THE INDUSTRIAL TRIBUNALS

CASE REF:     2454/10
2518/10

CLAIMANT:	Mary Rodgers       

RESPONDENT:	SHG (NI) Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and is entitled to compensation in the sum of £2,494.71.

Constitution of Tribunal:

Chairman:	Mr P Kinney

Members:	Mr J Hughes
	Mr J Kinnear

Appearances:

The claimant was represented by Mr Richards, Barrister-at-Law, instructed by McLaughlin and Company Solicitors.

The respondent was represented by Mr Hamill, Barrister-at-Law, instructed by Worthingtons Solicitors.

ISSUES

1.	The claimant claims that she was unfairly dismissed.  She did not have 12 months service with the respondent and believes that the reason or main reason for her dismissal was the making of protected disclosures.  The respondent contends the claimant was not dismissed but resigned.

FINDINGS OF FACT

2.	The claimant commenced work for the respondent in April 2010 as a Childcare Assistant.  She was assisting in providing afterschool care for primary school age children.

3.	On 15 September 2010 a Social Worker made an unannounced inspection at the respondent’s premises where the claimant worked and arranged a return visit on 21 September 2010.  On the day of the second inspection the claimant spoke to the Social Worker, Ms Annett.  The claimant told Ms Annett that she had concerns regarding the care of the children and felt that normal routines had been changed because of the inspection.  She raised two specific concerns:-

	(a)	Children were only normally using one toilet in the facility.

	(b)	There were not sufficient staff to children ratios.

	Both these matters come within the statutory scheme of registration under the Childrens (NI) Order 1995.

4.	There should be one toilet available for every 10 children.  There were 30 children registered at the unit.  Although there were three toilets available, Ms Annett observed that the staff were unable to access toilets and only used one toilet.  Ms Annett also observed that although the staff to children ratios were sufficient on the day of the inspection, she was aware an additional member of staff had been brought in on that day and two children had been moved out of the group.  Ms Annett asked the claimant if she had brought these issues to the attention of her manager.  The claimant said that she had raised it with her Line Manager but felt she could not speak to the area manager, Ms Henry or to the Director, Ms Koplewski, as the claimant felt the problems lay with them.

5.	After Ms Annette left the respondent’s premises, the claimant was called into the kitchen by Ms Henry who asked what conversation had taken place between the claimant and Ms Annette.  The claimant told Ms Henry that she had raised concerns but the claimant refused to identify the concerns raised saying that her conversation with the Social Worker was confidential.  The claimant said she had spoken regularly to her Line Manager and another Manager about her concerns.  There was then a conflict of evidence.  Ms Henry said that the claimant said that it did not matter anyway because she was leaving.  Ms Henry replied to the claimant that if that is how she felt that was fine then.  Ms Henry asked the claimant if there was anything else she would like to add and the claimant said no.  Ms Henry said that was fine and they would leave it at that as the claimant was leaving.  The claimant however says when she was asked if she was leaving she replied no.  The claimant told Ms Henry that she was not happy and she would not be staying at the respondent’s premises but was looking for other work.  Ms Henry replied “that’s fine” to that comment.

6.	The tribunal, having heard the evidence of both the claimant and Ms Henry, has determined on the balance of probability that it prefers the evidence of the claimant on this matter.  The focus of Ms Henry’s concerns at the time was the content of the conversation between the claimant and Ms Annett.  Ms Henry felt frustrated and alarmed.  It was an emotional meeting.  Ms Henry said the claimant said she was leaving.  In cross-examination Ms Henry said she took it the claimant was leaving and not coming back.  However no steps were then taken to clarify the position or give effect to a purported resignation.  The claimant did not leave immediately but instead went back to work.  The tribunal considered that the claimant’s version of the conversation was more consistent with subsequent events.

7.	The claimant returned to her duties.  She told her colleagues that Ms Henry was not happy with her.  Shortly afterwards, Ms Henry called the claimant over and asked her if she wanted to go on.  The claimant understood this to mean go home.  It was about 20 minutes before the end of the working day.  Before leaving, the claimant asked a colleague for contact information about another colleague.  In her evidence she explained that she intended to return to work but from Ms Henry’s reaction she did not know what the consequences of her own actions might be.

8.	The claimant spoke to a friend and to her husband that night.  The following morning she telephoned Ms Annett who was not available.  The claimant spoke to another Social Worker who advised her to go back to work and speak to her employers.  The claimant returned to work the following day.  Her colleagues appeared surprised to see her.  When Ms Henry saw the claimant she asked to speak to her.  Ms Henry asked the claimant what she was doing and the claimant replied that she was there to do her shift.  Ms Henry told the claimant that she had resigned the previous evening.  The claimant denied resigning.  Ms Henry then made a telephone call and returned to the claimant.  She said she had spoken to Ms Koplewski.  There was an ongoing investigation into the allegation that the claimant was making.  Ms Koplewski had said that the claimant could not remain on the premises.  Ms Henry told the claimant she would be placed on paid leave until Ms Koplewski had sorted things out.

9.	The claimant left and then received a telephone call from Ms Koplewski.  The claimant asked if she had been sacked.  Ms Koplewski said there was an investigation pending and the claimant was put on paid leave.  The claimant made a note of this conversation at that time as a contemporaneous record.

10.	A series of e-mails between Ms Koplewski and the claimant then ensued.  In the 
e-mails on 23 September 2010 Ms Koplewski alleged that the claimant had told Ms Henry that she wanted to leave.  Ms Koplewski said the claimant was also telling colleagues she was leaving.  Ms Koplewski said the claimant had resigned and walked out.  She said the claimant had repeated to Ms Henry the following day that she wanted to leave.  Ms Koplewski confirmed that the respondent’s whistle blowing policy allowed staff to raise concerns directly to social services and that the respondent had absolutely no objection to that.  She said that the respondent’s stance was that the claimant had told Ms Henry on two occasions that she did not wish to work for the respondent and:-

	“We will therefore be accepting your resignation with immediate effect.  We certainly would not wish to have anyone who feels so strongly about our organisation that they would not put it on their CV, remain in our employment.”

	The claimant e-mailed back to Ms Koplewski on the same evening denying that she had resigned and a further exchange of e-mails simply reinforced the parties’ positions.

	The claimant’s Line Manager, Mr McCann, said that he recalled the claimant smiling after she had spoken to the Social Worker and saying that she was leaving.  However, this reference to the claimant’s comments about leaving was not referred to in a contemporaneous handwritten note of the afternoon’s events made by Mr McCann and only appeared in a subsequent typed note.  Mr McCann could not explain why it was omitted from the first note.

11.	A work colleague, Andrea McCann, also said the claimant told her that she was leaving.  However, Ms McCann did not know what to make of the remark and the following day was still not sure of the claimant’s employment status.

THE LAW

12.	An employee has a right not to be unfairly dismissed.  Under the provisions of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order) the statutory protection from unfair dismissal is normally engaged only after an employee has worked for an employer for at least 12 months.  However, by Article 134A the need for a period of service does not apply where the employee is dismissed and the reason or principal reason for the dismissal is that the employee made a protected disclosure.

13.	The provisions regarding protected disclosure are contained in Part VA of the 1996 Order.  Qualifying disclosures under Article 67B include that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, or that the health or safety or any individual has been, is being, or is likely to be endangered.  A qualifying disclosure is made to an employer or other responsible person.  Under Article 67C(2) a worker who in accordance with the procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of the part as making the qualifying disclosure to the employer.  A disclosure must be made in good faith, the burden of showing bad faith rests on the employer.

14.	Termination of employment by an employee is known as resignation and may be with or without notice.  There are no formal requirements for resignation but it must be communicated to the employer either orally, in writing or by conduct.  It is not therefore strictly necessary for the employee clearly to state her intention to resign as this may be inferred from her conduct in the surrounding circumstances.  It may be sufficient for an employee to walk out and fail to return to work.  There is no need for an employer to accept resignation.  Harvey on Industrial Relations and Employment Law, Division D1 at paragraph 229 considers where there is ambiguous language.  The intention of the speaker is not the relevant test.  If the words used by the speaker are ambiguous the test is how her words would have been understood by a reasonable listener.  The test is objective rather than subjective and the question of whether or not there has been a dismissal or resignation must be considered in the light of all the surrounding circumstances.

TRIBUNAL’S CONCLUSIONS

15.	The core issue for the tribunal to determine is whether the claimant resigned or was dismissed.  Based on the facts established from the evidence we have heard, the tribunal has determined that the claimant did not resign.  The tribunal reached this conclusion for the following reasons:-

	(a)	The language used by both the claimant and the respondent was ambiguous.  At its height the terminology was of the claimant leaving.  However, on the facts as found, when asked expressly by Ms Henry if the claimant intended to leave, she said no.  The claimant also was never asked to clarify her position nor was she ever expressly asked if she intended to resign.

	(b)	The claimant did not leave the work immediately but only later that afternoon, when Ms Henry told her she was free to go.

	(c)	The claimant returned to work as usual the next day, albeit she had concerns or misgivings about the intentions of the respondent.

	(d)	There were inconsistencies in the evidence of Mr McCann on the contemporaneous documents.

	(e)	The respondent never discussed or raised any consequences of resignation with the claimant such as contractual entitlement, notice periods or otherwise.

	(f)	The main focus of the respondent from 21 to 23 September was on the exact nature of the claimant’s comments to the Social Worker, not on the language used on 21 September by the claimant.

	(g)	The respondent placed the claimant on paid leave after apparently accepting her resignation.

	(h)	In subsequent e-mails on 23 September 2010 Ms Koplewski purported to accept the claimant’s resignation with immediate effect having already apparently accepted that resignation two days previously.

PROTECTED DISCLOSURE

16.	The tribunal is satisfied that the disclosure made by the claimant to Ms Annett was a protected disclosure.  The respondent has accepted that it was appropriate for the claimant to make disclosures to Ms Annett.  The disclosures related to statutory obligations on the part of the respondent related to health and safety concerns.  Whilst the respondent contended that there was no actual breach of its obligations the claimant’s belief was objectively reasonable and supported by the evidence of Ms Annett, the Social Worker.  The tribunal is satisfied the disclosure was made in good faith and indeed neither Ms Henry nor Ms Koplewski challenged this when put to them on cross-examination.

COMPENSATION

17.	The respondents did not follow the appropriate statutory disciplinary dismissal procedure.  Under Article 154(1)a the basic award is a minimum of four weeks gross pay.  The claimant’s gross pay is £130.63 per week making a total basic award of £522.52.

18.	The claimant accepted that her compensatory award was limited to the period from her dismissal to 2 December 2010.  This is a period of 10 weeks.  The claimant’s compensatory award is based on her net pay of £128.63 per week making a total compensatory award of £1,286.30.  The claimant is also entitled to £300.00 for her loss of statutory rights.  Under the provisions of the Employment (Northern Ireland) Order 2003 where the employer has failed to complete the relevant dismissal or disciplinary procedures tribunals in appropriate circumstances should increase the compensatory award by at least 10% and up to a maximum of 50%.  The adjustment applies to the compensatory award.  The tribunal did not consider that the uplift should be at either the lower end of the scale, as there has been a complete failure to apply any of the procedures, nor is it appropriate at the upper end of the scale as there are circumstances which mitigate the blame worthiness of the failure to comply.  The tribunal has also taken into account the overall level of compensation when considering the appropriate adjustment to make.  The tribunal has determined that the appropriate level of adjustment in this case should be 30%, increasing the compensatory award by £385.89.  The total award therefore of compensation to the claimant is £2,494.71.

19.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:	31 March to 1 April 2011, Belfast.

Date decision recorded in register and issued to parties: