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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Dalzell v Department for Social Development [2008] NIIT 100_07IT (12 May 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/100_07IT.html Cite as: [2008] NIIT 100_7IT, [2008] NIIT 100_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 199/06

CLAIMANT: Catherine Dalzell

RESPONDENTS: 1. Department for Social Development

2. Gerry Boyle

3. Allan Agnew

4. Shane Gervin

5. Gareth McKinty

CASE REF: 100/07

CLAIMANT: Catherine Dalzell

RESPONDENT: Department for Social Development

DECISION

The unanimous decision of the tribunal is as follows:-

(i) the claimant was not unfairly (constructively) dismissed by the respondent Department for Social Development;

(ii) the claimant was not unlawfully discriminated against by any of the named respondents on the ground of her sex; and

(iii) the claimant's complaint of unlawful deductions from her wages by the respondent Department for Social Development is dismissed.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr A Cecil

Mrs M Gregg

Appearances:

The claimant appeared in person.

The respondents were represented by Mr D R K Sharpe, Barrister-at-Law, instructed by The Departmental Solicitor's Office.

1. The claims brought by the claimant were consolidated by an Order of the Tribunal made on 7 March 2007.

2.

(i)

The issues for determination by the tribunal were as follows:-

(a) Whether the claimant had been discriminated against on the ground of her sex in the circumstances set out in her claim forms?

She principally alleged that she had been subjected to a prolonged and sustained campaign of bullying and harassment by the respondents. However, she also alleged less favourable treatment on the ground of her sex in respect of the alleged denial to her of opportunities to act up.

(b) Was the claimant constructively dismissed by the respondent Department for Social Development? The allegation of constructive dismissal overlaps to some extent with the allegations of sex discrimination. It is the claimant's case that the alleged bullying and harassment to which she was subjected constituted a breach of the implied term of mutual trust and confidence.

(c) Has the claimant suffered an unlawful deduction from her wages?

(ii)

Other issues canvassed in evidence before the tribunal relating to alleged breaches of the Data Protection Act 1998 and health and safety legislation are not ones which it has jurisdiction to determine.

	(iii)	The respondents had originally taken the view that there were time issues in respect of certain aspects of the claimant's claims, but it was indicated at the hearing that they were not taking any such points.
3.	(i)	At the outset of the hearing, in response to questions from Mr Sharpe BL, for the respondents, the claimant clarified her principal allegations of sex discrimination against the second to fifth-named respondents, as set out in the following sub-paragraphs.
	(ii)	Mr Shane Gervin bullied and harassed her because she was a woman. He also appointed Gareth McKinty to act up in circumstances where the claimant was not given the opportunity to be considered.
	(iii)	Mr Gerry Boyle treated her differently because she was a woman in the way he handled the internal civil service grievance which she had invoked against Shane Gervin and Gareth McKinty. He also harassed her and bullied her by raising queries about work which was correct, and by asking her to perform tasks beyond her remit.
	(iv)	Gareth McKinty also bullied and harassed her, calling her names and making snide and abusive remarks about her. In common with, and at the behest of Shane Gervin, he 'nitpicked' about her work, complaining about errors in her work which did not exist.
	(v)	Allan Agnew allegedly discriminated against her by not handling her internal grievance properly. He ultimately passed it over to someone else and did not deal with it within the stipulated timeframe.
	(vi)	Generally, the claimant alleged that it was because she invoked the internal grievance procedure that she was harassed by Allan Agnew and other male line managers and colleagues. Furthermore, not only did these people act against her in a personal capacity, but they conspired together to bully and harass her and this conspiracy was orchestrated by the Department's Equal Opportunities Branch.

2. The claimant gave evidence on her own behalf. The following witnesses gave evidence on behalf of the respondents:-

Shane Gervin (EOI, Benefit Investigation Services)

Gerry Boyle (Grade 7, Benefit Security Services)

Allan Agnew (Staff Officer, Benefit Investigation Services)

Gareth McKinty (Investigator, Benefit Investigation Services)

Michael Shine (Team Leader, Organised Fraud Unit)

Chris McCafferty (EOI, Intelligence Gathering Team)

Colin McRoberts (formerly Grade 7, Benefit Security Services)

Glynis Jones (Staff Officer/Manager, Carrickfergus Jobs and Benefits Office)

Trevor Caldwell (Unit Manager, Fraud Policy Unit)

Julie Fulton (Staff Welfare Manager, DSD)

Barbara McDougall (EOI, Grade Management Team, Personnel Branch)

Carole-Ann Adair (EOII, Data Protection Section)

Claire Karaduman (EOII, Superannuation Section)

Allison Walker (Pay Clerk, Social Security Agency)

Lindsay Boy (EOII, Pay Section, Social Security Agency)

Adrian Hack (Office Manager, DEL, Job and Benefits Office, Carrickfergus)

Lisa Scott (Temporary EOI, Managing Attendance Section)

Tommy Semple (EOI, Civil Service Pensions)

The tribunal also had regard to the extensive documentary evidence submitted by the parties.

5.	(i)	It has to be said that the tribunal found the respondents' witnesses to be honest. As mentioned earlier, the claimant's case rests in part on a conspiracy theory. While obviously, if there were such a conspiracy, one would expect the named respondents and other major protagonists to be part of it, towards the end of the case the claimant was making allegations against junior employees of the first-named respondent that they, too, were part of this conspiracy. (These were people she had never personally met before, and whose functions, so far as they related to her, had been confined to performing administrative tasks of routine nature.)
	(ii)	Added to the above, there are matters which cast doubt on the claimant's credibility:-

(a) The case was listed for hearing commencing on 22 October 2007. At a Case Management Discussion before the President of the Tribunals on 16 October 2007 the claimant sought a postponement of the substantive hearing. At that stage her solicitors were coming off record, and supplementary witness statements had not been prepared on her behalf. It was agreed by the respondents that any supplementary evidence from the claimant could be given orally. In these circumstances, the claimant withdrew her application for a postponement.

On the second day of the hearing before us, the claimant produced a bundle of 17 supplementary statements running to some 47 pages. She told the tribunal that she had stayed up all night drafting them. These statements had a reference system to documents, contained in a separate bundle of the claimant's, which was totally unrelated to the reference system in the documents produced to the tribunal on the first day of the hearing.

Having regard to the length, the sheer detail and the complexity of the supplementary statements produced by the claimant, we have very great difficulty in accepting her account that they were drafted when she said they were drafted. This also calls into question the truthfulness of what was said on her behalf at the Case Management Discussion before the President of the Tribunals, the previous week.

(b) In the course of the evidence it also became clear that the claimant had been untruthful in her failure to disclose relevant information in an application for benefits under the Civil Service Injury Benefit Scheme (NI), in relation to when she had been referred for counselling to NHS Mental Health Services, and as to when she had started applying for other jobs prior to her resignation.

	(iii)	We find the facts set out in the following paragraphs.
6.	(i)	The claimant started work in the Northern Ireland Civil Service in 1998 and worked in various positions in different Departments. She became a Fraud Investigator in Benefit Investigation Services in October 2003, and worked in the Belfast North East Antrim (BNEA) team. Prior to that date she had worked with Mr McKinty, one of the respondents, and ironically, as it seems now, he had encouraged her in her application to become a Fraud Investigator, and volunteered to train her when she was successful in her application.
	(ii)	In April 2004, in a pilot exercise, the intelligence gathering aspect of the claimant's job was transferred to a newly established Intelligence Gathering Team (IGT). The purpose of this was to speed up referrals in fraud cases to the interviewing stage.
	(iii)	The claimant did not apply to join the IGT, but she did have concerns about the implications for her job, which she saw as being reduced to that of interviewing officer. Generally she appears to have had difficulty adjusting to the adoption of the new procedures associated with the establishment of the IGT and this is evidenced by a trail of e-mails querying and questioning decisions and processes.
	(iv)	She made her concerns known to Shane Gervin, her line manager. He told her that the new procedures would make her job easier. She did not accept that, and considered, on the contrary, that it would make her work more difficult. She also was of the view that no coherent transitional arrangements were in place. According to her, the difficulties were accentuated by Gerry Boyle, the Grade 7 and overall manager, who stipulated that Fraud Investigation Officers should, in effect, be responsible for IGT mistakes, by refusing to let them return files to IGT for correction.
	(v)	The setting up of the IGT and the claimant's unhappiness with these new arrangements seems to us to have been the principal contributory factor to her subsequent difficulties at work. The claimant would have seen herself as a conscientious, hard-working and effective investigator who was committed to her job. We do not doubt that this is largely true, but it is also clear to us from the documentary evidence we have seen that the quality of her work was in some respects variable, and in relation to some aspects of it (for example, pre-IUC checks (Interview Under Caution)) there were genuine concerns. It is against this general backdrop that we go on to consider her complaints.
7.	(i)	In the period from 24 May 2005 until the end of November 2005 the claimant alleges that she was bullied and harassed. The principal culprits were the respondents Shane Gervin, Gareth McKinty and Gerry Boyle. This culminated in her invoking the internal civil service grievance procedure against Mr Gervin and Mr McKinty on 27 November 2005 and against Mr Boyle on 30 September 2005. (She has also complained about the way the grievance procedure was operated and we deal with that below.)
	(ii)	The general thrust of the claimant's allegations of bullying and harassment is that she was subjected to 'nitpicking' and unjustified criticism about her work, that proper procedures were set aside in their application to her, that she was given tasks which were not her responsibility, and that she was set unrealistic deadlines for her work. The harassment and bullying also allegedly took the form of intimidatory conduct at team meetings, where she was bullied and harangued, and humiliated in front of colleagues.
	(iii)	We find that these allegations are without foundation. On the contrary, we are satisfied that any instructions given to the claimant were reasonable management requests. The claimant had a tendency to turn the manager/subordinate relationship on its head. She queried and disputed reasonable instructions which were given to her. Managers initially tried to give her explanations, and to reassure her that they were acting in accordance with procedures. Memos from managers, which were designed to be helpful, were in turn met with further lengthier minutes from her. When there were meetings, and minutes were produced, the claimant consistently refused to accept them. Not only did she dispute their accuracy, but she went further than this and cast doubt on the integrity of those who had drawn up the minutes, by alleging they had been fabricated. As an example of the claimant's behaviour, we point to one incident where the claimant had a dispute with Mr Gervin over updates he had requested on files. The claimant contended that these files were not her responsibility. It was the clear understanding in the team that where files were marked to a person, it was that person's responsibility to follow them through. Mr Gervin took the opportunity, as was his practice where an issue of general concern arose, to e-mail the entire team about their responsibilities in such a situation. Although it made no reference to the claimant and her file, and therefore included no criticism of her, she replied to him linking the e-mail to her case, and copied this to the entire team. It was she who thus highlighted her involvement in the matter, and then proceeded to allege that she had been hurt, embarrassed, and humiliated by Mr Gervin.
8.	(i)	The claimant alleges that she was subjected to excessive management checks on her files. Again, the culprits were primarily Mr Gervin and Mr McKinty, the latter acting on the behest of the former. We are satisfied that these management checks were routine, and indeed essential bearing in mind the work of the Branch, which was to submit prosecution files to the Public Prosecution Service, who had to prove fraud cases in court to the criminal evidence standard of proof beyond a reasonable doubt. As stated there were some concerns about the claimant's work in relation to pre-IUC checks, but other than this there is no evidence that she was being singled out for undue attention or overzealous supervision.
	(ii)	In relation to her complaints against Mr McKinty, the claimant does not present an overall accurate picture, for there is evidence of Mr McKinty's praising her work. On another occasion, the claimant interviewed a suspect under caution at Carrickfergus. He invited her out to lunch, an invitation which she accepted. They travelled in the suspect's car to Donaghadee, where he paid for lunch. It was a very serious error of judgment on the claimant's part to accept this invitation. She potentially compromised the investigation, and exposed herself to allegations of corruption. Mr McKinty knew that she had been invited out to lunch and advised her against going. This was the only action he took. He did not report her, as he well, and arguably ought to, have done. This is not consistent with the behaviour of someone who was harassing and bullying the claimant.
	(iii)	On another occasion the claimant accused Mr McKinty of setting unrealistic deadlines. There were issues around what were known as '100 day' cases because of the potential for abuse of process applications on the ground of delay if they went to court. Mr McKinty asked for updates as this was required by senior management. All staff met the deadlines for forwarding updates except the claimant. When she explained why she could not meet the deadlines, Mr McKinty accepted her explanation and offered her help.
9.	(i)	Another major complaint by the claimant is that after the establishment of the IGT, it was decreed that Fraud Investigation Officers should be responsible for IGT mistakes, ie they should correct the files rather than send them back to IGT. This instruction allegedly came from Mr Boyle.
	(ii)	We are satisfied that Mr Boyle gave no such instruction, nor did he pursue such an objective by indirect means. Mr Boyle took the pragmatic (and we believe, sensible) view that if there were minor errors on files it might be more convenient for Fraud Officers to make the correction. However, both he and Mr Gervin were clear that if there were major errors, the files should be returned to the IGT, so that its members would be aware of their mistakes and learn from them. There is evidence from the minutes of a team meeting on 15 June 2005, and from e-mails of August 2005, which shows that where there were errors in IGT cases, they should be returned to the IGT through Shane Gervin.

3. Another complaint by the claimant was that she was asked to perform tasks beyond her remit. She gave as an example of such a task, with a correspondingly unrealistic deadline, a request for her to raise a query with a decision made on a file. The decision-maker worked across a desk in the same office as her, and the claimant was asked to give a response to her supervisor within 14 days. It is therefore difficult to see anything onerous or unrealistic about this request.

We are satisfied that within the Branch it was normal to raise queries in such ways, and that similar directions were issued to other staff in similar circumstances. Indeed, in this case the person who raised the query, Mr Boyle, did not know that it was the claimant's file in respect of which he had issued his instruction.

4. The foregoing are illustrative of the difficulties which managers and her colleagues faced when dealing with the claimant. The position is perhaps summed up well by Mr Gervin in the witness statement he provided to the tribunal when he stated that the claimant "challenged a lot of our processes and instructions and appeared to have difficulty coming to terms with some BIS procedures and instructions. This in my mind would probably have frustrated her efforts and I feel a lot of [the claimant's] time was devoted to querying and disagreeing, despite many attempts to resolve her issues". The claimant was continually at loggerheads with all her colleagues, male and female, though she has not made any complaint against the latter.

12.	(i)	We now deal with the claimant's allegations of sex discrimination in respect of the alleged failure to offer her temporary promotion opportunities. One of these occurred in June 2005, the other in August 2005. In June 2005, Gareth McKinty was appointed to act up in place of Shane Gervin, who himself was to be temporarily promoted to Staff Officer, a post he was required to take up with less than one week's notice. Mr Gervin's wife was expecting a child, and he was anticipating going off on paternity leave at short notice. In these circumstances the person deputising for him would have to report directly to the Branch Manager, a Grade 7. The person designated to act up for Mr Gervin would not have time to be trained, and could find himself or herself in the position where he or she had little support from senior management.
	(ii)	We are satisfied that Mr Gervin accepted that everyone should have the opportunity to act up, and that he did consider everyone in the team. The claimant had booked leave for a substantial part of the acting up period, whereas Mr McKinty, who had the experience and training to act up, had no leave booked. In these circumstances he decided to appoint Mr McKinty.
	(iii)	With regard to the acting up opportunity in August 2005, it was offered to the entire team. The claimant declined the opportunity to apply, but did indicate that she would be interested in a further designation. She now alleges that Mr Gervin drew up a false job description to discourage her from applying. There is no evidence to support such an allegation.

5. Alleged intimidatory conduct by Shane Gervin and Gareth McKinty at meetings

(i) The claimant alleged that at a meeting on 15 June 2006, Gareth McKinty made numerous rude gestures towards her and called her an 'f***ing bitch". He continued with this conduct after she asked him to stop and even after the meeting was over.

Mr McKinty denies these allegations and in cross-examination by the respondents' counsel the claimant somewhat backtracked on them.

Mr McKinty's rude gesture was to sit with his arms and legs crossed, turning away from the claimant. The swear words used by Mr McKinty were then stated to have been mouthed silently or whispered.

Having regard to the claimant's inconsistent accounts of what happened and Mr McKinty's denials, we are not satisfied that the claimant has given an accurate account of what took place.

(ii) In respect of a further meeting on 14 October 2005 the claimant alleged that she was bullied and badgered by colleagues, and that Shane Gervin, who took the meeting, actively encouraged them to do this.

We do not accept this. Mr Gervin clearly lost control of the meeting. However, from the evidence of other witnesses who were present, it was clear that it was primarily because of the claimant's conduct that the meeting was out of control. She was confrontational, aggressive and obstructive, and there is evidence that it was she who was haranguing others. Indeed, complaints about the claimant's behaviour were made by others at the meeting.

6. The claimant's allegation about the operation of the grievance procedure

(i) The claimant alleges that both Gerry Boyle and Allan Agnew discriminated against her on the ground of her sex in the way they handled her internal grievance against Shane Gervin and Gareth McKinty. The grievance against them was made on 27 September 2005. She believed that Mr Agnew deliberately delayed the procedures, and that generally he handled her complaint unfairly in what she saw as an extension of the harassment and bullying she had previously suffered. Mr Agnew's actions in this regard were, according to the claimant, deliberate and calculated.

She also asked for the grievance to be moved to Stage 2 of the procedure and this did not happen.

Notwithstanding her allegations against Mr Agnew she also complains that he handed the investigation of her grievance on to someone else.

(ii) We find that Mr Agnew had genuine worries about investigating the claimant's grievance. On reading the papers he had concerns that he was a potential witness in the matter. He raised these concerns with management but was nonetheless initially told to continue his investigation.

Subsequently he raised these concerns again. The claimant had by then made an informal complaint about the meeting on 14 October 2005 and had accused him of not dealing with it correctly. (It appears it was not progressed because the claimant failed to provide further comment when asked by Mr Agnew.) He felt he had no credibility with the claimant, and he still was of the view that he might be required as a witness.

As a consequence on 6 December 2005, following advice and direction from Equal Opportunities Branch, he informed the claimant that he would no longer be dealing with her complaints.

We consider that Mr Agnew and Equal Opportunities Branch acted entirely properly in these circumstances. Mr Agnew's perceived conflict of interest prevented him from dealing with this matter.

The claimant also complains about the delay. This was unfortunate, but not deliberate. It is explained by the fact that the persons against whom the claimant had laid grievances made requests for information under the Data Protection Act 1998, which they were entitled to do. There is nothing to show that those requests were dealt with other than in the normal manner for such requests.

We are satisfied that in handling the claimant's complaints, Mr Agnew and Mr Boyle did not act in a manner which was obstructive to the claimant, and they did everything they could to move the matter on.

(iii) Following the direction from Personnel Branch, Mr Boyle was asked to arrange for another officer to take over the investigation of the claimant's complaints. He asked Glynis Jones to do this. The claimant at the hearing characterised Ms Jones' investigation as 'incompetent'. This is an outrageous allegation. Ms Jones was an experienced senior manager, who was divorced from day-to-day contact with the protagonists. She produced a comprehensive report following a full investigation which we are satisfied was carried out in accordance with the appropriate procedures. This investigation did not uphold the claimant's complaints.

7. Management of attendance procedures as applied to the claimant

(i) The claimant had substantial periods of absence from work. She had been off work in September 2005, again from 3 October 2005 until 6 March 2006, and again in the period leading up to 23 October 2006, the date of her resignation.

(ii) In accordance with civil service procedures relating to the management of attendance, letters were sent to her, visits were made to her home, and on coming to work, she underwent return to work interviews with various line managers.

We do not accept that the application of the accepted management of attendance procedures to the claimant was yet another aspect of an orchestrated campaign of harassment of her.

There is absolutely no evidence that the claimant was treated differently from anyone else in her situation.

16.	(i)	Finally, it is necessary to look at the circumstances in which the claimant's employment ultimately terminated on 23 October 2006. The reason for this is because of the claimant's contention that if it can be argued that other allegedly serious breaches of her contract of employment have the potential to be waived because of the passage of time, the way she was treated just before her resignation constitutes the 'last straw' for the purposes of the law of constructive dismissal.
	(ii)	On 10 October 2006, Chris McCafferty, who at that time had been temporarily promoted to Staff Officer with line management responsibility for the claimant's team, telephoned the claimant. Grade Management Branch had asked him to seek confirmation of when the claimant would be returning to work, as they had found a position for her in Holywood Road Social Security Office. They needed a response as soon as possible, so that appropriate arrangements could be made with Holywood Road SSO. Contrary to what the claimant has claimed, we are satisfied that Mr McCafferty did not badger her during this call, that his call was businesslike, and amicable on both sides.
	(iii)	The claimant objected to someone of Mr McCafferty's level making the call to her (his normal grade was EOI, but as stated, he was acting-up as Staff Officer). However, it is abundantly clear that at the relevant time he had management responsibility for the claimant, and the claimant has not produced any evidence that management at a particular level should convey this type of message.
	(iv)	Mr McCafferty made a follow-up call to the claimant on 12 October 2006. We again accept his evidence that it was businesslike on his part. The claimant was non-committal and ended the call saying she had a visitor. The claimant complains that she did not receive written confirmation from Mr McCafferty about the possible move to Holywood Road SSO. It would not have been his responsibility to give any such written confirmation. This complaint is somewhat odd in any event when she has questioned Mr McCafferty's involvement, and also in the light of the fact that she had not given any response to the offer. The claimant's case is that Mr McCafferty's calls caused her great distress and anxiety, and it was after receiving them that she wrote her letter of resignation on 20 October 2006. It has to be said that Mr McCafferty's calls were routine and innocuous in the extreme.
17.	(i)	The relevant law relating to sex discrimination is to be found in Article 8 of the Sex Discrimination (Northern Ireland) Order 1976 as amended by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 which inserts a new Article 63A in the 1976 Order. These provisions deal with discrimination in the employment field and make it unlawful to discriminate on the ground of sex.
	(ii)	Article 63A deals with the burden of proof and provides:-

"(2) Where, on the hearing of [a] complaint [of sex discrimination], the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

(a) has committed an act of discrimination or harassment against the claimant which is unlawful by virtue of Part III; or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant;

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."

18.	(i)	In Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong; Chamberlain Solicitors and Another v Emokpae; and Brunel University v Webster [2006[ IRLR 258 the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of alleged discrimination on the grounds of race, sex, and disability. This guidance is set out at an appendix to the judgment in Igen. We do not set it out again, but have taken it fully into account.
	(ii)	In short, the claimant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of unlawful discrimination on one or more of the proscribed grounds. The tribunal will also consider what inferences it is appropriate to draw from the primary facts it has found. By way of example, such inferences can include inferences that it is just and equitable to draw from the provisions relating to statutory questionnaires, failure to comply with any relevant Code of Practice, or from failure to make discovery of documents or to call an essential witness. If the claimant does prove facts from which the tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an act of sex discrimination, then the burden of proof moves to the respondent. To discharge the burden, the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a proscribed ground (in this case, sex). The tribunal must assess not merely whether the respondent has provided an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex, in this case, was not the ground for the treatment in question. Since the facts necessary to prove an explanation will normally be in the possession of a respondent, the tribunal will expect cogent evidence to discharge the burden of proof.
	(iii)	Although Article 63A above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case, the tribunal must put to one side the employer's explanation for the treatment, but should take into account all other evidence, including evidence from the employer. (See : Laing v Manchester City Council [2006] IRLR EAT; Madarassy v Normura International PLC [2007] IRLR 247; and Arthur v Northern Ireland Housing Executive and Another [2007] NICA 25.)
19.	(i)	As far as constructive dismissal is concerned, the law is set out in Harvey, on Industrial Relations and Employment Law, Volume 1, Division DI. The case of Western Excavating (Ecc) Ltd v Sharp [1978] ICR 22 makes it clear that it is not enough for the employee to leave merely because the employer has acted unreasonably. The employer's conduct must amount to a breach of contract.
	(ii)	Harvey goes on, at Paragraph 403, to set out four conditions which must be met before an employee can succeed in a constructive dismissal claim. These are as follows:-

(a) There must be a breach of contract by the employer …

(b) That breach must be sufficiently important to justify the employee resigning or else it must be the last in a series of incidents which justify his leaving …

(c) {The employee} must leave in response to the breach and not for some other, unconnected reason.

(d) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.

		As far as the 'last straw' doctrine is concerned, in many cases where it is alleged that the employer breached the implied term of trust and confidence, the conduct of the employer to which objection is taken will have been carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify the taking of that course of action, but set against a background of such incidents it may be sufficient to warrant treating the resignation as a constructive dismissal. In other words, it may be the 'last straw'. It is clear that the act relied upon as the 'last straw' need not itself be a breach of contract. (See : Lewis v Motorworld Garages Ltd [1986] ICR 157 CA.) In Omilaju v Waltham Forest Borough Council [2005] ICR 481 CA, it was held where it was alleged that there was an alleged breach of the implied term of trust and confidence which was made up of a series of acts, the essential ingredient of the final act was that it was an act in a series, the cumulative effect of which was to amount to a breach. This final act does not have to be blameworthy or unreasonable, but it has to contribute something to the breach even if it is relatively insignificant. If the final act did not contribute or add anything to the earlier series of acts it is not necessary to examine the earlier history. This case also makes it clear that while the last act need not be blameworthy or unreasonable, an entirely innocuous act on part of the employer cannot be a 'final straw' even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his or her confidence in the employer. The test of whether the employee's trust and confidence has been undermined is objective.
20.	(i)	Having considered the evidence and the relevant law in this case and having regard to the submissions of the claimant and counsel for the respondents, the tribunal now reaches the following conclusions.
	(ii)	The claimant has failed to satisfy us that she was subjected to a campaign of bullying and harassment by her colleagues, as alleged. She was an extremely difficult person to work with and her conduct throughout the tribunal hearing where she had a tendency to interrupt, to talk over others, and to behave in a confrontational way towards the respondents' counsel and their witnesses mirrors exactly the sort of conduct which others who had dealings with her alleged against her. Indeed, Ms Jones, who carried out an investigation into the claimant's grievance, raised concerns about the claimant's behaviour.
	(iii)	The claimant's allegations are totally unsupported. We find it surprising that no colleague has come forward to corroborate her account in any respect. She, of course, alleges that there was a conspiracy against her. However, this conspiracy to exist, would have to have been extremely widespread, involving people in different departments and outside her own sponsoring department. As we pointed out at Paragraph 5(i) above this allegation reached absurd proportions when she accused junior employees, who she had not met before, of being part of it.
	(iv)	In view of our finding that the claimant was not bullied and harassed over a period of time, it is not now necessary to consider the 'last straw' doctrine on which the claimant had indicated she was relying. However, we do state that had it been necessary to give consideration to this, we are satisfied that the events on which she relies as constituting the 'last straw', ie the telephone calls from Mr McCafferty, were entirely innocuous and could not constitute the final straw.
	(v)	There was no breach of contract by the respondent Department entitling the claimant to resign. She was in constant conflict with her colleagues and managers, and was clearly unhappy in her work. This was what caused her to resign. Her reliance on the telephone calls from Mr McCafferty was a pretext for her own resignation. Her claim of constructive dismissal is therefore dismissed.
	(vi)	As far as the claim of sex discrimination is concerned, there are no facts from which any inference of discrimination can be drawn. There is nothing which suggests any different treatment of the claimant on the ground of her sex. Significantly, she had difficulty working with female colleagues, though there are no complaints before the tribunal about them. Her initial internal complaints under the civil service grievance procedures did not raise issues of sex discrimination. Nor did she raise any such issue with Ms Jones, who carried out the internal investigation. Her claim of sex discrimination is also dismissed.
	(vii)	Finally, we deal with her claim for unlawful deductions from wages. On 12 November 2007, the first-named respondent sent the claimant a cheque for £82.32. This was after proceedings had commenced. Following evidence given by the claimant at the outset of the hearing, the respondents' counsel requested the first-named respondent's officials to review this aspect of the claimant's claim. It was found that this amount was owing to her, and arrangements were therefore made to pay it. This was done promptly. We are satisfied that all sums payable to the claimant in respect of wages have now been paid.

8. In this case the named respondents and the witnesses who gave evidence on their behalf have been subjected to a campaign of vilification by the claimant, who has unjustifiably and consistently attacked their integrity.

It is entirely to the credit of all these people that while being cross-examined by the claimant they all gave their evidence in a restrained and dignified way and did not respond to the provocative and sometimes offensive comments to which they were subjected.

Chairman:

Date and place of hearing: 22 – 26 October 2007, inclusive;

31 October 2007;

26 – 28 November 2007;

5, 6, 14 and 17 – 20 December 2007;

14, 17 and 23 January 2008; and

5, 6, 13 and 20 February 2008

Date decision recorded in register and issued to parties: