THE INDUSTRIAL TRIBUNALS
CASE REF: 1459/04
CLAIMANT: Michael Murphy
RESPONDENT: Lisburn Security Services Ltd
DECISION
The unanimous decision of the tribunal is that the claimant was not constructively dismissed and his complaint is dismissed without further order.
Constitution of Tribunal:
Chairman Mr Eamonn McArdle
Member Mr Uel Adair
Member Mr Seamus Devlin
Appearances:
The claimant was represented by Mr Eamonn McCann.
The respondent was represented by Mr John Coyle, Barrister-at-Law, instructed by Mr Drain of Gallery & Campbell, Solicitors.
REASONS
The claim and the defence
- In his originating application the claimant claimed that he had been constructively dismissed. The respondent denied that the claimant had been dismissed constructively or at all.
The sources of evidence
- The tribunal heard evidence from the claimant and from three witnesses who gave evidence on his behalf; two of his former colleagues, Ms Angela Courtney and Ms Sandra Doherty, and Ms Doherty's partner Mr Michael Smallman. The tribunal heard evidence too from a number of witnesses on behalf of the respondent, Mr Patrick Weir, Mr Brian Lewis, Mr William Mawhinney, Mr James Campbell, all employees of the respondent, and Mr James McKnight of Iona State Services Ltd. The tribunal also received a bundle of agreed documents, supplemented as the case progressed by a number of additional documents.
The issues
- The tribunal considered that the issue before it was whether the respondent's treatment of the claimant, either in the weeks immediately preceding his departure from the company, or more generally, amounted to a fundamental breach of his contract such as to entitle him to regard himself as dismissed.
Summary analysis of the evidence
- The tribunal formed the view that the evidence of the respondent and its witnesses on the dispute over shifts and hours of work was credible, consistent and supported by the documentary record. On the dispute over whether the respondent's Mr Patrick Weir was engaged in the production of 'pirate' copies of CDs and DVDs for sale, from the respondent's office in the Guildhall, and over whether the respondent was aware of it, the tribunal preferred the evidence of the claimant and his witnesses supported by the record of Ms Doherty's grievance on the matter, and found the respondent's witnesses' evidence on these issues to be unreliable and self-serving. On the basis of clear authority, however, the tribunal found that the existence of this petty commerce in contraband CDs and DVDs did not of itself, or in conjunction with the claimant's other grievances, amount to a fundamental breach of the claimant's contract of employment.
Findings of fact
- The respondent is a security company which provided security services to the Bloody Sunday Tribunal of Inquiry ('the Saville Inquiry') at the Guildhall in Derry/Londonderry. The respondent employed a combination of full-time and part-time security guards to provide 24-hour security cover for the Guildhall and a nearby administrative centre. Cover was provided at a level determined by the needs of the client (the Northern Ireland Office) depending on whether the Inquiry was in session.
- The claimant commenced employment with the respondent as a security guard at the Guildhall site on 23 March 2000. He continued to work there, usually 48 hours a week over 4 weekdays, until he left the company with effect from 12 April 2004. He complained to an Industrial Tribunal that he had been constructively dismissed.
- The circumstances leading up to the claimant's departure from the company were as follows. As the Saville Inquiry hearings drew to a close in January 2004, the Inquiry secretariat advised the respondent of reduced requirements for its security services. Ms Katrina Barr, Assistant Secretary to the Inquiry, told Mr Patrick Weir, the respondent's supervisor at the Guildhall site, that the daytime requirement for security guards was to drop from 11 guards to 5 with effect from 16 February 2004 onwards, after the concluding phase of oral evidence before the Inquiry.
- Mr Weir enjoyed a substantial degree of autonomy in managing the respondent's operation at the Guildhall. Among his responsibilities were liaison with the on-site client, here the NIO, and the organisation of shift rotas for the security guards. He was responsible to Mr Jimmy Campbell, Manager, also based in Derry, although an infrequent visitor to the Guildhall site, who in turn was answerable to the Contracts Manager, Mr Brian Lewis, based in Lisburn.
Revised shift rota
- Mr Weir devised a new shift rota to comply with the client's reduced requirements. This new rota, compiled at the end of January/early February 2004, reflected the substantially reduced need for security guards on day shift. A number of guards who had previously worked regular day shifts were informed verbally by Mr Weir, two weeks in advance of the introduction of the new rota, that henceforth they would have to work a combination of day and night shifts, including some shifts at weekends. Mr Weir also told the guards that they would be required to work a 72-hour week.
- The claimant, in common with two of the other guards most affected, Mr McShane and Mr Keenan, raised a number of objections to the proposed new arrangements. In the claimant's case, he pointed out to Mr Weir that under the terms of his contract he had opted, as he was entitled to under the Working Time Regulations, to work a maximum average of 48 hours per week. The claimant additionally felt aggrieved by the prospect of having to work weekends and nights, in view of his responsibilities for young children at home. His sense of grievance was heightened by the awareness that two of his colleagues, one male and one female, were apparently being exempted from the requirement to work nights. When he raised these matters the claimant believed that Mr Weir responded dismissively.
- The claimant contacted the Human Resources office in Lisburn by telephone on 11 February 2004 and spoke to Ms Melanie Gibson, a Personnel Officer, who appeared unaware of the shift changes in train. Asked by the claimant whether there was any objection to the guards proposing an alternative rota Ms Gibson advised him to 'wheel away'. The claimant and his colleagues drafted a number of alternative rotas that would have enabled them to avoid working weekends. They showed them to Mr Weir who judged them to be impracticable, largely on account of the number of part-time staff that would be required to cover the gaps in the rota. Mr Weir conferred with Mr Campbell on the proposed alternatives, expressed his reservations in regard to them, and by agreement with Mr Campbell decided his own revised rota should stand, with allowance made for the claimant's right to limit his average hours of work to 48 per week. The tribunal finds that Mr Weir was acting well within his authority in coming to this decision although it also believes that Mr Weir fell down in communicating to his staff the reasons for his decision. This failure undoubtedly sharpened the claimant's sense of grievance.
- The claimant set out his concerns in writing, on 13 February 2004, to the Human Resources Manager at the respondent's Head Office. He restated his objection to working 72 hours, complained that the company had over-ridden the staff's attempt to agree a rota, and raised questions about two guards who were apparently being exempted from the requirement to work nights. He asked, notably, for written clarification from Head Office outlining any 'proposed changes and inviting my response as to their impact on me, my family, my health and my social life.'
- It was common case that the respondent never acknowledged or replied to the claimant's letter of 13 February 2004, in writing. However, following the claimant's representations on-site to Mr Weir, the original proposal to require him to work a 72-hour week was dropped. Although the respondent did not reply to the claimant's letter in writing the respondent claims and the tribunal accept that in the course of a telephone conversation between the claimant and Mr Lewis, the Contracts Manager, on an uncertain date in February 2004, Mr Lewis did attempt to address a number of the issues raised by the claimant in his letter, albeit not to the claimant's satisfaction. Mr Lewis reminded the claimant of the requirements of the security industry to provide a round-the-clock service and that security guards should be prepared to work the hours available, as provided for in the terms of the claimant's contract. Faced with the requirement of a reduced service the respondent was redeploying part-time staff away from night shifts in the Guildhall to ensure work was available for full-time staff displaced from the day shift rota. Mr Lewis also set out the reasons on which local management was relying for retaining two of the claimant's colleagues on day shift. In respect of one of these, Mr Weir acted out of concern for the presumed state of health of the employee's wife, based on prior representations to him by the security guard concerned. In respect of the other he had not wished to assign the only full-time woman security guard on night shift on the basis of a loose interpretation of a request from the Tribunal Assistant Secretary, Ms Barr, to the effect that the Tribunal only required a female guard during daytime hours. In addition, Mr Weir in evidence explained that he had not wished to assign a single female guard to an overnight shift in which she would have been in a minority of one female among four guards and there was a risk of her being 'left out'. The tribunal can find no serious fault with Mr Weir's decisions in this regard or the reasons on which he relied.
- The claimant may not have been happy with the new arrangements but the tribunal do not accept his claim that the respondent was in breach of any express or implied term of the claimant's contract of employment in their decision to assign the claimant to work nights and/or weekends as a response to the changed requirements of the client at the Guildhall. Nor does the tribunal accept that, by the manner in which the new shifts were introduced, by two weeks' verbal notice, and over the heads of the representations made by the claimant and Mr McShane (Mr Keenan had decided to quit before the new rota began), that the respondent was in breach of any term of the claimant's contract. The tribunal do note, however, that the respondent was guilty of discourtesy in failing to acknowledge or reply to the claimant's letter of 13 February 2004.
- The new shift pattern came into operation on Monday, 16 February 2004. The claimant continued at work until Monday 29 March 2004, after which he went out on sick leave. During the six weeks he worked the new shift system the claimant was regularly rostered 48 hours per week and was never made to work a week of 72 hours. In that six-week period the claimant was rostered to work one weekend and one Sunday, or Sunday night. At hearing the claimant complained (contrary to the complaint set out in his IT1 that he was being forced to work a shift pattern of 72 hours against his will) that during this period he was not being given enough hours, that he was deliberately being under-employed and worked only 24 or 36 hours a week. An examination of the claimant's attendance record during this period disclosed that the reduced hours that the claimant clocked up for a number of weeks was the result of the claimant taking time off work on unauthorised absences, refusing for his own reasons to operate the shifts assigned to him.
- Mr McCann for the claimant challenged Mr Weir's evidence to tribunal in regard to the claimant's attendance (that the claimant had been offered 48 hours each week but had failed to turn up on several occasions, before reporting sick at the end of March) and put to Mr Weir that the reason the claimant took time off was that he was offered weekend work. That contention is not borne out by the documentary record of the shifts assigned to and the shifts worked by the claimant in the six weeks before he left the company. In the course of his closing submissions, on Day 5 of the hearing, Mr McCann purported to challenge the accuracy of this record, which formed part of the bundle of agreed documents placed before the tribunal at the start of the hearing. The tribunal was not impressed by such a challenge at this stage of the hearing. The claimant had been in possession of the bundle at least since the first day of hearing (24 March 2005). The disputed document bore directly on a central matter in issue in the proceedings, the shifts the claimant had been obliged to work under the revised rota and his belief, when he left, that his treatment over these shifts was the latest and clearest illustration of the company's unfair treatment of him. In view of the obvious relevance of this record the tribunal rejects the claimant's belated and unsupported effort to raise doubts about the accuracy of this document.
Bullying, harassment and unreasonable treatment
- In opening his case the claimant acknowledged that the allocation of hours/shifts at the close of the Saville Inquiry might not in itself have provided grounds for constructive dismissal, but that he was making the case that the dispute over shifts was the last straw in a series of problems faced by the claimant at work. He had been subjected to bullying, harassment and unreasonable behaviour generally. A sour atmosphere at work existed best illustrated by the illicit production and sale of CDs and DVDs by employees of the respondent at the Guildhall. Moreover this situation, he claimed, was known to and tolerated by the management of the respondent. By their failure to intervene the company had become complicit in this illegal activity.
The matters set out in the Originating Application
- The tribunal weighed the evidence for the claimant's allegations of bullying and harassment at work over the course of his employment from March 2000 to April 2004. In turn the tribunal considered the claimant's letter of 13 February 2004, his resignation letter of 12 April 2004, the matters set out in his IT1 and his oral evidence at hearing. Where relevant the tribunal also took into account the evidence of his other witnesses and of the documents before it. Although his letter of 12 April refers to 'various grievances with the company including those listed in my detailed letter of 13 February 2004,' these other grievances are not spelled out until his IT1 statement. In addition to the company's failure to respond to his letter of 13 February 2004, these grievances are set out as follows:-
(a) 'Enforcing a work shift pattern of 72 hours per week against my will.'
In view of the facts it found in regard to the introduction of the new shift rota the tribunal finds this claim to be without foundation.
(b) 'Ignoring my right to family friendly policies'
Article 112F of the Employment Rights (Northern Ireland) Order 1996 confers on employees a statutory right to request a variation of an employee's contract terms in favour of flexible working ("family friendly policies"), eg where the change relates to the hours s/he is required to work or the times at which s/he is required to work. Clear formal requirements are set out in the Article as to the contents of such application. No such application was ever made by the claimant.
The claimant was unable to rely upon either a contractual or a statutory provision that could have over-ridden the express terms of his contract of employment: Terms & Conditions of Employment, at P.3.
(c) 'Failure to issue a written statement of employment particulars.'
In view of the fact that the claimant had received a copy of the respondent's Terms and Conditions of Employment in or around September 2000, the tribunal finds that this claim was also without foundation.
(d) 'Not being included in local transfer choices on equal par with other colleagues.'
In regard to (d) in or around the 17 or 18 January 2004 the claimant wrote to the respondent's headquarters asking to be considered for an alternative placement at the DHSS office in Asylum Road should one become vacant. His request was acknowledged and he was told he would be considered for any vacancy arising.
On Friday 20 February 2004, the claimant, in common with all other full-time guards, received a notice with his pay packet advising him of other work opportunities in the Londonderry area. The full-time security guards were invited to sign a circular document expressing interest in such work opportunities. All of the claimant's full-time colleagues signed the expression of interest after individual discussions with Mr Weir (Bundle P 101). Alone among his colleagues the claimant declined to sign. When asked at hearing why he declined to sign the claimant said only that the circular notice had no official status -- it was not printed on headed Company notepaper.
The tribunal could not understand the claimant's reservation on this count. On the other hand, on the basis of unchallenged evidence from Mr James McKnight, of Iona State Services, the company the claimant went to work for in April 2004, the tribunal was aware that the claimant had applied for a job with Iona in or around the end of January 2004, was interviewed on 16 February 2004, was advised the next day that the job was his, and given dates for an induction week (5 - 9 April) and a starting date proper (14 April). The tribunal concludes that this was likely to have weighed in the claimant's decision not to sign the expression of interest in pursuing other options with the respondent. Accordingly the tribunal finds no support for the claimant's complaint (d) that he was 'not being included in local transfer choices on equal par with other colleagues.'
In respect of all of the matters of which specific complaint is made in the claimant's originating application therefore the tribunal can find no support for the claimant's claims of bullying or harassment.
Additional matters raised at hearing
- At hearing the claimant relied, in addition, on three further matters. Once, in or around Easter of 2001, he claimed, by way of illustration of the operation of cronyism in the workplace under Mr Weir, that a female colleague who had failed to turn up at work for a double shift had been paid for it even so, and that following his complaint to Mr Campbell he, the claimant, had been cold-shouldered by some of his colleagues for some time afterwards. The claimant's evidence in respect of this went unchallenged and the tribunal accepts that he may have had grounds for feeling aggrieved. Second, the claimant cited one period of uncertain date and duration, when he had not been paid for an episode of sickness absence whereas his colleagues had been. The claimant gave no details of how long a period was involved or whether he had made any enquiry in regard to it to ascertain whether it had been an oversight or a matter of policy. The tribunal declined to attach much weight to either of these episodes considered either separately or together since they failed to establish anything resembling a pattern of treatment that could point to a regime of bullying or harassment of the claimant.
- Of more substance, in the tribunal's view, was the claimant's claim, if made out, that in common with other employees outside of Mr Weir's favoured circle, he was systematically denied the opportunity to work any of the holiday shifts that commanded double time, 12 and 13 July, for example, or Easter Sunday and Monday, or Christmas Day and Boxing Day. Mr Weir flatly denied this allegation and claimed that the claimant had been offered the opportunity to work such holidays but in common with the majority of employees had turned down the opportunity. A number of matters exercised the tribunal in this regard. First, despite the potential seriousness of the allegation the claimant had not raised any concern in regard to it during his four years with the company. Second, the claimant had not specifically mentioned the complaint either in his letters of 13 February or 12 April 2004 to the company. He had not specifically pleaded it as a ground of complaint in his IT1 setting out the basis of his grievances with the respondent and nor had he, except in very general terms by way of allegations of arbitrary allocation of shifts, referred to it in his subsequent correspondence with the company. The claimant raised it for the first time in his evidence-in-chief.
- The tribunal heard evidence from one of the claimant's former colleagues, Ms Sandra Doherty on this issue. The tribunal were impressed with the clarity, the conviction and detail of Ms Doherty's evidence in relation to Mr Weir's treatment of her in his allocation of these premium shifts and more generally. Moreover Ms Doherty's complaint was supported by a detailed correspondence with management asking them specifically to address the issue. On the strength of Ms Doherty's evidence the tribunal concluded that Mr Weir had probably been guilty of allocating these higher paid shifts in an unfair manner, and therefore to the clear detriment of those, like Ms Doherty, who wished to work the public holiday shifts. There was not, however, in the claimant's case, as there was in Ms Doherty's case, a scrap of independent evidence that he had ever sought to work the public holiday shifts and been refused. On the contrary, the thrust of his objections to the revised shift rota introduced by the respondent in February 2004, was that working weekends was a major difficulty for him because it interfered with his family life and time with his children. It is difficult for the tribunal to accept, on this basis, that the claimant would ever have expressed an interest in working either the Christmas or Easter or other public holidays. For these reasons the tribunal conclude that the claimant failed to prove his complaint in this respect.
Sickness absence
- The claimant also relied at hearing on medical certificates in support of his claim that the respondent's bullying treatment of him caused him stress-related sickness. The claimant first submitted a sick note to the respondent on 30 March 2004, self-certifying that he was suffering from 'stress related sickness' for the period 30 March 2004 to 4 April 2004. The following week he submitted a certificate completed by his GP, Dr Molloy, dated 6 April 2004, diagnosing stress and recommending he should refrain from work for a further two weeks. At hearing, however, unchallenged evidence was led by the respondent that the claimant had been offered a job by Iona State Services on 17 or 18 February, that he was invited to attend an induction week from 5-9 April 2004, that he did so attend, and that he officially started work for Iona on 14 April 2004. Having initially planned to take time off on annual leave to attend the induction course the claimant changed his mind and decided to attend the induction week while on sickness leave from the respondent. The tribunal declined in these circumstances to attach any weight to the medical sickness certificates relied on by the claimant.
Pirating of CDs and DVDs
- In addition to the foregoing matters the claimant sought to rely at hearing more generally on the background atmosphere for the respondent employees at the Guildhall. The claimant cited the employment of Mr Weir's in-laws (his brother-in-law and his father-in-law) and his best friend among the security guards. In particular, however, he complained of the effect on employees of the pirating of CDs and DVDs at the Guildhall by the respondent's supervisor, Mr Weir.
- Mr Weir categorically denied all knowledge of such activity. On the strength of the evidence of the claimant, Ms Angela Courtney and Ms Sandra Doherty, however, the tribunal find on the balance of probabilities that Mr Weir was engaged in a small sideline on his own account from his base in the Guildhall, over a three or four year period, mainly when the Saville Inquiry was not in session, consisting in the copying of audio CDs and, at some stage also, DVDs, for sale to people who worked in and around the Guildhall. On foot of uncontested written representations from the Saville Inquiry's Ms Katrina Barr the tribunal accept that this was almost certainly not done on the equipment belonging to the Saville Tribunal, as was first suggested in Press reports in or around January 2005. It was carried out on a PC owned by Mr Weir which he kept in the respondent's Control Room at the Guildhall for both work and private uses. It is impossible for the tribunal to assess the scale of Mr Weir's enterprise. It is probable however, that it was a regular feature of the activity taking place in or around the security office where Mr Weir kept his computer, at least when the Saville Inquiry was not in session. This ongoing trade was an understandable cause of concern to employees and was likely to have caused some degree of unease among the respondent employees at the Guildhall, the more so as it was being carried on by the local on-site supervisor.
- Stranger still, Human Resources at the respondent Head Office were alerted to at least one aspect of this illicit activity by one of the claimant's former colleagues, Ms Angela Courtney, in January 2001, and failed to deal with it. Admittedly it was raised as an issue in the context of a defence to disciplinary charges. At that time, after a spell in the Guildhall, Ms Courtney was working in the Seagate site on the Springhill Industrial Estate, where the respondent also had a presence. Ms Courtney described to the Personnel Officer, Ms Kiera Scott, chairing the disciplinary hearing, in the presence of a Solicitor, the involvement of Mr Weir in the distribution and sale of pirate CDs at the Seagate site. Mr Weir and his colleague, Mr McCrory, sometimes in uniform, sometimes in casual clothes, would arrive at the security hut at Seagate with small packets of pirated CDs supplied on request. Ms Courtney did not claim before tribunal she had raised at this hearing any allegation that they were involved in the production of such CDs at the Guildhall. Nevertheless the matter of illicit trading had been raised. Ms Courtney left the company a few weeks later. No reference was made in Ms Scott's record of the disciplinary hearing that Ms Courtney had raised the subject. No action was taken against Mr Weir nor was there even any investigation of the matter. Mr Weir was not aware that any complaint had been made.
- The message percolated back to Ms Courtney's colleagues in the Guildhall that the matter had been raised but that no action had been taken in regard to it. Mr Weir continued with his small business untroubled. That is how matters still stood in March - April 2004 when the claimant decided to leave the company and go to work elsewhere. The claimant did not at any stage between 2000 and 2004 raise this matter himself as an issue for concern. He did not refer to it in his letter of 13 February 2004, nor in his letter of resignation of 12 April 2004. He did not rely upon it or mention it either in his complaint to tribunal one week later, on 19 April 2004. The issue is raised by him for the first time in the context of these proceedings by way of correspondence from the claimant's representative to the respondent of 25 November 2004, seven months after the claimant had left the respondent and lodged proceedings. It is first presented in these terms:
'We refer to the serious illegality which we say your clients, the respondent Services were aware of and condoned in the claimant's workplace during his employment with your clients and which was a major factor in bringing his employment there to a close. . . The casual acceptance by your clients of the criminal misuse of customers' facilities and equipment significantly further worsened this atmosphere and aggravated the stress the claimant was working under.
More specifically, on 13 December 2004, the claimant's representative adds:
Your client is aware of the 'criminal misuse of customers' facilities.' I refer to the manufacture for sale of 'pirate' DVDs during period when Saville Tribunal was adjourned, using the electronic equipment installed at Derry Guildhall by the Tribunal. Your clients are aware of the extent to which this practice soured the atmosphere in the workplace and of how significantly it compounded the stress under which employees, including the claimant, had to work.
[It follows from the written representations of Ms Barr referred to at Paragraph 24. above, representations that were unchallenged by the claimant and were accepted by the tribunal, that there was no foundation to the claimant's allegation in regard to 'criminal misuse of customers' facilities', and the tribunal so find.]
- At hearing the claimant relied on the evidence of Ms Doherty also in this context (a) to corroborate the claimant's account of the manufacture of and trade in pirate CDs and DVDs in the Guildhall and (b) to establish that the company was made aware of this state of affairs by Ms Doherty. As to (a) the tribunal accept the thrust of Ms Doherty's and the claimant's evidence and find that Mr Weir was in all probability running a small 'pirating' operation for profit. As to (b) the tribunal accepts also the general truthfulness of Ms Doherty's account, supported by that of her partner, Mr Smallman, of having raised this matter at a disciplinary hearing with Ms Sarah Uprichard, Human Resources Manager and Mr William Mawhinney, Contracts Manager. Ms Doherty told Ms Uprichard that the respondent's on-site supervisor at the Guildhall was running an illegal business making and selling CDs and DVDs from the respondent's office at the Guildhall during company time and using company or client equipment. It follows that the tribunal reject Mr Mawhinney's account of this hearing as being both unreliable and self-serving. The tribunal so find despite the absence, for a second time, of any reference to the subject in the respondent's record of this disciplinary hearing. The tribunal were surprised that notwithstanding Ms Doherty's disclosures to Ms Uprichard, about what was going on in the Guildhall no action was taken to investigate it. Worse still, in correspondence with Ms Doherty, Ms Uprichard showed every sign of wishing to frustrate or block an inquiry into her allegations, rather than assist her to present them in an acceptable form. Mr Lewis, the other Contracts Manager who gave evidence for the respondent, confirmed that had he been alerted to the allegation he would have wished to raise it straight away with the managing director and have it investigated.
- Ms Doherty raised this matter for the first time with Ms Uprichard at a disciplinary hearing that took place on 31 May 2004, almost two months after the claimant had left the respondent. Her correspondence with the company dragged out over a number of months, Ms Uprichard placing a number of unreasonable procedural obstacles in the way of addressing Ms Doherty's grievances against Mr Weir. Ms Doherty, for understandable reasons, eventually wearied of the attempt to press her grievance in the face of Ms Uprichard's stonewalling, accepted a redundancy offer and left the company in December 2004. The tribunal was not, however, concerned to adjudicate on the rights or wrongs of Ms Doherty's dispute with either Mr Weir or the company. It is possible that in the particular circumstances of Ms Doherty's having raised the issue of the pirating operation in the Guildhall and having tried to pursue a grievance in relation to it and other matters without success a tribunal may have considered that there was some basis for finding a breach of Ms Doherty's contract with the respondent. That, however, is speculation. It is not of direct assistance in assessing what if any influence this issue exercised on the claimant's mind in March - April 2004.
- At hearing the claimant was asked why, if he had been so troubled by Mr Weir's activities, he had never raised it as an issue during the 4 years he worked for the respondent. The claimant claimed it had already been raised by Ms Courtney and Ms Doherty but that nothing had been done about it. In fact, however, at the time the claimant left the respondent, Ms Doherty had still not raised it with the company. One aspect of it (the trade in copied CDs) had been brought to the attention of personnel by Ms Courtney more than 3 years earlier, but no further representations had been made in regard to it. The claimant also relied on an unwillingness to raise matters in general with the company because of its record of indifference to his representations on other issues. The tribunal had however, plenty of evidence before it of the claimant's willingness to take up matters that troubled him with Mr Weir, Mr Campbell, Mr Lewis and with Personnel.
- The Tribunal accept that the production of and trade in contraband CDs and DVDs was a condition that no respondent employee should have had to put up with at work. Had the claimant ever made an issue of it with management at any time in the course of his employment then it could more plausibly have been placed in the scales against the company in assessing the claimant's claim for constructive dismissal. In the end, however, the claimant's total silence on the issue until November 2004 was inconsistent with the claim advanced in correspondence and submissions by Mr McCann that the issue of illegal activity in the workplace was a major factor in the claimant's decision to leave the respondent. The Tribunal finds, on the contrary, that this issue played little or no part in the claimant's decision to quit. The issue was introduced several months later as an additional matter on which he might rely in preparation for his tribunal hearing, particularly in light of Ms Doherty's frustrating experience in trying to ventilate the issue before she left the respondent. That leaves open the question whether the mere fact of this activity being tolerated by the respondent, or its failure to put a stop to it, can of itself give rise to a breach of contract, a matter which is dealt with further below in light of decided authority.
The law of constructive dismissal
- Article 127 of the Employment Rights (Northern Ireland Order) 1996 provides:
(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.
At common law, an employee may only terminate the contract without notice if the other party has committed a fundamental breach of contract. The test for such a breach is set out in the Court of Appeal judgment in Western Excavating Ltd v Sharp [1978] IRLR 27, per Lord Denning MR:
'If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed.'
In practice, as set out at para 403, Division D1 of Harvey on Industrial Relations and Employment Law in order to make out a claim of constructive dismissal the claimant must satisfy 4 conditions:
1. There must be a breach of contract by the employer
2. The breach must be sufficiently important to justify the employee resigning.
3. S/he must leave in response to the breach.
4. S/he must not delay too long.
The implied term
- Applying these principles to the findings of fact in the claimant's case the tribunal was unable to identify any breaches of an express term in the claimant's contract of employment that would have justified his terminating his contract by reason of the conduct of the respondent. From an early stage in the case, however, the claimant made clear he would be relying particularly on breaches of the implied term that the employer should not conduct itself in such a way as to destroy the relationship of trust and confidence between employer and employee, as established by the House of Lords in Malik and Mahmud v BCCI [1997] IRLR 462. In that case the House of Lords, clearing the way in principle for former employees of the Bank to claim 'stigma damages' against the Bank's liquidators, held that an employer which operated its business in a dishonest and corrupt manner was in breach of the implied term. Their lordships rejected the idea that in order to amount to a breach of the implied term the trust-destroying conduct must be specifically directed at the employee. The implied obligation extended to any conduct by the employer likely to destroy or seriously damage the relationship of trust and confidence.
- Following the decision in principle by the House of Lords in Malik that a claim for stigma damages could be pursued, test cases by former employees of the failed bank came before the High Court in the case of BCCI v Ali & Others (No 3) [1999] IRLR 508. The judgment in that case, to which the Tribunal referred the parties at an early stage of hearing, contains a detailed discussion of the implied contractual term in the context of employer misconduct and sets out the criteria to be applied in determining whether the implied term has been breached. According to Lightman J, where the misconduct by the employer is not directed at employees generally or at particular employees, a high threshold is required to establish a breach. Summarising the principles expressed by the House of Lords, Lightman J notes at para 52 (c):-
It must be the employer, and not merely rogue employees of the employer who are carrying on the corrupt or dishonest business. "On the assumed facts, this [BCCI] was not a case where one or two individuals were behaving dishonestly [which is insufficient]. Matters had gone beyond this. They had reached the point where the bank itself could properly be identified with the dishonesty. This was a dishonest, a corrupt business."
At para 53 (2) and (3) he restates the limits set by the Lords to the scope of such breaches:
(1) the assumed fact that the bank operated in a corrupt and/or dishonest manner was fundamental to the conclusion that there was an arguable case as to breach of contract.
(2) acts of dishonesty by individuals, however senior, would not constitute a breach of the T & C term; what was required was that the business itself was dishonest and corrupt.
Expanding upon the principles he had summarised Lightman J noted:
No case has been cited to me where conduct not directed at the employee or employees generally has been held to amount to a repudiatory breach of the T & C term. It may be anticipated that, in view of the far-reaching impact of a breach and potential damage to the employer. . . . if a breach triggers the wholesale repudiation of employees' contracts . . . a high threshold is required to establish a breach and accordingly in such a case the trust-destroying conduct may be required to be grave. . . .
Finally at para 56 his lordship summarises the approach to be adopted:
The litmus test is to look at the degree of dishonesty, the size and number of dishonest transactions, the level of employees involved and the importance and prevalence of the wrongdoing in the context of the employer's business as a whole, and to form a view whether the wrongdoing is so serious, substantial and systematic that (despite the existence of areas of its activities which are free from infection) the employer's business as a whole may fairly be characterised as tainted and whether it amounts to unfair or improper exploitation of the employees generally. . .
- The guidance offered by Lightman J, applied to the facts of the claimant's complaint in respect of the situation in the Guildhall leads to only one possible conclusion: Mr Weir, albeit the on-site supervisor for the respondent at the Guildhall, was, in the wider scheme of things a relatively junior employee of the respondent. There was nothing to suggest that his activity was anything more than a means for Mr Weir to generate some extra cash for himself in company time using his own computer at work. His small-time contraband operation barely impinged on the main activity of the company either in the Guildhall or elsewhere. There is not even the flimsiest case on the facts found by the tribunal to suggest that the company, as opposed to a rogue employee, was carrying on a corrupt or dishonest business, as required by the guidance in Ali to ground a finding of breach of the implied term in circumstances such as those at the Guildhall. Accordingly the tribunal rejects the claimant's claim that the respondent, by its failure to tackle the problem first brought to its notice by Ms Courtney in January 2001, and brought once more to its notice by Ms Doherty, on 31 May 2004, nearly 2 months after the claimant had left the company, could amount to a breach of the implied term in the claimant's contract of employment.
- In the absence of any breach of an express or implied term of his contract of employment the tribunal considered the claimant's submission that his dispute with his employer over the new shift rota was merely the 'last straw' (as in 'the straw that broke the camel's back') that had led him to quit. It is well established that an aggrieved employee may prove fundamental breach by the employer even when the actual trigger for his decision to quit would not by itself qualify as a freestanding breach: Lewis v Motorworld Garages Ltd [1985] IRLR 465 CA. The tribunal considered whether the employer's conduct as highlighted by the claimant's grievances with the company may have had the cumulative effect of undermining the trust and confidence term, entitling him to walk away and treat his contract as terminated by his employer. The tribunal had concerns over a number of matters disclosed by the facts of this case. In the first place the tribunal were at a loss to understand the failures of the company to address in a timely fashion the matters brought to its attention on 3 January 2001 by Ms Courtney and on 31 May 2004 by Ms Doherty (some time after the claimant had left). Second, the tribunal were concerned over the evidence from Ms Doherty that Mr Weir had been allowed by the company to misuse his position in the allocation of high premium shifts. Third, the tribunal were perplexed that a personnel professional in a managerial position with the respondent could drag her feet so obviously in dealing with Ms Doherty's grievance. All of these matters disclosed a lack of effective central supervision or control over affairs in the workplace, a shortcoming that should be set at the door of the company management rather than Mr Weir, and which the respondent can expect to pay a price for in expensive repeat visits to Industrial Tribunals.
Conclusion
- Nevertheless the tribunal did not accept that the matters of which the claimant complained and which the tribunal found proven (Mr Weir's failure to explain his decision in regard to the revised shift rota, the company's failure to reply, in writing, to his letter of 13 February 2004, the company's failure on one occasion at an indefinite date, to pay him sick pay, and the company's apparently more favourable treatment of a female colleague on one occasion at Easter 2001) added up to grounds on which he could terminate his contract without notice. The tribunal concluded that the claimant from January 2004 onwards was on the lookout for alternative work when he realised that the convenient day-time hours he worked on weekdays at the Guildhall were soon likely to come to an end and be replaced with more unsocial hours of work. He 'loved' the job, he said, and was reluctant to leave it. As re-defined by the position at the conclusion of the Saville Inquiry, however, the job had lost a good part of its appeal. On being offered a job with Iona State Services on 17 February 2004, he accepted the offer and decided to move on. Accordingly the tribunal dismiss the claimant's complaint
of constructive dismissal.
Chairman:
Dates and places of hearing: 24 March , 5 April, 15 August 2005, Londonderry.
23 September, Limavady.
27 October Strabane.
Date registered and issued to parties:
