Maxwell v Care Plus [2008] NIIT 1658

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1658/07

CLAIMANT: Christina Maxwell

RESPONDENT: Care Plus

DECISION

The unanimous decision of the tribunal is that the claimant’s claim of constructive dismissal is upheld and the tribunal awards her £996.11 in compensation.

Appearances:

The claimant was represented by Mr J Kennedy, Barrister-at-Law, instructed by Fahy Corrigan, Solicitors.

The respondent was represented by Mr T Sheridan, of Peninsula Business Services Limited.

“7.1 I am claiming for constructive dismissal as I had to resign as I felt I could no longer work for this agency/management. I had been off sick and passed fit for work by my doctor, but was refused the right to go back to work by my employer. To date despite my enquiries and efforts to obtain such, no logical reason or valid argument has been given as to why I have not been allowed to go back to work. A meeting was held on 10/5/07 with management which proved unsuccessful in resolving any issues and to date management has refused to let me resume my duties which I have been performing for the last five years.”

“11.1 Further to the information outlined in section 7 I would like to complain about my former employer’s attitude towards me during the period March ’07 – July ’07. My employer has written several letters to me which have been and are being detrimental to my character. She [Mrs Harris] has been asked on several occasions to explain her actions and what she wrote on these letters but to date has failed to do so. The nature of these letters brought my character as a good person into question and would jeopardise my chances of employment elsewhere. The management team have also harassed, bullied and took actions which I did not give them permission to do. They have pushed letters through my door box, come unto my property without my permission (after having been spoken to about it) and ignored members of my family when asked what they wanted. In whole the management team have acted in a thoroughly unprofessional manner.”

5. The response filed on behalf of the respondent denied that it was in breach of the claimant’s contract of employment thereby entitling her to terminate her contract or resign from her position without notice. According to the response the background to the claimant’s resignation was that as a result of the claimant’s volatile and rude conduct towards colleagues and service users and complaints that the claimant had acted inappropriately, the respondent wrote to the claimant on 29 March 2007 outlining concerns about her conduct and improvements that were required. The response further drew attention to the claimant’s failure to submit a self-certification form in respect of seven days absence from work, her failure to make herself available for manual handling training, her failure to provide confirmation from her General Practitioner that she was fit to undertake her duties, her refusal to undertake light duties and her lack of cooperation and hasty departure from a meeting which had been arranged to resolve the matter.

6. In setting out the relevant facts we would state at the outset that in the main we accept the accounts given by the respondent’s witnesses in evidence. In particular, we preferred the respondent’s version of the many contentious incidents involving the claimant and we were impressed by the detailed contemporaneous notes kept by Mrs Harris of relevant phone calls and conversations. The respondent business is owned by Mr Harris and provides care packages to elderly people living in the community and similar services in respect of disabled persons and child care. Mrs Harris is the general manager of the business. Mr and Mrs Harris took over the business from the previous owners in 2004. The main source of the work is the Sperrin Lakeland Trust. Following a referral by the person’s General Practitioner a social worker employed by the Trust assesses the prospective client in terms of his or her care needs and medication and also completes a risk assessment if necessary. A multi-disciplinary team then decides on the components of the package of care. The respondent is asked if it can provide a particular care package which will specify the number of staff required, what type of service is to be provided and when. The assessment includes the client’s mobility needs and what type of help is required for example whether a hoist is necessary. Mrs Harris is the general manager and is responsible for managing the package which involves arranging for staff to do the work and providing help and support to staff. Mrs Harris has an HND in Care Practice and is a qualified trainer in manual handling and provides training to the staff. At the material time manual handling training was not compulsory for care staff but was recognised as good practice by the Trust. Training in manual handling and other skills takes place twice per year in March and between September and November. Manual handling training takes three hours. Training schedules are sent out to all staff with their pay slips and they are asked to choose sessions from food hygiene, manual handling and first aid.

7. The evidence established that the claimant commenced employment with the respondent as a community carer in or around January 2002. The claimant normally worked a 16 hours week. She could not work for longer hours as this would have reduced the benefits that she received in respect of looking after her disabled son.

8. According to a medical report by the claimant’s general practitioner, Dr Elaine Connor, the claimant injured her neck at work in March 2007. As a result of this injury, the respondent made arrangements to provide the claimant with assistance in carrying out her duties.

9. On 29 March 2007 the claimant made a telephone call to the respondent’s General Manager, Mrs Harris, in which she raised queries about another carer who was sent to work with her. This prompted Mrs Harris to write to the claimant on the same date. The letter pointed out that such queries should be directed to Care Co-ordination staff rather than Mrs Harris and complained about the claimant’s rude and abrupt manner during the call, her refusal to allow Mrs Harris to speak and her termination of the call by putting the phone down. Mrs Harris went on to state that this had happened on a number of previous occasions and that such behaviour would not be tolerated. Finally, Mrs Harris stated that if the claimant did not show more respect to Mrs Harris and the office staff, she would have no option but to deal with the claimant under the respondent’s disciplinary procedure because such behaviour raised concerns about the claimant’s suitability as a Care Worker going into the homes of vulnerable adults. Mrs Harris also enclosed a copy of the respondent’s complaint procedure.

10. On Sunday 31 March 2007, the claimant made a phone call on the respondent’s emergency sick line and commenced a period of sick leave. No sick line was ever submitted in respect of this period.

11 On Thursday 12 April 2007, the Office Manager, Mrs Carole McCoy, telephoned the claimant to find out when she was returning to work. The claimant informed Mrs McCoy that she had hurt her shoulder. Mrs McCoy enquired as to whether the claimant had sustained the injury at work and in reply the claimant stated that she did not know where it happened.

12. On 5 April 2007, the claimant’s General Practitioner, Dr Elaine Connor, signed the claimant off sick for two weeks on the basis of a diagnosis of work related stress and neck injury. The certificate appears not to have been received by the respondent until 16 April 2007.

13. On 16 April 2007, Messrs Fergusons, solicitors responded to Mrs Harris’ letter of 29 March 2007 on behalf of the claimant. The letter contained a request for several documents including copies of all written and verbal complaints in relation to the claimant’s attitude and manner. The author also stated that the claimant was currently off work due to an injury which she had received at work and work-related stress.

14. On 19 April 2007, Mrs Harris replied to Fergusons. Mrs Harris indicated that she considered it inappropriate to provide copies of past complaints as no disciplinary action had been taken against the claimant and pointed out that the aim of her letter was to try and resolve issues that the respondent had with her conduct and manner and to try to establish a more amicable professional working relationship. In addition Mrs Harris stated that there was no present intention to instigate any disciplinary action. Mrs Harris also refuted the statement that the claimant was under any stress or pressure due to work related demands and disputed the suggestion that the claimant had sustained an injury whilst at work. In relation to the alleged injury Mrs Harris indicated that the first mention of any injury occurred when the Office Manager, Mrs Carole McCoy, telephoned the claimant on Thursday 12 April 2007 to find out when she was returning to work.

15. On 24 April 2007, Dr Connor signed the claimant off sick up to 30 April 2007 again on the basis of work related stress and neck injury.

16. On the same day the claimant phoned Mrs Harris after her appointment with Dr Connor. Mrs Harris tried to explain to the claimant that she needed a letter from the claimant’s doctor stating that she was physically and mentally fit to return to work and that she had not attended the manual handling courses which had taken place in March. The claimant was initially calm and suggested a face to face meeting and Mrs Harris invited the claimant to meet with her on Monday 30 April 2007. The claimant then became argumentative and would not let Mrs Harris speak. The claimant accused Mrs Harris of sneaking around and putting a letter through her door. The claimant said that she should have used the Royal Mail. Mrs Harris tried to explain that she hadn’t done so but as the claimant had become irrational Mrs Harris felt it best not to continue the conversation. Mrs Harris told the claimant that she would speak to her on Monday whereupon the claimant put the phone down.

17. The claimant contacted the respondent on 27 April 2007 and requested that Mrs Harris return her call as soon as possible as she wanted to postpone the meeting because she did not have sufficient time to arrange for the attendance of a representative.

18. On 30 April 2007, Mrs Harris returned the claimant’s call. During the course of the telephone conversation the claimant informed Mrs Harris that her doctor had certified that she was fit to return to work and was willing to write a letter to this effect. The claimant complained that Mrs Harris was not allowing her to return to work. Mrs Harris tried to explain that she wanted her to return and work light duties until such time as she had completed manual handling training but the claimant constantly talked over her. Mrs Harris then said to the claimant, “Tina are we going to have a two way conversation or is it only you who is allowed to speak.” According to Mrs Harris the claimant responded, “We are having a conversation as a matter of fact Eileen, I am recording the conversation.” Mrs Harris responded that if the conversation was being recorded she was ending it now and put the phone down.

19. The claimant immediately phoned back and the call was put through to Mr Harris. The claimant stated that she seemed to have been cut off and Mr Harris explained that Mrs Harris had ended the call because the claimant was recording it without her permission. The claimant maintained that she had the right to record the conversation and that the equipment that she was using was used to record conversations with family members and missed calls. Mr Harris went over this ground with the claimant several times as she was talking over him until it was apparent that she understood what he was trying to say. The claimant then said that Mrs Harris had told her that she could not come back to work and Mr Harris tried to explain that that was not what Mrs Harris had said. Mr Harris asked the claimant to make an appointment to come in to the office in order to remedy the situation. The claimant responded that she wanted to bring a representative with her. Mr Harris explained that as it was not a disciplinary hearing she did not have the right to be accompanied by a representative but that they would agree to her bringing a work colleague with her. The claimant then stated that she was ending the conversation and hung up.

20. Mrs Harris decided that it was necessary to bring matters to a head. On the same day Mrs Harris put her concerns in writing to the claimant and rehearsed the difficulties that she had encountered in explaining these to the claimant over the telephone due to the claimant interrupting her and not allowing her to speak. Mrs Harris expressed concern about the claimant returning to work with her current clients due to the nature of her sick leave as they required personal care which involved moving and handling and the claimant would be at risk of re-injury because she had not attended the relevant training. Mrs Harris went on to say that she had no problem with the claimant coming back to work to do light duties and that she had asked the Office Manager to identify some relevant slots to facilitate this. Mrs Harris also reaffirmed her objection to the claimant recording their telephone conversations without permission and informed the claimant that in the light of this all future correspondence with the respondent’s office and its staff would either be face to face meetings or by letter. Mrs Harris went on to invite the claimant to a meeting with herself and Mr Harris in order to resolve the situation. Mrs Harris, while making clear that it was not a disciplinary meeting, acceded to the claimant’s request to have someone attend with her provided that it was a work colleague. Mrs Harris then stated that she felt that is was very sad and somewhat disturbing that the claimant had left her with no other choice than to continue their working relationship like this and that “it just heightens [Mrs Harris’] concerns as to [the claimant’s] suitability for community care work with vulnerable people.” Finally, Mrs Harris noting that the claimant had stated that her General Practitioner was willing to provide written confirmation of her fitness to return to work, asked the claimant to provide the name and address of her General Practitioner.

21. On 2 May 2007, the claimant phoned the respondent and informed the Office Manager that she wished to meet with Mr and Mrs Harris on Tuesday 8 May 2007 at 2.30 pm. Mrs Harris responded by letter dated 3 May 2007 and informed the claimant that the suggested date was not suitable and suggested 10 May 2007 instead. Mrs Harris also reminded the claimant that she was not to telephone the office and that when replying she should advise as to the identity of her representative and the name and address of her General Practitioner.

22. The claimant hand delivered her reply on 8 May 2007 confirming her attendance at the meeting on 10 May and advising that she would be accompanied by Mrs A Healey. Mr Harris prepared a reply to the claimant’s letter advising that the respondent did not have an employee called Mrs Healey and therefore she would not be acceptable. Due to the proximity of the meeting Mr Harris decided to deliver it by hand on his way home on the same day.

23. Mr Harris travelled to the claimant’s home by taxi. After he had delivered the letter, through the claimant’s letterbox she opened her window and shouted at him to stop because she wanted a word with him. As the claimant appeared agitated and because Mr Harris assumed that she wanted to discuss something about the meeting, he replied “No, I will talk to you at the meeting” and continued to walk to the taxi. When the taxi tried to leave, the claimant stepped unto the road and blocked its path. The claimant then came to the side of the window and banged the glass. The taxi driver asked Mr Harris if he wanted the window down and Mr Harris replied yes as he was worried that the claimant might damage the taxi. The claimant berated Mr Harris for daring to come to her private house and trespass and asked if he had not heard of Royal Mail. When Mr Harris tried to explain why he hand delivered the letter the claimant shouted over him. This continued for several minutes with the claimant becoming increasingly agitated and Mr Harris thought that she might strike him. At this point Mr Harris firmly requested the claimant to stop speaking and allow him to reply. The claimant replied that he couldn’t tell her to shut up and that the taxi driver was a witness. Mr Harris responded that he wanted her to stop talking to allow him to answer her questions and that he didn’t tell her to shut up. The claimant then stormed off muttering, “this isn’t over, just you wait, you’ll see.”

24. The claimant replied to Mr Harris’ letter on 9 May 2007 and advised that her representative’s name was in fact Mrs A Neely. As Mrs Neely was employed by the respondent this was acceptable.

25. The meeting took place as scheduled on 10 May 2007. It was attended by the claimant, Mrs Neely, and Mr and Mrs Harris. The claimant was provided with an agenda before the meeting started. The record of the meeting was in tabular form with the issues set out on the left hand side of the page and the action set out on the right hand side of the page. Mrs Harris commenced by explaining the aim of the meeting. The claimant interrupted several times and tried to go off in a different direction and Mrs Harris drew her attention to item 4 on the agenda and pointed out that when that item was reached the claimant would have the opportunity to bring forward any issues that she had. It is common case that Mrs Harris asked if either the claimant or her representative had any recording devices on them. According to the claimant the enquiry was made more colourfully and they were asked if they were ‘wired’. The claimant had to be asked three times before she replied ‘No’ and Mrs Neely said that all she had was a mobile phone. The portion of the template completed by Mrs Harris indicated that she made this enquiry because of previous incident involving the claimant using recording equipment. When questioned about this by Mr Kennedy, Mrs Harris made reference to an incident that occurred during the handover of the business by the previous owners. Mr Harris also gave evidence of this incident which arose in the context of a meeting which he sat in on between the previous owner and the claimant which was convened in order to address a complaint made by a client about the claimant. The claimant was not accompanied at this meeting and openly produced a cassette recorder for the purpose of recording the meeting. There was some dispute as to whether or not the claimant switched the cassette recorder on but in any event when this was objected to she complied with the request not to use it. We are satisfied that a previous incident of this nature as described by Mr Harris occurred and it was this that prompted Mrs Harris to ask the claimant and her representative if they had any recording equipment. We believe that Mrs Harris would also have been mindful of her telephone conversation with the claimant on 30 April 2007 which she terminated because she understood that it was being recorded. We do not believe that Mrs Harris asked the claimant if she was ‘wired’. Mrs Harris gave convincing evidence that she did not understand the meaning of this expression and Mrs Neely agreed the record of the meeting which was in accordance with Mrs Harris’ version.

26. Mrs Harris next attempted to explain that on the basis of past experiences the claimant must permit a two way conversation and conduct herself in a professional manner if the meeting was to be productive and that if the claimant interrupted or talked over them the meeting would be terminated. Mrs Harris got as far as mentioning past experiences when the claimant interrupted and asked Mrs Harris what she meant by past experiences. Mrs Harris asked to be allowed to finish the whole sentence so that she would understand and the claimant replied that she had the right to defend herself and have her say too. Mrs Harris pointed out that the claimant would have the opportunity to do so when the employee issues item on the agenda was reached. The claimant responded that she had no other issues to bring up at the meeting, that she would sort out her issues another time and that as far as she was concerned the meeting was only to discuss light duties. In response Mrs Harris drew attention to the letter inviting the claimant to the meeting which stated that the purpose of the meeting was to discuss current issues and hopefully resolve them to their mutual benefit. The claimant persisted in interrupting and was warned that if she continued to do so the meeting would be terminated. There then followed some discussion about the record of the meeting. The claimant expressed the opinion that she didn’t see any need to take notes as in her view there wasn’t much to discuss. Mr Harris indicated that they would be drawing up the minutes of the meeting to which the claimant responded that she would want a copy but would not sign them until a professional had looked over them. In her evidence the claimant maintained that Mr Harris did not take a note of the meeting. Notwithstanding the regrettable failure by Mr Harris to retain his handwritten notes we are satisfied that he did make a note which together with Mrs Harris’ tabular record sheet formed the basis of minutes that were later produced. The claimant was then given the opportunity to bring forward any issues that she had. The claimant indicated that she did not wish to discuss anything and that she would deal with other matters another time. Mrs Harris attempted to explain that this was the purpose of the meeting and Mrs Neely interceded to the effect that there were obviously problems that needed sorted out now. Mr and Mrs Harris agreed and the claimant replied that she had been misled about the meeting and that as far as she was concerned it was just to discuss her return to work and that the only question that she had was whether she was still an employee of the respondent or was sacked. Mrs Harris responded that the claimant had been given no reason to think that she had been sacked, that she was still an employee but that they needed to sort out their issues in order to have a professional working relationship.

27. Mrs Harris then raised the issue of the claimant’s conduct, behaviour and disregard towards management. At the mention of the claimant’s conduct and behaviour, the claimant became very agitated and accused Mrs Harris of being the cause of her work related stress. The claimant said that Mrs Harris was rude, ignorant and nasty and “chewed the face off her” over the phone when she was just looking for support. The claimant went on to say that she wished Mrs Harris would just sack her to which Mrs Harris responded that that was not the way that she dealt with problems or people. The claimant repeated her question as to whether she was still an employee at least four more times and then accused Mr Harris of trespassing on her private property to deliver a letter and ignoring her on a previous occasion. After several attempts Mrs Harris managed to explain that if it had not been hand delivered the claimant would not have received it in time for the meeting. Mr and Mrs Harris attempted to end the meeting at this point because of the constant interruptions and what they described as a barrage of verbal abuse. It was also clear to them that the claimant was becoming increasingly agitated and unreasonable. The claimant got up several times during the meeting and moved toward the door as if to leave only to return to ask if she was still employed and if so that she would like to return to work on Monday. Mr and Mrs Harris confirmed that she was still an employee but that she could not return to her current clients until she underwent Manual Handling training and other issues under discussion at the meeting were resolved. The claimant responded that it was not her responsibility but theirs and that they had not provided her with the training. Mrs Harris informed the claimant that she had been offered this training on three separate occasions over the last two years but had not attended any. The claimant responded that she had only been offered the training once. Mrs Harris disputed this and indicated that this information was distributed to all employees together with their time sheets and wages slips. The meeting continued for a further ten minutes with the claimant remaining in an agitated state. The claimant then stated that she was ending the meeting now and that she would rather that they just sack her and be done with it. The claimant stormed out of the meeting and slammed the door behind her. Mrs Neely left after the meeting and Mr and Mrs Harris thanked her for attending and trying to mediate. The minutes of the meeting were subsequently written up and recorded a conclusion in the following terms:-

“Due to [the claimant’s] inability to complete the meeting, no issues were resolved and again it heightens our concerns as to [the claimant’s] suitability as a carer due to her highly volatile nature.”

28. The minutes were signed off as being an accurate and true representation of the meeting by Mr and Mrs Harris on 11 May 2007 and by Mrs Neely on 14 May 2007. The claimant refused to sign the minutes until she had shown them to a professional which we understand to mean her solicitor. It is clear from the evidence and in particular the correspondence with Fergusons that the claimant received the draft minutes and passed this document to her solicitor. Although the claimant never signed the draft minutes her representative Mrs Neely did and on this basis we are satisfied that we should accept their accuracy.

29. By letter dated 21 May 2007, the claimant’s solicitor sought information and raised various matters as follows:-

(2) The basis on which the claimant’s suitability for her employment was questioned.

(4) The claimant’s request that it be put on record that she was not content with the minutes of the meeting. It was asserted that the minutes furnished were clearly written by Mrs Harris contrary to the claimant’s understanding that the meeting would be recorded by Mr Harris and a copy of his contemporaneous handwritten notes was requested.

(5) The solicitors indicated that the claimant had asked them to record that she was ready and willing to return to work having been certified medically fit to do so. The solicitors further asserted that it would be appropriate for her to return to work immediately in the absence of any compelling reason being provided by the respondents.

30. Mrs Harris replied by letter dated 7 June 2007. Mrs Harris referred the solicitors to the minutes of the meeting and pointed out that the claimant terminated the meeting before the issues in respect of which clarification was sought were reached in the agenda. Mrs Harris went on to state that the claimant was preventing her own return to work as the aim of the meeting was to discuss the process of identifying suitable light duties until such time as the claimant completed manual handling training. Mrs Harris pointed out that the claimant had failed to attend such training which she had been invited to attend on a number of occasions over the previous two years. Mrs Harris then stated that the claimant had been invited to a training session on 15 June 2007 but had not replied. As appears from the correspondence the letter of invitation was sent out by the office manager, Mrs McCoy, on the same date as Mrs Harris’ letter. Clearly therefore there could have been no time to reply to this particular invitation. Although some doubt was cast on the authenticity of this letter which did not have the customary heading and was unsigned and undated, we are satisfied that the explanation proffered by Mrs Harris that her letter of 7 June was unfortunately worded in this respect in that it should not have suggested that the claimant had not replied to this invitation to training. We also accept Mrs Harris’ evidence that additional manual handling training was organised in June 2007 for the claimant and other staff who had missed out on it or slipped through the net. In addition we found Mrs McCoy to be a very straightforward and honest witness and we accept her evidence that she did send out an invitation to training on 7 June 2008. We also note in passing that the minutes of the meeting which we accept as accurate record the claimant as accepting that she was invited to attend such training on one previous occasion. Mrs Harris concluded by stating that until such time as that claimant has had a satisfactory meeting with management in order to establish agreeable means of communication and working conditions and completed mandatory training, it would be increasingly difficult to offer her work. The claimant alleged that she never received Mrs McCoy’s letter of 7 June. While it strikes us as a little odd that Mrs Harris’ letter was phrased in terms of the claimant’s non-reply to Mrs McCoy’s letter of the same date we believe that this is symptomatic of a lack of coordination rather than a failure to issue such a letter particularly given that the claimant’s evidence about previous invitations to training issued with pay slips was very vague.

31. On 23 July 2007, the claimant’s solicitors wrote to the respondent stating that the respondent had not properly addressed the claimant’s reasonable requests for information and particulars which were aimed at clarifying her position and establishing where she stood in terms of returning to work with the result that an atmosphere of distrust and hostility had been created by the respondent between the claimant, her fellow workers and management. According to the letter the claimant felt that without clarification on these issues the claimant could not reasonably be expected to work in this atmosphere and that she could not countenance a return to work unless and until it is confirmed that these issues will be properly addressed. The letter then concluded as follows:-

“On that basis we are writing one final time on our client’s behalf to seek clarification of the various issues raised repeatedly in correspondence herein. Our client would indicate that in the absence of clarification in relation to those issues, she feels that her position is made untenable and she would feel further that she is in a position where she has no alternative but to tender resignation herein. If you are not prepared to provide the reasonable information required, this letter can be treated as our client’s resignation accordingly.”

32. When no reply was received to this letter, the solicitors wrote again on 7 August 2007 and advised that in the absence of any reply or acknowledgement to their letter, the claimant felt that she had been placed in a position by the respondent’s failure to deal with her reasonable requests for information and clarification where she could no longer continue in the respondent’s employment and requested that this letter be treated as her resignation. The solicitors went on to state that the claimant felt that she had been most unfairly treated and would be complaining to an employment tribunal. It was also intimated that the claimant would be seeking alternate employment.

33. On 8 August 2007, Mrs Harris wrote to the claimant’s solicitors apologising for the delay in replying to their earlier letter and explaining that this was due to her being on leave. Mrs Harris indicated that she was disappointed that the claimant had decided to terminate her employment and drew attention to the respondent’s last effort to resolve the training issue which had resulted in the claimant telephoning the office, despite being instructed not to do so, and being quite abrupt and irate with Mrs McCoy, telling her that she was taking the invitation to attend training as a personal insult, criticising Mrs McCoy for daring to insult her and stating that she would not be attending the training and would be taking the letter to her solicitors.

34. Article 126 of the Employment Rights (Northern Ireland) Order 1996 sets out the right not to be unfairly dismissed and Article 127 in so far as relevant provides as follows:-

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

35. The authors of Harvey at D1[403] described four conditions that an employee must meet if they are to claim constructive dismissal:-

36. 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.

37. 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.'

As Mr Kennedy rightly points out, a note of caution needs to be expressed in relation to the precise terms of this formulation. 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.”

38. 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.”

The Employment Appeal Tribunal has recently 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.”

39. On behalf of the claimant Mr Kennedy submitted that the respondents had breached the claimant’s contract in several respects. These were as follows:-

(a) The respondent had no right to prevent the claimant’s right to return to work after being certified medically fit for work and making herself available for work.

(b) The respondent had no right to suspend the claimant from her work, with or without pay.

(c) The respondent failed to instigate the mandatory Statutory Disciplinary Procedures when contemplating action against the claimant; namely suspension without pay.

(d) The respondent had no right to insist upon the claimant undertaking Manual Handling training.

(e) The respondent breached the duty of trust and confidence by making allegations regarding the suitability of the claimant to work as a care worker, especially as the respondent was unwilling to substantiate or otherwise stand over the allegations.

(f) The treatment and attitude towards the claimant by Mrs Harris in particular destroyed the employer/employee relationship.

(g) The respondent took no responsibility for their actions and placed all the blame squarely on the shoulders of the claimant, essentially insisting upon a full, unqualified and unreasonable apology from the claimant.

40. Mr Kennedy submitted that these actions both individually and cumulatively, were breaches of the contract of employment and constituted sufficiently important breaches to allow the claimant to terminate her contract of employment. Mr Kennedy did not seek to suggest that this was a last straw situation as such although it could be viewed in this way if we were persuaded that the evidence demonstrated that there were a number of breaches of contract which cumulatively entitled the claimant to accept a repudiatory breach of contact. However, Mr Kennedy accepted that properly analysed the breaches relied upon by the claimant can be distilled to two breaches namely preventing the claimant from returning to work after she was certified as fit to return by her General Practitioner without completing a non-contractual manual handling course and a breach of the duty of trust and confidence by calling the claimant’s suitability as a care worker into question.

41. Mr Kennedy also drew attention to the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and contended that the respondent was under a duty to comply with the requirements of the Regulations when contemplating action short of dismissal. Mr Kennedy further submitted that the action taken by the respondent in preventing the claimant’s return to work constituted a relevant action under the Regulations and therefore fell within the ambit of the Regulations.

42. On behalf of the respondent, Mr Sheridan submitted that the claimant had not resigned in response to any of these alleged breaches of contract but rather had left for an unconnected reason namely that she had secured alternative employment. In this respect he drew attention to the claimant’s evidence that she had worked for County Homes in either June or July 2007 and had left that employment because she was advised to do so by her solicitor. On this basis Mr Sheridan submitted that the claimant should be taken to have resigned from her position with the respondent prior to the tendering of her resignation in the solicitor’s letter of 8 August 2007. In addition, Mr Sheridan contended that there had been no fundamental breach of the claimant’s contract and in the alternative if there had been such a breach the claimant had contributed significantly through her behaviour and that a one hundred percent deduction was warranted.

43. There are two important preliminary issues that require to be addressed before considering the constructive dismissal claim. The first issue that we have to resolve are the dates of the claimant’s employment with the respondent. According to paragraph 6 of the claim form, the claimant commenced employment with the respondent in January 2002 and the employment ended on 23 July 2007. The respondent contended that the claimant’s employment commenced in 2003 but in the absence of any documentary evidence being produced to substantiate this we are satisfied that the claimant’s employment with the respondent commenced in January 2002. We are further satisfied that the claimant’s employment with the respondent ended on 7 August 2007 when she tendered her resignation through her solicitors rather than 23 July 2007.

44. The second issue concerns the dates of the claimant’s employment with County Homes. At paragraphs 7.4 to 7.5 of the claim form, the claimant stated that she had worked for another unnamed employer from May 2007 to June 2007. In her evidence to the tribunal the claimant stated that she had obtained temporary employment with County Homes from either May to June or June to July 2007. At face value this struck us as rather surprising given that the claimant did not resign from the respondent’s employment until 7 August 2007. However it is clear from the sample contract that we were provided with that the claimant was not bound to work exclusively for the respondent and there was therefore nothing to prevent her from taking up work elsewhere at a time when she was not being offered work by the respondent.

45. Turning to the grounds upon which the claim of constructive dismissal is based, we do not accept the claimant’s contention that the respondent had no right to prevent her from returning to work after being certified medically fit for work and making herself available for work. In our view, having regard to the possibility that the claimant either sustained or worsened her injury at work, the respondent was entitled to take steps to ensure that there was no recurrence. The claimant’s General Practitioner was not called to give evidence and we therefore received no evidence that verifies that she fully appreciated the nature of the claimant’s normal work or her capacity for it. The respondent’s decision to insist on the claimant returning to work on light duties strikes us as entirely reasonable in the circumstances. We are not satisfied that the respondent breached the claimant’s contract by preventing her from returning to work when she was certified fit by her General Practitioner. There was clearly an issue as to whether the claimant could safely perform her usual duties without the benefit of Manual Handling training and an impasse had been reached regarding her return to work on light duties or otherwise that the meeting on 10 May 2007 was meant to address.

46. With regard to the alleged suspension of the claimant, the evidence establishes that the respondent at no time purported to suspend the claimant from her work, with or without pay. The claimant may have perceived that her treatment was tantamount to suspension but this is not sufficient in our view nor is it warranted. We are satisfied that the respondent was entitled to insist upon the claimant undertaking Manual Handling training in circumstances where there was reason to believe that she injured herself at work while performing lifting duties with a client. We therefore do not regard this action as being in breach of the claimant’s contract. Nor do we accept that the respondent was bound to offer the claimant work in these circumstances.

47. While the meeting on 10 May 2007 was rather more formal than one might expect a meeting of this nature to be, we note that the respondent acted on advice from the Labour Relations Agency and that the structured approach was designed to address the particular difficulties posed by the claimant’s behaviour. In the particular circumstances of this case we can understand the desire of the respondent to deal with the matter in an orderly manner but in our view it would have been preferable for the issues to be addressed in a more informal fashion. The claimant described the purpose of the meeting in her claim form as an attempt to resolve any issues with management and this is entirely consistent with the respondent’s evidence that there was no intention to institute disciplinary proceedings at this stage. In these circumstances we are not satisfied that the respondent was contemplating action short of dismissal and therefore its treatment of the claimant did not constitute a relevant action under the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.

48. The meeting itself does not provide any basis for the claim of constructive dismissal but rather its relevance lies in the reiteration by Mrs Harris at the meeting of her concerns as to whether the claimant was suited to care work. This suggestion lies at the heart of the claimant’s case that the respondent breached the implied duty of trust and confidence which we will now turn to consider.

49. The alleged breach of the implied contractual duty of trust and confidence was based on the comments made by Mrs Harris that questioned the suitability of the claimant to work as a care worker. Having carefully considered all of the evidence and the submissions we have come to the conclusion that the respondent acted in breach of the implied duty of trust and confidence by calling into question the claimant’s suitability as a carer in circumstances where there was no or no sufficient evidence to justify that allegation. While we accept that the claimant’s communications with the respondent and her behaviour at the meeting caused the respondent concern this was entirely within the context of the claimant’s dealings with Mr and Mrs Harris and their office staff. There was absolutely no evidence that similar behaviour had occurred in the course of her duties and no investigation was undertaken into how the claimant performed her duties. Rather it was inferred from her behaviour towards office staff and Mr and Mrs Harris that her suitability as a carer was in doubt. Although the claimant’s attitude and behaviour towards Mr and Mrs Harris and their employees was reprehensible there was nothing in the claimant’s behaviour to support the suggestion that she was unsuited to care work. This allegation was repeated three times in correspondence and at the meeting on 10 May 2007 and we are not surprised that the claimant felt undermined. In our view this unfounded allegation went to the heart of the claimant’s employment and destroyed the relationship of trust and confidence between employer and employee. The breach was sufficiently serious to be regarded as fundamental and claimant is therefore entitled to succeed in her claim of constructive dismissal.

50. We are satisfied that grounds for the claimant’s resignation first arose as a result of the comments made in Mrs Harris’ letter of 29 March 2007, comments which were then repeated in her letter of 30 April 2007 and in the record of the meeting on 10 May 2007. We do not believe that the claimant can be legitimately criticised for pursuing this matter through her solicitors before finally resigning on 7 August 2007 and we do not regard her doing so as a waiver of the breach of contract. As the correspondence made clear the claimant continued to be hurt by the suggestion that she was unsuited as a carer albeit that at times the correspondence concentrated on other matters such as requests for documentation. In this sense even though we have rejected certain of the claimant’s alleged breaches of contract the repeated suggestions of unsuitability might equally be viewed as cumulative breaches.

51. Although we are satisfied that the Respondent breached the duty of trust and confidence the claimant was far from blameless and did herself no favours by the aggressive manner in which she conducted herself in her telephone communications with Mr and Mrs Harris and her behaviour at the meeting on 10 May 2007. On this basis we are satisfied that the claimant contributed to her dismissal and that the compensation should be substantially reduced on account of her contributory fault which we assess at 40%.

52. Having regard to our finding of contributory fault, we have decided that it is appropriate to reduce both the basic award and the compensatory award by 40% to reflect same (G McFall & Company Ltd v Curran [1981] IRLR 455).

53. The claimant was at no material time in receipt of Jobseeker’s Allowance and/or Income Support. This award is therefore not subject to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

54. The tribunal therefore assessed compensation payable to the claimant by the respondent as follows:-

55. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Maxwell v Care Plus [2008] NIIT 1658_07IT (19 December 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/01658.html Cite as: [2008] NIIT 1658_7IT, [2008] NIIT 1658_07IT

Industrial Tribunals Northern Ireland Decisions