THE INDUSTRIAL TRIBUNALS

CASE REF:	483/16

CLAIMANT:			Kerrie Foy

RESPONDENT:		Bolan Investments Ltd

DECISION 
The unanimous decision of the tribunal is that the claimant was not constructively dismissed, and her claim is therefore dismissed.

Constitution of Tribunal:
Employment Judge:		Employment Judge Crothers	
Members:				Mr S Pyper
					Mr A White

Appearances:
The claimant was present and represented herself.

The respondent was represented by Mrs E Dargan.

THE CLAIM

1.	The claimant claimed constructive unfair dismissal.  The respondent denied her allegations in their entirety.

ISSUE

2.	The relevant issue was whether the claimant was constructively unfairly dismissed by the respondent.

SOURCES OF EVIDENCE

3.	The tribunal heard evidence from the claimant and, on the respondent’s behalf, from Karen Agnew, Senior Manager and Eleanor Dargan, Company Director.  The tribunal also received an agreed bundle of documentation together with further documents in the course of the hearing. The tribunal found it necessary to reconvene the tribunal on 12 December 2016 to consider additional evidence from Karen Agnew and Eleanor Dargan in relation to the reprimand administered to Sandra Walker. 

FINDINGS OF FACT

4.	Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact, on the balance of probabilities:-

(i)	The claimant was employed as a full-time sales assistant in the respondent’s premises in Enniskillen.  She was employed from 20 April 2012 until her resignation on 15 January 2016.  Her gross weekly pay was agreed at £288.75 (net pay £254.29).

(ii)	The claimant articulated a grievance to the respondent on 4 November 2015 in the following terms.

	“I am writing to let you know that I have a grievance relating to Mrs Sandra Walker and I would like this matter to be fully investigated in accordance with the company’s grievance procedure.  I wish to make a formal complaint against Mrs Sandra Walker.  During my employment with Bolan Investments TA Vogue, I have frequently been subjected to verbal abuse by Mrs Sandra Walker which I have found demeaning, humiliating and extremely stressful especially when at times in full view of customers and colleagues.  It is a problem that is causing me some concern and that I have been unable to solve without bringing to your attention.  I hope in doing so we can deal with the issue quickly, amicably and professionally.

	Although there has been several incidents involving verbal abuse by Mrs Walker during my time as an employee within your company, I feel the most recent incidents has been extremely stressful and upsetting on me.

	On Tuesday 20/10/15 I visited the doctor who advised that I take a few days off due to the flu (coughing in front of customers) and sore left ear, I called Sandra to advise of this, I agreed to work Wednesday instead of letting the team down at short notice so Sandra could have her day off and take Thursday, Friday and Saturday off and would come back on Monday.  Sandra advised me to call her on Saturday to let her know if I would be back on Monday.  When I called on Saturday at 3 pm to let her know I would be back on Monday I was advised that another manager was coming in on Monday to cover my shift as I had said I was taking 3 weeks off, I apologised if she had misheard me but I said 3 days.  I said that that was okay I would contact Mary-Jo on Monday to advise of the above.  I was told I was making no sense and to come in on Monday as normal and Sandra would cancel the agreed cover.  I returned to work on Monday and carried on with my duties as I always do.

	I then spoke to you, Gerry, on Friday 30/10/15 and advised of this.  I also expressed my concern that on Monday 2/11/15 (when Sandra returned) I would be “picked on” for putting out the delivery, and changing things around to suit the delivery.  Also, that if we as staff were to speak out of [turn] we would have a week from hell.

	On Monday 2/11/15 I advised Sandra, on her return, at 9.05 about the quiet week we had, figures for the previous week, that I had the reports completed and also that Gerry had been down on Friday.  Gerry had commented that the shop was clean, had no complaints other than the lights not working, and that to advise that we as staff needed Lipstick on at all times and that Gerry had organised for the lights to be fixed.  I carried on tagging and putting out the audit.  I was then “verbally attacked” by Sandra as to [why] I moved this?  Why I done that?  I explained that I tried my best to keep with the flow of things.  Sandra then remarked as to how the other two managers (while she was on maternity leave) employed by the company put up with me, they must have had the patience of a Saint, to which I replied they must [have] had but never treated me the way you do.  Sandra advised that on Saturday 24/10/15, she had to bring down Short Moda size 14 from overstock; I advised that I was off and I wasn’t the only member of staff doing “Audit”.

	I advised Sandra that the phone was ringing to which I was told to leave it, they can call back.  At this stage I was reduced to tears accordingly, as I couldn’t take any more of this.  Sandra then said “I need to consult/talk to other members of staff to get their opinion of what I was doing because what you think is right ... isn’t, “That I would never be her and to stop trying to be her.  She was the manager, not me.  I advised Sandra that no matter what I do will never be good enough.  Although deeply upset and hurt after this I showed my professionalism to see to customers and completed my tasks.

	Then Gerry called and spoke to Sandra.  Sandra went upstairs to take the call, came back down and advised me that she felt that we were going to get a spot check and we had to make sure that there were no hairs hanging on the back of our tops or jackets.  This was never mentioned to any other member of staff, only to myself ...  Can only wonder WHY JUST ME ???

	I raised a matter before but I feel it was never dealt with and Sandra has continued to have “spite” at me ... for what I don’t know.

	I am very upset about this as I have been in the job for 3½ years and have not had 1 complaint against me in the past.  I really enjoy my work and cannot understand why her attitude towards me has changed again.  I am so worried of another verbal attack on me and due to previous run-ins with Sandra, I am going to my doctor tomorrow Thursday, for advice/help, as I am feeling very anxious.

	I trust you will let me know how the investigation is proceeding and that will you arrange to hold a grievance hearing with me as soon as possible.  I understand that I am entitled to bring a representative with me to that grievance hearing.

	I look forward to hearing from you,

	Yours Sincerely,

	Kerrie Foy”.

(iii)	The first mention of the allegations of bullying and being “picked on” in the claimant’s examination in chief related to the alleged incident on Monday 2 November 2015 referred to in the correspondence reproduced above.  The tribunal is satisfied that the relevant period for the purposes of the claimant’s constructive dismissal claim is from 20 October 2015 until 2 November 2015.  

(iv)	Apart from two matters, which the tribunal noted, the claimant did not dispute the notes of various meetings held involving Karen Agnew and herself on 6 and 18 November 2015.  It is recorded in the notes of the latter meeting that:-

	“Kerrie happy with the way company handled.  Karen follow up meeting on Fri 27/11/15 in E’killen .. with Kerrie.

	Karen to visit E’killen on regular basis ie every two weeks.

	Karen support to Kerrie with return to work and going forward”.

(v)	At the meeting held on 18 November 2015 it is also recorded that the claimant’s sick line was to finish on 19 November 2015 and that she was going to try to go back to work on Wednesday 25 November 2015.  The notes of the meetings were signed by the claimant, and Karen Agnew.  The tribunal was also shown notes of a meeting between Karen Agnew and Sandra Walker held on 6 November 2015.  Shortly afterwards, Sandra Walker received a reprimand from Head Office, in the following terms:- 

	“Dear Sandra

	Further to our meeting on 6th November 2015 with reference to a grievance brought against you by Mrs Kerrie Foy.

	We have spoken with Kerrie and she alleges that you displayed negative behaviour and hostility towards her on your return from annual leave on 2nd November 2015.  We have investigated fully all the information obtained from Kerrie and yourself and it is in our opinion that your behaviour was unacceptable, and will not be tolerated.

	We would ask that you keep your emotions under control when dealing with your team; one of the easiest ways to keep positive energy going is to be respectful of your co-workers, remain calm and stay neutral and focused.  

	Kerrie is hoping to return to her position as soon as possible and we would expect that there will be a significant change in your relationship.  It will in-turn make the workday more enjoyable and help your shop become more successful.

	Should there be a repetition of this behaviour then we will have no alternative but to proceed through to our disciplinary procedure.

	This letter will be place on file for a period of 6 months.
	
	As a company we have arranged a more senior manager to visit your store regularly to support any issues you or your staff may be facing.

	If you do not agree what has been set out in this letter or have any comments to make please contact Mrs Karen Agnew on ........... or by email to ................................. as soon as possible.

	Yours sincerely

	Karen Agnew”

(vi)	The tribunal is satisfied that the reprimand did not relate to any findings of bullying or being picked on as alleged by the claimant but related to the manner in which Sandra Walker dealt with the situation as a manager.  From the respondent’s perspective, she ought to have held any discussions with the claimant off the shop floor and taken guidance from Head Office before making any decisions.  Sandra Walker had not done this.  It also appeared that both Sandra Walker and the claimant did not know how the other party felt in relation to the matters which arose between 20 October and 2 November 2015 and that Sandra Walker did not realise that the claimant was taking certain remarks very personally.  Although not recorded in the notes of the meeting held on 18 November 2015, Karen Agnew asserted that she told the claimant at that meeting that Sandra Walker had been reprimanded.  The claimant disputed this and claimed that she became aware of the reprimand approximately three weeks prior to her resignation on 15 January 2016.  The tribunal accepts, on the balance of probabilities, that the claimant was informed of the reprimand on 18 November 2015.  The claimant also confirmed in her evidence that she had wanted Sandra Walker reprimanded.  

(vii)	On 23 November 2015 the claimant requested a mediation meeting before returning to work in relation to her grievance against Sandra Walker.  Karen Agnew spoke to the Labour Relations Agency to arrange such a meeting.

(viii)	Pending mediation, the respondent decided to offer the claimant a temporary post in the respondent’s Omagh Store.  The claimant and Karen Agnew had a telephone conversation regarding the matter on 24 November.  In a follow up email, also dated 24 November 2015, Karen Agnew includes the following:-

	“As you have been on sick leave for the last 2 weeks and have had another sick line authorised by your doctor we would require a signing off certificate before you could return, if it is possible for you to get this tomorrow from your doctor and fax or email copy direct to Head office FAO Jill and [...] post the original you would be able to start in Omagh on Thursday the 26/11/2015.

	If you are in agreement with this please email me with confirmation of your return to work and I then will contact you to discuss your return on Thursday.”

(ix)	The various medical certificates shown to the tribunal dated 5 November 2015 and 19 November 2015 refer to “stress at work”.  The later sick note, dated 8 December 2015, refers to stress and depression.  In an email to Karen Agnew on 25 November 2015 the claimant refers to the fact that she has been advised by her doctor and her solicitor to remain off work until the mediation meeting had taken place.  She never in fact worked in the Omagh store.

(x)	A mediation meeting not involving an officer from the LRA, was held in the Killyhelvin Hotel on 1 December 2015 and was attended by the claimant, Karen Agnew, and Sandra Walker.  Karen Agnew had nonetheless sought LRA guidance before proceeding.  She was advised that notes should not be kept of such a meeting.  The tribunal is satisfied that the mediation meeting was constructive and that all relevant matters appeared to have been addressed and resolved.  The claimant also agreed to revert to Karen Agnew regarding a return to work.  This is reflected in the email correspondence from Karen Agnew to the claimant on 1 December 2015 in the following terms:-

	“Thank you for attending the mediation meeting today with myself (Karen Agnew) and Sandra Walker with ref to you returning to work.

	At the meeting you stressed concerns about the amount of personal pressure you put on yourself [.....] regarding running the store in Sandra’s absence especially with the merchandising as you feel this is not one of your strengths.  We as a company are aware it takes more than merchandising to make a store a success and we are also aware you offer other strengths and [qualities] which are an asset to the business.

	You also requested that on Sandra’s annual leave that a manager could come to the store 1 or 2 days preferably when new stock arrives to help give support and guidance to all the girls, going forward we could put this into place in the Enniskillen Store.

	As stated previously a senior manager will be in store on the first day of your return to work and then 1 day every week to be of support to you and all the staff for a period of time.

	Please let me know if your intentions are still to return to work and that you are comfortable with what we have put in place so that your return is as smooth as possible.

	If you could email me the date in which you would like to return I will let head office and Sandra know.

	If I can be of anymore help or support please do not hesitate in contacting me.”

(xi)	As the respondent had not heard from the claimant, Karen Agnew emailed her again on 8 December 2015 asking for confirmation as to whether it was still her intention to return to work “this week”.  Karen Agnew went on to explain to the claimant that she needed confirmation in order to put in place the plans discussed previously ie a Senior Manager to be present on the first day so that the claimant’s return to work was as comfortable for her as possible.  The email also affords the claimant an opportunity of discussing the matter further with Karen Agnew or of emailing her.

(xii)	On 9 December 2015 the claimant wrote to Karen Agnew in the following terms:-

	“I am unable to return to work as I have let this whole situation re: bullying, get to me and I am sorry to say that I am now suffering with depression.  I have to take Diazepam and Mirtazapine.  I have enclosed a copy of the certificate from the doctor.  I can only apologise for the inconvenience that I’m causing you.

	Thanks for your patience.”

(xiii)	The next correspondence between the parties is the claimant’s email of 15 January 2016 which states:-

	“I am writing to inform you that I am resigning from my Full time Sales Assistant with immediate effect.  Please accept this as my formal letter of resignation and a termination of our contract.

	I feel that I am left with no choice but to resign in light of the “last straw doctrine”.  I consider this to be a fundamental breach of the contract.  I appreciate the time and energy which you have invested in me.  I believe the skills that I have learned will serve me well in the future.  I will do my best to ensure a smooth transition upon my departure.

	I would be grateful if you could acknowledge this email.  I have also posted a copy to you.

	I look forward to hearing from you”.

(xiv)	The claimant was vague in her evidence as to what she understood by the reference to the last straw doctrine, except to refer to events between 20 October and 2 November 2015.  She also attempted to introduce further matters relating to issues arising between Sandra Walker and herself in 2013.  However the tribunal is satisfied that these are not directly relevant to the matters before it.  

(xiv)	The claimant’s evidence was that she did not decide to resign until in or around Christmas 2015.  The claimant also produced evidence of job applications.  Included in that correspondence is a letter from AXA dated 8 January 2016, thanking the claimant for her recent participation in the selection process for the position of a Customer Service Representative.  She was unsuccessful in obtaining this post but eventually obtained a further job which she commenced on 19 April 2016.  The claimant claimed Jobseekers Allowance between 2 January 2016 until 28 April 2016, totalling £887.66.

(xv)	The claimant also claimed that she had expressed to Karen Agnew on 6 November and 18 November 2015 that she was afraid to go back to work because of Sandra Walker.  There is no reference in the notes to the claimant having made these remarks.  She belatedly introduced to the tribunal email correspondence dated 19 November 2015 which she relied on in relation to her alleged fear in going back to work for the respondent.  This email is from Karen Agnew to the claimant and reads as follows:-

	“Thank you for attending the follow up meeting yesterday.  During our meeting you agreed that you would return to work on Wednesday 25th November however you did express that you would feel anxious about Thursday 26th November 2015 as this would be your first day working with Sandra.  I have discussed this with Mrs Dargan and she wants you to be totally comfortable returning to work and feels a mediation meeting prior to your return with Sandra, yourself and a representative from labour relations might be beneficial.  Therefore if you feel you would like us to arrange this for you please email me.  We want to ensure your return to work is as easy and as comfortable as possible therefore I will be in Enniskillen branch on Thursday morning to support all staff and the store and this support from a more senior manager will be ongoing for the foreseeable future.

	If you require anything in the meantime please do not hesitate in contacting me either by phone or email”.

(xvi)	The tribunal also considered the evidence from the claimant in relation to her alleged loss.  

THE LAW 

5.	(i)	Article 127 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) provides that an employee is dismissed by his employer if the contract under which he is employed is terminated by the employer (whether with or without notice).  Article 127 continues to provide as follows:-

			“127. – (1) for the purposes of this Part 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”.

		(ii)	Article 156(2) of the Order states as follows:-

		“Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly”.

		(iii)	The Order further states at Article 157(6) as follows:-

		“Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding”.

	(iv)	Harvey on Industrial Relations and Employment Law (“Harvey”) states at Division D1 at 403 as follows:-

		“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 a 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”.

		(See also Western Excavating (ECC) Limited v Sharp 1978 IRLR 27).

(v)	Harvey continues:-

“(b)	The duty of co-operation

[461]  More recently the EAT has specifically followed the Post Office case on this point (Woods v WM Car Services (Peterborough) Ltd 1981] IRLR 347, [1981] ICR 666).  The Tribunal emphasised the significance of this duty for employers not to conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of mutual confidence and trust.  As it pointed out, it enables an employee who is ‘squeezed out’ of the company by the wholly unreasonable conduct of the employer to leave and claim that he has been dismissed even though he cannot point to any specific major breach of contract by the employer.

	[462]  This duty not to undermine the trust and confidence in the employment relationship can be subsumed under a wider contractual duty which is imposed on the employer, to co-operate with the employee.”

	(vi)	Once a tribunal has established that a relevant contractual term exists and that a breach has occurred, it must then consider whether the breach is fundamental.  Where an employer breaches the implied term of trust and confidence, the breach is inevitably fundamental (Morrow  v  Safeway Stores plc 2002 IRLR 9, EAT).  A key factor to be taken into account in assessing whether the breach is fundamental is the effect that the breach has on the employee concerned.

	(vii)	It is also possible for a tribunal to make a finding of contributory conduct in a constructive dismissal case in the event of there being a connection between the employee’s conduct and the fundamental breach by the employer.  As was pointed out in the Northern Ireland Court of Appeal case of Morrison v Amalgamated Transport and General Workers Union (1989) IRLR 361 NICA, since it was open to a tribunal to declare a constructive dismissal fair, there could be no inconsistency in its holding that the employee contributed to the dismissal in the first place.  All that is required is that the action of the employee to some extent contributed to the dismissal.  Once a tribunal has found on the evidence that an employee has to some extent caused or contributed to his or her dismissal it shall reduce the compensatory award.

	(viii)	Unlike an anticipatory breach of contract, an actual breach of contract cannot be retrieved by the employer offering to make amends before the employee leaves.  Once the breach has been committed it is for the wronged party to decide how to respond (Buckland  v  Bournemouth University [2010] IRLR 445 CA).

	(ix)	In Mahmud and Malik  v  Bank of Credit and Commerce International SA [1997] IRLR 606, (‘Malik’) the duty of implied trust and confidence was affirmed by the House of Lords in the following terms:-

			“The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.”

		Lord Steyn stated that:-

			“The implied obligation as formulated is apt to cover the great diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.”

	(x)	The test for breach of the implied duty of trust and confidence is an objective one.  The duty of trust and confidence may be undermined even if the conduct in question is not directed specifically at the employee.  The duty may be broken even if an employee’s trust and confidence is not undermined.  It also follows that there will be no breach simply because an employee subjectively feels that such a breach has occurred, no matter how genuinely this view is held.

	(xi)	The range of reasonable responses test is not applicable to constructive dismissal per se.  However it is open to the employer to show that such a dismissal was for a potentially fair reason in which case the range of reasonable responses test becomes relevant.

	(xii)	The breach of contract must be “sufficiently important” to justify the employee resigning or it must be the last in a series of incidents which justify his leaving.  It must go to the heart of the contractual relationship between the parties.  Harvey comments that where the alleged breach of the implied term of trust and confidence constitutes a series of acts, the essential ingredient of the final act is that it is an act in a series, the cumulative effect of which amounts to the breach.  It follows that although the final act may not be blameworthy or unreasonable, it must contribute something to the breach even if it was relatively insignificant (Harvey Division D, paragraph 481.01).  See Omilaju  v  Waltham Forest London Borough Council [2005] IRLR 35.

	(xiii)	The employee must resign in response to the breach.  In the recent EAT case of Wright  v  North Ayrshire Council [2014] IRLR 4, (“Wright”) Mr Justice Langstaff (President) states at paragraph 20 of his judgment that:-

			“Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause.”

	(xiv)	In Western Excavating (ECC) Ltd  v  Sharp (1978) IRLR 27 CA, it was pointed out that an employee must make up his mind regarding resignation soon after the conduct of which he complains.  Should he continue any length of time without leaving, he will lose his right to treat himself as discharged from the contract.  However, where there is no fixed period of time within which the employee must make up his mind, a reasonable period is allowed.  This period will depend on the circumstances of the case including the employee’s length of service, and whether the employee has protested against any breach of contract.

SUBMISSIONS

6.	The tribunal received brief written submissions from the respondent which are appended to this decision.  The claimant did not make any oral submissions.

CONCLUSIONS

7.	The tribunal, having carefully considered the evidence before it and having applied the relevant principles of law to the findings of fact, concludes as follows:-

	(1)	The claimant, who evidently had access to legal advice prior to her resignation, relied on the last straw doctrine in her letter of resignation.  The claimant did not make a case in relation to a breach of the implied duty of trust and confidence or in relation to the duty of co-operation.  Furthermore, the tribunal is satisfied that Sandra Walker’s reprimand related to managerial issues and in particular the manner in which she handled the various matters which arose, rather than any misconduct by her in terms of the claimant being either bullied or “picked on”.  The tribunal has already made findings in relation to when these terms were first used by the claimant in her examination-in-chief.  The tribunal is not satisfied that it had sufficient evidence before it to show that the respondent breached the claimant’s contract of employment in circumstances in which she was entitled to terminate it without notice by reason of the employer’s conduct.  In arriving at this conclusion, the tribunal also weighed the medical evidence before it, which was general in nature.

	(2)	In the event of the claimant having been able to establish such as breach, the subsequent events culminating in the mediation meeting on 1 December 2015, when taken together with the fact that the claimant delayed until 15 January 2016 before resigning (and in the meantime pursued job applications), demonstrate, in the tribunal’s view, that she did not leave for a reason in response to any such alleged breach between 20 October and 2 November 2015.  She also delayed too long in terminating the contract thus waiving any alleged breach and agreeing to vary the contract.  The respondent had also taken positive steps to ensure that she should ‘comfortably’ return to work.

	(3)	The tribunal therefore dismisses the claimant’s claim of constructive unfair dismissal.

Employment Judge:

Date and place of hearing:	28 June 2016, 11-12 August 2016 and 12 December 2016, Belfast.

Date decision recorded in register and issued to parties: