THE INDUSTRIAL TRIBUNALS

CASE REF:    313/10

CLAIMANT:	Terry Rooney-Telford

RESPONDENT:	New Look Retailers Limited

DECISION

By a majority the tribunal considered that it had no jurisdiction to entertain the claims of the claimant.

Constitution of Tribunal:

Chairman:	Ms Andrea Crooke

Members:	Mr Alan Burnside
	Ms Fiona Cummins

Appearances:

The claimant was represented by Miss McCrissican, Barrister-at-Law, instructed by Donard King and Co Solicitors.

The respondent was represented by Mr Gary Morton, Barrister-at-Law, instructed by Paris Smith LLP.

Sources of Evidence

The claimant gave evidence on her own behalf.  Miss Wendy Connolly gave evidence on behalf of the respondent.  Additionally there was an agreed bundle of papers before the tribunal.

The Claim and the Defence

The claimant claimed that she had been unfairly constructively dismissed and that her dismissal had been in itself an act of sex discrimination.  The respondent denied these claims and contended that the claimant had resigned.

Analysis of Evidence

In general where there was a conflict in evidence, the majority of the tribunal preferred the version of events given by the claimant.  The majority considered that the case for the respondent was weakened by the failure to produce Miss Nicola McDermott, who was the main moving party in the interview arising from which the claimant contended that she had been constructively dismissed.  While the majority considered Miss Wendy Connolly to be a reasonable enough witness that view extended only to the extent of this witness’s evidence.  In many instances, she contended that the running of the interview was a matter for Nicola McDermott, her Line Manager, and that she herself was not tasked to deal with certain matters.  In fact, the witness went to some pains to narrowly define her role at the interview which was central to this case.

The relevant Law

1.	The relevant law in relation to sex discrimination is found in the Sex Discrimination (Northern Ireland) Order 1976.

2.	The relevant law in relation to unfair dismissal is found at Article 127(1)(c) of the Employment Rights (Northern Ireland) Order 1996.  Additionally in relation to the jurisdictional point the tribunal considered the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.  Additionally the tribunal considered the following case law Sandhu  v  Jan De Rijk Transport Limited [2007] EWCA CIV 430 and the case of Lawrence  v H M Prison Service UKEAT/0630/06/CEA.  Sheffield  v  Oxford Controls Company Limited [1979] IRLR 133.

The facts found

1.	The claimant commenced employment with the respondent in around 4 February 2008.  She was employed as a Store Manager in its Downpatrick premises.  Her employment came to an end on 11 November 2009.

2.	On 2 November 2008 the claimant commenced maternity leave in connection with the birth of her second child.  The claimant took one year’s maternity leave and coming up to her return to work interview with the respondent, which was fixed for 11 November 2009, the claimant was very keen to return to work.

3.	The return to work meeting took place in the Downpatrick premises of the respondent and present were the claimant, Miss Wendy Connolly, her Line Manager, and Miss Nicola McDermott who was the Human Resources Manager.

4.	Previously, the claimant had raised a grievance in respect of her treatment by Miss Wendy Connolly and that grievance was dealt with by Miss Nicola McDermott.  The action taken by Miss Wendy Connolly of which the claimant complained was her behaviour at her regulatory visits with the claimant.  The claimant had received a number of “red” or unsatisfactory inspections by Miss Wendy Connolly.  She contended in her grievance that she felt intimidated by Miss Wendy Connolly.  The claimant understood that the grievance had been dealt with and the parties had moved on from that.

5.	In her evidence to the tribunal Miss Connolly did not accept that she had intimidated the claimant, and indeed pointed out that she felt very hurt and distressed as a result of this word being applied to her behaviour.

6.	On 10 November 2009 Miss Connolly had just returned to work from a holiday when she was informed that she was scheduled to attend a “back to work” meeting between Miss McDermott and the claimant.  This meeting was to take place in the Downpatrick store on Tuesday, 11 November 2009 at 11.00 a.m.  Miss Connolly duly attended the meeting but the meeting did not start promptly as Miss McDermott was late.  Upon Miss McDermott’s arrival, she took Miss Connolly through what appeared to the tribunal to be a detailed agenda of topics to be covered with the claimant.  Most importantly, the claimant was to be informed that the store had moved up very considerably in the outlet rankings of the respondent to be the number one performing store in the region, as opposed to being the twenty-second best performing store in the region.  It was one of the things that was put to the claimant and Miss Connolly made it clear that the claimant was to be informed that this was to continue.

7.	Prior to her departure on maternity leave, the claimant was, in her capacity as Store Manager, opening the store on roughly one to two mornings per week at 7.00 a.m.  On the other openings, the Deputy Manager or one of the Supervisors would have taken over this early start.  The claimant had no difficulty in working late nights or at weekends because her husband was able to take care of her existing child.

8.	It was therefore a considerable shock to the claimant that she was led to believe by Miss McDermott that the company had introduced a new basis of working called “zero based” hours.  According to Miss McDermott this would mean that the claimant would have to open up the store in or around 7.00 a.m. (in the claimant’s version of events) (7.30 a.m. in the respondent’s version of events) on every day of the week as well as working late nights and weekends.  They also told her that her Deputy Manager was now working part-time and as such that would mean that more responsibility would fall on her shoulders.  Although there was a conflict in the evidence between the parties as to what topics exactly were covered in this meeting, the tribunal does not consider it necessary to make a finding on this point.  The relevant issue was the alleged amendment to the hours.  The claimant indicated that she could not manage an early start every day due to childminding issues.  She could manage what she previously achieved which was an average of one to two early starts per week.  Miss Connolly’s evidence was that claimant was not being required to work to cover every early start in the week.  In fact, she would have been required to do only what she did before  -  an average of one to two early starts per week.  When asked by the tribunal whether she had intervened to correct the claimant’s misapprehension about the hours, Miss Connolly indicated that she did not.  From this the tribunal is supported in drawing the inference that it is more likely than not, on the balance of probabilities, that the claimant was given to believe by Miss McDermott that she would be required to cover every early start.

9.	The tribunal noted that the claimant was not given any time to think about her situation.  Miss McDermott made it plain that they had no position for the claimant (being fully recruited).  Accordingly the claimant was asked if she wished to resign, handed a piece of paper, and told what to write.  The claimant was not told to see if she could make alternative arrangements. In the evidence given to the tribunal by Miss Connolly, emphasis was put on the provision of employer’s handbook of her contract of employment which allowed her to apply for flexible working hours.  This was not drawn to the attention of the claimant by Miss Connolly or Miss McDermott.

10.	The claimant was escorted back to the sales floor by Miss Nicola McDermott.  Miss Nicola McDermott told the claimant to “keep in touch” with her rather than going through Head Office about any matter.  The claimant subsequently applied for benefits and was told that she could not receive them.  She was asked to provide a letter from her employer stating that they could not accommodate her requirement for flexible working hours.  When the letter eventually was provided by the respondent the reason for her leaving was described as a “non return from maternity leave”.

11.	The claimant did not enter any written grievance about the way she had been treated by Miss McDermott and Miss Connolly in that she considered they had coerced her into resigning.  The claimant’s claim to the tribunal was received on 5 February 2010.

The Jurisdiction Issue  -  The Majority Decision

12.	On behalf of the respondent, Mr Morton submitted that the tribunal did not have jurisdiction to consider the claims of the claimant as she had failed to send a written grievance to her employer before she entered her claim in the industrial tribunal.  He contended that the word “dismissed” has the meaning given to it in Article 127(1)(a) and (b) of the Employment Rights (Northern Ireland) Order 1996 and that this did not include constructive dismissal.  By virtue of Regulation 6(1) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, the Grievance Procedures apply to any grievance about action by the employer that could form the basis of a complaint by an employee to a tribunal under any of the jurisdictions listed in Schedule 2 or 3 which include both Sex Discrimination and Constructive Dismissal.  The majority accepted this view of the law, and did not accept that it was not reasonably practicable to put in a grievance.  Just because a claimant thinks there is no point in doing something does not render it not reasonably practicable to do it.  Whilst the majority accepted that the claimant had an unhappy prior relationship with Miss Connolly, it found no credible evidence that Miss Connolly and Miss McDermott intended to dismiss her.  As there was no written grievance, the tribunal has no jurisdiction to hear the complaint of the claimant.

The Jurisdiction Issue  -  The Minority Decision

13.	In reaching the decision that the claimant was dismissed rather than resigning the minority has had reference to the case of East Sussex County Council  v  Walker (1972) (IITR 280) which was one of the authorities cited in the case of Sandhu  v  Jan De Rijk Transport Limited.  Whilst it is accepted that this is a case under the Redundancy Payments Act of 1965 it has still been found to be a helpful authority:-

	“In our judgement, if an employee is told that she is not longer required in her employment and is expressly invited to resign, a Court of Law is entitled to come to the conclusion that, as a matter of common sense, the employee was dismissed.  Suppose that the employer says to the employee, “Your job is finished.  I will give you the opportunity to resign.  If you don’t, you will be sacked”.  How, we would ask, is it possible to reach a conclusion other than that the employment is being terminated by the employer, even though the employee takes the first and more respectable alternative of signing a letter of resignation rather than being the recipient of a letter of dismissal?  We feel that in such circumstances there can be no other conclusion than the employer terminated the contract”.

	The minority has also received guidance from the words of Arnold J in the case of Sheffield  v Oxford Controls Company Limited [1979] IRLR 133 at paragraph 20.

	“We find the principle to be one of causation.  In cases such as that which we have just hypothesised, and those reported, the causation is the threat.  It is the existence of the threat which causes the employee to be willing to sign, and to sign, a resignation letter or to be willing to give, and to give, the oral resignation.  But where that willingness is brought about by other considerations and the actual causation of the resignation is no longer the threat which has been made but is the state of mind of the resigning employee, that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to him, then we think there is no room for the principle to be derived from the decided cases.  In such a case he resigns because he is willing to resign as a result of being offered terms which are to him satisfactory terms on which to resign he is no longer impelled or compelled by the threat of dismissal to resign, but a new matter has come into the history, that namely that he has been brought into a condition of mind in which the threat is no longer the operative factor of his decision;”

Obviously, the factual matrix of each of these cases is in no way on all fours with the facts pertaining in the present case.  However in the East Sussex County Council case the court concluded if an employee is told that she is not longer required in her employment and is expressly invited to resign, a court can conclude that the employee was dismissed.  Is this not what happened here?  The new terms of employment were misrepresented to the claimant.  Nothing was done to correct her misapprehension.  Nothing was done to encourage her to see any way round the perceived problem.

In the Sheffield case the situation involved a claimant who was willing to resign because he had negotiated satisfactory terms and that was the reason for his resignation.  Plainly this is not the case here.  The claimant wanted to return to work.  The test “what caused the claimant to leave?” is a good way of moving to the heart of the issue.  The minority finds that the claimant at her back to work interview was faced with a substantial change to her existing terms and conditions of employment with which she could not comply.  There was no alternatives given to her and thus that her resignation was not voluntary.  Effectively she was dismissed by the conduct of Miss McDermott and by the conduct of Miss Connolly in failing to reason with the claimant and correct her obvious misconception.

14.	Having considered that the employer dismissed the claimant the minority finds that pursuant to Regulation 6(5) neither of the grievance procedures apply where the grievance is that “the employer has dismissed or is contemplating dismissing the employee.”  In this case the minority considered that the employee was clearly dismissed by the conduct of Miss Connolly and Miss McDermott.  The minority has also had regard to Regulation 6(4) which states:-

		“Neither of the grievance procedures apply where:-

		(a)	the employee has ceased to be employed by the employer; (as here)

		(b)	neither procedure has been commenced (as here); and

		(c)	since the employee ceased to be employed it has ceased to be 
reasonably practicable for him to comply with paragraph 6 or 9 of Schedule 1.”

15.	The claimant was particularly strong in her evidence on the issue of why she did not put in a grievance.  She considered that there would simply have been no point.  While she did not appeal the outcome of her previous grievance, the majority finds that this was because she was trying to make a success of her new employment and did not want to further alienate her line manager, rather than being happy with the outcome.

16.	Effectively while there was nothing to stop the claimant entering her grievance, she simply considered there was no point.  Accordingly the minority considers that it would not have been reasonably practicable for her to enter a grievance.

17.	The minority considered the effects which the back to work interview as it played out have had upon this claimant.  We noted in the interview that she was so shocked that she wrote her own name incorrectly on her resignation letter describing herself as “Terry Telford-Rooney” instead of Terry Rooney-Telford.  Furthermore, she was affected by the behaviour of the company after she left the back to work interview.  She was told to raise any queries or needs with Miss Nicola McDermott.  The claimant did this and Miss Nicola McDermott avoided her for a time and then eventually told her that she would have to go to head office for anything she required.  Most seriously the loss of her job led to the breakdown of the claimant’s marriage.  There was considerable friction in the family and the claimant has separated from her husband a number of times.  Lastly the claimant was eventually diagnosed with clinical depression in February 2010.  This was a combination of the initial descent into illness of the claimant within two weeks of the interview, the friction in the family over financial pressures leading to her husband leaving the family in around Christmas 2009.  The claimant said that she had felt that she had let everybody down and initially had contemplated suicide.  When a person has been so seriously adversely affected by behaviour of her former employer, the majority did not consider that it would have been reasonably practicable for this employee to have complied with the requirement to put a grievance in to her employer before issuing proceedings.  As a result of the foregoing, the minority considers that it has jurisdiction to entertain the claims of the claimant in respect of sex discrimination and unfair constructive dismissal.

	

Chairman:

Date and place of hearing:    23 - 26 August 2010, Belfast.

Date decision recorded in register and issued to parties: