THE INDUSTRIAL TRIBUNALS

CASE REF: 1641/05

CLAIMANT:                       Steven Neil Bell

RESPONDENT:	William Kenneth James Herbison, sued on his own behalf and on behalf of all other members of the Council of Ballymena Golf Club at the relevant time.

DECISION

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

Constitution of Tribunal:

Chairman:          Mr Palmer

Members:           Mr Crawford

                            Mrs Short

Appearances:

The claimant represented himself.

The respondents were represented by Mr Ferrity, Barrister-at-Law, instructed by James Ballentine & Son, Solicitors.

The Claim

1. 	The claimant claimed that he had been constructively dismissed by the respondents.  His claim was based on loss of confidence and trust in the respondents.

Confidence and Trust

2.  	As will be seen later, the test in relation to constructive dismissal is whether the employer significantly breached the contract of employment.  Here, under this heading, we refer to an important implied term in contracts of employment.

3.  	In deciding the issue of constructive dismissal consideration is given not only to written terms of the contract of employment, but also to its implied terms.  At paragraph 15 of Barratt v Accrington & Rossendale UKEAT 0099/06/1201 it is stated by Lady Smith that:

“ the question of whether or not an employee is entitled to terminate his contract without notice falls to be determined according to the law of contract, in particular, according to what the law says regarding what terms are implied in a contract of employment”

4. 	There is an implied term in contracts of employment that the employer will not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee (See Malik v Bank of Credit and Commerce International SA [1997] IRLR 462 and the reference to Harvey below.)

5.  	At D1 paragraph [430] of Harvey it is stated

“However, a note of caution needs to be expressed in relation to the precise terms of the formulation adopted by Lord Steyn in the BCCI case, as referred to above. In Baldwin v Brighton and Hove City Council [2007] ICR 680, [2007] IRLR 232 the EAT had to consider the issue as to whether in order for there to be a breach the actions of the employer had to be calculated and likely to destroy the relationship of confidence and trust, or whether only one or other of these requirements needed to be satisfied. The view taken by the EAT was that this use of the word 'and' by Lord Steyn in the passage quoted above was an error of transcription of the previous authorities, and that the relevant test is satisfied if either of the requirements is met.”

6.  	We shall follow the “either” formulation.

Evidence and documentation

7.  	Evidence was given by the claimant and on his behalf by Mr Gordon Bell, Mr Frederick Charles Dawson and Mr Hugh O’Donnell.  Evidence was given on behalf of the respondents by Mrs Wilhelmina Buick, Mr Eugene Gerard Kelly, Mr Ivan Paul Stevenson and Mrs Margaret Roberta Connon.  Each party provided a bundle of documents.  We informed the parties that we would take account only of those documents to which we were referred during the hearing.

Submissions

8.  	Submissions were made by both parties and we have taken these into account.

The Title 

9.	The parties agreed, and we so ordered, that the respondents’ name be altered from “Ballymena Golf Club” to “William Kenneth James Herbison, sued on his own behalf and on behalf of all other members of the council of Ballymena Golf Club at the relevant time.”

THE LAW RELATING TO CONSTRUCTIVE DISMISSAL (INSOFAR AS RELEVANT TO THESE PROCEEDINGS)

The Statutory Provisions

10.	Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) confers the statutory right on an employee not to be unfairly dismissed by his/her employer.

11.	Article 140 (1) of the Order provides that Article 126 does not apply to the dismissal of an employee unless the employee has been employed for a period of not less than one year, ending with the effective date of termination of the contract of employment.

12.	Constructive dismissal occurs where an employee terminates his or her contract with the employer in the circumstances set out in Article 127 (1) (c) of the Order.  Where the circumstances set out in that provision exist the employee is regarded as dismissed by his/her employer.

13.	Article 127 (1) (c) of the Order provides as follows:

“127. — 
(1)	For the purposes of this Part [which includes the provisions referred to at paragraphs numbered 10, 11 and 12 above.] an employee is dismissed by his employer if…….. 
(c)   	The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.”

Case law

14.	It was established in Western Excavating v Sharp [1978] IRLR 27 that the proper test to be applied in establishing whether constructive dismissal occurred is the “contract test”.  In that case Lord Denning stated at paragraph 15:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”

Approach

15.	The first matter for the tribunal to determine is whether the claimant was constructively dismissed.  The tribunal does not reach consideration of the “fairness” provisions contained in Article 130 of the Order unless constructive dismissal is established.  This was put in the following way by the EAT in Barratt v Accrington & Rossendale UKEAT/ 0099/06/RN, at Paragraph numbered 14:

“Thus, where an employee resigns, only if he can be treated as having been dismissed under [Article 127(1)(c) of the Order] does consideration then pass to the well known provisions of [Article 130 of the Order] regarding the determination of the question of whether or not the dismissal is fair or unfair.”
16.      Harvey’s approach to constructive dismissal:

It is stated in Harvey on Industrial Relations & Employment Law (Harvey), at D1 [403]:
“In order for the employee to be able to claim constructive dismissal, four conditions must be met:
(1)	There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.
(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. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting repudiation in law.
(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.”
17.	As stated earlier, the claimant, in this case, relies on the confidence and trust term implied in his contract of employment.  He claims that the breach, in this case, was such, that he was entitled to resign.
18.  	As stated in Harvey a claimant’s resignation must be in response to the breach.  In his resignation letter the claimant made no mention of any breach of the contract of employment by the respondents.  He simply said that he was resigning as and from the 5 September 2005.  It was at one time thought that in order to succeed in a constructive dismissal case that the employee must have notified the employer of the reason at the time of leaving (See Holland v Glendale Industries Ltd [1998] ICR 493 and Harvey at D1 [521]).  This is no longer considered to be the case.  The position, which we will follow, was set out later by Pill LJ in Weathersfield v Sargent [1999] IRLR 94 at paragraph 20.  There His Lordship stated:
“I reject as a proposition of law the notion that there can be no acceptance of repudiation unless the employee tells the employer, at the time, that he is leaving because of the employer's repudiatory conduct. Each case will turn on its own facts and, where no reason is communicated to the employer at the time, the fact-finding tribunal may more readily conclude that the repudiatory conduct was not the reason for the employee leaving. In each case it will, however, be for the fact-finding tribunal, considering all the evidence, to decide whether there has been an acceptance.”
And at paragraph 21 of Weathersfield, His Lordship further stated:
“Acceptance of a repudiation of a contract of employment will usually take the form of the employee leaving and saying why he is leaving but it is not necessary in law for the reason to be given at the time of leaving. The fact-finding tribunal is entitled to reach its own conclusion, based on the 'acts and conduct of the party', as to the true reason. If the EAT in Holland were stating as a proposition of law that there can be no constructive dismissal unless the employer is told the true reason for leaving, they were, in my respectful view, in error.”
Findings

19.	The claimant was an employee of the respondents and also a playing member of the club.  This case concerns the employee/employer relationship.

20.	The respondents formed the suspicion that the claimant had claimed payment for time in respect of which he had not worked.  He was suspended on full pay pending investigation.  As will be seen immediately below, two investigatory meetings were convened and held.  The claimant and his representative (Mr Mc Creight, a trade union representative) were present.  The investigatory panel (the panel) consisted of Mrs Buick, who chaired the meetings and who is a senior consultant with a firm of personnel consultants retained by the respondents, Mr Kelly, the respondents’ House Convenor, and Mr Stevenson, the Finance Convenor.  The panel concluded that the claimant had a case to meet.  The claimant submitted a letter of resignation on 5 September 2005, which was the day before the date fixed for the disciplinary hearing.  

21.	The first investigatory meeting, which concerned timesheets submitted by the claimant for 13 and 23 July 2005, was held on 18 August 2005.  Further matters came to light and a second investigatory meeting, concerning timesheets for the 6 February 2005, the 6 March 2005, 
           29 May 2005 and 17 July 2005, was held on 23 August 2005.
22.  	The first investigation concerned 13 July 2005 and 23 July 2005.  We were provided with the record of the meeting, which we accept to be a true one.   A timesheet had been submitted by the claimant for 13 July.  The claimant accepted, at the meeting, that he had arranged for another member of staff to work on that day and that he (the claimant) was not in work.  He said that he did not notice the payment for 13 July in his pay packet.  The 13 July, being a holiday, meant that the claimant was paid double time for the day.  Also, he would have been entitled to a day in lieu.  With regard to 23 July 2005, the claimant claimed 4 hours overtime.  The circumstances were that he was socialising in the bar of the club on that date.  He stated in cross-examination that he “was having a few drinks”.  One of the bar staff did not turn in.  The claimant assisted in the bar.  When asked at the investigation, he was unable to say for how long he had helped out.  Evidence was available that, at most, the claimant had helped out for 1 hour.  When asked why he claimed 4 hours the claimant said that he was available for that time.
23.  	With regard to the second disciplinary meeting, we accept that the minutes provided to us are a true record of the proceedings.  There was one of the dates, namely, 29 May 2005 when the claimant accepted that he was not in work: he was at the Hilton hotel where a golf tournament was being held.  The claimant had submitted a timesheet claiming that he was at work on that date.  Also, there was evidence that another barperson worked the same hours in respect of which the claimant had submitted timesheets for the dates in question. 
24.  	We think that we should say at this stage that, for the purposes of these proceedings, we are satisfied that the claimant completed the timesheets referred to, and we are also satisfied that he was paid by the respondents for the days claimed.
25.  	The claimant commenced employment with the respondents on 15 November 1997.  He was appointed as Bar Manager in or around September 2003 and continued to be employed in that capacity until the contract of employment ended on 5 September 2005.  The claimant had, therefore, sufficient service to bring these proceedings.
26.  	We shall now consider each of the factors which the claimant alleges led him to resign.  In considering these we have in mind, in particular, Harvey’s 3rd condition, namely, that a claimant, “…must leave in response to the breach and not for some other, unconnected reason” and what was stated by Pill LJ in the Weathersfield case.
27.	The factors that the claimant alleges compelled him to resign his employment are as follows:
(1)  	He was suspended without the authority of the club council.
(2)  	He should have been permitted to have a witness or representative present when he was suspended.
(3)	To be valid, his resignation should have been accepted by the club council.
(4)  	Mr Kelly and Mr Stevenson, who would have sat on the disciplinary hearing meeting, had already made up their minds that the claimant was guilty.
(5)  	The accusations made against the claimant were laid because he had reported a fraud being perpetrated in the club and thus could have exposed what the club was up to.
(6)	He was bullied.  This consisted of three strands, namely, that he was suspended without the authority of the governing council of the respondents, that the letter informing him of his suspension was bullying and that the respondents had insufficient reason to suspect him of the conduct alleged.
(7)	He was threatened.  This assertion was based on two matters, namely, that his membership of the club was threatened because the respondents told him to stay away from the club during his suspension and, again, as in the allegation of bullying, the respondents did not have sufficient reason to suspect him of the conduct alleged.
(8)  	Fraudulent timesheets were created by the respondents purporting to be the claimant’s.

Suspension without the authority of the Council.

28.	In respect of this, the claimant relied upon paragraph 19 of the Rules and By-Laws of the club (the Rules), the relevant part of which provides: “The council shall have control of the finances of the Club, power to engage, control and dismiss the Club employees….”.  
29.	The claimant’s contract of employment made provision for suspension on full pay in cases of “Gross Misconduct”, which included “falsification of records, including any time recording system.”
30.  	We consider that the contract of employment is the document to be considered in matters arising in respect of the employer/employee relationship.  There is no doubt that, under the contract of employment, the suspension on fully pay was an option open to the respondents
31.	The Rules embody the internal arrangements between the club members. . Employees, in that capacity, are not party to these arrangements.  The claimant was a member of the club and as such could expect the Rules to be honoured.  However, as an employee, the contract of employment governed the relationship between him and the respondents.  Mr Kelly, it was accepted, was the claimant’s immediate superior in his role as House Convenor.  It seems to us that Mr Kelly had the authority to suspend the claimant.  If he had not that authority, then he, and for that matter, other supervisors could not act promptly, as they might very well have to do at times: if they wished to suspend an employee they would have to arrange for the council to meet, which could take some time and this might not always be practicable.  

Witness or representative at the suspension meeting.

32.	On 11 August 2005, the claimant received a telephone call from Mr Kelly requesting that he meet Mr Kelly at 6.30 pm in the office on completion of his shift in the club bar.  The claimant attended the office as requested.  Mr Kelly and Mr Stevenson were present.  Mr Kelly told the claimant that he was being suspended and handed him a letter of suspension.  Whilst there is a statutory right to be accompanied at grievance and disciplinary proceedings, there is no such right to be accompanied in the circumstances appertaining in this instance.  It does not appear to us, however, that there was anything unfair, or that might have led to unfairness, in the situation under consideration.  We, therefore, reject the proposition that the claimant should have had a witness or representative present when he was suspended.   We shall, therefore, read nothing into the absence of a witness or a representative in the circumstances.

To be valid, the resignation should have been accepted by the club council.

33.	The claimant submitted a letter of resignation, dated 5 September 2005.  It was a brief letter.  It stated: “I wish to tender my resignation from [the position of Bar Manager] as from to-day, Monday, 5 September, 2005.” Mr Kelly, who was not an employee of the respondents’ but was, in his capacity of House Convenor, the claimant’s immediate superior, wrote to the claimant on the 6 September 2005 in the following terms: “We acknowledge receipt of your correspondence received on 5 September 2005, confirming your resignation with effect from 5 September 2005.  We confirm that your resignation has been accepted.”  However, the claimant asserted that it was the respondents’ governing council that should have accepted his resignation, and not Mr Kelly.  His argument was based on paragraph 19 of the Rules. The Rules are the internal arrangements made between the club members concerning the operation of the club.  We have earlier set out the relevant part of Paragraph 19.  There is nothing in that paragraph relating to the acceptance of the resignations of employees.  However, we consider that it is clear from the claimant’s resignation letter that he was terminating the contract of employment on the date mentioned in his letter and that the contractual relationship of employee and employer ended on the 5 September 2005, which was the date the letter of resignation was received by the respondents.  There was no requirement that the resignation be accepted by the council or indeed by Mr Kelly.  The claimant had brought the contract of employment to an end with his resignation.  We do not think that there is anything in the point being made by the claimant.

Mr Kelly and Mr Stevenson had already made up their minds on the claimant’s guilt.

Mr Stevenson

34.	The claimant alleged that Mr Stevenson telephoned him on 11 August 2005, which was the day the claimant was suspended, and told him that all daggers were out for him (the claimant) to try and get rid of him from the club and told him this again when he (Mr Stevenson) called at the claimant’s house the next day, 12 August 2005.  Mr Stevenson denied the allegations and he also denied that he had called at the claimant’s house on 12 August 2005.  He stated that he had played golf with the claimant on 12 August 2005 as part of a four- ball, and that the only conversation that he had with the claimant was when he greeted him then by saying something like “Hello Dinger.”  Mr Gordon Bell, the claimant’s brother, told us that he saw Mr Stevenson call at the claimant’s house on 12 August 2005.  We prefer the evidence of Mr Stevenson on this matter.  We consider that it is unlikely that Mr Stevenson, who was present when the letter of suspension was handed to the claimant by Mr Kelly, would that evening, and then the next day, tell the claimant that the daggers were out for him et cetera.  This was not a matter raised by the claimant at the two investigatory meetings, nor was any reference made to it in either the resignation letter or the Grievance letter, which the claimant sent to the respondents on 3 November 2005.  We, therefore, conclude, on balance, that Ms Stevenson did not act as was alleged.

Mr Kelly

35.	Mr Kelly told us that on 26 August 2005 (which was a date between the second disciplinary meeting and the date on which the disciplinary hearing was to have taken place) Mr Dawson had approached him and said that he felt that the claimant would be better to resign and would do so if his membership of the club was guaranteed.  Mr Kelly said that he told Mr Dawson that the membership issue was not a matter for him and also said: ”Yes, it’s messy and he [the claimant] might be better to resign.”  Mr Dawson denied that the conversation took place. We prefer Mr Kelly’s evidence and we hold that he said to Mr Dawson on 26 August 2005 that the situation was “messy” and that the claimant might be better to resign.  If the claimant had been aware of this statement made by Mr Kelly, it appears to us that the likely result would have been to cause a lack of confidence in the claimant with regard to his prospects of a fair hearing: we consider that it would have been capable of severely denting his confidence and trust in his employer.  However, we are satisfied that, had the claimant been aware of the statement, he would have mentioned it in his letter of resignation, which he did not do. Nor did he mention it in his letter of grievance.  We formed the impression in observing the claimant that he was not a person who would hold back if he had a point to make.  We are satisfied, on balance, that when the claimant resigned he was not aware of the remarks made by Mr Kelly.

The accusations against the claimant were made because he had reported a fraud being perpetrated in the club and thus could have exposed the club.

36.	Mr Smith worked in the bar of the respondents’ club on a part-time basis.  If he were to be shown in the club’s records to have earned over a certain amount, State benefits being paid to his wife would have been reduced.  It was accepted, on behalf of the respondents, that other part-time staff were recorded in timesheets as having worked some of the hours worked by Mr Smith.  The earnings were paid in cash to Mr Smith: all wages were paid in cash.  The claimant told us that he informed Mr Kelly about this practice (the practice) at least two weeks before his suspension.  Mr Kelly, on the other hand, told us that he heard about the practice from the claimant, but after the claimant had resigned.  The circumstances were, according to Mr Kelly, that after his dismissal the claimant was in the bar of the club and he was talking loudly about the practice.  Mr Kelly heard the claimant and made enquiries, which established that the practice was indeed occurring.  He immediately issued directions that it was to cease forthwith.  We prefer the evidence of Mr Kelly.  During the two disciplinary investigations, where the claimant was present and where he was represented by Mr Mc Creight, the proposition that he was being pursued because of his disclosure about the practice was not put forward.  Indeed, in cross-examination, the claimant said that he had not told Mr Mc Creight that he was being pursued because of a disclosure about the practice.  Also, in his grievance letter the claimant made no mention of the matter of being pursued because of the practice that he allegedly reported to Mr Kelly prior to the suspension.  We consider, therefore, that the matter of the disclosure was not in the claimant’s mind when he resigned. 

The letter of suspension-bullying and threatening.

37.	We are satisfied that Mr Kelly took meticulous precautions to ensure that there was material upon which he could conclude that a reasonable suspicion existed that false timesheets had been submitted by the claimant for 13 and 23 July 2005.  He made a number of checks and sought advice from the club’s personnel advisers retained by the respondents and others.  We do not consider that, in the circumstances, the issue of the suspension amounted to either threatening or bullying behaviour.  We are also satisfied that there were sufficient grounds to suspect the claimant and to invoke the suspension provisions.

It was a threat when the respondents requested that he stay away from the club.

38.	At the suspension meeting the claimant asked whether he would be permitted to attend the club as a member.  Neither Mr Kelly nor Mr Stevenson knew the answer. Mr Kelly said that he would make enquiries.  The club’s solicitors were consulted.  As a result of the advice received Mr Kelly wrote to the claimant by letter dated 12 August advising the claimant,” not to be on the Club premises during the current investigation”.  We do not think that it was unreasonable to advise the claimant in these terms.  Some of the potential witnesses were bar staff.  We have dealt with the “sufficient grounds” issue above.

Fraudulent  Timesheets.

39.	The allegation was made that the respondents’ created timesheets to implicate the claimant.  This allegation was largely based on the practice in relation to Mr Smith.  We are not satisfied that fraudulent timesheets were created to implicate the claimant.

Decision

40.	In the light of the foregoing, including the authorities to which we have referred, we hold that the claimant was not constructively dismissed.

Chairman:

Date and place of hearing: 30 and 31 March 2009, 5, 7, and 8 May 2009 and 4 June 2009, Belfast. 

Date decision recorded in register and issued to parties: