Quinn v TCH Democrat Media Ltd [2008] NIIT 1647_07IT (17 April 2008)

1647_07IT Quinn v TCH Democrat Media Ltd [2008] NIIT 1647_07IT (17 April 2008)

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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Quinn v TCH Democrat Media Ltd [2008] NIIT 1647_07IT (17 April 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/1647_07IT.html
Cite as: [2008] NIIT 1647_7IT, [2008] NIIT 1647_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1647/07

CLAIMANT: Arthur Quinn

RESPONDENT: TCH Democrat Media Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was not constructively dismissed by the respondent.

Constitution of Tribunal:

Chairman: Mrs A Wilson

Members: Mr Jones

Mrs Cummins

Appearances:

The claimant was represented by Ms R Connolly, Solicitor, of Rosemary Connolly, Solicitors.

The respondent was represented by Ms F Doherty, Barrister-at-Law, instructed by Madden & Finucane, Solicitors.

The issues

The issues for the tribunal were as follows:-

(1) Was there a breach of the employment contract by the respondent?

(2) If there was a breach was that breach of such a fundamental nature as to entitle the claimant to resign in circumstances falling within the meaning of Article 127(1)(c) of the Employment Rights (Northern Ireland) Order 1996?

(3) If the answer to the first two questions is yes, what compensation is due to the claimant?

(4) For the purposes of assessing compensation when did the claimant's employment commence?

Sources of evidence

The tribunal considered the claim form, the response, documents handed in by the claimant and referred to by the parties during the course of the hearing and the oral evidence of the claimant and of Mr Maloney for the respondent.

Contentions of the parties and findings of relevant fact

The respondent is a subsidiary company of Thomas Crosbie Holdings Ltd, a company with extensive media interests including some 18 newspaper titles. The respondent represents the commercial operation of Thomas Crosbie Holdings Ltd in Northern Ireland.

The respondent operates from two locations, Newry and Downpatrick, where the local newspapers, the Newry Democrat and the Down Democrat respectively are based. There are approximately 33 employees across both titles in Northern Ireland.

Mr Kieran Maloney became Chief Executive of the respondent company on or about 6 April 2006 having previously been employed by the parent company as Finance Director of The Irish Post.

The claimant began working with the respondent in or around June 2002. Between that date and April 2004 the claimant worked on a freelance basis contributing cartoons and entertainment reviews for the Newry Democrat and receiving payment for work produced.

In or around April 2004 the claimant was retained to work in connection with a free sheet distributed with the Newry Democrat. This work which was of a more regular nature continued until in or around the end of 2005 during which time the claimant received a regular monthly salary. During this period and from June 2002 the claimant was responsible for his own tax affairs and paid tax on a self-assessment basis. He did not have an assigned desk or phone line and simply used whatever accommodation was available when in the office.

On 1 February 2006 the claimant's role with the respondent changed to that of a Sales Executive with the Down Democrat. His job entailed selling advertising space for the paper. He was employed full-time in the Downpatrick Office, had his tax and national insurance contributions deducted at source and received pay-slips. His line manager was Mrs Tina Maguire. Mrs Maguire is the claimant's sister.

It is common case that from 1 February 2006 until his resignation the claimant was an employee of the respondent.

The claimant did not receive a written contract of employment from the respondent. Nonetheless it is clear that there was an employment contract. The tribunal base this finding on the evidence generally, including evidence of the claimant receiving an agreed wage in accordance with pay-slips furnished, evidence of a probation period and an agreement to a pay increase following the successful completion of that period. There were procedures in place to apply for annual leave and clearly procedures in relation to sick leave insofar as the claimant submitted certified sick notes from his general practitioner.

The claimant worked well and achieved success in his role as Advertising Sales Executive. He competed unsuccessfully for the post of Advertising Sales Manager in or around the Autumn of 2006 but was not unusually disappointed on hearing the outcome. The tribunal find that this had no bearing upon subsequent events.

In early summer 2006 the claimant's mother became ill and shortly afterwards it became apparent that her condition was serious. Mrs Quinn required hospitalisation, surgery and post-operative treatment. The claimant needed time off to care for his mother and to take her to and from medical appointments.

Initially the claimant took annual leave for this purpose. However when the Company Chief Executive, Mr Maloney, became aware of the circumstances he insisted that any time taken for this purpose by either the claimant or his sister should be taken as compassionate leave with pay and should not be deducted from the annual leave entitlement of either employee.

The claimant took leave regularly to attend to his mother's needs and this was treated on all occasions as compassionate leave by the respondent.

Mrs Quinn's condition worsened and she sadly passed away in December 2006. There was contact between the claimant and Mr Maloney following Mrs Quinn's death. Mr Maloney called to the Quinn family home to pay his respects. He attended the removal of the remains and the funeral.

At the graveside the claimant thanked Mr Maloney for his support during the period of his mother's illness. The claimant does not recollect this conversation but the tribunal accept the evidence of Mr Maloney. The tribunal find the claimant's evidence vague and inconsistent whereas Mr Maloney is clear, consistent and straightforward in his evidence.

The claimant was shocked and demoralised following his mother's death. He found it difficult to come to terms with her rapid deterioration and death and was profoundly sad.

He returned to work in or around 20 January 2007. Prior to his return to work he had a telephone conversation with Mr Maloney who advised him not to rush back to work until he was feeling strong. The claimant does not recollect this conversation but for reasons given earlier the tribunal accept the evidence of Mr Maloney.

On returning to work the claimant found that he could not cope at work and was medically certified absent on sick leave from 19 February 2007 initially for a period of three weeks and subsequently for a further week. His sick notes indicated that he was suffering from bereavement and depression. He was prescribed antidepressants.

Mr Maloney spoke by telephone with the claimant during his sick leave but there is a disagreement between the parties as to the number of telephone calls and the substance of those calls. The tribunal find that Mr Maloney contacted the claimant by telephone on 5 March 2007, enquired as to how the claimant was feeling, offered him confidential medical assistance through the company and had a general chat about work. The tribunal find that the tone of this conversation was cordial and that the claimant mentioned to Mr Maloney that he appreciated the call and promised to make contact on Friday of that week but no such contact was made.

It is the claimant's case that he felt pressurised by phone calls from Mr Maloney. The tribunal do not accept this in respect of phone calls up to and including the phone call on 5 March. The tribunal find that the relationship between the parties was good up to and at this point and that the phone call of 5 March was of a routine nature enquiring about the claimant's welfare and updating him regarding work-related matters.

It is common case that there was a telephone conversation between the parties on 12 March 2007 being the date upon which the claimant was due back to work. There is conflicting evidence as to what transpired during that call. It is the claimant's case that during the telephone conversation, Mr Maloney threatened him that if he did not return to work he would have no job to go back to, questioned the genuineness of his sick notes alleging that he was on friendly terms with his doctor which enabled him to readily obtain sick notes and informed him that he was being sent to Dublin for a medical examination by the company doctor.

It is the respondent's case that the claimant informed Mr Maloney that he had been at the doctor that morning, that he still was not feeling right and that he would be submitting another sick note. He asked to meet Mr Maloney for a chat indicating that he would contact him by text message to arrange a meeting. These facts are not in dispute.

It is accepted that Mr Maloney did indicate that an appointment would be set up for the claimant with the company doctor and that the claimant would be required to attend. Mr Maloney indicated to the claimant that this would be in the interests of both parties as the company needed to know the likely duration of the claimant's absence to enable them to put arrangements in place for cover should it transpire that the absence was to be a lengthy one. Additionally, Mr Maloney expressed concern for the claimant's health and welfare. The claimant did not object to the referral being made during the telephone conversation. Mr Maloney denies threatening the claimant, pressurising him or questioning the genuineness of his illness.

For reasons already given, the tribunal accept Mr Maloney's evidence in relation to this telephone call. Furthermore, the claimant gave varying accounts of the number of calls he received from Mr Maloney but acknowledged under cross-examination that there may have been more than one. The tribunal find it surprising in circumstances where the claimant alleges that he felt pressurised by telephone calls from Mr Maloney that his recollection of the number of calls made is extremely vague.

Additionally and compellingly in relation to the allegation of a threat having been made the tribunal note that there was no mention of this in the claimant's letter of resignation, in the letter written by the claimant's solicitor on 23 March 2007 or in the claim form. This allegation emerged for the first time in the claimant's replies to the respondent's Notice for Particulars on 18 January 2008.

Following the phone call on 12 March 2007 it is the claimant's case that he lost trust and confidence in his employer and as a consequence wrote Mr Maloney a letter dated 14 March tendering his resignation. The letter of resignation records the claimant's belief that Mr Maloney did not recognise the seriousness of his illness and made a mockery of his illness as a result of which the claimant alleged that his condition had worsened. This letter was received by Mr Maloney on 20 March and was accompanied by a letter from the claimant's doctor confirming that the claimant was genuinely depressed and was prescribed medication for his illness.

The tribunal find that it was the claimant's genuine belief that the respondent doubted the genuineness of his illness. Nonetheless the tribunal find that this belief was unfounded and that the motivating factor for the referral was to obtain clarity as to the likely duration of the absence for the purposes of arranging cover. The tribunal find also that a contributing factor for the referral was a genuine concern on the part of Mr Maloney for the claimant's health and welfare. The tribunal accept Mr Maloney's evidence on this point and find it consistent with his approach to the difficult circumstances the claimant found himself in. The tribunal note that a referral to the company doctor was previously offered to the claimant's sister in an effort to support her in coping with her mother's illness.

Following the phone call on 12 March, Mr Maloney contacted Barry Colgan in Human Resources asking him to set up an appointment for the claimant with Corporate Health Ireland, a company used by the Thomas Crosbie Group for employee medical referrals and known as the 'company doctor'.

An appointment was arranged for the following Friday, 16 March 2007, and Mr Maloney wrote to the claimant in the following terms on 13 March 2007:-

"I confirm that we require you to attend the company's medical adviser for an assessment of your current medical situation."

The claimant received this letter two days after he had tendered his resignation.

Mr Maloney completed a referral form and a briefing note to accompany the referral giving the background to the claimant's illness and included within the note details of the claimant's unsuccessful application for the position of Advertising Sales Manager. Both documents are dated 14 March 2007.

This was the first such referral Mr Maloney arranged as Chief Executive of the respondent company but in his previous role as Finance Director of the Irish Post with the parent company had made such referrals.

Mr Maloney received the claimant's letter of resignation on 20 March 2007. He took professional advice before responding on the same date accepting the resignation.

The law and decision

Article 127 of the Employment Rights (Northern Ireland) Order 1996 provides the circumstances in which an employee is regarded to have been dismissed including at Article 127(1)(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."

Dismissal in these circumstances has become known as constructive dismissal and it is established law that the employer's conduct for the purposes of Article 127(1)(c) may comprise a single incident or a series of incidents prior to the root of the contract which provided the final straw for the employee resulting in his resignation.

The tribunal finds that the telephone conversation with Mr Maloney on 12 March 2007 was the event which prompted the claimant to resign. In particular, the tribunal find that the claimant was distressed when told of the proposal to refer him to the company doctor and find that the claimant took this as an indication that the respondent doubted the genuineness of his illness as a result of which he lost trust and confidence in the respondent.

The claimant gave evidence of accusations and threats having been made in earlier telephone conversations but the tribunal find his evidence in relation to this to be vague and unconvincing and the tribunal do not accept it. The tribunal find on the evidence that nothing arising prior to 12 March 2007 influenced the claimant's decision to resign.

The tribunal considered the leading case on constructive dismissal – Western Excavating (EEC) Ltd v Sharp [1978] IRLR 27 and the commentary in Harvey on Industrial Relations and Employment Law. It is established that in order for an employee to be able successfully to claim that he has been constructively dismissed, four conditions must be met:-

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

(2) 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.

(3) He must leave in response to the breach and not for some other unconnected reason.

(4) 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.

The first question the tribunal must consider is whether there was a breach of contract by the respondent and it follows that in addressing that question the tribunal must identify the alleged breach.

It is well established that there is an implied term in every contract of employment that the parties will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence that should exist between employer and employee. It is the claimant's case that the respondent breached that implied term by questioning the genuineness of the claimant's illness, by requiring him to attend the company doctor and by means of Mr Maloney's alleged threatening and pressurising behaviour.

Secondly, the claimant alleges that the respondent acted in breach of the contract in requiring him to attend the company doctor in circumstances where there was no contractual authority for such a referral.

As a first step the tribunal dealt with the allegation that there was a breach of contract by the respondent in that the implied duty of trust and confidence between the parties was destroyed by reason of Mr Maloney's conduct. The tribunal considered the case of Malik v BCCI [1997] IRLR 462 in considering this point and considered also Tolley's Employment Handbook.

The tribunal find for reasons already given (ie their finding that the claimant's evidence was vague and inconsistent in comparison with Mr Maloney's evidence which was straightforward and consistent) that Mr Maloney did not threaten or pressurise the claimant and further for reasons similarly given that Mr Maloney did not question the genuineness of the claimant's illness. As a consequence the tribunal dismisses the claim insofar as it relates to these allegations.

The tribunal proceeded to consider whether the requirement to attend the company doctor amounted to a breach of the terms, express or implied, of the employment contract.

As a first step, the tribunal find that as there was no written contract of employment between the parties and so no express authority for the referral.

The tribunal proceeded to consider whether there was an implied term in the claimant's contract authorising the referral and the tribunal find that there was not.

In reaching this decision, the tribunal have considered Harvey on Industrial Relations and Employment Law and Tolley's Employment Handbook and are influenced by the fact that the claimant was absent from work for a relatively short period (albeit a second period of absence in a short time) during a particularly difficult period in his life and there was no precedent within the respondent company for such a referral.

Having found that there was a breach of contract by the respondent in requiring the claimant to attend the company doctor the tribunal proceeded to consider whether that breach included a breach of the implied term of mutual trust and confidence between the parties and also whether that breach was of such a fundamental nature as to amount to a breach entitling the claimant to resign in reliance on Article 127(1) (c) of the Employment Rights (Northern Ireland) Order 1996.

In its deliberations, the tribunal considered the law on constructive dismissal as dealt with in Harvey on Industrial Relations and Employment Law, the leading case of Western Excavating (EEC) Ltd v Sharp and the case of Bliss v South East Thames Regional Health Authority [1985] IRLR 308 referred to by Mrs Connolly.

The tribunal note that the Court in the Bliss case found that the defendant (the employer) had acted in breach of their obligations under the contract of employment by, without reasonable cause requiring the plaintiff consultant surgeon to submit himself to psychiatric examination and by suspending him from duty on his refusal to submit to such examination.

The tribunal considered the following extract:-

"The breach of contract by the defendants was repudiatory and was a continuing breach until the defendants lifted the suspension and withdrew the psychiatric examination requirement. The defendants were in breach of the implied term that they would not, without reasonable cause, conduct themselves in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee. If ever there was a breach of such a term going to the root of the contract as to entitle the employee to treat the contract as at an end, it was that in the present case. It would be difficult in this particular area of employment law to think of anything more calculated or likely to destroy the relationship of trust and confidence which ought to exist between employer and employee than, without reasonable cause, to require a consultant surgeon to undergo a psychiatric examination and to suspend him from the hospital on his refusing to do."

The tribunal note the robust language used here, but ultimately distinguish this case from Bliss because the cases differ substantially and significantly on their facts.

In particular, the tribunal find that the claimant was not referred to the company doctor without reasonable cause. The claimant was absent from work on sick leave, this was his second period of absence in a short space of time and he was recovering from a particularly traumatic and emotional time in his life. His relationship with the respondent was good but his return date was uncertain. The respondent was entitled to seek some certainty as to a likely return date to enable them to put measures in place to cover any absence and the tribunal have found this was the overriding consideration in making the referral.

The tribunal find that the respondent acted with haste to refer the claimant to the company doctor but find, for reasons already given, that unlike the facts in Bliss, the referral was not without reasonable cause.

The tribunal find also that the referral was not motivated by any doubts as to the genuineness of the claimant's illness but rather had taken into account the claimant's health and welfare.

The tribunal have regard to the previous good relationship between the parties and in particular, to the sympathetic and compassionate approach by Mr Maloney to the claimant at all times in connection with his mother's illness and death and in connection with his subsequent return to work. That good relationship extended up to 12 March 2007. Mr Maloney explained the motivation for the referral to the claimant.

The claimant resigned before receiving notification of the referral. In these circumstances, the tribunal find that the fact that the claimant was given only days notice of the referral played no part in his decision to resign.

The tribunal are mindful of the comment in Courtaulds Northern Spinning Ltd v Sibson [1987] ICR 329:-

"Reasonable behaviour on the part of the employer can point evidentially to an absence of a significant breach of a fundamental term of the contract; conversely wholly unreasonable behaviour may be strong evidence of a significant breach. Nevertheless it remains true that conduct however reprehensible, may not necessarily result in a breach of a fundamental term of the contract."

In light of all of the foregoing considerations, the tribunal find that the actions of the respondent in requiring the claimant to attend the company doctor did not amount to action likely to destroy the trust or damage the relationship of trust and confidence between the parties and further that the breach of contract in requiring the referral was not so fundamental as to amount to circumstances entitling the claimant to rely on Article 127(1)(c) of the 1996 Order.

Having found that the claimant was not constructively dismissed by the respondent in reliance on Article 127(1)(c) of the 1996 Order, the tribunal make no finding in relation to the dates of the claimant's employment beyond its findings that the claimant was in the employment of the respondent from 1 February 2006 until the date of his resignation.

Chairman:

Date and place of hearing: 25 January 2008 and 29 February 2008, Belfast

Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2008/1647_07IT.html