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Day v OCS Support Services & Ors (Constructive Dismissal) [2002] NIIT 1192_01 (17 September 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 1192/01

APPLICANT: Ellen Day

RESPONDENTS: 1. OCS Support Services

2. Denis Davies

3. Geraldine Sloane

4. Anne Barrett

DECISION

The unanimous decision of the Tribunal is that the applicant's complaint is dismissed, without further Order.

Appearances:

The applicant appeared and represented herself.

The respondents were represented by Mr C Barr of the first named respondent.

This is a reserved decision in summary form.

THE ISSUE

1. In her Originating Application to the Tribunal the applicant named the four respondents above-named and complained of 'harassment – constructive dismissal'. A Notice of Appearance was entered by the first named respondent identifying that respondent as 'OCS Support Services Northern Ireland Limited', stating that Denis Davies was an employee of the first named respondent, and, inter alia, contending that there had been no repudiatory breach on the part of the first named respondent of the applicant's contract of employment. The Tribunal accordingly had to decide the correct identity of the respondent or respondents and if the applicant's complaint or complaints were substantiated.

THE TRIBUNAL'S FINDINGS

In consequence of the written and the oral evidence adduced before it the Tribunal found the following facts:-

2. At the outset, the Tribunal found that the proper respondent was 'OCS Support Services Northern Ireland Limited' (hereinafter referred to as 'the respondent') and the Tribunal dismissed the applicant's case against the other named respondents, without further Order.
3. The respondent was a company of limited liability engaged in the business of contracting cleaning services in Northern Ireland. It was part of a UK-wide group. In terms of management structure, at the material time the applicant was a Branch Manager; senior to her were Geraldine Sloan the Area Manager, and Denis Davies the Managing Director. Below the applicant in this structure were Kate Skillen and Anne Barrett, both of whom were Service Managers. Under the applicant's control in the structure were approximately thirty members of staff including two Service Managers, four Area Supervisors and one Administrator.
4. The applicant's employment by the respondent was governed by written terms of contract. Whilst the Tribunal did not see full details of these contract terms, it did have sight of a harassment code. This was introduced in September of 2000. The applicant obtained a copy in November 2000; she was fully familiar with the provisions of this code. Prior to that, the applicant's employment was governed by a disciplinary code which contained a grievance procedure.
5. The applicant alluded to certain difficulties connected with her employment in 1996. However, there was no substantial evidence placed before the Tribunal to make out or to corroborate the proposition that any facts or issues which might have occurred throughout the period from 1996 up to 2000 would have a bearing upon the Tribunal's determination in this case and therefore the Tribunal makes no material findings of fact concerning that period.
6. In 2000, the applicant made a complaint to her Area Manager, Ms Sloan, which was then conveyed to the Managing Director, Mr Davies, that rumours were being spread at work; these rumours concerned the applicant and a work colleague being lesbians. This complaint resulted in a staff meeting being convened by Ms Sloan, involving all relevant staff. Ms Sloan stated at the meeting that the alleged rumours about the applicant and the fellow employee must stop. The applicant was also permitted to address the meeting and to express her views. There was a conflict between the parties as to when this meeting took place, it being described variously as having occurred in January or in June of 2000. The Tribunal was unable to resolve that, but it should suffice to say that after this meeting there was nothing further of note occurring until 4 January 2001.
7. On 4 January 2001 an allegation came to the applicant's attention that the Service Manager, Ms Anne Barrett, had been making unwarranted and derogatory remarks about the applicant to other staff members. The applicant took Ms Barrett directly to task that day concerning these allegations. The following day, 5 January 2001, the applicant brought the matter to the attention of Ms Sloan and to Mr Davies and a morning meeting was arranged. At that meeting with Mr Davies and Ms Sloan, the applicant was not very forthcoming and information was not volunteered by her freely. Mr Davies had to draw certain information from the applicant as to what was distressing her. The applicant recounted alleged references on the part of Ms Barrett to the applicant having a lesbian relationship with another named employee. The specific suggestions were that the applicant was assisting that other employee in dressing a wound resulting from a hysterectomy operation, and that the applicant had shared overnight accommodation with that employee on the occasion of a recent Christmas function. Although Mr Davies did note that the applicant was distressed, he took the view that the two matters were largely in the public domain as far as the respondent's employees were concerned in that it was common practice for employees to share overnight accommodation at such Christmas functions and that the applicant herself had been quite open to others in the workplace in referring to her assisting in dressing the employee's wound arising from this operation.
8. Upon the conclusion of that morning meeting on 5 January 2001, Mr Davies undertook to the applicant to speak to Ms Barrett. Management responsibilities dictated that it was not possible for him to do so until that afternoon. A management meeting was scheduled for the afternoon of that day. At the conclusion of this meeting, Ms Barrett announced to the meeting that she intended to resign. Afterwards Denis Davies spoke to Ms Barrett and asked her why she had taken the decision to resign. Ms Barrett explained to Mr Davies that her decision was to do with a conflict between her and the applicant. Ms Barrett also recounted to Mr Davies her own version of the alleged events which had occurred on the previous day.
9. In consequence of what he had heard that day, Mr Davies took a management decision to suggest to Ms Barrett that she should be moved to the respondent's retail section as a Service Manager. Ms Barrett agreed to that suggestion and she withdrew her resignation. The following Monday morning, Ms Sloan informed the applicant that a decision had been taken to resolve matters by moving Ms Barrett to retail. The applicant was consulted about the timing of the move. Ms Barrett was duly transferred to the retail position immediately.
10. The following Monday, 15 January 2001, the applicant delivered a letter to Mr Davies giving notice of the applicant's intention to terminate her employment and stating her reasons to be that she had had to endure allegations made against her and her personal character being dragged down and that the respondent had done nothing positive to resolve matters. A specific reference was made to Ms Barrett's resignation followed by the retraction and the decision to move Ms Barrett to the other post; this the applicant regarded as appearing to be a promotion of Ms Barrett. The applicant alleged that Ms Barrett had snubbed her, glared at her and not even apologised to her. Mr Davies spoke with the applicant in an endeavour to dissuade her from resigning, but to no avail. The applicant's resignation accordingly took effect from that date, 15 January 2001.

THE TRIBUNAL'S DECISION

11. In terms of the general law of constructive dismissal, once an express or an implied term of a contract of employment has been breached by an employer to such an extent that there is evidence that the employer has committed a fundamental breach of contract, or shows an intention no longer to be bound by the contract, the employee is entitled, as a matter of law, to treat the contract as being at an end. This is what is commonly referred to as "constructive dismissal". The law is as set out by the Court of Appeal in England in the case of Western Excavating [ECC] Limited –v- Sharp [1978] IRLR 27 and in many authorities since then.
12. The Tribunal considered the issue of the potential breach of any express or any implied terms of contract, upon the facts. The Tribunal has considerable difficulty in identifying any breach of an express term. There was, as an express term, a distinct procedure in place for addressing grievances upon which the Tribunal shall comment below. In the Tribunal's view any events prior to 2000 are not material and may be discounted. In regard to the applicant's complaints and difficulties in the year 2000, the Tribunal takes the view that any such as may have arisen were properly addressed by the respondent at the time. Nothing further of material significance then occurred up until 4 January 2001. The Tribunal examined the issue of the manner in which the applicant brought her concerns at that time to management's attention. It was noted that the applicant indicated that she was fully familiar with the respondent's grievance procedure; she herself was a member of the respondent's management team. However, the applicant herself chose not to formally institute a grievance procedure by, for example, the lodgement of a written grievance complaint against Ms Barrett in accordance with that procedure. The Tribunal cannot lightly disregard the responsibility falling upon such a person as the applicant, carrying out as she did a managerial function, to deal with matters with an appropriate degree of formality and to have proper regard to the respondent's procedures. On 5 January 2001 Mr Davies was faced with an applicant who was admittedly distressed; he was also faced with another senior employee, Ms Barrett, who was tendering her resignation. These situations had both arisen as a result of a conflict between the two at work. Faced with this difficulty, and having in the Tribunal's view fairly and properly heard allegation and counter-allegation from the two persons in question, the Tribunal regards Mr Davies' response as being an appropriate and a reasonable one: to move Anne Barrett to the retail section. It is significant that the applicant was spoken to about this move and was consulted in regard to the timing of this. At that stage, notably, the applicant did not threaten resignation. Specifically in regard to the applicant's dealings with management on 5 January 2001 and immediately thereafter, the respondent's conduct did not constitute any breach of the implied term that an employer should promptly and properly deal with any grievance complaint on the part of an employee. (See W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516 or Waltons and Morse v Dorrington [1997] IRLR 488 both EAT). There is therefore no issue that any implied term of the contract of employment to that effect was breached. Furthermore, the Tribunal in general terms cannot discern from the facts the breach of any other express or implied term. The respondent's senior management was neither unfair nor unreasonable in its manner of dealing with the situation, in the opinion of the Tribunal
13. Whilst it appears that the applicant was discontent that Ms Barrett's resignation had not been effected and that the respondent had not insisted upon that and that there might possibly and subsequently have been further friction between the two, however the Tribunal can see no evidence of any further difficulty nor of any grievance complaint in regard to any such being brought to the attention of the respondent's senior management. Furthermore, the Tribunal cannot discern breach of the implied term that an employer should not conduct itself in a manner calculated or likely to destroy or seriously damage the mutual trust and confidence which ought to exist between employer and employee, upon the facts of the case. Likewise, the Tribunal cannot observe any other breach of the contract. To succeed in a claim of constructive dismissal, there must be established a significant breach of some contractual term. As there is no breach, the applicant's complaint must fail, and the complaint is accordingly dismissed, without further Order.

Chairman:

Date and place of hearing: 20 May 2002, 17 September 2002, Belfast

Date decision recorded in register and issued to parties: