THE INDUSTRIAL TRIBUNALS

CASE REF:  01019/08

CLAIMANT:		Noble Cowan

RESPONDENT:	Decora Blind Systems Ltd

DECISION
The tribunal unanimously finds that the claimant was not unfairly constructively dismissed and it dismisses his application.

Constitution of Tribunal:
Chairman:		Mr Brian Greene
Members:		Dr Carol Ackah
Mr Ray Lowden

Appearances:
The claimant appeared in person.
The respondent was represented by Mr B McKee, of counsel, instructed by Cleaver Fulton & Rankin, Solicitors.

SOURCES OF EVIDENCE

 1.	The tribunal heard evidence from the claimant and for the respondent from Wayne Whiteside and Andrew Ringland.  The tribunal also received a bundle of agreed documents amounting to some 450 pages.  

THE CLAIM AND DEFENCE

 2.	The claimant claimed unfair constructive dismissal.  The respondent denied that the claimant had been unfairly constructively dismissed.

THE ISSUES
 3.	(1)	Was the claimant unfairly constructively dismissed?

(2)	Did the claimant suffer a breach of contract?

(3)	If the dismissal was unfair or there was a breach of contract what is the appropriate remedy?

FINDINGS OF FACT

 4.	(1)	The respondent employed the claimant from 25 May 1998 until 19 May 2008 as a production operative.

(2)	The respondent manufactures blinds of differing sizes.

(3)	The claimant worked 37½ hours per week and earned per week £248.52 gross, £204 net.

(4)	The relevant period for consideration of the claimant’s claim is from July 2007 until 19 May 2008.

(5)	In mid-March 2007 the claimant was moved to the headrails production area.  He was involved in the manufacture of headrails for blinds of differing sizes by putting the components into them.  

(6)	The claimant’s supervisor was Andrew Ringland who reported to Connor Hamill the Production Manager.

(7)	Each operative had a daily target of headrails to complete, of some 82.  The operative was expected to achieve 95% of target daily.  The claimant did not seek to challenge the respondent’s right to establish targets for achievement by operatives or to attempt to enforce those targets.

(8)	In order to set the daily target the respondent’s process engineer, Paul Anderson, had made average calculations of how long each process would take.  This was based on an historic number of orders of each size of headrail; observation of the time taken to perform the operations by the operatives, including the claimant; his own calculations; and flexibility built into the timings to allow for interruptions to the work eg comfort breaks, rest breaks, house-keeping matters or physically bringing the materials to the machine for operations.    

(9)	When the claimant moved in mid-March 2007 to the headrails area he had a period of training for six weeks.

(10)	By the end of the training the claimant believed the target was not achievable.  This was not obvious to others during training and immediately thereafter because some other operatives had helped him to achieve his targets, he asserted.

(11)	A change to the process was introduced in mid-May and one type of headrail was supplied with a plastic cover on it which had to be removed before it was worked on.  This lengthened the time to do each headrail.  The respondent’s process engineer allowed an extra 40 seconds for each headrail to remove the plastic cover.

(12)	The claimant believed the extra 40 seconds were insufficient.

(13)	The respondent posted a weekly notice indicating what targets each operative achieved in percentage terms.

(14)	On 11 July 2007 Mr Ringland called the claimant to an informal meeting at his desk on the factory floor.  The desk is located in view of other operators and in earshot of other operators, the claimant believed.  Mr Ringland pointed out that he was not happy with the claimant’s percentage achievement of target.  He indicated that it was not acceptable and that the claimant would have to improve.

The claimant told Mr Ringland that the timings were wrong i.e. that there was insufficient time allowed for each process and the sheets used to record the timings were also wrong.  The meeting concluded with the claimant being told his percentages would have to improve or the disciplinary procedure might be invoked.  The claimant did not raise at that time any unhappiness with such a meeting taking place on the factory floor.

	(15)	The claimant then asked Mr Ringland to arrange a meeting with the production manager Mr Connor Hamill.  Mr Ringland agreed to do this but such a meeting did not take place until 10 August 2007.

(16)	The claimant, on Friday 13 July 2007, handed in a letter to the HR Manager, Mark McGurnaghan, invoking the written grievance procedure.  Mr McGurnaghan replied on Wednesday 18 July 2007 stating that a meeting would be arranged with Connor Hamill who was currently off on paternity leave.  The claimant agreed to this proposal by letter of 20 July 2007.

(17)	On 10 August 2007 the claimant met with Connor Hamill to discuss his grievance.  He repeated his belief that the timings were wrong.  Connor Hamill indicated that there were new timings and new machinery.  It was agreed between Connor Hamill and the claimant to draw a line under any previous issues about timings or percentage performance and that matters would start afresh from 13 August 2007.  However the claimant was made aware that he would have to attain his targets.

(18)	Mark McGurnagahan, Head of Human Resources, wrote to the claimant on 31 August 2007 about the claimant’s grievance.  He enclosed a copy of notes of the meeting with Connor Hamill on 10 August 2007.  He further stated,

		“…I …trust you are happy to bring closure to this matter.”

	The claimant did not dissent from this statement.  

(19)	Mr Ringland held a coaching meeting with the claimant on 11 September 2007 at his desk about his performance.  A coaching meeting is not a disciplinary meeting.  On 19 September 2007 he again called the claimant to his desk on the factory floor to discuss with him his failure to attain his percentage targets.  He gave the claimant an informal caution and warned him that this could lead to the invoking of the disciplinary procedure.  The meeting was an informal meeting.  The claimant reiterated his belief that the timings were not accurate nor sufficient to do the tasks.  There was no mutual resolution of the matters.  This meeting again took place on the factory floor in front of anyone else who was in the area.  Subsequently the claimant asked for a meeting with Connor Hamill and no such meeting was arranged.

	(20)	On 26 September 2007 the claimant invoked the grievance procedure for the second time.  He repeated his belief that the timings were inaccurate and that he was being ignored by Connor Hamill.  Mr McGurnaghan replied on 27 September 2007 agreeing to meet with the claimant.  

(21)	A meeting was held between the claimant, Mr McGurnaghan and Mr Ringland on 2 October 2007 to discuss the claimant’s concerns about timing and being ignored which the claimant regarded as bullying.  A follow-up meeting was arranged for 31 October 2007 to present Mr McGurnaghan’s findings.

	(22)	On 7 November 2007 Connor Hamill wrote to the claimant rejecting his criticisms in his grievance.

	(23)	On 16 November 2007 the claimant appealed to the Directors in relation to the wrong timings and that Connor Hamill did not respond to his requests for meetings on two occasions.  He listed a chronology of the incidents and his complaints.

	(24)	On 29 November 2007 the claimant met with Gary English, the General Manager, regarding his grievance.   Four issues were identified as constituting his grievance; the claimant’s belief that the timings were inaccurate and insufficient; the speaking to him about matters concerning his work performance at the desk on the factory floor; not following the grievance procedure in terms of its timings; and the allocation of work not being fairly distributed.

	(25)	On 5 December 2007 the General Manager, Gary English, informed the claimant of his conclusions.  He concluded that the operation timings were fair and accurate.  He indicated that he would recommend that any private or formal discussions between the supervisor and staff would take place away from the area of work.  He commented that there had been breaches of the grievance procedure on both sides.  He also indicated that the Production Manager would be reviewing the allocation of work.  The claimant did not agree with these conclusions.  

	(26)	The claimant was off work from 28 February 2008 until 2 April 2008 with stress.  He returned to work on 2 April 2008 and had a return to work interview with Mr Ringland.  This interview again took place at Mr Ringland’s desk on the factory floor.  The claimant did not object to the location of the meeting at that time nor remind Mr Ringland of Mr English’s recommendation.  In fact Mr Ringland had not been informed of Mr English’s recommendation. 

	(27)	On 18 April 2008 the claimant wrote to the Production Manager Mr Hamill.  Again he said that the timings were incorrect and that the sheets being used were not correct either.  He further sought the calculations used by the respondent to arrive at its timings for the processes.  

	(28)	Mr Ringland held a coaching session with the claimant on 29 April 2008 regarding his failure to achieve his percentage target for the week commencing 25 April 2008.

From 31 December 2007 to 2 May 2008 the claimant only failed to attain his percentage targets on three weeks, though he was off work from 28 February to 2 April 2008.

	(29)	On 13 May 2008 the claimant had another meeting with Mr Ringland at his desk on the factory floor.  The purpose of the meeting was to discuss with the claimant his failure to achieve his percentage targets for two weeks.  The claimant did not raise any objection to the location of the meeting nor remind Mr Ringland of Mr English’s recommendation.  

	(30)	Mr Hamill replied in writing to the claimant on 14 May 2008 in response to the claimant’s letter of 18 April 2008.  In the letter Mr Hamill stated that old sheets were being used to record timings and that that difficulty had been rectified.  He further stated that the new timings were correct.  He did not provide the calculations for the timings nor comment on them in his letter.

	(31)	Mr Ringland on 14 May 2008 sent an e-mail to Connor Hamill recording the contents of his meeting of 13 May 2008 with the claimant when he had advised him that his targets were not achieved for two weeks in succession and that he needed to focus on achieving those targets.  He also recorded that the claimant continued to question the accuracy and sufficiency of the timings.  

	(32)	On 15 May 2008 Mr Ringland wrote to the claimant and warned him that if his percentage target fell below 95% for one more week in the succeeding six months that the disciplinary procedure might be invoked.

	(33)	On 19 May 2008 the claimant tendered his resignation in writing.  In his resignation letter the claimant outlined the chronology of events from July 2007.  In particular he listed several complaints; a number of meetings were held with Mr Ringland at his desk on the factory floor in front of other members of staff; the refusal by the respondent to provide him with the calculations for the timings; the insufficiency of the timings; the bullying of him by the members of staff; and what he described as a campaign by management to get him to leave his employment.  These matters, he stated, forced him to tender his resignation.

(34)	Other operatives were able to do the same tasks as the claimant and achieve the acceptable percentage target (95%) before the claimant, during his time working in the headrails area and subsequent to his resignation.

(35)	In support of his claim for unfair dismissal the claimant alleges a breach of an actual term of his contract and a breach of the implied term of trust and confidence.

	(36)	The actual breach of the claimant’s contract is the respondent’s failure to follow its grievance procedure by failing to arrange a meeting with Connor Hamill and to do so within the time prescribed in the grievance procedure.

	(37)	The respondent’s grievance procedure provides that an employee may raise a grievance at the first stage with his supervisor/manager and make it clear to the supervisor manager that he is invoking the grievance procedure.  The supervisor/manager should reply to the employee within three working days from the time the grievance was first raised (3.1.1 and 3.1.2 of the respondent’s grievance procedure).

	(38)	In support of the breach of the implied term of trust and confidence the claimant relies on a course of conduct from 11 July 2007 to 19 May 2008. 

THE LAW

 5.	(1)	To establish a constructive dismissal that is unfair an employee must prove;

(a)	that there was a breach of his contract of employment, 

(b)	that the breach went to the core of contract, 

(c)	that he resigned as a result of the breach, 

(d)	that he resigned fairly soon after the breach occurred, and

(e)	in all the circumstances the employer acted unreasonably.

	(2)	The breach of contract can be the breach of an expressed term of the contract or a breach of the implied term of trust and confidence or both.

	(3)	A breach of the implied term of trust and confidence can be a single act of the employer or a course of conduct over a period of time.

	(4)	Where a course of conduct is relied upon it is not necessary that any single act itself amounts to a breach of the implied term of trust and confidence but the course of conduct cumulatively must amount to the breach of the implied term.

APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES

 6.	First Grievance – 13 July 2007

(1)	The claimant invoked the grievance procedure on Friday 13 July 2007. 

(2)	The HR Manager, Mark McGurnaghan, responded on his behalf on Wednesday 18 July 2007 promising a meeting with Connor Hamill on his return from paternity leave.

(3)	The claimant agreed with this proposal on 20 July 2007.

(4)	The claimant met with Connor Hamill on 10 August 2007 and they agreed to draw a line under any previous criticisms of the claimant’s non-attainment of percentage targets.

(5)	The respondent’s response was within three working days and the proposal was agreed to by the claimant.  The grievance procedure does not require that the interview be held within three working days.  The grievance procedure was therefore not breached.

(6)	There is therefore not a breach of contract.

(7)	Because the method, timing and outcome of this grievance were agreed to by the claimant this matter cannot be considered as part of a course of conduct that would lead to a successful claim for constructive dismissal.

	Second Grievance – 26 September 2007

(8)	The claimant invoked the grievance procedure on 26 September 2007.

(9)	The HR Manager responded on 27 September and agreed to meet with the claimant.

(10)	A number of meetings took place with the claimant about this grievance including an appeal from the initial findings.

(11)	The grievance procedure was not breached and as a consequence there was not a breach of the claimant’s contract of employment.

(12)	This grievance cannot be considered as part of a course of conduct that would lead to a successful claim for constructive dismissal. 

(13)	The fact that the claimant did not agree with the outcome of the grievance in almost every respect does not invalidate the grievance procedure or amount to a breach of an actual term of the contract.

	Return to Work Interview – 2 April 2008

(14)	This meeting was a private meeting and was not held in private as Mr English, General Manager, had stated he would recommend on 5 December 2007.

(15)	The claimant’s supervisor had not been informed of this recommendation.

(16)	This does not amount to a breach of an actual term of the claimant’s contract of employment but it is capable of being considered as part of a claim for breach of the implied term of trust and confidence.

	Further meetings at Mr Ringland’s desk on 29 April and 13 May 2008

(17)	Both meetings were held following the claimant’s failure to achieve his percentage targets.  The meeting on 29 April 2008 was a coaching session and the meeting on 13 May 2008 led to an informal caution. 

(18)	Neither meeting was a formal meeting.  While both meetings were private in the sense that they concerned the claimant the subject-matter of both meetings was information that was published by the respondent every week and every operative had access to that information.

It seems to the tribunal that these meetings were not those intended to be held in private following Mr English’s recommendation of 5 December 2007.

(19)	As the two meetings did not breach Mr English’s recommendation they cannot amount to a breach of the claimant’s contract actual or implied.

	The Respondent’s timings of the claimant’s operations

(20)	The basis for all of the claimant’s grievances, complaints, representations and ultimate resignation was his belief that the timings used by the respondent were inaccurate and insufficient.  The claimant adhered unflinchingly to this conviction throughout his claim.

(21)	The claimant failed to adduce any evidence of where the timings were inaccurate or insufficient.  His contention was that because he could not meet them they must be inaccurate and insufficient.  The tribunal is not persuaded of the claimant’s contentions.  In so concluding the tribunal had regard to the following matters;-
 
(a)	The claimant did not identify any mathematical errors in the calculations.

(b)	Nor did the claimant show any errors in the methods used to calculate the timings.  

		(c)	On many occasions the claimant met his percentage targets.

(d)	Other operatives were able to meet the percentage targets, before, during and after the claimant’s time in the headrails area.

(e)	When the claimant made criticisms of the timings they were considered by the respondent.

(22)	While the respondent did not provide the claimant with its calculations of the timings it advised him how the timings were done i.e. using historical data to determine the numbers of each size of headrail; using an average of actual timings of operatives, including the claimant, and adding additional time to allow for other breaks.

The respondent’s failure to provide this information is not significant where they have provided the considerations they used in arriving at their calculations and in the absence of any specific criticism of any aspect of the calculation beyond saying it was inaccurate and insufficient.

(23)	The claimant defined bullying as being ignored on two occasion by Connor Hamill.  There is no evidence that the claimant was ignored.  Therefore there is not any bullying.

(24)	There was no evidence of a campaign by management to get him to leave his employment.  The claimant accepted that the respondent was entitled to use targets for each process and to talk to its operatives about achieving those targets.  The respondent spoke to the claimant and others about achieving the targets.

(25)	The tribunal is not persuaded that the respondent has breached an actual term of the claimant’s contract of employment.

(26)	Nor is the tribunal persuaded that there has been a breach of the implied term of trust and confidence.  The only failure found by the tribunal was that the respondent did not hold the return to work interview in a private room.  This, in the tribunal’s view could not, in the circumstance of this case, amount to a breach of the implied term of trust and confidence that went to the core of the contract.

(27)	In the absence of a breach of contract that went to the core of the contract the claimant’s claim for unfair constructive dismissal must fail.  It is therefore unnecessary to consider the other ingredients of a claim for constructive 

(28)	Accordingly the claimant’s claim for constructive dismissal is dismissed.

Chairman:

Date and place of hearing:	16, 17, 18, 19, 24 February and 16 April 2009.

Date decision recorded in register and issued to parties: