Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  4380/17

 

 

 

CLAIMANT:                          Cindy Harrison

 

 

RESPONDENT:                  UK Greetings Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly constructively dismissed.  Her claim is therefore dismissed in its entirety.

 

 

 

Constitution of tribunal:

 

Employment Judge:          Employment Judge Browne

 

Members:                             Mr N Jones

                                                Mr A White

 

 

Appearances:

 

The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Donard King & Co. Solicitors.

 

The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by Pinsent Masons LLP, solicitors.

 

 

ISSUES AND EVIDENCE

 

1.            The claimant was employed by the respondent from January 1992 until she resigned on 17 May 2017.  Her job role was as a merchandiser and then merchandising manager within Northern Ireland, supervising the respondent’s greeting card outlets.  The claimant upon first being employed by the respondent had signed a waiver of her contract restricting her weekly working hours.

 

2.            The claimant was appointed as the merchandising manager for the whole of Ireland on 10 April 2015.  In advance of her appointment, she stated that “if we have maximum support for the new territory I have every confidence that will assist me in the challenges which lie ahead”.  The recollection of Darren Cave, Director of Field Sales for the respondent, was that the claimant’s primary concern was how much she would be paid.

 

3.            Her new role was created as a result of restructuring; there previously had been no
all-Ireland manager.  It was the claimant’s case that this restructuring was in fact just a cost-cutting exercise, and that the additional burden of it on her, in the amount of travel, long hours and extended time away from home, affected her health to the point where she felt that she had no option but to resign.  There was no evidence that the respondent had ever criticised the claimant’s performance at work; the respondent’s evidence was that the claimant was in fact one of its strongest merchandising managers.

 

4.            The claimant also expressed the view that the respondent in effect forced her out, again as a cost-cutting exercise, because of the loss after her appointment of its major customer in the UK, although not in the Republic of Ireland.

 

5.            It was the respondent’s case that the claimant resigned in anticipation of dismissal, arising from imminent disciplinary proceedings because she was suspected of potentially serious misconduct in and around falsifying records and expenses.

 

6.            The respondent also made the case that, contrary to the claimant’s account, she had free rein to set her own hours and to organise her time.  This included liberty to stay over at hotels at the respondent’s expense, if she found that lengthy daily commutes to and from her home to the respondent’s many card outlets were excessive.

 

7.            There was ample evidence that the claimant was very successful in her new role in addressing and resolving many serious flaws in the operation of the respondent’s business in the Republic of Ireland.  The claimant in her evidence listed a number of difficulties faced by her, including that “expenses and hours were incorrect”.

 

8.            There was significant resistance by a number of the staff under the claimant’s supervision to her attempts to bring their working practices in to line with the respondent’s UK business.

 

9.            The tribunal noted that a recurring theme of the case was the type of company car to which the claimant was entitled.  Mr Cave recalled that a few months after taking up her new role, the claimant expressed the wish to have a more comfortable car than that already provided to her when her role was solely within Northern Ireland.

 

10.         Mr Cave arranged for the claimant to be supplied with a car usually supplied to staff a grade higher than the claimant.  He made it clear that this car originally had been obtained for someone at a higher grade who then left his job, and that he could not guarantee that grade of car the next time.  The claimant did not refute that he had said this.  Her only comment was that it was supplied to her in a “disgraceful” condition, prompting her to take photographs of it when supplied to her, in case its bodywork damage might later be blamed on her.

 

11.         There was written evidence that the respondent had an established policy regarding the value of cars supplied to its staff, based upon their job grade.

 

12.         The claimant in her job appraisal of April 2016 reported in her written comments that she had concerns around her time management and work/life balance, due to what she described as the “extreme enormity” of her new role.  Mr Cave stated that, before this, there was some discussion between him and the claimant’s line manager, Ms Kris Seymour about the geographical area being too big for one person to cope with.  To that end, he suggested to the claimant that it would be possible for the time-consuming payroll administration to be delegated to another member of staff, but the claimant declined the offer.

 

13.         The claimant at her job appraisal also stated in those comments that the role required:-

 

“… excessive mileage and travel to reach all areas of the team and I must emphasise the comfort and ease of this process has been significantly improved by the driving position and automatic transmission of my current company car.  I do feel anxious and nervous as this lease expires in November 2016.  I am aware that my management grade dictates the vehicle however in the light of the sizeable territory, I would politely request consideration for a like for like replacement.”

 

14.         The claimant therefore was aware that specification of car provision was based upon grade; and that her grade did not warrant the better car, as had been explained to her by Mr Cave.  She also was making the case that she was travelling “excessive” miles in the course of her work.  It was of note that she was making the case for a higher grade of car some seven months before she was due to receive a replacement.

 

15.         In September 2016, the claimant asked Mr Cave about her replacement car, specifying, when he asked what was important to her, “comfy seats and an automatic transmission.” Mr Cave, because he thought very highly of the claimant’s work, attempted to comply with this request, and spoke to the head of the respondent’s HR, who suggested that, in order to justify it, he should arrange for a risk assessment to be carried out by Mr Chris Shaw, the respondent’s health and safety officer.

 

16.         This assessment was carried out, based upon information provided by the claimant to Mr Shaw as to her weekly mileage and hours worked.  The claimant informed him that:  she drove 300-400 miles per day; worked 10-12 hours per day; and stayed overnight up to three nights per week, but normally one or two.

 

17.         The claimant in her evidence stated that it was she who contacted Mr Shaw in September 2016, but, whichever is correct, his findings were substantially at odds with the information with which she supplied him.  On his calculation, the claimant drove on average 100 miles per day; and she had not had an overnight stay in the preceding six months.

 

18.         The claimant in evidence expressed her shock at Mr Shaw’s later refusal to discuss the “huge amount of mileage” she had told him about, which, on her account, had shocked him.  She did not know at that later conversation that he by then was aware of the disparity between her assertions and his findings, which would in the view of the tribunal be likely to explain any reluctance on his part to discuss it.

 

19.         In the event, the claimant was informed on 30 November 2016 that a final decision had been made to provide an Astra car, not an Insignia.  The car would be automatic and have more comfortable seats than the standard model, as per her requests to
Darren Cave, although the claimant did not mention that aspect in her witness statement.

 

20.         It seemed to be common case that, upon receiving this news from Kris Seymour, who read it out from an email from Darren Cave, the claimant became extremely upset and tearful.  The claimant and Kris Seymour both made reference to her being upset because she felt the respondent undervalued her by giving her an inferior car to the one to which she considered herself entitled.

 

21.         The claimant texted a request on 2 December to Kris Seymour for a five to ten minute “conversation” before Ms Seymour returned to England, to which Ms Seymour agreed.  No formal conversation took place.  In the claimant’s view, this was because Ms Seymour deliberately evaded it; on Ms Seymour’s version, it was because time did not permit.  She had asked the claimant about what she wanted to discuss, but the claimant did not want to discuss it at that point, because she needed to concentrate on her driving.

 

22.         Of note however, Ms Seymour’s unchallenged evidence was that, when the claimant dropped her off at the airport, the claimant again raised the issue of the car, and how unhappy she was about it.

 

23.         The claimant on Ms Seymour’s version therefore opted to use her last opportunity to have yet another conversation with Ms Seymour only on the issue of the car, supporting the view that this was in any event her intention when she texted Ms Seymour earlier that day.

 

24.         The claimant in her evidence denied that version of events, stating that the car issue was the least of her problems, and that it was “a minor issue”.

 

25.         On 3 December 2016, the claimant said that she felt so mentally and physically exhausted that she could not go to work.  In her view, Ms Seymour had no consideration whatsoever for her health and wellbeing.  The claimant’s evidence was that, although in contravention of the respondent’s policy, she telephoned to Ms Seymour’s mobile phone and left a voicemail that she was unwell and would not be at work for at least a week.  Ms Seymour’s evidence was that she never received such a message from the claimant, prompting her to phone the claimant to enquire as to where she was when she failed to attend work.

 

26.         The claimant returned to work on 12 December, and on 13 December travelled to Edinburgh for a regional meeting, which included attending a Christmas dinner with colleagues.  She described herself in evidence as feeling miserable, and Ms Seymour in her evidence stated that the claimant was tearful after the dinner, and commented how difficult her area was to manage.

 

27.         It was reported to Ms Seymour the next day by the colleague seated next to the claimant at dinner that she had told her how unhappy she was.  When the colleague asked her what would make her happy, the claimant reportedly replied “an Insignia [car]”.

 

28.         The claimant was driven to the airport the next day by Ms Seymour, and the claimant told the tribunal that there was discussion around the pressures of work.  The claimant in her evidence said that Ms Seymour sought to fob her off with saying “you can only do what you can do”.  The claimant described such comment as being “a useless soundbite”, and that Ms Seymour in using it had completely failed to address the underlying pressures the claimant was seeking to raise.

 

29.         Ms Seymour could not recall using those words, but conceded that it was something she would say to team members showing signs of stress.  Her recollection was that, aware of the claimant’s comments reported to her about the previous evening, she had kept the conversation lighthearted.

 

30.         The claimant in evidence cited a number of other incidents which, in her view, supported her case that Mr Cave and Ms Seymour, by their demeanor towards her, were ignoring clear signs of distress, consistent with a lack of care and a determination on their part to force her out.

 

31.         The respondent provided counter-arguments, stating that the claimant was in effect incorrect in her interpretation of their behaviour, pointing also to supports they put in place.

 

32.         In the absence of independent evidence, these incidents are impossible to determine individually, but are more readily interpreted against the background of the events which culminated in the claimant’s resignation.

 

33.         The claimant was not later investigated for over-egging her requirement for a better car, but the evidence uncovered as a result was likely to cast a shadow over the respondent’s view of her veracity when the mileage claims were later compared with the findings of Mr Shaw.

 

34.         A further concern emerged when Kris Seymour visited Ireland in January, to investigate her existing suspicions as to the claimant’s possible misconduct in submitting false travel claims.

 

35.         Part of that investigation included inspection by Ms Seymour of “red books”, held at stores in which the respondent had a commercial presence.  All commercial visitors, including the claimant, were required to record in the book the details of when they visited the store.  It was also part of the claimant’s contractual responsibility to ensure that staff under her management complied with that requirement.  The previous poor compliance with this in the Republic of Ireland was noted by the claimant as being a feature of the challenges she faced when she took over her new role.

 

36.         Ms Seymour’s visit in January coincided with the claimant’s 25th anniversary of employment with the respondent.  To that end, she was provided with afternoon tea at a five-star hotel in Belfast.  The claimant was also given a tax-free £1000 bonus.

 

37.         The claimant’s evidence to the tribunal was that she had not wanted the afternoon tea, but that she had been almost forced in to it.  On the claimant’s version of events, the event itself had been extremely uncomfortable, due in the main to the unfriendly atmosphere caused at it by Darren Cave and Kris Seymour.

 

38.         The claimant also described the venue as “humble”, and compared the afternoon tea unfavourably to that of a colleague in the south-east of England, whose celebration was cocktails at the top of the Shard building in central London.

 

39.         The claimant’s views were contrary to the perception of the event described by Mr Cave and Ms Seymour, who also pointed to the effusive thanks sent by the claimant after the event.  Mr Cave also stated that, as he rarely attends such events, if he had meant to snub the claimant, he could simply have failed to go at all.

 

40.         Wherever the truth lay as to the success or otherwise of the event, the evidence was that, by then, the respondent was in the process of investigating the claimant’s conduct around filling in the red books, and her associated travel claims.

 

41.         It was the claimant’s case that the respondent had already decided to get rid of her on cost-saving grounds, and the investigation was simply a convenient, contrived cover for it.

 

42.         The respondent’s case was that, in light of the issues thrown up by Ms Seymour’s investigation, it was perfectly reasonable to ask the claimant to provide answers to the queries which naturally arose from those issues.

 

43.         As a result of Ms Seymour’s findings around the red books and the claimant’s related mileage claims, which also included evidence which potentially contradicted her assertions that she did not drive her company car for personal use, at weekends, or late at night, the decision was taken to hold an investigation meeting.

 

44.         This was to be held as a result of discussion among Mr Cave, Ms Seymour and the respondent’s HR department.  There was throughout the disciplinary process a conspicuous lack of records of conversations, such as emails, which might otherwise have been expected to be a natural way for three people so far apart to correspond. The claimant also criticised the destruction of all of the handwritten notes from the investigation meeting, which instead were presented in their typed form, apparently made from the handwritten originals.  The claimant did not however challenge the accuracy of those typed notes.

 

45.         The investigation meeting was held on 13 April 2017.  A few days beforehand, Kris Seymour inadvertently emailed a copy of a red book page to the claimant, who queried it via email.  On the advice of HR, Ms Seymour did not reply until 10 April, and in her email response, again on the verbal advice of HR, she told the claimant that she needed to meet her, “to discuss the issue of signing in books, as well as a few other concerns I have”.

 

46.         Ms Seymour on 10 April also ‘phoned the claimant, telling her that she needed to discuss issues arising from discrepancies in the signing in procedures, and other issues.  Ms Seymour stated in evidence that the claimant was clearly concerned, and was not happy about it.  She asked Ms Seymour if there was anything she needed to prepare, but was told no.  Ms Seymour also told the claimant during that ‘phone conversation, and on 12 April by email, that a member of HR would also be attending, although her original intention had been to have a one-to-one meeting.

 

47.         The claimant, on her evidence, whilst aware from what Ms Seymour had previously told her about the subjects for discussion being the red book and other concerns, attended the meeting hoping that she would be able to raise her long-standing concerns.

 

48.         She told the tribunal that she was “shocked and horrified” to be told that this was an investigation meeting, and described it as being a “gruelling interrogation”, and that she was subjected to a hostile barrage of questioning, her interrogators knowing that she had a great dislike for confrontation.  The claimant deduced that Ms Seymour and Leanne Kitchen from HR, in their demeanour, lack of eye contact and hostile tone, had the clear objective of getting rid of her, and that she was surplus to requirements.

 

49.         The claimant in evidence described this all as amounting to a “ruthless betrayal”, and described it as the worst day of her life.  The respondent’s witnesses also stated that it is common practice for investigation meetings to be conducted with no notice.  They also considered this practice to be well known to the claimant, as she, in her own role as a manager, had often conducted such investigations, in accordance with the respondent’s HR procedures.  The respondent’s written policy on investigation meetings clearly states that there is no right for the person to be interviewed to be represented or to have prior notice.

 

50.         For their part, Ms Seymour and Ms Kitchen gave a very different version of the tone of the meeting, although they both were aware that the claimant was very upset and crying even before the meeting started, and throughout.  On their version of events, the meeting was very informal, and was conducted in a very sympathetic manner.

 

51.         In their view, the investigation meeting was conducted very amicably, with Ms Seymour taking the claimant through her findings, and asking for her responses, which Ms Seymour and Ms Kitchen told the tribunal they both found to be unsatisfactory.  They considered that the claimant during the meeting had failed to provide adequate or satisfactory explanations regarding her failures to fill in the red books, and the consequent absence of a paper trail between those books and the resulting claims for mileage, which the claimant had managed to fill in and submit.

 

52.         Ms Seymour and Ms Kitchen were also concerned by the apparent mismatch between evidence from the claimant’s itinerary records which suggested that, contrary to some of her mileage claims, she had in fact been working from home.  There were also in their view, inadequate explanations from the claimant as to an apparent disparity between her assertions about not using her car for personal use and records suggesting the opposite.

 

53.         At the end of the investigation meeting, Ms Seymour told the claimant that the matter could be regarded as gross misconduct, but that she felt it was necessary to review the notes before making a decision about the need for moving to a disciplinary hearing.

 

54.         The claimant later received the typed minutes of the meeting, comprising thirteen pages.  The claimant did not then, or at the tribunal hearing, assert that anything had been omitted or added.  In her witness statement, she selected a substantial number of extracts from those typed notes which she cited as examples supporting her contention that she repeatedly raised how much stress she was under.

 

55.         Of note also was an extract she quoted of Ms Seymour saying “moving forward we can look at how you manage your time and what help you need from me”, which, on its face, would not sit comfortably with the claimant’s stated impression that the respondent by the time of that meeting had decided to get rid of her.

 

56.         Ms Seymour after the investigation meeting, in consultation with the respondent’s HR department, reviewed the matter, including the claimant’s assertions during the investigation meeting that her errors were due to carelessness, probably as a result of overwork and stress.  She nevertheless remained sufficiently concerned to decide that a disciplinary meeting was appropriate.

 

57.         On 20 April, Ms Seymour wrote a letter to the claimant, drafted by the respondent’s HR department, inviting her to a disciplinary meeting on 2 May.  By the time of that letter however, the claimant on 14 April 2017 consulted her GP and obtained a medical certificate for four weeks for work-related stress.  On 18 April 2017, yet again in breach of the respondent’s policy, the claimant left a voicemail message for Ms Seymour to inform her of her absence.

 

58.         Ms Seymour later unsuccessfully tried to return the call, and the claimant did not contact her in response to it.

 

59.         Leanne Kitchen, in her role within HR, wrote to the claimant on 27 April 2017.  There was some dispute about sending and answering a letter and an email, but the main issue was that the respondent had re-scheduled the disciplinary hearing to 9 May 2017.

 

60.         The tone of the letter was quite firm, making it clear that any medical inability to attend must be supported by written confirmation from the claimant’s doctor.  It also was forthright in making it clear that this was a serious matter, which, depending upon the outcome of the meeting, could result in summary dismissal for gross misconduct.  It ended, as did subsequent letters around this subject, with the advice that the claimant was entitled to be accompanied at the meeting by a colleague or a Trade Union representative.

 

61.         Over the next days, there was email correspondence from and to the claimant, which included discussion around the availability of medical evidence from the claimant’s GP.  As a result, the disciplinary hearing was rescheduled for 11 May 2017.

 

62.         By 9 May, the relevant letter from the claimant’s GP arrived with the respondent, stating that she was medically unfit to attend the disciplinary meeting on 11 May.  Ms Kitchen wrote to the claimant, requesting that she make herself available at 3.00 pm on 17 May for a telephone consultation with the respondent’s external Occupational Health provider, although the claimant had told her doctor that no such assistance was available to her.

 

63.         At 2.45 pm on 17 May, the claimant sent an email, resigning from her job with immediate effect.  In it, she stated that the respondent’s treatment of her had been “deplorable”, resulting in the complete destruction of her trust and confidence in her employer.  The claimant also stated that it was her intention to bring legal proceedings against the respondent because of its “scandalous” treatment of her.

 

64.         On 18 May 2017, Laura Roderick, the respondent’s HR Manager, who until then did not seem to have had any involvement in this process, wrote a letter to the claimant.  In it, she stated that the disciplinary process had not been concluded because of the claimant’s resignation.

 

65.         Ms Roderick also stipulated that its ultimate outcome would have included consideration of any mitigation put forward by the claimant, which, in the context of what Ms Roderick mentioned earlier in her letter, might reasonably be expected to include the stress the claimant reported at the investigation meeting.  She made no mention of the claimant’s stated intention to bring legal proceedings.  Ms Roderick concluded the letter by offering the claimant the opportunity to reconsider her resignation, giving her until 23 May to do so.

 

66.         The claimant did not respond to the letter, and made no contact regarding the request to reconsider her resignation.  She accordingly was processed by the respondent as having left its employment.

 

LAW AND CONCLUSIONS

 

67.         The relevant law is set out in Article 127 (1) (c) of the  Employment Rights (Northern Ireland) Order 1996 :

 

“127 —    (1)   For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2) F1. . . , only if)—

 

(a)          the contract under which he is employed is terminated by the employer (whether with or without notice),

 

[F2(b)    he is employed under a limited-term contract that terminates by virtue of the limiting event without being renewed, or]

 

(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.

 

(2)   An employee shall be taken to be dismissed by his employer for the purposes of this Part if—

 

(a)          the employer gives notice to the employee to terminate his contract of employment, and

 

(b)          at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer's notice is due to expire; and the reason for the dismissal is to be taken to be the reason for which the employer's notice is given.”

 

68.         In reality, this is regarded as a hybrid between statutory and contract law, as the employee typically seeks to rely on breach of the implied contractual term of trust and confidence.  Which, as Lord Steyn explained in Malik and Anor v Bank of Credit and Commerce International SA (in compulsory liquidation) [1997] ICR 606, HL, [1997] 3 All ER 1, requires the employee to show that the employer has, without reasonable and proper cause, conducted himself in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence.

 

69.         The authors of Harvey at D1 [403] describe four conditions that an employee must meet if he/she is to claim constructive dismissal.

 

(1)     There must be a breach of contract by the employer.  This may either be 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 of 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 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 employers breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.

 

70.      The leading case in relation to constructive dismissal is Western Excavating (ECC) Ltd v Sharp (CA) [1978] ICR 221 in which it was held that an employee's entitlement to terminate his contract of employment by reason of his employer's conduct was to be determined in accordance with the law of contract and not by applying a test of unreasonableness to the employer's conduct.  However, the courts mitigated the impact of this approach by recognising that there is an implied contractual term to the effect that the employer should not behave in a manner that would undermine the relationship of trust and confidence between employer and employee.

 

71.As to the nature of the duty of trust and confidence, it was described by
Lord Steyn in Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606, [1997] IRLR 462 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 employer and employee.'

 

72.      The precise terms of this formulation have been the subject of comment and refinement.  In Baldwin v Brighton and Hove City Council [2007] ICR 680, [2007] IRLR 232  the Employment Appeal Tribunal had to consider the issue as to whether in order for there to be a breach the actions of the employer had to be calculated and likely to destroy the  relationship of confidence and trust, or whether only one or other of these requirements needed to be satisfied.  The view taken by the Employment Appeal Tribunal was that the use of the word 'and' by Lord Steyn in this passage was an error of transcription of the previous authorities, and that the relevant test is satisfied if either of the requirements is met.   In  BG plc v Mr P O'Brien [2001]
IRLR 496, Mr Recorder Langstaff QC in giving a decision of the Employment Appeal Tribunal in a constructive dismissal case formulated a test as follows:-

 

"The question is whether, objectively speaking, the employer has conducted itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee."

 

73.      The courts have also considered situations where a series of incidents has occurred and the employee resigns in response to the last actions of the series which constitute the so-called "last straw".  In Lewis v Motorworld Garages Ltd [1986] ICR 157, Glidewell LJ stated at page 169 F:-

 

"The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so.  In particular in such a case 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 cumulated series of acts taken together amount to a breach of the implied term?...  This is the 'last straw' situation.”

 

74.      The Employment Appeal Tribunal considered the so called last straw doctrine in Thornton Print Ltd v Morton [2008] UKEAT/0090/08/JOJ.  In that case Judge Serota QC endorsed the judgment of the Court of Appeal in Omilaju v London Borough of Waltham Forest [2005] 1 All ER 75 and stated that:-

 

"The principle, if it be one, means no more than that the final matter that leads to the acceptance of a repudiatory breach of contract when taken together and cumulatively with earlier conduct entitles a party to accept a repudiatory breach of contract, whether that last matter is in itself a breach of contract or not."

 

75.      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.  For a claim of constructive dismissal to succeed it must also be unfair.

 

76.      The tribunal considers that the respondent in this case was entitled to conduct an investigation.  The manner in which it was carried out was not only in compliance with its own procedures, but was reasonable, with the claimant being afforded every opportunity to answer the legitimate questions posed.  The contents of the typed summary of the investigation meeting were not challenged by the claimant; indeed, she found them sufficiently reliable to quote extensively from them in her evidence.

 

77.      They were provided to her by the respondent after these proceedings had been commenced, in knowledge of the substance of the claimant’s claim of being stressed and overworked.  If the notes were destroyed with a view to concealing or distorting any evidence helpful to the claimant, this is not apparent from the typed notes.  The tribunal therefore considers that it is appropriate to accept their contents at face value. It seems apparent from them that Ms Seymour, whilst properly raising issues of concern revealed by her investigations, did so in a measured and non-threatening way, significantly undermining the claimant’s version of events.

 

78.      It is of particular note that Ms Seymour asked the claimant why she had not come to her for help, supporting her later evidence that she was genuinely taken by surprise by how severe the claimant now was stating the stress to have been.  Ms Seymour and Mr Cave previously had been aware of the pressures mentioned by the claimant, to the point of seeking to lift the payroll burden from her, but this offer was rejected by the claimant.

 

79.      The fact that the claimant regularly expressed herself to be under pressure did not in Ms Seymour’s opinion seriously or satisfactorily address how the claimant persistently breached clear guidelines, which she was also responsible for enforcing, and which she had highlighted as a significant challenge when she started her new post.

 

80.      In the absence of satisfactory explanations by the claimant, the tribunal considers that her admitted breach of those guidelines reasonably and genuinely appeared to Ms Seymour to give rise to a compelling inference that the claimant was not being honest.  In submitting potentially untrue mileage claims, the claimant potentially received payment from the respondent for journeys not made in the course of her employment; and, consequently, claiming credit for work not actually carried out, which she also used as a basis for representing herself to be stressed beyond endurance.  

 

81.      As such, the tribunal considers that the respondent was acting well within its rights, and that Ms Seymour, as an employee of the respondent, was obliged to investigate possible fraud by someone in her team.

 

82.      The tribunal also considered that the means adopted of conducting the investigation meeting was measured and appropriate, and complied with the respondent’s policy. The claimant was not only aware of that policy, but in the course of her role as a manager, did not dispute that she had implemented it on a number of occasions.

 

83.      The tribunal considered that the destruction of the handwritten notes was extremely poor practice, and was not impressed by the reasons given for it by Ms Kitchen.  This is offset however by the fact that no serious issue was taken by the claimant with the contents of the typed version.  She was content to quote at length in her evidence the numerous portions which had been included in which she proffered carelessness through stress as the explanation for errors.

 

84.      It appeared to the tribunal that the evidence revealed on numerous occasions, that the claimant was preoccupied with the type of car to which she felt herself to be entitled.  This was reinforced by her request for an automatic car with comfortable seating, which was complied with by Mr Cave and Ms Seymour, in what appeared to the tribunal to be substantial and genuine efforts to go out of their way to obtain such a car.  Unfortunately, even though the car was to be additionally equipped with such detail, the claimant was still dissatisfied with it.

 

85.      It was well documented that the claimant was not entitled to the grade of car she wanted, but sought to base her case for it in the high mileage she claimed to be driving in the course of her work.  In order to see if this could be used to justify a more expensive car than that to which she was entitled, Mr Cave commissioned a report through the respondent’s Health and Safety Officer, who found glaring and apparently irreconcilable evidence between the claimant’s assertions and the objective facts.

 

86.      It appeared to the tribunal that it was at this point that the first shadows were cast over the claimant’s veracity in the mind of the respondent.

 

87.      It was also significant that the respondent immediately offered the claimant her job back.  It is unclear from the evidence if this was done because she was so highly valued, or in response to her specific threat of legal proceedings.  Ms Seymour indicated to the claimant at the investigation meeting that they should work together in future to ensure that the stress she was claiming did not recur, which weighed against the claimant’s assertion that the meeting was hostile, and that the respondent was out to get her.

 

88.      Whatever the primary motivation for doing so, offering the claimant her job back significantly offsets the claimant’s asserted belief that she felt that she was being forced out.

 

89.      The tribunal concluded that the objective evidence did not support the claimant’s evidence.  The tribunal concludes that the evidence supports the view that claimant resigned because she knew that she could not supply satisfactory answers to legitimate questions posed by the respondent.

 

90.      The tribunal does not accept that the respondent either before or during the investigation and disciplinary process behaved in the manner alleged by the claimant. The tribunal further concludes that the investigation meeting and resulting proposed disciplinary process was reasonably instigated and appropriately and proportionately conducted by the respondent.

 

91.      The tribunal therefore concludes that the claimant has failed to establish that she was unfairly constructively dismissed.  Her claim is therefore dismissed in its entirety.

 

 

 

Employment Judge:

 

 

Date and place of hearing:          3 – 5 July 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: