Downing v Northern Ireland Human Rights ... [2013] NIIT 01366

THE INDUSTRIAL TRIBUNALS

CASE REF: 1366/12

CLAIMANT: Nadia Downing

RESPONDENT: Northern Ireland Human Rights Commission

DECISION

The decision of the tribunal is that the claimant’s claim is dismissed.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Mrs S Doran

Mrs M Heaney

Appearances:

The claimant represented herself.

The respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by the Crown Solicitor's Office.

THE CLAIM

1. The claimant claimed unfair dismissal in the form of constructive dismissal.

THE ISSUES

2. Both sides ran the case on the basis of a constructive dismissal claim and the evidence tested whether or not there was a breach of contract which meant that the claimant was justified in treating herself as dismissed and in the legal and factual issues document the case was framed as a constructive dismissal claim. The respondent in the ET3 (response form) had denied that the claimant was dismissed. At the very end of submissions Ms Murnaghan conceded on the respondent’s behalf that the claimant had been dismissed. In these circumstances, the issues for the tribunal to determine were as follows:-

(1) Was the reason for the claimant’s dismissal on 17 April 2012, redundancy?

(2) Was that dismissal unfair? The specific point made by the claimant in this regard was that she was forced to volunteer for redundancy due to the respondent’s adverse treatment of her over a long period.

3. Due to the late concession that the claimant was dismissed, we record below our findings on the alleged breach of contract and we considered whether any alleged breach of contract or adverse treatment rendered the dismissal unfair.

SOURCES OF EVIDENCE

4. The tribunal had before it the written statements of the claimant on her own behalf and the statements of Virginia McVea and David Russell on behalf of the respondent. The tribunal also heard oral evidence from the three witnesses and had regard to the documentation to which it was referred.

THE LAW

5.1 The law on unfair dismissal is set out in the Employment Rights (Northern Ireland) Order 1996 as amended (referred to below as the “ERO”). The right not to be unfairly dismissed is set out at Article 126 of the ERO and at Article 130 are listed the potentially fair reasons for dismissal, one of which is redundancy. It is for the employer to show that the dismissal was for one of the potentially fair reasons and it is for the tribunal to determine whether the dismissal was fair in all circumstances.

5.2 Redundancy is defined at Article 174 of ERO and the part of that Article which is relevant to this case states as follows:

“174.— (1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to –

…

(b) the fact that the requirements of that business-

(i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer.

have ceased or diminished or are expected to cease or diminish.”

6. Redundancy is a potentially fair reason for dismissal and it is for the tribunal to consider whether the respondent acted reasonably or unreasonably in treating redundancy as a reason for the dismissal of the claimant.

7. The decision of the Northern Ireland Court of Appeal in Robinson v Carrickfergus Borough Council [1983] IRLR 122 approved the approach of the EAT in the case of Williams v Compair Maxam [1982] EAT and established the following principles to be applied in a fair redundancy process:

(i) there should be fair warning and consultation;

(ii) there should be fair selection which involves identifying the correct pool of employees and applying objective transparent selection criteria to that pool;

(iii) suitable alternative employment should be actively considered and offered by the employer.

8. The case of Western Excavating – v- Sharp Limited 1978 IRLR 27 outlines the four key elements of constructive dismissal which the claimant must prove as follows: -

(i) there must be a breach of contract by the employer;

(ii) the breach must be sufficiently serious to justify the employee resigning;

(iii) the claimant must leave in response to the breach and not for some other unconnected reason; and

(iv) the employee must not delay too long in terminating the contract in response to the employer’s breach as otherwise she may be deemed to have waived the breach of contract.

9. Under the “last straw” principle, an employee can be justified in resigning following a relatively minor incident if it is the last in a serious of acts, one or more of which, amounted to a breach of contract, and cumulatively the acts amounted to a sufficiently serious breach of contract to warrant resignation amounting to dismissal.

10. There is an implied term in the employment contract that the employer will not conduct itself in a manner likely to damage the relationship of trust and confidence between the employer and the employee. If the employer breaches that term, it can amount to repudiation of the contract.

FINDINGS OF FACT AND CONCLUSIONS

11. The tribunal considered the evidence both oral and documentary in order to find the following facts on a balance of probabilities and applied the relevant legal principles to reach the following conclusions.

12. The claimant was employed as an Information Worker with the respondent from 17 July 2000 until 17 April 2012 when she was dismissed for redundancy after having volunteered for redundancy.

13. The claimant had been the sole Information Worker until 2007 when two new posts in that sphere of work were created and filled. The two new posts were Information and Publications Worker and Press and Public Affairs Worker and were at the same grade as the claimant’s post. The reason for the creation of posts was that the respondent had obtained additional funding to enable it to expand its operations in that field. The claimant accepted in evidence that, at the time of the recruitment of the two additional staff, there was enough work for all three people to perform.

14. Mrs McVea took up her post as Director at the end of March 2011 and was told that at that stage she would have to make cuts of 25% in her budget due to a cut in funding of that level.

15. The first wave of redundancies in 2011 involved reducing the management posts from four to two. The second wave involved reducing posts in the area of communications information and education in order that posts in core areas could be retained.

16. In order to minimise the risk of compulsory redundancies Mrs McVea ensured that, from summer 2011, posts were protected as they became vacant. This led to four posts in other areas being available for redeployment by way of competition. A new post of communications worker was also to be created at a level senior to the existing posts in that area.

17. The redundancy process involving the claimant began in December 2011 and the pool at that stage comprised the claimant, the two workers in her area who had been engaged in 2007 and another member of staff all of whom were in the communications, information and education team.

18. The consultation process involved three meetings with the claimant with the last one taking place on 12 March 2012.

19. Following the consultation process the claimant was advised by letter of 16 March 2012 that her post was redundant and she was offered three alternatives as follows:-

(1) That she could apply for voluntary redundancy.

(2) That she could apply for one of the four posts in other areas or she could apply for the newly created senior post of Communications Worker in an internal competition.

(3) That she would be made compulsorily redundant as at 30 April 2012.

20. The claimant did not appeal against redundancy in contrast to two of her colleagues. By e-mail of 20 March 2012, the claimant expressed an interest in voluntary redundancy. The claimant made no reference in that e-mail nor in the subsequent communications to her feeling that she was put in the position where she had no option but to volunteer for redundancy. The claimant made no reference to feeling forced to resign because of poor treatment. This omission by the claimant was significant in our view. The letter stated as follows:

“Dear Virginia

I write in regard to the decision to terminate my post through redundancy, communicated by email letter on 16 March. I note that I am now on formal notice.

With reference to page 2 of the email letter and the accompanying terms, I wish to express an interest in voluntary redundancy.

Yours sincerely

[by email]

Nadia Downing

Information Worker”

21. By letter of 26 March 2012, the respondent confirmed the voluntary redundancy package and the agreed leaving date of 17 April 2012.

22. The claimant’s case, in tribunal, was that a series of adverse events led to her volunteering for redundancy. She made reference to an alleged irretrievable breakdown in the relationship between her and her employer particularly from December 2011 and she cited the letter confirming that her post was redundant on 16 March 2012 as the last straw in a series of events.

23. The issue for the tribunal is whether any alleged irretrievable breakdown of the relationship rendered the dismissal unfair.

24. In 2011 the landscape was very different from the landscape in 2007 when the two new recruits were taken on in that the respondent was required to cut its costs by 25% because of a cut in funding. We accept that there was a genuine redundancy situation in the organisation. The first wave of redundancy involved the entire management team being made redundant. The claimant’s post was caught up in the second wave of redundancies.

25. We accept the respondent’s case that the obvious place to cut costs was in the claimant’s division and all the remaining staff in her division were at risk of redundancy. We therefore do not accept that the claimant was targeted for redundancy and that this was connected to her long-running grievance with the respondent.

26. We find that the reason for the claimant’s dismissal was redundancy.

27. We find that the dismissal was not unfair. The claimant opted for voluntary redundancy and made no reference to this decision being linked to any alleged adverse behaviour towards her.

28. The statutory procedures were followed and the procedures were otherwise within the band of reasonable responses for a reasonable employer.

29. The respondent made reasonable efforts to effect redeployment of the staff affected in the following ways: by requesting volunteers; by ring fencing posts in other areas that they could apply for; by restricting such competitions to the internal candidates affected by redundancy; and by lowering the qualification requirement to catch all potential candidates.

30. The claimant was not targeted for redundancy in that she was in a pool of four, three of whom applied for voluntary redundancy and the third member of staff applied successfully for one of the ring fenced posts.

31. As stated above, the respondent actually lowered the qualification level for the senior job so that there was no longer a requirement for a degree. The only person that this benefited was the claimant. The claimant however chose not to pursue that option. The relevance of this point is that we find that it supports the respondent’s arguments that it did not target the claimant in the way alleged by the claimant.

32. As the claim had proceeded on the basis of constructive dismissal we heard evidence relating to an alleged breach of contract. Given the late concession of dismissal, the relevance of this evidence was in relation to the fairness of the dismissal.

33. The claimant alleged that there was a fundamental breach of contract and pointed to the letter of 16 March 2012 as constituting the last straw event.

34. At that stage the claimant was off sick and was therefore out of the office and she could have said something in her e-mail of 20 March 2012 (set out above) if it was the case that that was the true reason for her volunteering for redundancy. It appears to us that the claimant sought voluntary redundancy because the figures presented to her were attractive and she wanted to move on to look for another job. Indeed she mentioned in her evidence to us the attractiveness of the financial package on offer.

35. We heard evidence in relation to the claimant’s grievance which ran on from 2007 until she was made redundant. The grievance essentially related to her allegation that the two new posts in her area led to an “erosion” of her job role and meant that there was a “lack of clarity” about her role as it was not clear (in her view) as to where the delineation lay between her job and one or both of the other jobs.

36. In the event, the long-running grievance between the claimant and her employer was overtaken by events in that a genuine redundancy situation arose and the claimant opted for the voluntary redundancy package that was offered.

37. A major point in the claimant’s case was that her job was eroded. When pressed on this point, the claimant agreed that 5% of her job went to one of the two posts and 25% to the other. The claimant conceded in evidence that there was enough work for all three employees to do, that she worked to full capacity and that she was not under-employed. We do not accept that the claimant’s post was eroded as alleged.

38. It appeared to us from an assessment of all the evidence that the claimant felt that she should be senior to the two new recruits without having to go through a promotion competition. She relied on an alleged promise by Mr O’Neill (her former line manager), that this would be the case. However in evidence to us the claimant conceded that she was aware that Mr O’Neill did not have the authority to promote her without a competition. We find that it was naïve of the claimant to try to press the respondent to essentially promote her without a competition. It appears she wanted exclusivity in relation to certain roles and she wanted to manage one of her two colleagues in particular.

39. The fact was that she and her two colleagues were all on the same grade and a change of the claimant’s grade would have had to involve a competition. The claimant appeared to be anxious to avoid triggering such a competition.

40. In February 2009 the claimant and others successfully appealed the outcome of the JEGs process. One recommendation was that the roles and responsibilities of the claimant and claimant’s claim be clarified to eliminate overlap and ambiguity. Dr Russell was tasked to agree a job description with the claimant. The claimant withdrew from that process unreasonably in our view.

41. The claimant then lodged a grievance against her former line manager which ended up before an LRA panel on appeal. The LRA report was dated 4 March 2010. Contrary to the claimant’s apparent belief, that panel did not make a finding that her job had been eroded nor did it find that her post should be upgraded. The panel essentially recommended a JEGs evaluation of her post once her job description in her then current post was agreed. The claimant did not engage with this process of agreement of her job description.

42. Ultimately the JEGS process was conducted twice and on neither occasion was the claimant’s post upgraded. The claimant withdrew from the second JEGs process in 2008/09.

43. It was clear to us that the respondent tried to engage with the claimant to address her concerns several times. Essentially the claimant withdrew from the process (see above) or she made unreasonable preconditions, such as that communications should only be in writing or that communications should be on a without prejudice basis. The claimant also had several long periods of sick leave which delayed completion of the agreed job description.

44. After her appointment Mrs McVea tried to appraise herself of the detail of the claimant’s grievance and she and the claimant’s line manager, Dr Russell, tried to address the clarification of the claimant’s job description. We find that the lack of progress on that score was due to the factors mentioned above.

45. We can understand why Mrs McVea wanted to finalise the process relating to the job description and we find that there was nothing sinister in her raising that issue even though the redundancy process was in progress. We accept Mrs McVea’s evidence that she was very keen to honour the commitment she had made to the claimant back in April 2011. She was also conscious that one possible outcome of the redundancy process was that the claimant would be appointed to another post and would continue in the organisation. In those circumstances it was very important to reach a conclusion with the agreement of a job description in order to finalise the grievance as it had been running on for so long.

46. The claimant at hearing forcefully made a point about alleged falsification of a job description document by Mrs McVea. The height of the claimant’s case on this point was that the claimant signed a draft job description the day after it was presented to her at a meeting with Mrs McVea. When Mrs McVea received the signed document she printed the first page again with the word ‘Draft’ removed. The document was otherwise unaltered and the only addition was Mrs McVea’s signature and the date. It was the claimant’s case that the removal of the word ‘Draft’ amounted to falsification of the document and rendered invalid her signature on the second page. We entirely reject the claimant’s case on that and find that to be an unreasonable interpretation by the claimant of what was essentially an administrative change which did not change the content of the document nor did it change the fact that she accepted the content of the document. We reject her case that she was “under duress” to sign the document as she signed the document the day after she received it. She was also in the midst of a redundancy consultation process and could have raised any concerns on that score at that stage.

47. We reject the claimant’s complaint relating to her job appraisals which were not completed in full because of a dispute. The dispute was bound up with the ongoing job description issue.

48. The claimant alleged that she was insufficiently supported by the respondent in relation to her periods of sick leave. The claimant had several periods of sick leave and work-related stress was cited on her sick lines in the latter periods. The claimant alleged that the respondent failed in its duty of care towards her in relation to the way it treated her over her illness and that this contributed to the alleged breach of contract which led to her volunteering for redundancy.

49. We reject the claimant’s case on this. We find that the respondent took reasonable steps to deal with the claimant’s ill-health. For example, the claimant was offered phased return; she was granted a compressed hours week so that she worked four days a week to enable her to attend counselling; there were return to work discussions both formal and informal; the respondent paid for extra Carecall counselling sessions; the claimant was referred to Occupational Health so that it could suggest ways to facilitate the claimant’s difficulties; and the claimant regularly worked from home, at her line manager’s suggestion, from 2010 to 2012.

50. In this regard, we find it significant that in the GP report there was no reference to any attendance with the GP after September 2011. We would have expected there to have been attendances around the time of the voluntary redundancy if it were truly the case that the claimant was so distraught that she had no choice but to volunteer for redundancy.

51. We do not accept the claimant’s case that she was harangued by Mrs McVea and Dr Russell in meetings. We found both witnesses to be measured in their evidence and demeanour and significantly, there was a lack of reference to such behaviour by the claimant in the contemporaneous correspondence.

52. We find that the claimant had a fixation on her grievance following her discussions with Mr O’Neill and she did not engage sufficiently with the respondent in order to progress the finalisation of the job description which would have brought her grievance to a conclusion.

53. The ongoing grievance issue was overtaken by unrelated events which meant that there was a genuine redundancy situation, the claimant was legitimately in the pool for consideration for redundancy and her post was made redundant following a fair process and proper consultation. The claimant then opted for redundancy and we reject her case that she had no choice but to do that.

SUMMARY

54. We are satisfied that the respondent has proved that the reason for dismissal was redundancy. We are further satisfied that the dismissal for redundancy was fair in all the circumstances.

55. We reject the claimant’s assertion that she was forced to apply for redundancy and that this rendered her dismissal unfair.

56. We have recorded our views on the constructive dismissal argument simply because so much evidence and questioning related to the allegations that there was adverse behaviour amounting to a breach of contract. The late concession of dismissal meant that the focus of our deliberations changed in that it was not necessary for us to find a breach of contract leading to a resignation as this was no longer relevant in circumstances where dismissal was admitted. The relevance of the alleged adverse treatment was as regards the fairness of the dismissal. We do not find that it rendered unfair the dismissal for redundancy. In addition we do not find that the acts of the respondent amounted to a breach of contract which was of sufficient seriousness to have justified the claimant in resigning and treating herself as dismissed. In the event the claimant did not resign.

57. The claimant’s case is dismissed in its entirety.

Chairman:

Date and place of hearing: 19-22 March 2013, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Downing v Northern Ireland Human Rights ... [2013] NIIT 01366_12IT (26 April 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/1366_12IT.html Cite as: [2013] NIIT 01366_12IT, [2013] NIIT 1366_12IT

Industrial Tribunals Northern Ireland Decisions