THE INDUSTRIAL TRIBUNALS

CASE REF:	2349/12

CLAIMANT:			Elizabeth Coyle

RESPONDENT:		William McCrudden and Erin McCrudden
t/a Culmore Centra

DECISION 
The decision of the tribunal is that the claimant’s claims are dismissed.

Constitution of Tribunal:
Chairman:		Mrs Ó Murray
Members:		Mr A Ebrahim
			Mr J Kinnear

Appearances:
The claimant was represented by Mr J Williamson, Barrister-at-Law, instructed by  McKeone McGilloway Solicitors.

The respondent was represented by Mr E Foster, Barrister-at-Law, instructed by  Quigley, Grant & Kyle Solicitors.

1.	At the outset at the hearing, by agreement, the title of the respondent was amended to substitute William and Erin McCrudden t/a Culmore Centra.  Mr Charlie McCrudden was removed as a respondent by consent and the claim against him was therefore dismissed at the hearing.

The Claim

2.	The claimant claimed unfair dismissal in the form of constructive dismissal in that she alleged that she resigned following a series of events culminating in a last straw event.

The Issues

3.	The issues for the tribunal were therefore as follows:

	(1)	Whether the following three events taken together constituted a breach of the implied term of trust and confidence.  The three events in issue were: the failure of the respondent to provide a copy of the claimant’s terms and conditions of employment quickly enough in 2010 when requested; an alleged comment by Mr McCrudden on 13 April 2012 which led the claimant to believe that she was being accused of stealing; the suspension from work of the claimant on 18 May 2012 when she was off sick;

	(2)	Whether the claimant resigned in response to the breach of contract;

	(3)	Whether the claimant delayed too long in resigning and thereby was deemed to have waived any breach of contract.

Sources of Evidence

4.	The tribunal had oral evidence from the claimant on her own behalf.  For the respondent the tribunal had oral evidence from Mr William McCrudden, Ms Charlene McCrudden and Mr Paul McDaid.  The tribunal had regard to the documentation to which it was referred together with the claim and response forms.

The Law

5.	The case of Western Excavating – v-  Sharp Limited 1978 IRLR 27 outlines the four key elements of constructive dismissal which the claimant must prove as follows: -

(i) 	there must be a breach of contract by the employer;

(ii) 	the breach must be sufficiently serious to justify the employee resigning;

(iii) 	the claimant must leave in response to the breach and not for some other unconnected reason; and

(iv) 	the employee must not delay too long in terminating the contract in response to the employer’s breach as otherwise she may be deemed to have waived the breach of contract. 

6.	As regards the delay point there is no fixed time within which an employee must make up her mind to resign in response to a breach of contract; the surrounding circumstances are key.

7.	Under the “last straw” principle, an employee can be justified in resigning following a relatively minor event if it is the last in a series of acts, one or more of which, amounted to a breach of contract, and cumulatively the acts amounted to a sufficiently serious breach of contract to warrant resignation amounting to dismissal.  

8.	The case of Malik [1997] 3 All ER 1 confirms that there is an implied term in the employment contract that the employer will not conduct itself in a manner likely to damage the relationship of trust and confidence between the employer and the employee.  If the employer breaches that term, it can amount to repudiation of the contract.

9.	Mr Williamson referred us to the following authorities:

	(1)	Crawford and Another v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138 Court of Appeal.  Mr Justice Elias in a “footnote” to the decision outlined his concerns about the use of suspension in misconduct cases.  Essentially his view was that, if suspension is used as a “kneejerk” reaction it would be a breach of the duty of trust and confidence towards the employee.  Mr Williamson accepted that the comments were obiter dictum and are thus not binding authority on the use of suspensions.  For the reasons set out below we do not find the suspension to have amounted, of itself, to a breach of the implied duty of trust and confidence.  

	(2)	Morrow v Safeway Stores plc [2002] IRLR89 EAT.  The EAT decided in this case that if a finding of a breach of the duty of trust and confidence is found to have occurred it will inevitably mean that there has been a fundamental or repudiatory breach going to the root of the contract.  

Findings of Fact and Conclusions

10.	The tribunal found the following facts on a balance of probabilities.  The tribunal applied the law to the facts found to reach the following conclusions.

11.	The claimant was employed as a Sales Assistant and Nightshift Supervisor until her resignation in August 2012 which took effect as at 31 August 2012.  

12.	The respondent’s business was a Centra Store which was a family business employing approximately 30 staff.  

13.	It was common case that the claimant had a very friendly relationship with the family who run the business and it was uncontested evidence that the respondents’ family provided support to the claimant during a difficult period in her life.

Event in 2010

14.	The first event relied upon by the claimant in support of her case occurred in 2010 when the claimant asked William McCrudden for a copy of her terms and conditions of employment to check whether she would be entitled to a bonus following a visit from the mystery shopper.  The height of the claimant’s case on this point was that there was some delay in giving her a copy of her contract.

15.	It was common case that the claimant had a copy of her contract for a period leading up to her signing the contract on 8 June 2010.  It was also common case that the claimant did get a copy of her contract following her request and that any issue that was raised about the mystery shopper bonus was resolved.

16.	The claimant made no complaint and raised no issue about the delay in giving her sight of her contract until she raised a grievance in May 2012 (some two years later) following her suspension from work.  

17.	We do not regard the short delay in giving a further copy of the claimant’s contract to her as constituting a breach of contract warranting her resignation in 2012.  We do not find this incident to form part of a series of events which might together amount to a breach of contract, given the lengthy gap between the event in 2010 and the resignation.  The event in 2010 was also of a different character to the other matters which allegedly led to the resignation.  For the above reasons we do not find that this event contributed to any alleged breach of contract when the claimant decided to resign.

Incident 13 April 2012

18.	The second event relied upon by the claimant related to an incident on 13 April 2012 which occurred in the shop when the claimant was working.  

19.	It was common case that a conversation was initiated by a longstanding customer whom the claimant knew well and with whom she was on friendly terms.  It was agreed that the customer made a comment to Mr McCrudden.

20.	The claimant’s account was expressed in her grievance letter of 21 May 2012 as follows:

	“Whilst engaged in my work activity I overheard [Mr C] say to Mr McCrudden that he must be paying very good wages when an employee (myself) has a BMW car.  Mr McCrudden replied that it must be because his wages were too high, or that I was stealing from him one or the other.  As Mr McCrudden is responsible for wage rates then he obviously was inferring that I was a thief.”

21.	The claimant characterised this incident as follows;  “…this behaviour of 
Mr McCrudden strikes at the very heart of my contract with Centra and has undermined that essential mutual trust and confidence…”.

22.	Mr McCrudden denied that he had said that the claimant must be stealing from him.  Mr McCrudden did however agree that he had laughed along with the customer, and appeared to agree with him.  The claimant’s letter states the following in relation to the comments issue:

	“Mr McCrudden has acknowledged that he entered into a conversation initiated by the customer regarding rates of pay and modes of transport driven by staff.  On reflection he assumed that the comments were made in jest but now accepts that he caused offence and to this end he would like to apologise personally for any offence caused.”

23.     Mr McCrudden’s evidence to us was that he had no idea that the claimant was annoyed and thought no more about it until it was part of the grievance a month later in May after the claimant had been suspended from work.  

24.	We found Mr McCrudden to be a truthful witness who gave his evidence in a measured and consistent way.  

25.	Unfortunately we had misgivings about the reliability of the claimant’s evidence and, as a result, we find that she has not proved to our satisfaction that this event occurred as she described it.  If the comment had been made as described by the claimant, we cannot understand why she did not complain or raise the issue at the time.  From our assessment of the claimant, we find that, if she had really been accused of stealing as she described, she would have said something, especially given that she was on very friendly terms with Mr McCrudden’s parents and sister.

26.	We therefore accept Mr McCrudden’s account of events and accept that he attached little significance to the incident as it was following an exchange of banter between the claimant and a customer and, at worst, he was agreeing with sentiments expressed in jest by the customer.  We therefore do not find this event to amount to a breach of contract nor do we find that it contributed to any alleged breach of contract.

27.	Mr McCrudden believed that an apology was contained in the letter of the 4 June 2012 whereas the claimant expected him to apologise to her when she returned to work.  We accept that the claimant reasonably believed that Mr McCrudden would apologise to her personally when she returned to work.  

28.	When the claimant returned to work on 11 June 2012 no apology was forthcoming and indeed the incident was not mentioned.   We find that the strength of the claimant’s complaint about the incident in her grievance of 21 May 2012, was at odds with her failure to raise the issue at all until she was suspended from work.   We find that the claimant blew out of proportion a relatively trivial matter and, in this context, the lack of personal apology was not nearly as important to the claimant as she alleged in these proceedings.

Suspension 18 May 2012

29.	The third event relied upon by the claimant was her suspension on 18 May 2012.  

30.	It was common case that the respondents’ policy was, that, if an employee was sick, she had to ring in before the shift started to tell her manager and the obligation was on the employee to organise cover for the shift.  If the employee could not organise cover she had to come in to cover the shift if the respondent could not get cover.  

31.	The claimant had a severe migraine late at night and realised that she would be unlikely to be fit to work her early shift the next morning.  She therefore texted a colleague, whom she knew would be starting on the early shift, and asked her to tell the manager that she could not come in.

32.	Charlene McCrudden was the manager on duty early the next morning and she made various attempts to contact the claimant without success.  She then contacted her brother William who was on holiday and he told her to suspend the claimant from duty pending his return from holiday when he would be back at work within the following day or two.  His concern was that the claimant had not complied with their policy which was that the employee had to contact a manager.

33.	The claimant was then suspended by text message pending disciplinary action for failure to follow company policy in relation to taking sick leave.  

The Grievance

34.	The claimant sent her letter of grievance of 21 May 2012 and this was when she first raised the complaints of failure to obtain her terms and conditions and her complaint about the alleged comment on 13 April 2012.  

35.	Mr McCrudden took advice from the HR Department of Musgrave (the company associated with the Centra brand) and, as a result, rang the claimant on 22 May 2012 to ask her to come back to work the next day to resolve the issue.  The claimant’s response was that she would not return to work as she had taken legal advice and would not be coming back.  The claimant continued to be suspended on full pay until the grievance could be dealt with and no disciplinary action was pursued against the claimant.

36.	A meeting took place on 1 June 2012 to deal with the claimant’s grievance and the response to the grievance was sent by letter of 4 June 2012 from Musgrave on behalf of Mr McCrudden.

37.	The outcome letter of 4 June 2012 refers to the issue of suspension stating as follows:

	“On reflection Mr McCrudden believes his action to suspend was disproportionate and would like to extend his apologies for any upset caused.  He would like to welcome you back and hopes that this apology will go some way to rebuilding your working relationship.”

Resignation

38.	The claimant gave two reasons to the tribunal for her resignation namely: firstly, that Mr McCrudden failed to apologise for the comments and, secondly, that there was not a friendly working environment at work.  The claimant’s case was that she waited from 11 June to 22 June to see if things would improve and that this was the reason she went off with work-related stress on 22 June 2012 as things did not improve.

39.	The claimant’s evidence was that she went off sick on 22 June 2012 because she had had a panic attack in work.  The panic attack occurred on Wednesday 20 June and the manager that day offered to the claimant that she could go home early, that is, two to three hours before the end of her shift.   The claimant however refused to do so and came in to work the next day and the following day.  She then went off with work-related stress after a visit to her doctor on the Friday.  

40.	In evidence the claimant said that her grievance was against the whole McCrudden family. Despite this alleged antipathy towards the whole family, the claimant attended a meeting on 31 July 2012 which she knew would only be with Charlene McCrudden.  The purpose of the meeting was for Miss McCrudden to try to resolve outstanding issues that the claimant had but Miss McCrudden stopped the meeting when it became apparent that the grievance was against her whole family.  We find that the attendance of the claimant at this meeting and the delay in going off sick in June, are at odds with her allegation that the relationship with the family had broken down.

41.	There was no contact between the claimant and respondent between 31 July 2012 and her letter of resignation which was sent on 24 August 2012 giving one week’s notice.  The resignation took effect on 31 August 2012.

42.	We do not accept the claimant’s evidence that there was such a poor atmosphere when she returned to work.  The claimant said that she was expecting a relaxed manner at work and her particular problem was with Mr William McCrudden and his failure to apologise for the comments.

43.	Mr McCrudden came across to us as a very straightforward, hard-working individual who was not effusive and did not socialise with his workers but treated everyone in a business-like fashion.  We accept his evidence that he did not treat the claimant any differently to the way that he had treated her before.  He had admitted that he had wrongly suspended the claimant and apologised for this in the letter of 4 June 2012 and he reasonably thought that the matter was over and that they could move forward in a business-like way.

44.	The fact that he did not make an actual verbal apology for agreeing with the comments of the customer, in circumstances where there was no apparent offence taken by the claimant at the time, was not a sufficiently grave matter to justify the claimant walking out on her job several months later.

45.	In addition, we do not find the suspension, of itself, to constitute a breach of contract in the circumstances of this case where Mr McCrudden rang the claimant shortly after his return from holiday to ask her to come back to work to resolve matters and he had conveyed an apology for the suspension in the letter of 4 June 2012.

46.	We also do not find the combination of these two events to be sufficiently serious to amount cumulatively to a breach of the implied term of trust and confidence in the employment contract.

47.     The claimant has therefore failed to prove that a breach of contract led her to resign.

Delay issue

48.	The last straw relied upon by the claimant was the suspension on 18 June 2012.  It was the respondent’s case that the claimant delayed too long in tendering her resignation.  

49.	The claimant was suspended on 18 May, raised her grievance on 21 May and the outcome letter relating to the grievance was 4 June.  The claimant went back to work on 11 June and went off sick on 22 June.  Even if the claimant was giving a chance to the respondent to improve the alleged atmosphere, that does not explain why she attended the meeting on 31 July and does not explain the gap between 31 July and the letter of resignation of 24 August 2012.

50.	The only evidence in tribunal from the claimant relating to the delay between 31 July and the resignation was that she could not go to work having been treated the way she had been.  Indeed in the letter of resignation the claimant states:

	“The treatment which I have received since I lodged my grievance has made my position untenable and I feel that this has been the last straw.”

51.	We find that the claimant did indeed delay too long and is therefore deemed to have waived any breach of contract.

Summary

52.	We find that the claimant has not established a sufficiently serious breach of contract nor has she established a series of events culminating in a last straw amounting to a breach of contract.  

53.     Even if there had been a breach of contract, the claimant delayed too long in resigning and is therefore deemed to have waived any such breach.

54.	The claimant has failed to prove that she was dismissed and her claim of unfair dismissal therefore fails in its entirety.

Chairman:

Date and place of hearing:  30 April 2013 and 1 May 2013, Belfast.		

Date decision recorded in register and issued to parties: