sounded like a ‘five day’ bug.  He regarded this as in some way sinister and an attempt by Ms Cummings to encourage him to take time off and thereby to trigger the sick leave warning clearly set out in the respondent’s procedures.  The tribunal concludes that that claim is nonsense.  The claimant had been absent on sick leave with a GP sick note.  Ms Cummings could have had no influence over that GP or over the length of the sick note that he prescribed.  The remark appears to have been entirely normal.  

31.	The respondent company operated an annual performance assessment system which applied to all employees, including the claimant.  It included a marking of ‘fully meets expectations’ (‘FME’) which was a satisfactory mark.  It also included a mark of ‘does not meet expectations’ (‘DME’) which was the bottom marking.  In between those two markings was an ‘approaching expectations’ (‘AE’) marking which was an intermediate assessment which indicated that there was room for improvement.

32.	The employment history of the claimant indicated that his annual assessments had been made by a range of staff and that they included FME and AE markings.  They were as follows:-

		“2009 – 2010 – FME – Completed by Greer Gardiner

		 2010 – 2011 – FME – Completed by Nicola Doran

		 2011 – 2012 – AE – Completed by Nicola Doran

		 2012 – 2013 – FME – Completed by Darren McAvoy

		 2013 – 2014 – AE – Completed by Darren McAvoy

		 2014 – 2015 – AE – Completed by Darren McAvoy”

33.	On 17 November 2015 the claimant’s supervisor, Mr McAvoy, informed him that his latest assessment for 2014 – 2015 was AE and that Ms Cummings wanted to conduct an investigation.  That was the second AE marking in a row.  The individual markings under different headings, ie ‘Attendance/Reliability’ and ‘Job Knowledge’, were identical to that obtained in the previous year 2013 – 2014.  He had not received any DME markings under any of those headings and in fact received four FME markings out of nine headings.  

34.	The claimant’s evidence in relation to what he had been told by Mr McAvoy in relation to the assessment of 17 November 2015 was confused.  In his sworn witness statement he stated that he had been told earlier by Mr McAvoy that demotion was likely as he was still making mistakes.  He did not dispute that he had still been making mistakes.  In cross-examination he indicated that he had been told that he would be demoted and also that demotion was an ‘option’.  In any event, it seems clear that two successive AE markings had led Mr McAvoy to indicate since improvement was required and since the claimant was still making mistakes, that demotion was a possibility at some point.  However, it is equally clear that demotion would have required a disciplinary charge and a disciplinary hearing.  There was no indication of any such disciplinary procedure being planned.  If such a disciplinary procedure had been planned, the tribunal would have expected to see a DME marking or some other written indication to that effect.  

35.	The claimant took the view, however, that demotion was on the cards if not certain.  His reasoning appears to the tribunal to be somewhat confused.  He argued to the tribunal that the demotion was inevitable and that it had been in response to his complaint in 2014 about Mr Armstrong.  Simultaneously, he argued that he felt that the demotion was also a way of ensuring that he did not obtain a job share which he had applied for.  He stated that if he were demoted that would mean a further delay in his job share application because attempts would have to be made to find a job sharing partner at the lower level.  He stated that he was tired all the time looking after his child and that this could only get worse.

36.	It is unclear to the tribunal to what extent the claimant was alleging that the assessment was victimisation because of his complaint about Mr Armstrong and to what extent it was some sort of method of delaying or obstructing the job sharing arrangement.  

37.	In any event, the respondent had already arranged a job sharing arrangement at the senior operator level and had notified the claimant of that arrangement.  It does not seem to the tribunal to be significant that that notification had been oral rather than written.  

38.	The tribunal is also confused, in that the claimant insisted that he had no complaint about Mr McAvoy who had completed his performance assessment; but that his complaint was about Ms Cummings.  It is difficult to understand how the claimant has no complaint against Mr McAvoy, if he genuinely believes that his annual appraisal, in a period where he says he was tired and in a period where he says he was still making mistakes, was an act of victimisation.  The appraisal had been signed by Mr McAvoy.  

39.	Later that day, the claimant signed a brief letter of resignation which did not specify any cause.  That letter was left for Ms Cummings to read the following day.  

40.	The following evening the claimant met Ms Cummings in her office.  Ms Cummings informed him that she would be accepting the resignation.  The claimant’s sworn evidence was that he had attempted to tell her why he was resigning but she had interrupted him.  He further stated in sworn evidence that Ms Cummings did not ask him why he was resigning.  That sworn evidence appears to conflict with the letter sent that day, immediately after that meeting, by Ms Cummings to the respondent’s HR Department which stated:-

“Joe confirmed that he felt he is being persecuted since he raised his grievance against Neil Armstrong 18 months ago.  I explained to him that he is more than welcome to raise a grievance if he felt he was being treated unfairly.”

41.	When this contradiction was put to him in cross-examination he stated that he had managed to get one sentence out before he had been interrupted.  That evidence was unconvincing and cannot be easily reconciled with his written witness statement.  It seems clear that he had been given and had taken advantage of an opportunity to explain the reasons for his resignation and that Ms Cummings had recorded those reasons in her letter of 18 November 2015.  

42.	On 26 November 2015 the claimant sent a letter to the respondent stating:-

“I am writing to raise a grievance against the way I have been treated since I first made a grievance against Mr Neil Armstrong (production supervisor clinical services – secondary production).  I believe I have been bullied out of my job, victimised and constructively dismissed.”

43.	The claimant decided not to attend a grievance meeting but instead to submit written grounds of his grievance.  Those written grounds were submitted on 8 December 2015.  He disputed the current performance assessment and the disciplinary warnings that he had received.  He concluded the grounds of his grievance with the following paragraph:-

“Finally just to give you an idea of the person I was dealing with, Heather Cummings told me in another meeting upstairs some time ago that I would work with (Mr X) if required to do so, he is a warehouse supervisor at the moment in clinical services, he spent a year in prison on remand after being charged with an assault on my younger brother Robert which resulted in his death 12 days later in 1997.”

44.	On 25 February 2016, Ms Currie, the HR Manager of the respondent, wrote to the claimant summarising his grounds of grievance and rejecting that grievance.  In relation to his final comments he pointed out that any comment that Ms Cummings might have made about (Mr X) would have been approximately eight years ago and some time before the complaint made by the claimant against Mr Armstrong.  

45.	The claimant has referred to this particular incident concerning an alleged conversation about Mr X in his claim form.  This alleged incident is of absolutely no relevance to the claim of constructive unfair dismissal.  It occurred sometime before any complaint lodged by the claimant against Mr Armstrong.  The individual concerned had not been convicted.  The claimant was never required to work with Mr X and there is no record of any friction or disagreement in the workplace between either party.  While the death of the claimant’s brother was obviously a distressing incident, the tribunal cannot understand why the claimant felt it necessary to introduce it into the grievance procedure and into the industrial tribunal proceedings when it had no relevance at all to the matters under consideration.  

46.	On 13 April 2016 the claimant outlined the grounds of his appeal against the decision to reject his grievance.  This is a confusing document.  In it, he appears to move away from the allegations that his problems were due to his original complaint against Mr Armstrong and/or because of his request for a job sharing arrangement.  He refers to his performance assessment and stated:-

“The real force behind this, in my opinion, was my request to get moved from a room in which two Lithuanian employees were speaking Lithuanian completely and basically ignoring me, one had previously told me she did not like me in front of a supervisor anyway.”

47.	He again queried his assessments from Mr McAvoy.  That does not sit easily with his current position that he has no complaint whatsoever about Mr McAvoy.  

Decision

48.	The issues before the tribunal to determine are essentially whether on 17 November 2015, the respondent had been in breach of contract and, if so, whether the claimant had resigned in breach of that contract.  

49.	There is no evidence before the tribunal of any breach of contract.  The claimant’s original complaint against Mr Armstrong had been dealt with properly and Mr Armstrong apologised.  Following that, the claimant incurred a series of verbal warnings and one written warning.  Those warnings were entirely in accordance with contract and there is no evidence that they were in any way motivated by the claimant’s original complaint against Mr Armstrong.  Indeed that allegation of victimisation is not an allegation that he had raised in the course of any of the disciplinary hearings that led to those warnings.  The final performance assessment was of ‘approaching expectations’.  That is consistent with performance assessments that he had received both before and after his complaint against Mr Armstrong.  There is no substance to his allegations in relation to a job sharing arrangement.  The respondent had already approved that job sharing arrangement.  If they had not wished to do so they would not have done so.  

50.	In short, the claimant believes that ‘everybody is out to get him’ and, unjustifiably, sees a conspiracy behind everything.  He was not being demoted.  He was not being dismissed.  He was being dealt with entirely in accordance with his contract of employment and he had had the opportunity to engage with the investigation of his performance proposed by Ms Cummings.  If at some point in the future his performance had not improved and if at some point in the future a disciplinary procedure had been invoked which might have led to either his demotion or to his dismissal, that could have been contested by the claimant in accordance with the respondent’s procedures.  

51.	The claimant simply jumped the gun and resigned in response to a performance assessment which was similar to performance assessments he had received in the past.  He resigned entirely without justification.  

52.	There was no breach of contract on the part of the respondent and therefore there can be no grounds for a constructive unfair dismissal claim.  The claim is dismissed.

Vice President

Date and place of hearing:	9 June 2016, Belfast

Date decision recorded in register and issued to parties: