THE INDUSTRIAL TRIBUNALS

CASE REF:	282/17

CLAIMANT:			Diane Rice

RESPONDENT:		Dignity Funerals Limited

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

Constitution of Tribunal:
Employment Judge:	Employment Judge Murray	
Members:			Mr T Carlin
				Mrs M O’Kane
Appearances:
The claimant was represented by Ms E McIlveen, Barrister-at-Law instructed by Sheena Murphy Solicitors.
The respondent was represented by Ms G Roberts, Barrister-at-Law instructed by Mr Rea, Legal Counsel of the respondent company.

THE CLAIM

1.	The claimant’s claim was for unfair dismissal in the form of constructive dismissal and for a failure to pay holiday pay.  The claimant also claimed sex discrimination on the grounds of her gender and marital status in the form of alleged adverse treatment over a period culminating in constructive dismissal which was also alleged to have been an act of discrimination.

THE ISSUES

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

	(1)	Was the content of a meeting of 6 May 2016 (“the Scottish meeting”) between the claimant’s husband and Mr Studd, (which was covertly recorded by the claimant’s husband) covered by without prejudice privilege?

	(2)	Did the claimant resign or was there a repudiatory breach of contract by the respondent and was the claimant therefore constructively dismissed?

	(3)	Was any dismissal unfair and/or an act of sex discrimination?

(4)	Was the claimant subjected to detrimental treatment on grounds of her gender and/or marital status?

SOURCES OF EVIDENCE

3.	The tribunal had written and oral evidence from the claimant on her own behalf.  The tribunal also had written and oral evidence from the following witnesses for the respondent: 

(1)	Mrs Skelton, who interviewed the claimant as part of an investigation into matters which concerned the claimant’s husband; 

(2)	Ms Davidson who was the Grievance Officer; 

(3)	Ms Cooke who was the Grievance Appeals Officer.  

THE LAW

4.	The law in relation to without prejudice privilege is outlined in the David Rice decision.  (Case Reference 2651/16).  In addition the parties referred to Rushe  v  Tompkins and Chindove (EAT).  Ms Roberts referred to an extract from a text book entitled ‘Privilege’, (Third Edition) by Colin Passmore.

5.	The parties also referred to the case of Omilaju  v  Waltham Forest London Borough Council [2005] IRLR 35.

6.	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. 

7.	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.

8.	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. (Omilaju). 

9.	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.

10.	Detriment is determined using the Shamoon test which is whether a reasonable worker would or might take the view in all the circumstances that the treatment was to the claimant’s detriment in the sense of being disadvantaged.

11.	The Sex Discrimination (Northern Ireland) Order 1976 (as amended) renders various types of sex discrimination unlawful.  At Article 3 the provisions on direct sex discrimination are set out; at Article 5 the provisions are set out in relation to discrimination against married persons; and at Article 6A the provisions are set out in relation to harassment on grounds of sex.  It is for the claimant to prove detriment and it is for the claimant to prove facts from which we could conclude that an act of sex discrimination has occurred.  If the claimant proves such facts the burden of proof shifts to the employer to provide an explanation which is untainted by sex.  

FINDINGS OF FACT AND CONCLUSIONS

12.	The tribunal considered all the evidence, both oral and documentary to find the following facts on a balance of probabilities.  The tribunal applied the legal principles to the facts found in order to reach the following conclusions.  It is important to note that this decision records the primary findings of fact and does not record all the competing evidence.  

The without prejudice issue

13.	This decision should be read in conjunction with the decision in the claimant’s husband’s case, namely David Rice  v  Dignity Funerals Limited, Case Reference 2651/16, as it was agreed by the parties that the tribunal’s decision on the without prejudice issue in Mr Rice’s case would be binding in Mrs Rice’s case albeit that there were specific further submissions in her case on the scope of without prejudice privilege as regards third parties.

14.	This tribunal decided in Mr Rice’s case that the contents of the meeting of 6 May 2016 were not covered by without prejudice privilege and could therefore be referred to in those proceedings.  For the same reasons this tribunal finds that the meeting was not covered by without prejudice privilege in these proceedings.  Detailed reasons for that decision are set out in the decision of this tribunal in Mr Rice’s case.

15.	As our decision on the without prejudice point in relation to the meeting of 6 May 2016 applies to Mrs Rice’s case too, the meeting is not cloaked by without prejudice and the claimant can rely upon it in her case.

16.	The detailed submissions in Mrs Rice’s case in relation to the breadth of coverage of without prejudice communications as regards third parties, are not therefore relevant, given our finding that the content of that meeting was not covered by without prejudice privilege at all.  We therefore do not need to reach any conclusion in relation to the competing legal arguments raised on this point.

The alleged adverse treatment

17.	The claimant was employed from 21 October 2002 until 24 October 2016 when she resigned by letter of that date with immediate effect.  At all material times the claimant worked for the respondent as a Funeral Service Arranger and she was appointed Team Leader by the respondent in 2013.

18.	The business of the respondent company is that of Funeral Directors.  In 2011 the respondent took over the funeral business of Kirkwoods and proceeded to integrate the business of Kirkwoods into the respondent’s business.

19.	The claimant’s job was essentially an administrative one with some managerial responsibility.  The claimant was one of the staff who worked under the direction of her husband, Mr Rice who was the Area Manager.  Mr Rice in turn reported to Mr Driver, the Northern Ireland Regional Manager who was based in England.

20.	Mr Rice was suspended on 22 April 2016 pending investigation into serious matters which had emerged concerning the running of the business in Northern Ireland.  Mr Rice met Mr Studd on 6 May 2016 in Scotland (‘the Scottish meeting’) and covertly recorded that discussion.  Mrs Skelton was brought over from London to conduct an investigation into the matters raised by an employee Ms G about working practices in the Northern Ireland business.  The respondent also decided to initiate a full audit of working practices in the business in Northern Ireland in view of the breaches of policies and procedures uncovered by Mrs Skelton’s investigation.

21. 	Throughout the relevant period in this case we find that the letters from the claimant and the claimant’s evidence to us displayed a gross overreaction to, and a wholly unreasonable interpretation of, different events as set out below.

22.	The claimant complained that at the beginning of April 2016 Mr Driver sent a fax to the Northern Ireland branches requesting that staff attend a meeting.  The claimant characterised the email as abrupt and intimidating.  We reject that case and find it to be an example of the claimant overreacting to a normal management instruction which in addition was not targeted specifically at the claimant.

23.	On 18 April 2016 the claimant was interviewed by Mrs Skelton as part of Ms Skelton’s investigation.  The claimant was therefore being asked questions about the business in Northern Ireland and this necessarily involved questions about the way her husband ran that business.  In the interview with Mrs Skelton the claimant was questioned about some of the serious issues which had arisen in the working practices at Kirkwoods.  We find nothing untoward in the nature and manner of Mrs Skelton’s questioning and in particular we reject the claimant’s characterisation of this as intimidating.

24.	The claimant’s case was that she suffered direct sex discrimination because of the comments made by Mr Studd in the Scottish meeting on 6 May 2016 that she came as “a package” with her husband in relation to a proposed move to Scotland and that she was not consulted about this proposal.  The claimant further alleged that she was thereafter not supported and was undermined by Mrs Skelton who was brought in as temporary Area Manager during her husband’s suspension.

25.	Mrs Rice ultimately resigned on 24 October 2016 and alleged that there was a breach of the implied term of trust and confidence due to a series of actions by the employer.    

26.	The claimant’s case was that she was undermined by Mrs Skelton.  The events relied upon (together with our findings and conclusions) are as follows:

	Doctor’s appointment card issue  

27.	The claimant complained that Mrs Skelton on 25 April 2016 asked her for confirmation in the form of an appointment card, of her GP appointment.  Mrs Skelton was acting as the Area Manager at that time because Mr Rice was suspended, pending investigations. 

28.	We accept Mrs Skelton’s account which was that in her London division, it was normal practice to ask people for the appointment card for any medical appointments.  When Mrs Rice explained to Mrs Skelton that this was not the practice in Northern Ireland, Mrs Skelton accepted that.  We therefore find there was no detriment suffered by the claimant at all, never mind a detriment on grounds of her sex or marital status.  We do not find that this action of Mrs Skelton’s undermined the employment relationship as alleged by the claimant.  We further reject the claimant’s characterisation of this request as intimidating and harassing.
	
	The Marie Curie issue   

29.	This concerned an arrangement made by the claimant in the course of her work that Mr Rice would attend a talk at Marie Curie.  Mr Rice was then suspended from work, and the commitment was subsequently cancelled by the respondent’s managers. 

30.	We reject the claimant’s case that a management decision to cancel attendance at that talk, had any adverse reflection on her as the administrator who had set it up.  We reject the claimant’s case that this undermined her relationship with her employer.

The limousines issue 

31.	The claimant had organised two cars for a customer for a wedding.  It transpired that Mrs Skelton sent two different cars to the wedding for valid management reasons.  The customer in question accepted the change of car and indeed rejected the offer of a discount on the price. 

32.	We reject any suggestion that this reflected badly on the claimant or indeed on the organisation.  We therefore reject the claimant’s case that she was undermined by this management decision taken by Ms Skelton.

	The invoices issue  

33.	The claimant alleged that she was not supported in sending out a backlog of invoices.  We reject that claim as the evidence was clear that Mrs Hammond was made available to her by Ms Skelton and the claimant’s own evidence was that she rejected Mrs Hammond’s offer to deal with the backlog of invoices.  It was the claimant herself who decided that Mrs Hammond should instead deal with issues of bad debt.  On the claimant’s own case therefore, there is no support for her allegation on this issue and we therefore reject the claimant’s allegations.

34.	In summary we find that Mrs Skeleton made valid management decisions and we reject the claimant’s case that those decisions were designed to discredit both her and her husband.  We further reject the claimant’s claim that the four matters outlined above were detrimental to her or that they could reasonably be regarded as undermining her relationship with her employer.

The Scottish Meeting

35.	The claimant’s case was that in the Scottish meeting, between Mr Studd and her husband on 6 May 2016, there were at least four references to her.  The claimant in evidence made it clear that she only knew the content of the Scottish meeting from listening to the recording as her evidence was that her husband could not talk about it.  The claimant stated that she heard the recording on 8 May 2016, was devastated by its contents, and it was then that she lost trust and confidence in the respondent.  In evidence the claimant stated that she had had no issues with her employer until she knew of the content of the Scottish meeting.

36.		We set out below the four references that the claimant highlighted in this case with our conclusions on the claimant’s point on each reference.

(1)	Package deal point  

37.	Mr Studd said that there could be a job for the claimant in Scotland with her husband as they came as a “package deal”.  The claimant’s point was that this was discussion about her future without any input from her.  The claimant only became aware of this because of the covert recording by her husband. 

38.	We do not find this negotiation between Mr Studd and Mr Rice to amount to sex discrimination or detrimental action of any kind as regards the claimant.  It was clear from the transcript that the offer of a move to Scotland for both Mr and Mrs Rice was something that Mr Studd envisaged Mr Rice would go away to discuss with his wife to see if it was acceptable. 

39.	In the event no deal was done, there was no suggestion that Mrs Rice should actually move to Scotland, and there was no suggestion that she should leave the business at all. We therefore find that there was no basis for the claimant’s conclusion that the company no longer wanted her or that they were going to move her to Scotland against her will.  

(2)	Indiscreet point 

40.	Mr Studd said: 

	“… and again David, don’t hear this the wrong way, cos I’m not in the threats market, but if Diane, if she chooses to be indiscreet about the conversation that you and I have had, it will feed back to me from the business and I will be disappointed if I am hearing anything that we’ve talked about coming back from anybody in the business in Northern Ireland … .”

41.	The claimant’s point was that she was being accused of being indiscreet or untrustworthy.  We find that this was an unreasonable interpretation by the claimant in the context of the lengthy discussion.  Mr Studd was doing no more than emphasising the confidential nature of the conversation on the basis that he understood Mr Rice would discuss the offer with his wife.  This was not detrimental to the claimant.

 (3)	Reporting back point   

42.	The claimant alleged that the following comment by Mr Studd meant that he was accusing her of being untrustworthy:  

	“… irrespective of what your good lady wife comes back and tells you, this is going on and that’s going on, you need to be aware that if there is a conversation to be had, anything and everything will be put to one side … .”

43.	We find that Mr Studd’s point here was that the process of the audit (which had just been initiated) was separate and would continue but that if Mr Rice decided to accept the offer of a move to Scotland that Mr Studd would honour that offer.  He was emphasising that Mr Rice needed to get back to him with his answer on the offer very quickly.  We reject the claimant’s case that this comment was disparaging of her.

(4)	Time in lieu point 

44.	Mr Studd made reference to the claimant claiming time in lieu at time and a half, when everyone else was claiming single time.  The claimant’s point was that this impugned her integrity when there had been prior agreement with Mr Driver that she could do this.  

45.	We reject the claimant’s point on that as the point being made by Mr Studd in the context of the conversation as a whole that there was a danger for Mr Rice in approving something like that when it was his wife who was getting extra payment.  There was no suggestion that Mrs Rice was doing anything wrong.  The context of the discussion about time in lieu was the Relationship Audit Policy.  It is clear from the transcript that there was no accusation being made against the claimant.  The claimant unreasonably placed that interpretation on it.

46.	In her statement for the tribunal the claimant stated that she found Mr Studd’s statements in the Scottish meeting threatening and accusing and that they questioned her integrity.  She concluded from this that the employer did not want her in Northern Ireland and was determined to remove her from Northern Ireland when there was no criticism of her job.  We reject the claimant’s interpretation of this conversation as we find it to be an overreaction and an unreasonable interpretation.  There was also no adverse treatment of the claimant by Mrs Skelton after this as the claimant alleged. 

47.	Clearly Mr Studd was trying in the Scottish meeting to do a deal with Mr Rice in order to stave off a situation where the business might be destabilised.  In the course of that discussion it would have been entirely artificial and indeed wrong for him to have ignored the fact that Mr Rice’s wife worked in the business.  There was no suggestion whatsoever by Mr Studd that Mrs Rice was doing anything wrong or was performing her role badly and following the Scottish meeting there was no adverse treatment of the claimant.  We heard no evidence which indicated that there was any intention at all to push the claimant out of her job.  Regrettably, it was the claimant who misinterpreted and overreacted to comments and events, regarding them as a slight on her integrity (as set out at paragraphs 27 – 34) in relation to Mrs Skelton’s actions.

The Grievance

48.	The claimant went off sick on 9 May 2016, (the day after she listened to the recording of the Scottish meeting) and thereafter pursued her grievance.

49.	The claimant’s grievance of 26 July 2016 ran to seven typed pages.  In summary the grievance related to the following matters:

(1)		That the email from Mr Driver, at the beginning of April 2016 was unsettling in tone.

(2)	That the claimant was concerned about the fact and nature of the questioning by Mrs Skelton on 18 April 2016.

(3)	The doctor’s appointment card issue.

(4)	The invoice issue.

(5)	The Marie Curie hospice issue.

(6)	The limousine issue.

(7)	The Scottish meeting and specifically that she was referred to as a package deal, that there appeared to be arrangements in hand to move her to Scotland with her husband and that there was reference to her possibly talking about the content of the meeting.  There was also reference to the claimant claiming time and a half for time in lieu.  The claimant characterised this conversation as threatening, accusing, derogatory and mentioning her as being indiscreet.  She regarded this as harassment and that she was not trusted and that she was going to be sent off to Scotland without being asked about it.

50.	The claimant in the grievance stated the following:-

(1)	“How can I expect a family to trust Dignity, when I, as a faithful, loyal and trustworthy employee has lost all faith and trust in Dignity Funeral Service.  I cannot see this trust ever been restored.  After hearing what Mr Studd had to say during the meeting in Scotland and him involving me in his discussion, which had absolutely nothing to do with me whatsoever, I can assure you my trust in Dignity Caring Funeral Service has been totally destroyed and irretrievable”.

(2)		“How could I work in an environment knowing how little the Company think of me.  How this has made me feel, only I will ever know, I cannot think of words strong enough to describe what this has done to me, it has left me in a very depressed and vulnerable state.  This is a serious breach of my contract”.

(3)	“My confidence has also been destroyed as a result of all of the above”.

(4)		“I could only compose this grievance a little at a time, as seeing the issues written down, brings the nightmare and devastation of the past 3 months back to me, and believe you me, it is a situation I never thought I would be faced with and a situation I hope I am never faced with again”.

51.	At the grievance meeting on 16 August 2016, the claimant was told that she could not discuss the Scottish meeting and it would not be considered as Ms Davidson (who was dealing with the grievance) had received legal advice that it was a privileged conversation and could not be part of the process.  The claimant had set out the extracts from that meeting which she found offensive in her written grievance, so to that extent, those dealing with the grievance had that information before them although they made it clear that they would not discuss it or consider it.  The grievance was not upheld.

52.	A key point made by Mrs Rice was that she was devastated when she heard the recording of the Scottish meeting on 8 May 2016.  Her point was also that she was being drawn into her husband’s issue with the employer, even though she had done nothing wrong.  We do not find the content of the recording to have amounted to a breach of the claimant’s contract.  She overreacted to the conversation.

The resignation

53.	The claimant alleged that she resigned by letter of 24 October 2016 primarily because she found it intolerable that her grievance was not being dealt with properly in that she was being stopped from discussing in detail the content of the Scottish meeting.  The claimant further claimed that this was part of a series of adverse incidents which cumulatively amounted to breach of the implied term of trust and confidence. 

54.	The case made for the claimant in submissions was that she was effectively “gagged” by the respondent when they refused to let her refer to the Scottish meeting in her grievance.  This is relied upon as a breach of contract.  The claimant took issue with the fact that her future within the company was discussed at the Scottish meeting and that she was considered part of a package deal.  The claimant’s point was that her trust in the respondent had been destroyed by the content of the Scottish meeting.

55.	As set out above we reject the claimant’s claim that the previous events relied upon were adverse.  The issue for us therefore is whether, firstly, the failure to let the claimant go into detail about the Scottish meeting; and, secondly, managers’ stance that they could not take account of it, amounted to a breach of contract at all and if so whether it was a repudiatory breach of contract justifying the claimant’s resignation.

56.	The onus is on the claimant to prove that there was a breach of contract per se or a last straw event, which led her to resign.  The claimant could not identify what the event was that led her to decide that she had had enough.  Her severe reaction to the Scottish meeting had occurred on 8 May 2016 some six months beforehand.  The claimant’s evidence was that she had discussed her resignation letter and drafted it with her solicitor the week before it was actually sent in.  The resignation letter was signed by the claimant’s solicitor and is dated the same day as the claimant’s email to the appeals officer to arrange the grievance appeal meeting.  We received no satisfactory explanation from the claimant as to why she decided to resign at that point whilst still pursuing her grievance.

57.	The resignation letter of 24 October 2016 (which was signed by the claimant’s solicitor), made clear that the claimant’s sense of grievance was “inextricably connected” to the alleged adverse treatment of her husband.  She stated that as a direct consequence of a sequence of events, she could no longer tolerate working in the environment.  That sequence of events was listed in the resignation letter as follows:-

	(1)	A deterioration in the relationship from the date she was interviewed by Mrs Skelton on 18 April 2016.

	(2)	That she was mentioned in the Scottish meeting on 6 May 2016.

	(3)	That Mr Studd in that meeting cast aspersions on her integrity.

(4)	That she was referred to in that meeting as “a package deal” and that this would not have happened to a male employee in the same circumstances.

(5)	That reference was made to her in that meeting having received payment for time in lieu at time and a half. 

(6)	That she was told in advance of the grievance meeting that she could not refer to the Scottish meeting despite this being the main part of her grievance.

(7)	That there was delay in dealing with the grievance.

Grievance Appeal

58.	The claimant appealed against the grievance outcome by letter of 6 October 2016 which appears to have been signed on her behalf.  In that appeal the claimant stated that her biggest complaint was in relation to the failure to let her refer to the Scottish meeting and the claimant appears to make the point that the content of that meeting showed that there was no future for her in the organisation and that an arrangement had been hatched to have her removed from Northern Ireland without having any discussion with her.  Neither of these interpretations of the Scottish meeting was reasonable.

59.	In submissions Ms McIlveen made the point that the most important thing for the claimant was the fact that the Scottish meeting was not dealt with.  As we have found that she placed an unreasonable interpretation on and overreacted to the content of that meeting, the failure by the managers to deal with her concerns in that regard do not amount to a breach of contract at all never mind a sufficiently serious breach of contract to warrant her resigning.  

60.	Ms Cooke dealt with the grievance appeal and gave evidence that she had received advice from legal counsel that a without prejudice conversation was similar to a protected conversation.

61.	Her evidence was that without prejudice was similar to a protected conversation in that it was held between the parties and it was not to be discussed.  She confirmed that she had not dealt with a grievance appeal in Northern Ireland before.  This evidence illustrates the fundamental misunderstanding on managers’ part of the difference between protected conversations and without prejudice conversations.  It is clear from the documents that managers in Great Britain were familiar with the concept of “protected conversations”.  These were introduced in Great Britain to enable employers to have conversations with their employees at an early stage in order to deal with any issues between them.  Protected conversations do not exist in Northern Ireland.  

Sex discrimination

62.	The claimant in her statement alleged discrimination, harassment, and victimisation because of lodging an internal grievance.

63.	We reject the claimant’s case that there was delay in dealing with the grievance.  That process started on 26 July 2016 and ended on 22 December 2016 which was two months after the claimant resigned on 24 October 2016.

64.	The claim for sex discrimination was on grounds of the claimant being a woman and on grounds of her marital status.  The hypothetical comparator is a male whose wife is more senior to him as Area Manager.  In addition, that female Area Manager would have been suspended pending investigation into potentially serious misconduct.  There was no evidence to indicate that such a male comparator would have been treated differently and the claimant has thus failed to prove less favourable treatment.  

65.	There were no inherently sexist comments made and it was realistic in terms of an offer by Mr Studd for him to take account of the fact that Mr Rice’s wife was also an employee and, if he accepted the move to Scotland, that that would likely have a consequent effect on his family’s living arrangements.  That same consideration would equally have applied to the comparator and the claimant has thus failed to show less favourable treatment.

66.	In our view none of the points raised about the Scottish meeting by the claimant in her grievance amounted to matters which could reasonably be regarded as detrimental nor could they be interpreted as indicative of sex discrimination.  The claimant was clearly aggrieved about them and it was regrettable that she was not allowed to talk in more detail about them.  Those dealing with the grievance, however, were dealing with it under legal advice (which was not precisely correct) and there was no comment or action being referred to by the claimant which might have led them to suspect unlawful discrimination.  

67.	It is undesirable in internal grievance procedures for the employee or the managers to have to deal with legalistic arguments on whether or not matters are without prejudice.  It seems to us that the key point is whether or not there is a reasonable grievance and/or potentially discriminatory actions or comments contained in the disputed meeting which mean that a good manager should listen to the employee to see whether their grievance has some validity.  That was not the case in this situation where we have found that the claimant clearly overacted to, and placed an unreasonable interpretation on, the content of the Scottish meeting.

68.	We find that it is a question of degree.  At one end of the spectrum is an employee who unreasonably interprets a discussion as connoting discrimination.  Whilst that employee might be aggrieved that they cannot air their grievance in full, it does not amount to a breach of contract at all, nor does it amount to discrimination.  At the other end of the spectrum is an employee about whom clearly adverse or discriminatory comments have been made and it is our view that it would be wrong for managers to disallow such an employee to refer to those matters even if they were covertly recorded in a private meeting.  

69.	On the facts in this case we find that Mrs Rice’s case falls at the end of the spectrum whereby it was unreasonable of her to regard it as a breach of contract for the employer not to go into detail of the comments which she had unreasonably interpreted as adverse, detrimental or amounting to sex discrimination.

70.	We find this with after careful consideration of the circumstances in this case, given that the purpose of grievance procedures is to allow employees to air grievances so that they do not develop into bigger problems in the employment relationship.  In this particular case however the evidence revealed to us a pattern of the claimant overreacting and placing unreasonable interpretations on discussions and events. The added dimension to this case was the claimant’s clear sense of grievance about the way her husband was being treated and about the fact that there was an investigation relating to her husband’s management of the business in Northern Ireland following the very serious shortcomings that had been uncovered.

71.	We find that the claimant had a valid sense of grievance that she could not discuss her annoyance about the Scottish meeting in more detail with her managers.  However, given the nature of the comments relied upon in that meeting, we do not find that the actions of managers amounted to a breach of contract at all.  Even if they did amount to a breach of contract this did not warrant the claimant resigning in response.

72.	In evidence the claimant stated several times that if she had not been married to Mr Rice she would still be in a job.  This is not the legal test to be applied and in fairness her lawyers did not advance this argument.  It is for the claimant to prove facts from which we could conclude that any adverse treatment or detrimental treatment she suffered was on grounds of her sex and/or marital status.  We find that she has failed to do so.

Summary

73.	Whilst there was some unfairness in refusing to let her discuss in detail the allegation about the Scottish meeting and in the manager’s refusal to take account of it, we find this did not amount to a breach of contract.  Even if it had amounted to a breach of contract, it had to be sufficiently serious to strike at the heart of the relationship between the parties.  On balance we do not find that that applies in this case as any breach of contract did not warrant her resigning in response. 

74.	In addition it is not clear what the last straw was.  In submissions, Ms McIlveen pointed to the grievance outcome letter as the last straw.  That was not the evidence given by the claimant.  That letter was received by the claimant on 28 September 2016 and there was a delay of several weeks before the resignation letter was drafted.  There was then a further delay before it was sent in and it was at odds with the claimant’s further engagement in the grievance process.

75.	It is for the claimant to identify the last straw and to show that it adds something to a  breach of contract and it is also for the claimant to prove that cumulatively the breach of contract and other events add up to a sufficiently serious breach of contract.  We do not find the seriousness element satisfied.  We also do not find that she has proved a last straw event.  The claimant also delayed in resigning following the events she regarded as adverse.

76.	The claimant was on sick leave from 9 May 2016, she stopped receiving company sick pay on 5 August 2016, she received the outcome of the grievance on 26 September 2016 and she resigned four weeks later on 24 October 2016.  Her evidence was that she made her decision to resign at some point in the week commencing 17 October 2016.  The claimant was due to stop receiving SSP in or around 21 November 2016, being the 28th week of her sick absence.  This latter date was uncontested by the respondent and we therefore reject their point that she resigned because she was going to stop getting SSP.  We find however that she delayed too long in sending in her letter of resignation.

77.	We do not find that the claimant has proved that she was dismissed.  She therefore resigned from her employment and there was no unfair dismissal.

78.	The claimant has failed in her sex discrimination claims on all points as set out above.  The claimant’s claim is therefore dismissed in its entirety.

Holiday Pay

79.	The claim for unpaid holiday pay was not alluded to by either side and the tribunal presumes that that matter has been dealt with between the parties.  If that is not the case this tribunal can reconvene to deal with the holiday pay issue if necessary.

Employment Judge

Date and place of hearing:  25 - 26 September 2017, Belfast

Date decision recorded in register and issued to parties: