Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1384/17

 

 

 

CLAIMANT: Gerard McLoone

 

 

RESPONDENT: Western Health and Social Care Trust

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant has not been dismissed by the respondent within the terms of Article 127 of the Employment Rights (Northern Ireland) Order 1996 and his claim is accordingly dismissed.

 

Constitution of Tribunal:

Employment Judge: Employment Judge Bell

Members: Mr H McConnell

Mr I Rosbotham

Appearances:

The claimant was represented by Mr P Ferrity, Barrister-at-Law, instructed by the Directorate of Legal Services.

The respondent was represented by Mr O Friel, Barrister-at-Law instructed by Donnelly Kinder Solicitors.

1.             The claimant complained in his claim form that he had been unfairly dismissed by the respondent by way of constructive dismissal by reason of conduct by the respondent constituting a fundamental and serious breach of the claimant's contract of employment to include the implied term of mutual trust and confidence leading to the claimant's resignation on 7 December 2016, further confirmed by the claimant on 19 December 2016. The claimant complained he felt he was being harassed and antagonised by a number of his colleagues regularly arising from an issue that had occurred when he had worked for the respondent on a casual basis before leaving to go to university more than 10 years previously; he had advised Occupational Health of this, but their recommendation that he be deployed was not facilitated by management; he raised a formal grievance on 2 August 2016 following which he was moved to a role he felt unsuitable; he felt he was being punished for lodging his complaint, was unable to continue in the workplace due to his unresolved issues and absence of suitable alternative employment; he was signed off work due to work-related stress during which period of absence he enquired about alternative employment; he withdrew his grievance following receipt of an offer of a full-time permanent telephonist role by the respondent which he felt would resolve his issues; the respondent thereafter withdrew the offer of employment due to the claimant's level of absence despite the knowledge he was absent from work and the reasons why when the offer was made; he was informed the decision could not be appealed and would only be reconsidered if the information relied on had been incorrect; he believed absence due to work-related injuries should not have been taken into consideration "according to the respondent's own policy"; and Mr Scorer on 7 December 2016 had become irate on the phone and hostile to him when the claimant had spoken with him about obtaining a new uniform while considering a return to his previous role for financial reasons, which had confirmed to the claimant that he could not return to work.

 

2. The respondent in its response denied the claimant's claim and contended that there had been no fundamental or any breach of contract to justify the claimant's resignation, that complaints raised by the claimant had been regularly addressed by his Supervisors and Managers, that his complaint of harassment was being fully investigated and did not conclude because the claimant withdrew it, that the withdrawal of the job offer was reasonable and made based on factual information.

 

ISSUES

 

3. The issues to be determined by the tribunal were:-

 

(a) Was the claimant dismissed by the respondent within the terms of Article 127 of the Employment Rights (Northern Ireland) Order 1996?

 

That is:

 

(i) Was there a breach of contract by the respondent?

 

(ii) Was the breach sufficiently important to justify the claimant resigning or the last in a series of incidents which justify his leaving?

 

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

 

(iv) Did the claimant delay too long in terminating the contract in response to the respondent's breach?

 

(b) If the claimant was dismissed, was the dismissal unfair?

 

SOURCES OF EVIDENCE

 

4. The tribunal considered the claim, response, agreed bundle of documentation, witness statements and sworn oral testimony from the claimant and from the following on behalf of the respondent, Jason Scorer, Support Services Manager (Interim), at Altnagelvin Hospital, Danielle McLaughlin, formerly employed by the respondent as a Senior Human Resources Advisor, Band 6 within the HR Directorate Recruitment Scheme, Michelle O'Connor, Assistant Support Services Manager for catering at Altnagelvin Hospital, John McLoone, Support Services Co-Ordinator for portering, switchboard and front desk, and Michelle McElhinney, Senior HR Advisor in the respondent's Employee Relations Office.

 

FINDINGS OF FACT

 

On consideration of the evidence relevant to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-

 

5. The claimant was employed by the respondent on 3 February 2015 as a Support Services Assistant, a Band 1 post, in its Patient Kitchen in Altnagelvin hospital.

 

6. On 18 July 2016 Jason Scorer commenced employment as Support Services Manager (Interim) for the respondent at Altnagelvin hospital.

 

7. On 25 July 2016 the claimant was invited by the respondent to a disciplinary meeting to take place on 4 August 2016 to discuss a report that he had refused to wear part of his uniform (a head covering).

 

8. Around 1 August 2016 the claimant telephoned Michaela Clifford, a Human Resources (HR) Adviser employed in the respondent's Employee Relations Office. Mrs Clifford thereafter advised Mrs McElhinney that the claimant had indicated he did not feel like going back to work following annual leave, but did not want to go on sick leave, felt he was being harassed by his manager, Michelle O'Connor and enquired if he could be moved into a telephonist post (a Band 2 post for which he was on a waiting list) to make things easier for him.

 

9. On 2 August 2016, the claimant wrote a five page letter to the respondent raising a grievance in respect of bullying and harassment by nine of his colleagues and his line manager Ms O'Connor. The claimant referred to having previously been referred in connection with the stress caused to him to Occupational Health but their recommendation that he be redeployed ignored.

 

10. On 2 August 2016 the claimant telephoned Mrs Clifford who relayed to Mrs McElhinney that the claimant had informed her of his receipt of a disciplinary meeting invitation from Ms O'Connor; he did not consider it fair for Ms O'Connor to deal with it when he was submitting a grievance and harassment complaint against her; and the Recruitment Department had been unable to tell him anything about the telephonist post; he again indicated that he did not want to go off on sick, but did not want to be at work either.

 

11. On 2 August 2016 Mr Scorer was copied into an email from the claimant to Ms O'Connor setting out the claimant's objection to Ms O'Connor being present and/or chairing the disciplinary meeting arranged until the outcome of the formal grievance which he had lodged. Mr Scorer was aware that Ms O'Connor had contacted the claimant to arrange an informal meeting following on from management issues in relation to the claimant not wearing his hat whilst on duty and a subsequent complaint from another member of staff, but had no involvement because it was an operational matter within Ms O'Connor's remit. Mr Scorer spoke to HR to confirm that a grievance had been submitted by the claimant against his Line Manager, Ms O'Connor and numerous colleagues, however full details were not provided to Mr Scorer. Mrs Clifford advised postponement of the disciplinary matter given the claimant had submitted a grievance/harassment complaint.

 

12. Following receipt of the claimant's grievance Mr Scorer on 3 August 2016 emailed the claimant and advised him that the disciplinary meeting arranged for 4 August 2017 had been postponed until further notice.

 

13. Mrs Alison Mitchell, HR Adviser advised Mr Scorer on the custom and practice of interim arrangements following the submission of the grievance/harassment complaint in dealing with the complainant and the alleged harasser. Consideration was given to alternative working arrangements to protect the claimant. Mr Scorer, with the assistance of HR, concluded that it was necessary to put temporary alternative working arrangements in place but not viable to close the production kitchen or move nine members of staff who were required to deliver an essential front-line hospital service and so it was appropriate to move the claimant on a temporary basis while the complaint was being considered.

 

14. Mr Scorer telephoned the claimant and informed him of the actions the respondent considered necessary and proposal to move him to a post of a Domestic Services Assistant. The claimant expressed concerns and did not accept the post to be an appropriate alternative. Mr Scorer encouraged the claimant to report to the post putting it to him that it was an appropriate temporary alternative and a temporary measure. Mr Scorer advised the claimant a failure to report could potentially lead to unauthorised absence processes being invoked. The claimant responded that he had done nothing wrong and questioned why he was being victimised further by being made to move, but ultimately agreed to attend for the alternative post the next day.

 

15. On 4 August 2016 the claimant reported for duty to Erica Campbell, the respondent's Domestic Services Co-Ordinator. It was reported to Mr Scorer that the claimant was unhappy and unco-operative during his training that morning for the duties of the role.

 

16. On 5 August 2016 Mr Scorer received a telephone call from Ms Campbell conveying the claimant's request for Mr Scorer to attend a meeting immediately to discuss his unhappiness with the temporary arrangements. Mr Scorer met with the claimant later that day. The claimant expressed dissatisfaction at the role and his belief that colleagues were talking about him and why he had been moved. Mr Scorer told the claimant this was the only role available. The claimant put to Mr Scorer whilst he did not wish to do so, he felt that he was being forced to go off sick. Mr Scorer advised the claimant if staff members were talking about him, he should report this to the Team Leader. The claimant requested annual leave for the remainder of the day, which Mr Scorer allowed the claimant to take as he was clearly upset and agitated. Arising from mentions by the claimant in the course of their conversation to being "stressed out" and "anxious", in accordance with Trust protocol for staff displaying symptoms of stress and anxiety to be referred to Occupational Health, Mr Scorer advised the claimant that he would be making such a referral.

 

17. On 5 August 2016 in a telephone conversation with Mr Scorer the claimant stated that he would not return to the Domestic Service's post on his next scheduled day of work, being 9 August 2016. Mr Scorer informed the claimant that he must either attend for work on 9 August 2016, or otherwise contact him to explain any anticipated absence.

 

18. Gareth Scott from Unite emailed Mrs Clifford in HR on 8 August 2016 on behalf of the claimant and raised concern that the claimant did not feel domestic service's work was appropriate for him; was deeply upset by the decision to move him when he was the complainant; felt he was being punished/victimised for making a grievance complaint against his Manager; was not consulted about the move, had not requested it and was prepared to continue in his substantive post while the grievance was being dealt with. Mr Scott referred to provisions in the respondent's grievance procedure and harassment policy under which he considered it reasonable for the respondent to move or suspend the individual against whom a complaint was made and requested that the claimant be returned to his substantive post with immediate effect and an explanation be provided as to why the claimant was transferred.

 

19. On 9 August 2016 the claimant did not attend for work or contact Mr Scorer to explain why. Mr Scorer contacted the claimant by telephone that afternoon and the claimant advised that he had not reported for work because his Trade Union representative had been awaiting a response from the respondent in relation to his email of 8 August 2016. Mr Scorer advised the claimant his absence would be treated as unauthorised and unpaid unless he wished to offset it against annual leave. Mr Scorer offered the claimant a Domestic Catering Band 1 position which the claimant rejected. Mr Scorer advised the claimant that he would be referring him to Occupational Health having indicated that he was worried and anxious; the claimant responded that he would be unwilling to attend because he was not sick.

 

20. On 9 August 2016 Mrs Clifford replied to Mr Scott that taking into consideration their duty of care to all their employees to put any interim measures in place to protect staff from any alleged harassment and harassment allegations and the unique circumstances of the claimant's grievance regarding the number of staff involved, that the respondent had discussed with the claimant on 3 August 2016 the temporary move, to which he had indicated his agreement and was confirmed to him in writing on 4 August 2016. Mrs Clifford furthermore set out " I understand that it is the type of work within Domestic Services that Mr McLoone is not satisfied with and requested instead to be moved to a vacant telephony position. It was explained to Mr McLoone that normal recruitment procedures would apply to this post as it is a Band 2 post. We are currently reviewing an alternative Band 1 catering position and will be in contact with Mr McLoone regarding this. I would stress that this position will require full uniform compliance".

 

21. On 10 August 2016 the claimant notified Mr Scorer by email that he had tried to reach Mr Scorer via the main switchboard that morning but the operator could not find him by name in the directory, that he had been calling to advise that he would be absent due to sickness and asked Mr Scorer to give him a call on receipt of his email. On 11 August 2016, the claimant again emailed Mr Scorer stating that he had been unable to reach him again by telephone that morning to discuss his absence and would be leaving in a sick line to cover him for it. The claimant requested Mr Scorer to call him at his earliest convenience.

 

22. On 11 August 2016 Mr Scorer wrote to the claimant to clarify the main points of their telephone discussion on 9 August 2016 setting out the reasoning for his temporary move to an alternative position following his formal grievance application, arising from the requirement on Mr Scorer to consider any interim arrangements needed to be put in place whilst the allegations were addressed and actions taken to resolve matters; that taking into consideration that arrangements should protect both the claimant from further harassment and the alleged harasser from further allegations, it was decided to explore a temporary move as an interim measure for the claimant that posts available within his current role as a Band 1 Support Services Assistant were reviewed and a post identified as a Band 1 Support Services Assistant within Domestic Services in the same location, but within a different team and reporting to a different Line Manager which they had discussed by telephone on 3 August 2016 and the claimant indicated his full agreement to that approach; and this was further confirmed to the claimant by Mr Scorer in writing on 4 August 2016. Mr Scorer clarified that the claimant's failure to attend work on 9 August 2016 by reason of his Trade Union representative awaiting a response from the respondent in relation to his email of 8 August 2016, was not an acceptable reason for non-attendance at work and so had been recorded as an unauthorised absence, which is leave without pay; that due to the claimant's circumstances, he would not initiate disciplinary proceedings at that time; and he was willing to allow him to set it off against his annual leave if he wished, which if he agreed to should be notified to Mr Scorer immediately. Mr Scorer emphasised that any further episodes of unauthorised absence would not be tolerated and would be investigated under the respondent's disciplinary procedure. In respect of their telephone discussion on 9 August 2016 Mr Scorer set out that he had reviewed alternative Band 1 positions, given the claimant's assertions in relation to the Domestic Service's post, and was able to offer him a Domestic Catering Band 1 position, but during their telephone conversation on 9 August 2016 the claimant stated he was not willing to accept it. Mr Scorer set out that he had also advised the claimant he would be referring him to Occupational Health, having indicated that he was worried and anxious, to which the claimant had replied he would unwilling to attend because he was not sick. Mr Scorer confirmed that he had however referred the claimant in accordance with the Managing Attendance protocol and encouraged the claimant to attend when scheduled and to avail of Occupational Health advice and support. Furthermore Mr Scorer set out that during the phone call on 9 August 2016, he had found the claimant to be " deliberately obstructive and rude. Whilst I understand that you are experiencing distress as a result of the situation, I would advise that this is unacceptable behaviour and will not be tolerated in future". In reference to the email sent by the claimant at 9.34 am on 10 August 2016 reporting sick for work, Mr Scorer asked that the claimant submit his self-certificate in a timely manner and make regular contact to update him on any further absence. Finally Mr Scorer advised that in respect of the claimant's harassment complaint, he had been informed by Human Resources that Michelle McElhinney, Senior Human Resources Adviser, had been appointed to meet and discuss his grievance, that her role included providing to him support and guidance and she would arrange and invite him to a meeting with his Trade Union representative, the arrangements for which would be communicated to him shortly. Mr Scorer also enclosed a Carecall leaflet (a confidential and free service offered to Trust employees) should the claimant feel he required additional support.

 

23. On 17 August 2016 Mrs McElhinney wrote to the claimant in her role as Designated Officer and invited him to meet on 9 September 2016 to discuss his grievance letter and to provide clarification on the options available to him and to determine the way forward. A copy of the respondent's harassment policy was enclosed and the claimant advised of his right to be represented by a Trade Union representative or work colleague.

 

24. On 17 August 2016 Mr Scorer wrote to the claimant setting out that it had been brought to his attention that no medical certificate had been provided by the claimant in respect of his current absence from work for the period from Wednesday 10 August 2016. Mr Scorer enclosed the respondent's Managing Attendance protocol and referred the claimant to Section 5 which outlined responsibilities of employees in providing relevant medical certificates in respect of absence and importance of communicating with his Line Manager whilst on sick leave. Mr Scorer set out:

"As you have not provided medical certificates to cover your current period of absence and your non-compliance with the requirements of the Managing Attendance protocol I am treating this as an unauthorised absence and this may affect the Trust's ability to continuing paying you both Occupational and Statutory Sick Pay. Failure to provide your certificate by Monday 22 August 2016 will result in me advising Payroll to suspend your pay until you have complied with the requirements of the Trust to make available medical certificates to cover your current absence.

 

I look forward to hearing from you".

 

25. The claimant subsequently provided the respondent with a medical certificate for the period 9 August 2016 to 23 August 2016.

 

26. On 23 August 2016 Mr Scorer left a voicemail for the claimant to which the claimant responded by email on 24 August 2016 to Mr Scorer confirming that he would be sending in another sick line after seeing his doctor that day.

 

27. On 26 August 2016 Mr Scorer wrote to the claimant referring to his previous letter of 17 August 2016 explaining the need for the claimant to report absence appropriately and the importance of submitting sick certificates on time and set out that the claimant had made no contact to inform Mr Scorer of his continued absence from work since 24 August 2016. Mr Scorer referred the claimant to Sections 4.1 and 5 of the Managing Attendance protocol outlining responsibilities of employees in providing relevant medical certificates in respect of absence and the importance of communicating with his Line Manager or Designed Officer whilst on sick leave and set out that because the claimant had not provided medical certificates to cover his current period of absence and had not complied with the requirements of the Managing Attendance protocol, Mr Scorer was treating this as an unauthorised absence. Mr Scorer set out:

 

"I therefore have no option but to advise Payroll to suspend your pay from Wednesday 24 August 2016 until you have complied with the requirements of the Trust to make available medical certificates to cover your current absence.

 

Please note payment will only be reinstated (not backdated) from the submission of an up-to-date certificate and correct reporting of absence. Repeated non-compliance with the protocol may result in formal disciplinary action as well as withholding pay.

 

I look forward to hearing from you in relation to the submission of medical certificates and also if there had been any developments in relation to you returning to work".

 

28. On receiving Mr Scorer's letter on 30 August 2016 the claimant telephoned Mr Scorer indicating that he had posted a medical certificate, Mr Scorer subsequently confirmed receipt of the certificate dated 24 August 2016 on checking for it in the post room.

 

29. On 1 September 2016 Mr Scorer wrote a letter to the claimant further to his correspondence of 17 August 2016 explaining the need for the claimant to report his absence appropriately and of submitting medical sickness certificates on time. Mr Scorer set out:

 

"I must bring to your attention the following:

 

•            Your email to myself, dated Wednesday 24 August 2016 is not an appropriate means of notification.

 

•            Your medical sickness note dated Wednesday 24 August 2016 was not received in the post until Tuesday 30 August 2016.

 

The Managing Attendance protocol (Section 5) outlines the responsibilities of employees in providing relevant medical certificates in respect of absence and the importance of communicating with your Line Manager or designated Officer while on sick leave. I have enclosed another copy for your reference.

 

Failure to report absence appropriately and timely submission of medical certification and notification of absence result in me advising Payroll to suspend your pay until you have complied with the requirements of the Trust policy.

 

Please note payment will only be reinstated (not backdated) from the submission of an up-to-date certificate and appropriate notification of your absence".

 

30. On 5 September 2016 the claimant emailed Mrs McElhinney stating his wish to make a formal complaint against Mr Scorer for a number of reasons which had led him to suspend the claimant's pay; acknowledging his understanding of the need to follow protocol but belief that Mr Scorer had enforced it unnecessarily. The claimant raised concerns that Mr Scorer had sent him a letter which took four days to arrive, rather than telephoning him, resulting in suspension of his pay from 24 August 2016 even though he had a sick line to cover this which he notified Mr Scorer of by email that day. That Mr Scorer indicated that his email of 24 August 2016 was not appropriate means of notification; but Mr Scorer was aware the claimant had on numerous occasions been unable to reach him by telephone due to being new and told by the operator that Mr Scorer was not on the system. That Mr Scorer also notified him that his medical sickness note dated 24 August 2016 was not received until 30 August 2016, whereas the claimant had posted it on receipt on 24 August 2016 by first class post and could not control the post, nor delays caused by the bank holiday. The claimant acknowledged his understanding why Mr Scorer had reiterated the attendance protocol in his letter of 11 August 2016 and set out that it was merely a misunderstanding on his part as he did not wish to work in an area that he was moved to and did not attend work because his Trade Union representative sent a letter by email disputing this. The claimant set out he had emailed and sent in sick lines to cover every day absent since and, "I believe Jason's style of management to be unconcerning and shows a lack of understanding. To be faced with a financial burden of a pay reduction has now increased the level of stress I am experiencing". The claimant requested that no amendments be made to his pay, that it took him four days to receive the letter outlining a payment would only be reinstated, not backdated from submission of an up-to-date certificate and appropriate notification of absence and believed this to be "blatant mismanagement" setting out, "I have notified Jason, and he has received up-to-date certificates to date. My current sick line expires on 7 September 2016 and I will look to extend this further again and I again have every intention of sending this [in] when I receive it."

 

31. Mrs McElhinney responded to the claimant on 6 September 2017 at 11.27 am referring to her meeting with the claimant arranged for on Friday to deal with an allegation of harassment and asked, "Are you sending this to me to be considered under the same policy". The claimant replied at 11.42 am, that he was currently certified off work due to being relocated to two alternative working arrangements in which he did not feel comfortable and felt he had no option but to send in sick certificates; it had come to light from a letter he had received the day before that his pay had been suspended unfairly by Mr Scorer; the only way he believed to resolve it was to make a complaint to HR but not necessarily under the harassment policy; and asked " can you confirm if this is correct procedure as I'm unsure who to make the complaint to in order to resolve this if not". Mrs McElhinney replied at 12.03 pm confirming the matter was being dealt with under the Managing Attendance protocol and if the claimant felt that Mr Scorer had not applied that process correctly " you need to go back to him and raise your concerns". The claimant replied at 12.20 pm, " I cannot make a formal complaint to the person I'm making it against. In all honesty, everywhere I turn I am getting nowhere it seems. If you cannot deal with this then, I would urge you to pass it to someone who can, as I do not know who else I can turn to. It seems that the seriousness of this hasn't been recognised as it is my pay that is being unfairly affected. Jason Scorer cannot resolve my complaint against him. I do not know who his superior is to raise this with them. I feel that this situation is disgraceful to say the least and will seek legal advice. I await your response".

 

32. On 9 September 2016 the claimant met with Mrs McElhinney at 10.15 am who explained both the informal and formal harassment processes which were available to him and began to discuss with him his grievance. The meeting was however adjourned at 11.25 am at the claimant's request on indicating to Mrs McElhinney that he needed to leave urgently following receipt of a text message. Mrs McElhinney wrote to the claimant on 19 September 2016 confirming that a reconvened meeting would take place on 11 October 2016.

 

33. On 10 October 2016 Mairead McCallion (HR Recruitment) emailed the claimant with a conditional offer letter for a temporary, full-time telephonist-Band 2 post subject to pre-employment checks. A personal declaration form and pre-employment check document were attached.

 

34. On 11 October 2016 the claimant together with Mr Scott met with Mrs McElhinney to discuss the claimant's grievance. Mediation, the formal and informal grievance processes and anticipated timescale were discussed. The claimant indicated he would see a successful outcome as being moved to a different area. The claimant explained he felt discontent because he had raised concerns and was moved to 'Domestics' and then offered catering jobs which in his mind were not suitable for him. On being asked whether any other jobs were suitable, the claimant said that he had applied for a telephonist role which he had been offered. Mrs McElhinney arrange to talk to Recruitment regarding a reference for the claimant in respect of the post offered because it was not considered appropriate for Ms O'Connor to provide him one. Mrs McElhinney discussed with the claimant reference by him in his letters to the Managing Attendance protocol. The claimant expressed his concern that his pay was being stopped, having sent in sick certificates. Mrs McElhinney asked was "everything was ok since?" the claimant replied "yes". Mrs McElhinney asked had the claimant kept in touch with Mr Scorer since, the claimant confirmed he had. Mrs McElhinney put to the claimant "This issue is now resolved [?]", the claimant replied "yes".

 

35. Mrs McElhinney arranged to check if there were any other post options for the claimant to move to such as Laundry. The claimant indicated that working as a Domestic was not an environment he wanted to work in and he had done Catering in the past and did not want to do it. Mrs McElhinney put to the claimant that the respondent had a duty to ensure he was protected and that he could not pick and choose. The claimant expressed his feeling that it was unfair on him if he were asked to do a job he was uncomfortable with. The claimant's Occupational Health referral was discussed. The claimant confirmed that whilst a date had been arranged, this had been postponed to be rearranged. The claimant arranged to email Mrs McElhinney by 18 October 2017 to let her know how he wished to proceed with his grievance and Mrs McElhinney arranged to return to the claimant regarding the telephonist post.

 

36. Mrs McElhinney thereafter spoke with Danielle McLaughlin from the respondent's Recruitment Team and informed her that the claimant had been in contact and advised her he had been offered a telephonist post but was concerned about who he should name on his personal declaration form as his updated referee to provide his reference. Ms McLaughlin explained to Mrs McElhinney that Recruitment's process of requesting references would be to request a reference from the candidate's most recent Manager, Michelle O'Connor. Mrs McElhinney advised Ms McLaughlin, without going into detail about the process she was involved in, that it would not be possible to get a reference from Ms O'Connor because there was an ongoing HR issue in progress. Mrs McElhinney arranged to speak further to the claimant and provide to Ms McLaughlin referee names.

 

37. On 12 October 2016 Mrs McElhinney spoke to Mr Scorer and asked him to identify someone who could provide a reference for the claimant and to check if there were any posts within the Laundry Department for the claimant on a temporary basis.

 

38. Mr Scorer spoke further with Mrs McElhinney on 13 October 2016 and advised her that the reporting structure applicable for the claimant was Alison McCorkell, a Band 5 Co-Ordinator who was off sick; next was Lorraine McKinney or Mark Tinney, both Band 3, both of whom were alleged harassers; thereafter, Band 1 did not report to Band 2. Mr Scorer arranged to look at a blank reference form and review whether anyone else could complete it. Mr Scorer also arranged to consider whether the claimant could be redeployed on a temporary basis to Laundry.

 

39. On 18 October 2016 the claimant completed a personal declaration form setting out under sick absence that he had been absent by reason of flu for five calendar days in 2015; five weeks by reason of a workplace accident from August 2015; and was currently absent by reason of work-related stress from August 2016. The claimant set out by way of mitigating circumstances " in relation to my current period of sickness I would ask that the circumstances surrounding this be considered. I lodged a grievance and due to the nature of this I was moved positions without option into a role I did not feel comfortable with. I felt I had no option but to speak to my doctor and advise of the stress this has caused myself, considering I am the victim in terms of the grievance I lodged. With that said I am ready to return to work albeit, not in the environment I was previously subjected to. I have no issue ensuring my availability for work to this new position offered to me."

 

40. On 18 October 2016 Mr Scorer discussed with Mrs McElhinney the possibility of a Band 3 post holder providing the claimant a reference. Mrs McElhinney arranged to contact the claimant for the name of his Supervisor and to advise the claimant that there were no vacant posts currently in Laundry. Mr Scorer arranged to contact Occupational Health in respect of the Occupational Health appointment which had been cancelled and was due to be rescheduled for the claimant.

 

41. On 18 October 2016 Mrs McElhinney emailed the claimant referring to their meeting on 11 October 2016 when he informed her he had been offered a Band 2 telephonist post and set out that the recruitment process required a reference from his current employer; that Ms O'Connor had been informed that the claimant had instigated a complaint of harassment against her and it was not therefore appropriate for her to complete a reference for him; Mrs McElhinney had checked with Mr Scorer if there was anyone else within the Line Management structure who had supervised the claimant and could provide a reference; Mr Scorer had named Lorraine McKinney and Mark Tinney, Band 3 Supervisors as the only employees who could provide a factual reference for the claimant's current post; she realised both these individuals had been named by the claimant during their discussions, however neither had been informed the claimant had named them as alleged harassers and asked if the claimant could confirm which of them was his preferred referee and the Recruitment office would make the necessary contact. Mrs McElhinney also requested that the claimant let her know how he wished to progress his complaint of harassment. The claimant responded by email stating his preference for Lorraine McKinney and asked for more time for him to make an informed decision and seek independent advice regarding his grievance complaints. Mrs McElhinney confirmed an extension of time and asked the claimant to respond with his directions by 25 October 2016.

 

42. On 19 October 2016 Ms McCallion wrote to the claimant offering him the post of permanent full-time telephonist, based in Support Services at Altnagelvin Hospital subject to the receipt of a satisfactory reference from his current employer and completion of attached personal declaration form. She set out that " once all pre-employment checks are complete, you will be contacted to confirm a start date. You may wish to note that the pre-employment checks may take a number of weeks to complete and you are advised not to hand in your notice to your current employer until you have discussed this further with your nominated Recruitment Officer. Should any of the pre-employment checks not be satisfactory, this conditional offer of employment will be withdrawn".

 

43. On 20 October 2016 Ms McLaughlin forwarded reference requests and guidance information for managers to both Lorraine McKinney and on her own initiative also to Mr Scorer in respect of the claimant because she did not consider Ms McKinney as a Band 3 had access to files with all information necessary to complete the reference, in an endeavour to assist in progressing completion of the recruitment exercise. Ms McLaughlin was not aware of the claimant having raised a complaint against Mr Scorer in respect of his application of the Managing Absence protocol.

 

44. On 25 October 2016 Mr Scorer returned to the Recruitment Team a completed reference form for the claimant (after revision to remove information HR had earlier advised was not appropriate to include). In the reference Mr Scorer answered that the claimant's ability to communicate/co-operate with others and his flexibility/adaptability, based on his knowledge and experience of the candidate, was unacceptable. Mr Scorer provided as requested the claimant's dates of sickness over the last two years and the numbers of days as:

 

" 30/05/15 to 04/06/15 5 days

15/09/15 to 21/10/15 38 days

19/02/16 to 03/03/16 14 days

09/08/16 to present 66 days at completion of reference."

 

Mr Scorer answered "yes" to the question whether the claimant had current/ outstanding disciplinary matters/investigations or unspent disciplinary sanctions; failed to complete a "yes" or "no" answer as to whether he was aware of the claimant being barred by the ISA, or knew of any reason why Recruitment should not employ the candidate; answered "no" to the question, "would you re-employ the candidate?"; and added under the Comments section for inclusion of any other comments thought relevant,

 

" There are currently outstanding HR processes that require initiation upon GMcL return to work.

 

Flexibility/adaptability - in support of a complaint raised by GMcL, alternative roles/options were offered to accommodate GMcL, but were subsequently denied.

 

Due to GMcL's level of sickness, the Absence Management Policy process will commence on his return to work."

 

45. On 24 October 2016 Ms McCallion sent an email to John Crockett, John McLoone and copied in Anne Fleming (tele exchange ) confirming that there was no one on the current waiting list willing to accept the temporary full-time Telephonist (Band 2) position and requested advice on how they would like to proceed.

 

46. The claimant wrote to Michelle McElhinney on 25 October 2016 to confirm that he did not wish to take any formal action in relation to the grievance complaint he had lodged and explained this was due to the fact that he had been offered a new post within the Trust and was confident that taking up new employment outside of his current post would resolve the issues he had raised and believed dragging the issue on would not be helpful to himself or any parties.

 

47. On 26 October 2016 Michelle McElhinney acknowledged that the claimant did not wish to progress his complaint under the policy on harassment and confirmed she would inform Ms O'Connor and Mr Scorer. She advised the claimant in the meantime if he was still on sick leave he should continue to submit sick lines to Mr Scorer and asked if he was returning to work prior to a starting date for his new post, could he contact Mr Scorer to discuss his working arrangements.

 

48. On 31 October 2016 the claimant emailed Ms McCallion because no-one had contacted Patrick Healy whom he had named as his referee. Ms McCallion indicated she had misplaced notes taken from their earlier telephone conversation and the claimant confirmed for her Mr Healy's contact details and position.

 

49. On 1 November 2016 John McLoone who had been Chairperson of the claimant's interview panel for the telephonist post, returned to work after being off on paternity and then annual leave. John McLoone responded to Ms McCallion's email and queried the position with the temporary full-time Telephonist, Band 2 post because he was under the impression it had been offered and accepted by the claimant.

 

50. Following John McLoone's return to work a porter, Denis McGinley (who had been the claimant's supervisor in the Patient Kitchen years earlier) called to John McLoone's office and enquired if he knew what the hold-up was with the claimant's pre-employment checks. We accept John McLoone informed Mr McGinley he could not discuss the matter with him and if the claimant was asking him, he would tell him the same thing and advise that he contact Recruitment. John McLoone thereafter contacted Recruitment and was informed there had been delay due to the inability to secure a reference from a current or more recent manager and nominated referees not meeting the requirement for the reference to be from a current or most recent manager; the claimant had provided an alternative, Lorraine McKinney, but she was hesitant to give a reference because she did not have access to all of the information required to provide it, in particular the claimant's attendance information; and next manager up, Ms O'Connor absent at that time. John McLoone enquired whether the claimant could continue going upwards until he found a manager able to provide a reference and was informed this was being considered and he would receive an update when the matter was sorted out.

 

51. The following day the claimant arrived at John McLoone's office and stated, " Denis said you wanted to see me". It was in dispute whether the meeting was instigated at the invitation of John McLoone via Denis McGinley. The tribunal is not persuaded to draw an inference against the respondent on the claimant's submission that it would have been easier for the respondent to call Mr McGinley to clarify this matter and consider on balance most probable that whilst the claimant did attend at the suggestion of Mr McGinley, that this arose from a misunderstanding by Mr McGinley of John McLoone' response the day before (that he could not discuss the matter with Mr McGinley and if the claimant was asking him he would tell him...) as an expression of a wish to speak to the claimant. We on balance find more probable the account of John McLoone that when the claimant attended at his office, he indicated to the claimant that Mr McGinley must have misunderstood him and that it would not be appropriate for John McLoone to discuss the job offer with him. John McLoone asked the claimant if he had contacted Recruitment and what they had told him. The claimant replied that Recruitment had advised him that they were unable to get his reference because the person he had named was not suitable and the next available person was currently off. The claimant mentioned that he had had some issues whilst working in the Patient Kitchen which affected who he could approach for a reference, but we accept John McLoone did not enquire into this matter. The claimant stated that he had provided an alternate referee but had heard nothing since. John McLoone informed the claimant he was aware of the delays and informed him that as manager for switchboard he was keen to get the post filled as soon as possible and the claimant was free to contact Recruitment to discuss how the claimant would go about providing an alternative referee and was sure this was not the first time this had occurred but that Recruitment should be able to advise the claimant on the process. We accept John McLoone said to the claimant " if you do start in switch, it will be a new area with different challenges and fresh opportunities".  The claimant indicated to John McLoone he had nominated Ms McKinney but she had not provided a reference.  John McLoone advised the claimant that if a person nominated was unable to provide a reference the claimant should speak to Recruitment about who could provide one. John McLoone asked the claimant if he had spoken to Mr Scorer because he was Ms McKinney's line manager and the only person John McLoone was aware of who could direct the reference request to someone who had all of the information required. The claimant stated that he would go and see Mr Scorer. John McLoone offered to ring Mr Scorer to confirm that he was in his office and available to meet, but on doing so Mr Scorer's secretary confirmed Mr Scorer was in a meeting. We accept that there was no overlap of staff between the Patient Kitchen and areas for which Mr John McLoone was responsible; that that John McLoone did not know the staff who worked there; he rarely had direct communications with Ms O'Connor; had no prior knowledge of the claimant or the issues mentioned by him; was not aware that the claimant was absent from work at the time; nor that the claimant had raised a grievance.

 

52. On 3 November 2016 the claimant emailed Mr Scorer apologising for calling to see him unannounced the day before and set out that he was in the hospital speaking to John McLoone who had tried to call Mr Scorer beforehand to let him know the claimant was going to drop in, but was unable to reach him. The claimant enquired whether Mr Scorer could give him a call to speak to him.

 

53. On 3 November 2016 Mr Scorer emailed Ms McLaughlin and Mrs McElhinney and requested they call him to discuss the reference report.

 

54. On 4 November 2016 Mr Scorer emailed Ms McLaughlin and
Mrs McElhinney seeking confirmation whether the updated reference report was appropriate.

 

55. On 4 November 2016 Ms McCallion emailed John McLoone and confirmed that the claimant originally accepted the temporary Telephonist position but was then offered a permanent position which he accepted.

 

56. On 7 November 2016 Mr Scorer emailed Ms McLaughlin regarding the claimant's reference report and asked if she could advise if the attached reference was appropriate to be submitted and set out that the claimant was "persisting in discussing his 'start date' and can't understand what the holdup is? Essentially he is on nil pay now and desperate to get back to work!! I have arranged to call GMcL at 1.00 pm today." The tribunal found Ms McLaughlin in particular a credible witness and consider that she was professional in her dealings in the recruitment exercise being undertaken and do not consider Mr Scorer's use of " start date" in his email to Ms McLaughlin suggestive of underhand goings on to the effect that there was not going to be a start date for the claimant.

 

57. On 8 November 2016 Mr Scorer emailed Ms McLaughlin and Mrs McElhinney. Mr Scorer set out that he had spoken to the claimant who was waiting on his start date for his new post, that his last sick line had run out on 3 November 2016, that he did not wish to get a new one so as not to delay starting his new role and had asked to go on to annual leave but had not yet been seen by Occupational Health. Mr Scorer enquired at what stage the recruitment was with his reference being provided to John McLoone, the selection panel chair. Mr Scorer asked Mrs McElhinney whether the claimant had confirmed what he was doing with his grievance.

 

58. On 8 November 2016 Ms McLaughlin emailed Mr Scorer confirming that she had tried his telephone line but it was busy, that she had called him the day before and had left a message because he was at a meeting and that she would be in the building that afternoon and requested that he give her a call.

 

59. The claimant on 15 November 2016 emailed Mr Scorer to update him that he had contacted Occupational Health and his management referral appointment was rescheduled for 17 November 2016. The claimant confirmed that all being well from this appointment he hoped to return to work and would wait Mr Scorer's response once he had received the necessary information from Occupational Health.

 

60. The claimant attended Occupational Health on 17 November 2016 and was assessed as fit to return to work. This was confirmed to Mr Scorer by letter dated 17 November 2016.

 

61. On 24 November 2016 the claimant attended Occupational Health and was assessed as fit for the proposed post of telephonist (having contacted them directly to move forward his appointment which had been due to take place on 16 December 2016).

 

62. On 28 November 2016 Mr Scorer wrote to the claimant, " Hi Gerard, I hope you are well. As requested, please see below your current rota:" and set out the claimant's proposed rota between 25 November and 15 December 2016. Mr Scorer ( unaware that the claimant had attended in the meantime) set out that he had spoken to Ms McLaughlin that morning who had advised the claimant was currently scheduled for his Occupational Health medical as part of the current recruitment process on 16 December 2016. Mr Scorer continued, " Until such time you requested to use Annual Leave and/or return to work. Since our last correspondence I have recorded you as Annual Leave. Could you please advise of the date that you wish to return to work. I would like to meet with you on your return to conduct the relevant return-to-work interviews. I am not available on Wednesday 30 Nov or Friday 2 Dec. Kind regards Jason".

 

63. Following the outcome of the claimant's Occupational Health assessment for the new post his file was left for assessment by Ms McLaughlin, after which she tried to telephone John McLoone without success. Ms McLaughlin then emailed John McLoone on 28 November 2017 and confirmed she had tried to contact him in respect of pre-employment checks for the claimant who had been offered a telephonist post and she would be out of the office until later that week.

 

64. The claimant replied to Mr Scorer by email on 29 November 2016, thanked Mr Scorer for his email, confirmed that he had his Occupational Health medical assessment for the new post on 24 November 2016 and had spoken to Recruitment on 29 November 2016, who informed him he should hear from them before the end of the week regarding a start date. The claimant set out that with regard to returning to work before then that he would be grateful if Mr Scorer would continue to record him on Annual Leave until the end of the week due to bereavement. Whilst not normally permitted for an employee to go from sick leave directly on to annual leave, Mr Scorer accommodated the claimant's request based upon Occupational Health having confirmed his health as part of his recruitment process, so as to allow him to bridge the gap between his sickness and anticipated start date in switchboard.

 

65. On 2 December 2016 Ms McLaughlin telephoned John McLoone and advised him Recruitment had received a reference which gave cause for concern and read out to him content of the reference from Mr Scorer. We accept that John McLoone focused upon the numbers of absences, their length and reasons provided thereon, including that there was a 38 days' work related injury absence, and did not pick up at the time on the name of the referee, if provided; also, that this was the first time he became aware the claimant was currently absent from work although not at this stage aware of the claimant's grievance and that his current absence was related to this. Ms McLaughlin asked John McLoone if he was willing to accept the claimant. John McLoone sought Ms McLaughlin's advice because it was the first interview panel he had chaired; Ms McLaughlin advised that he would have to consider the reference and the potential risks, if any, to proceeding with the employment. John McLoone asked if posts would normally be taken off candidates; Ms McLaughlin responded that a manager needs to consider the individual facts and assess against the needs and current situation in their Department; and that posts are withdrawn from candidates based on unsatisfactory pre-employment checks and in particular based on levels of absence. Ms McLaughlin put to John McLoone that he should consider the reference and decide if he could proceed based on the number of days absent and number of episodes given the relatively short period of time or if he felt the risk was too great given that he was already in a situation of major staff shortages and lack of cover. Ms McLaughlin suggested John McLoone to consider the matter over the weekend and to contact her on Monday if he needed any assistance.

 

66. On 2 December 2016 John McLoone sent an email to John Crockett and Jason Scorer stating that HR had been in touch to point out the claimant's high levels of absence in his references and:

 

"... Asked do we wish to continue?

 

He has the following episodes since 2015:

 

5 Day absence

38 Day absence

14 Day absence

And

66 Day ongoing absence

 

Danielle couldn't tell me if he had been actioned under the absence management policy previously for these absences but has said as soon as he returns the process will be activated so he will be facing a meeting relatively soon after starting with us.

 

I am genuinely torn on this one, I don't like turning away from a challenge and I [sic] with proper management and direction he could be a productive member of our team, however I don't have this information for anyone applying from outside of support services so I don't know if it's fair to base a decision on information I wouldn't have for other candidates. Based on the black and white number it would probably set a dangerous precedent that this level of absence will be accepted by support services and that could have further implications for redeployments into our department in future.

 

For that reason, and the fact th [at] I share a surname with the guy (we are not related btw) means I would like to get a second opinion please?"

 

67. Although John McLoone could have accessed detailed attendance information for the claimant because it was stored on the same directory as for areas under his management he considered that it would be unfair to do so and relied upon the above information relayed to him by Recruitment.

 

68. By email dated 2 December 2016 John McLoone wrote to Danielle McLaughlin thanking her for the information provided and set out:-

 

"I have gone to John Crockett and Jason to see what we should do. In the meantime can I ask is there any possibility we could decline him for the permanent post but take him on the temporary post he was offered first (before their [sic] permanent post came up)?

 

This could give us the trial period of the 3 month contract to iron out any issues, continue the HR process for absence and see if there has been any improvement before renewal? or have I got that completely wrong?"

 

69. On receipt of the John McLoone's email on 2 December 2016 Mr Scorer telephoned John McLoone to recuse himself on the basis that he had been a referee for the claimant and so was not in a position to respond.

 

70. On 5 December 2016 John McLoone emailed Danielle McLaughlin at 0911 hrs and set out:

 

"I just want to confirm that we are unable to accept Gerard McLoone based on the level of absence presented from his checks. With 100+ days since 2015. I don't think we could risk having a similar level of absence in switchboard which only has a small team and is already in crisis with absence".

 

71. On Monday 5 December 2016 after receiving the email from John McLoone, Ms McLaughlin contacted the claimant by telephone to inform him of the decision to withdraw the conditional offer of the permanent telephonist post made to him. Ms McLaughlin informed the claimant that they were in receipt of all his pre-employment checks now and unfortunately would have to withdraw the offer due to an unsatisfactory reference. The claimant was shocked by the news and asked who made the decision. Ms McLaughlin informed him that she had discussed the content of the reference with John McLoone as the Chair of the interview panel. The claimant responded that the post could not be taken off him because he had a letter offering him the post from HR. Ms McLaughlin explained to the claimant that the offer of employment was conditional and as stated in his letter was subject to satisfactory pre-employment checks and that the letter to him also stated that the conditional offer may be withdrawn if any of the checks were not satisfactory. The claimant became annoyed and said that he had handed in his notice and was just waiting to start this new position. Ms McLaughlin again referred the claimant to the offer letter which specifically advised candidates not to hand in their notice until they had been advised that pre-employment checks were completed. The claimant requested a copy of the reference provided, Ms McLaughlin advised that he should read it and if he felt it was factually incorrect, that he could appeal the content of the reference. A copy of Mr Scorer's reference was made available for the claimant to collect from the HR reception desk (it is not clear however whether or if so, when the copy reference was collected). The claimant indicated that he was going to contact John McLoone because he had met him before and felt that he was getting the post.

 

72. The claimant thereafter telephoned John McLoone and asked why the offer had been withdrawn. John McLoone informed the claimant that the pre-employment checks had highlighted a level of absence that was unacceptable for switchboard and when he was made aware of this, he had to decline to proceed with the offer. The claimant queried what information John McLoone had. John McLoone asked the claimant if he had spoken to Ms McLaughlin what information she had relayed to him. The claimant stated that he had spoken to Ms McLaughlin before calling John McLoone and was not happy that some of the absences included in the figures were the result of work related injuries and should not have been shown in the figure John McLoone was given. John McLoone informed the claimant that he was basing his decision on the information provided by Recruitment via the pre-employment checks and that if those were in dispute the claimant would need to have that looked into by Recruitment/HR and the information they had communicated to John McLoone changed. John McLoone advised the claimant that the levels of absence shown in the pre-employment checks were not acceptable, even discounting the 38 day absence communicated by the claimant to him as a resulting from an injury sustained in work. John McLoone informed the claimant that while he may not consider any absence that is the result of a work-related injury, it would be still be present in the information he was provided by Recruitment. John McLoone referred the claimant back to Danielle McLaughlin for any further queries and advised that the decision could be reviewed if new information was relayed to him by way of a different absence figure. We find more probable the evidence of John McLoone in respect of the conversation he had with the claimant, and accept when the claimant mentioned his mitigating circumstances statement, John McLoone responded that Recruitment relay that information to him when presenting absence figures. We accept that the decision to withdraw the offer of employment was made solely by John McLoone and when he made his decision he was not aware of the content of the claimant's mitigating circumstances statement or the claimant's grievance. Also, the respondent did not have a policy whereby absence for work related injury was to be disregarded.

 

73. On 5 December 2016 John McLoone emailed Danielle McLaughlin setting out that

the claimant had just rang him to discuss the post and had said he was speaking to her prior to his call and wanted to add information to his reasons for absence but John McLoone was not sure if he could accept that or use it in his decision-making and set out:

 

"He indicated that two of his absences were work-related stress/injury (a
31 day absence and the current 105 day absence). I explained to him that I was simply given the amount of absence and the occasions, not the reasons and that if we take this level as acceptable, we will have to for every other candidate across Support Services in future. Also as switchboard was already critical with absence, it was not an area we could take any risks with in relation to absence.

 

He accepted what I was saying ok, but wanted to know if there was anything else he could do? I told him I would ask but may have to pass it on to ensure remain impartial in the process as I was the Chair (again), I don't know as I have not had a query like this before".

 

74. On 7 December 2016 at 0802 the claimant emailed Michelle McElhinney setting out:-

 

"I am writing with concern regarding an offer of employment made to myself which has been withdrawn based on my level of absence. While I appreciate any offer of employment is conditional I fail to understand why this decision was made based on mitigating factors which were made to the recruitment office and the prospective manager in person.

 

I was made an offer of employment several months ago for a Telephonist role as you may recall. I did not proceed with the grievance I lodged due to the fact I believed I was taking up this role this resolving any outstanding issue. It now concerns me that this offer in my opinion has been unfairly withdrawn and I am left with the predicament of going back to the role which has caused me many problems which are unresolved.

 

I discussed with John McLoone (Support Services Co-Ordinator) in the meeting which he asked me to unofficially attend the issues I was having and he advised I would have a fresh start in the new role and he would want to get me started as soon as possible. I also provided a written statement on the pre-employment checks the reasoning for my absence and the mitigating factors. It is clear that these were ignored as John McLoone advised me that he wasn't given any mitigating information but just that of the absence figure. I would also like to add that I was off for 5 weeks over a year ago with work-related injury through no fault of my own and this was also ignored. I believe that if John had been aware of this he would have been able to make an informed decision. I was also advised by John after I was informed the offer was being withdrawn that he was willing to get me start [sic] in the role but the decision also lay with HR.

 

Considering my absence with mitigating factors (injury at work and work-related stress due to harassment/displacement) my sickness record is fine other than 2 episodes of unpatterned sickness.

 

I would be grateful if you could investigate this issue as I am very disappointed that this has occurred after the situation I have found myself in".

 

75. At 17.34 on 7 December 2016 Michelle McElhinney replied to the claimant " I have spoken to Danielle McLaughlin to discuss the process for appealing the withdrawal of this post. Danielle has confirmed that a meeting can be arranged for you to outline your appeal, can you let me know if you are happy for me to forward your email below to Danielle to take this forward?"

 

76. The claimant, as per his evidence, considered that it was no coincidence when he dropped the grievance that the offer of employment was then revoked. He felt that he had been misled from the meeting with John McLoone whom he had believed had confirmed would get him started in the role; and from his conversations with Recruitment who advised only a reference was required before he was given a start date. The claimant believed the mitigating factors outlined by him in his personal declaration form were not considered and time off due to a work-related injury should not have been factored into an absence score which led to the decision to withdraw. The claimant also believed that he was being punished for raising a grievance.

 

77. On 7 December 2016 Mr Scorer telephoned the claimant to discuss his return to work on 8 December 2016 following the claimant having agreed with him to return to his substantive post in the Patient Kitchen in light of not attaining the post in switchboard. The claimant asked Mr Scorer about obtaining a new uniform and indicated that he did not have any uniforms. Mr Scorer questioned the claimant several times about why he did not have a uniform reminding him that as per Trust Policy, uniform was the responsibility of the employee. The claimant advised Mr Scorer that he had lost some uniforms in a recent house move; others were in a locker at work to which he had lost the key; his safety shoes needed replaced as they were unfit for use and he had thrown them out. When Mr Scorer had last seen the claimant at work he had been wearing a uniform. We on balance find more probable Mr Scorer's evidence as to the telephone conversation that took place with the claimant and are not persuaded that Mr Scorer was abusive towards the claimant. We consider their conversation was clearly tense, the claimant became agitated on being challenged on the whereabouts of his uniforms and Mr Scorer irritated by repeated interruptions by the claimant in response to which he advised the claimant if he continued to interrupt that he would end the telephone conversation. Ultimately Mr Scorer advised the claimant that he would arrange a new or replacement uniform and took note of the claimant's size requirements so that this could be available for him when he reported to work the following day. The claimant asked for a copy of his shift pattern and when discussed he challenged it as being incorrect. Mr Scorer advised the claimant that he did not know the format of the rota in place but arranged to find out and relay it to him. Mr Scorer, unaware of the email sent by the claimant in the meantime to Mrs McElhinney, attempted to call the claimant back later that evening and left a message on the claimant's voicemail service confirming that his uniform was in place for collection, confirming his shift pattern and that he would be met to conduct a return-to-work interview as per Trust Policy.

 

78. At 18:28 on 7 December 2016 the claimant emailed Michelle McElhinney in response to her email and set out:-

 

"Im happy for you to do that. Id also like to confirm my resignation with immediate effect from my current role as a Support Services Assistant. This is due to unresolved matters which you are aware of and due to an upsetting conversation I held with Jason Scorer today. Jason became irate on the phone when I had simply asked for a new uniform to be supplied for my return to work for adequate reasons. This added to the pre-existing conflict has forced my decision to quit. Jason also confirmed he would contacted [sic] me between 2-3 pm today with arrangements to which he hasnt. I sense a lot of hostility from speaking with Jason and I can only assume that this is due to unfair defamation of my character by other colleagues. I hoped I would have a new beginning in the new role and could succeed but I feel this is only another instance of prejudice as my reputation is clearly in disrepute. I feel that I have been misled in the offer of this post as it was clearly known my circumstances beforehand. You can contact me via a phone ..... or email me if you have any queries".

 

The claimant was not aware at the time of Mr Scorer's involvement in the provision of a reference in the recruitment process and this did not form part of his reasons for resignation.

 

79. On 9 December 2016 Michelle McElhinney emailed the claimant apologising for delay in replying because she had been on leave until then. Mrs McElhinney asked the claimant,

 

"Can you please reconsider your resignation as I would wish to facilitate a meeting with you and Jason to discuss the content of your email. You can also bring your Trade Union representative to the meeting. Please let me know if you would be in agreement with this approach. If you do not wish to meet, I will forward your email to Jason to process your termination of employment."

 

80. The claimant replied to Mrs McElhinney on 13 December 2016 confirming that he would be willing to attend a meeting and asked if Ms McLaughlin had started the appeal process as part of the offer of employment withdrawal because he had not received any correspondence as yet.

 

81. By email dated 15 December 2016 the claimant was informed that his meeting with Mrs McElhinney and Mr Scorer, Support Services Manager would take place on Tuesday 20 December 2016.

 

82. The claimant emailed Mrs McElhinney on 19 December 2016 to confirm that he would not be attending the meeting "as my decision to resign is final on the basis of constructive dismissal. I trust you will understand the reasoning behind this decision and I will proceed to take this forward with my Trade Union".

 

83. On 19 December 2016 Danielle McLaughlin emailed John McLoone setting out that as he knew the claimant had requested an appeal of the decision to withdraw the offer of employment made to him for the Telephonist Band 2 post and that she would like to set up a meeting with the claimant as soon as possible to give him the opportunity to appeal the decision and sought confirmation of John McLoone's availability because she was keen to have the meeting before Christmas.

 

84. John McLoone replied by email and enquired in particular whether there was anything he needed to know beforehand like the claimant's appeal letter and also queried " was I correct in my assertion to Gerard that while he felt his work-related sickness shouldn't count I was only able to take the information I was given and not allowed to discount absence due to the reason behind them?"

 

85. Ms McLaughlin thereafter contacted the claimant about arranging a meeting and the claimant left it that he would come back to her if he wished to do so but did not pursue an appeal any further.

 

86. The claimant presented his claim to the Office of the Tribunals on 3 March 2017.

 

RELEVANT LEGISLATION

 

87. Under Article 126 of The Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.

 

88. Circumstances in which an employee is dismissed by his employer include at Article 127(c) of the 1996 Order if the employee terminates a 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.

 

89. Harvey on Industrial Relations and Employment Law/Division D1 Unfair Dismissal/3 discusses termination by the employee/constructive dismissal at paras [401]-[600]. At paragraph [403] Harvey sets out that in order for an 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 an actual breach or 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.'

 

90. Whether an employee is entitled to terminate his contract of employment is to be determined in accordance with contract law. It is established in case law that it is not enough for the employee to leave merely because his employer acted unreasonably but is a question of whether his employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or, which shows that the employer no longer intends to be bound by one or more essential terms of the contract.

 

91. Contractual terms may be expressed or implied. Recognised implied terms include the duty of trust and confidence; duty of co-operation and/or support; duty promptly to address grievances; and duty to provide a suitable working environment ( Harvey on Industrial Relations and Employment Law D1 [429] to [479].

 

92. In Brown  v Merchant Ferries Ltd [1998] IRLR 682 NICA, the Northern Ireland Court of Appeal indicated that, although the correct approach to constructive dismissal is to ask whether the employer was in breach of contract and not whether the employer acted unreasonably, if the employer's conduct is seriously unreasonable this may provide sufficient evidence that there has been a breach of contract.

 

93. The implied duty of trust and confidence in the employment contract was affirmed by the House of Lords in Mahmud and Malik  v Bank of Credit and Commerce International SA [1997] IRLR 606 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 confidence and trust between the employer and employee." As per Harvey at Division D1 paragraph 430 in Baldwin  v Brighton and Hove City Council [2007] ICR 680, [2007] IRLR 232 the view taken by the EAT was that this use of the word 'and' by Lord Steyn in the passage quoted above was an error of transcription of the previous authorities, and that the relevant test is satisfied if either of the requirements is met, that is, calculated or likely. The test for breach of the implied duty of trust and confidence is an objective one. The House of Lords noted that the duty of trust and confidence may be undermined even if the conduct in question is not specifically directed at the employee. It is not necessary for the employee necessarily to be aware of the wrongdoing whilst still employed, however as Lord Steyn points it out, the question of when the breach is discovered is highly relevant, since if the breach is not discovered until after the employment ends, the employee could obviously not rely upon this as a ground for terminating the contract (since he is unaware of it) and accordingly it would provide no basis for an unfair dismissal claim. It may be broken even where an employee's own trust and confidence is not undermined. Similarly, there will be no breach simply because the employee subjectively feels that such a breach had occurred, no matter how genuinely this view is held.

 

The one limitation on the width of the implied term is that the employer must not indulge in such behaviour without reasonable and proper cause. The tribunal must weigh both elements of the definition of the term in particular in the case where the employer has objectively acted in a way likely to damage trust and confidence but claims to have had good reason to do so on the facts.

 

94. The breach of contract in a constructive dismissal must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents that justify his leaving. The impact of the employer's conduct and views of the particular employee are a relevant consideration as to whether a breach is repudiatory, but these matters must be assessed objectively. The Northern Ireland Court of Appeal, in Brown  v Merchant Ferries Limited [1998] IRLR 682 NICA set out " Thus in this case the question becomes did the appellant's conduct so impact on the applicant that viewed objectively the applicant could properly conclude that the appellant, his employer, was repudiating the contract?"

 

95. Harvey on Industrial Relations and Employment Law discusses the 'last straw' doctrine at paragraphs [480] to [481.1] and sets out:-

 

'[480]

 

Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the 'last straw' which causes the employee to terminate a deteriorating relationship.

 

[481]

 

A number of cases illustrate this, eg [....] and  Lewis  v Motorworld Garages Ltd  [1985] IRLR 465 , [1986] ICR 157, CA, where Glidewell LJ expressly commented that,

 

''... the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?''

 

[481.01]

 

However in  Omilaju  v Waltham Forest London Borough Council [2005] EWCA Civ 1493,  [2005] IRLR 35 , CA   the Court of Appeal held that where the alleged breach of the implied term of trust and confidence constituted a series of acts the essential ingredient of the final act was that it was an act in a series the cumulative effect of which was to amount to the breach. It followed that although the final act may not be blameworthy or unreasonable it had to contribute something to the breach even if relatively insignificant. As a result, if the final act did not contribute or add anything to the earlier series of acts it was not necessary to examine the earlier history.'

 

96. In J V Strong and Co Ltd v M G Hamill EAT/1179/99 MAA, his Honour Judge Altman when considering what constituted a final straw in relation to the appeal that was before the EAT summarised the decision of the tribunal as follows:-

 

"... to put our understanding of the majority decision in our own words, at the end of this sequence of events they found that the respondent was left vulnerable in his own mind to anything that may come next knowing that his management would not support him, or at least feeling that there was a risk that that would happen".

 

SUBMISSIONS AND APPLICATION OF LAW TO FACTS FOUND

 

97. In order to claim constructive dismissal the four conditions set out above have to be met. In particular there must be a breach of contract by the employer and the breach have played a part in the employee's resignation.

98. It was contended on behalf of the claimant as per J V Strong and Co Ltd v
M G Hamill that the claimant was left vulnerable in his own mind to anything that may come next knowing that his management would not support him, or at least feeling that there was a risk that would happen arising from the series of events between August and December 2016 culminating with, by way of final straw, the claimant's telephone call with Mr Scorer on 7 December 2016 in circumstances where the claimant had found Mr Scorer extremely difficult; where the claimant was struggling to get a referee; the claimant was advised that the grievance which he ultimately withdrew could take 18 months to complete; the claimant had a background of work-related stress; there was no other employment found for him; absence should not have been a determining factor in withdrawal of the Band 2 post job offer as no matter what the respondent had to deal with his absence because the claimant was still an employee of the respondent whether or not he got this job. The claimant was aware his relationship with Mr Scorer was difficult, albeit not aware of the full extent of it that had come me out at hearing in terms of Mr Scorer's involvement and impact of this on the claimant's failure to get the Band 2 post. As a result of the claimant not getting the post he was certified as fit for by Occupational Health. In around the end of November 2016 he was due to return to work on 8 December 2016 and now having to return to his original post in the Services' Department in the kitchen where he had had difficulties and where he had withdrawn his grievance, he felt that he had no where left to turn and in those circumstances given the difficult telephone call with Mr Scorer, the claimant felt that he had no trust and confidence and that he was entitled to resign.

 

99. We consider that the respondent prior to its withdrawal had been dealing with the claimant's grievance and the potential time frame indicated for its determination was reflective of the number of staff against whom the grievance had been raised.

 

100. The tribunal find on balance that the claimant's reason for resignation was that he subjectively felt that his trust and confidence in the respondent had been undermined arising from:

 

(1) Removal of the claimant from his post in response to his grievance.

 

(2) Placement of the claimant into a post which he considered unsuitable pending the determination of his grievance rather than some other suitable interim post.

 

(3) Mr Scorer's suspension of the claimant's pay over the timing of submission of sick lines.

 

(4) Withdrawal of the offer of the Band 2 telephonist post.

 

(5) Difficult interactions with the respondent in the form of Mr  Scorer in connection with the above matters and culminating with the phone call in December 2016 in which Mr Scorer challenged the claimant over his uniform.

 

101. The applicable test for breach of the implied term of trust and confidence is whether, objectively assessed, the respondent without reasonable and proper cause conducted itself in a manner calculated and or likely to destroy trust and confidence between the employer and employee.

 

102. We consider that the respondent's move of the claimant in response to his grievance, rather than leaving him in situ and moving the alleged harassers, was because the grievance complaint involved nine of the Patient Kitchen staff and was not feasible to move all of the staff involved without adversely affecting the Patient Kitchen function. Whilst the claimant may have taken out of his move that he was being punished unfairly for raising a grievance we consider objectively assessed that the respondent's conduct was with reasonable and proper cause given the respondent's competing obligations in respect of service delivery.

 

103. Mr Scorer based on his previous experience considered that it was normal protocol to look for alternative posts at the same band as the claimant was currently engaged and two Band 1 post offers had been made to the claimant which the claimant turned down as unsuitable. We are not persuaded that for the respondent to maintain normal recruitment procedures for positions at a higher band and skill level and failure in the circumstances by the respondent to consider temporary redeployment of the claimant to a higher band post was conduct without reasonable cause likely to destroy trust and confidence.

 

104. We accept as per the evidence of Michelle McElhinney that Mr Scorer's management of the claimant's absence and suspension of pay was dealt with in accordance with the respondent's managing attendance protocol in the absence of timely submission of sickliness by the claimant and was not being enforced 'unnecessarily' by Mr Scorer against the claimant.

 

105. The claimant on speaking to John McLoone on 5 December 2016 would have believed he was aware of the claimant's mitigating circumstances statement from John McLoone's comment that HR would have relayed that information to him in presenting his absence figures. John McLoone was not however aware at the time of making his decision of the reasons for the claimant's high level of absence. The claimant was not aware that there had been a failure by the respondent to include for consideration his mitigating information. The claimant was not aware at the time of his resignation of Mr Scorer's involvement in the provision of a reference in the recruitment process and this did not form part of the claimant's reasons for resignation. We accept that prior to the recruitment process for the Telephonist post the claimant had no previous involvement with John McLoone or Danielle McLaughlin. The claimant had no prior involvement with Mr Scorer before the claimant raised a grievance against his Line Manager which resulted in Mr Scorer having line management responsibility for the claimant. We accept that Michelle O'Connor was the only person who had prior knowledge and involvement with the claimant and that she had no part to play in the recruitment exercise. We do not consider objectively assessed the claimant could have considered in the circumstances that the respondent was acting in bad faith and had withdrawn the Telephonist post offer because management did not like him.

 

106. We accept that John McLoone genuinely withdrew the offer of the Telephonist post based on the claimant's high level of absence rather than having been negatively influenced by the comments in the reference provided by Mr Scorer as to the claimant being un-cooperative or that Mr Scorer would not re-employ him. We are not persuaded on the evidence that John McLoone withdrew the telephonist post offer in an endeavour to please Mr Scorer as his manager. Whilst Mr Scorer had found the claimant to be difficult and un-cooperative in their dealings and by his own admission had formed a negative impression of the claimant and would not have wished him to get the Band 2 Telephonist we are not persuaded he made a calculated attempt to prevent the claimant from getting the Band 2 Telephonist post. We accept that whilst withdrawal of the job offer by the respondent based on high levels of absence to include absences for work related injury and stress appears unfair we consider that this was based on the respondent's concern at establishing a precedent as to high levels of absence acceptable for the department where reliable telephone service delivery was of critical importance, was with reasonable cause, was not in breach of any express policy, and was not so unreasonable as to evidence a breach of the implied term of trust and confidence.

 

107. It was contended on behalf of the claimant that Mr Scorer was difficult towards him, hostile and had a bad attitude. We accept that Mr Scorer's first meeting with the claimant was difficult and tense in that the claimant was clearly agitated, but note that Mr Scorer consequently referred the claimant to Occupational Health arising from comments by the claimant as to being stressed. The tribunal is not persuaded to draw an adverse inference based upon a failure by the respondent to call Erica Campbell who was present during Mr Scorer's initial meeting with the claimant to challenge that he had shown his frustrations to the claimant in the course of their trying conversation. We note that Mr Scorer accommodated the claimant in taking annual leave following sickness absence to assist him whilst he awaited a start date for the telephonist role. We consider in the course of the claimant and Mr Scorer's telephone call on 7 December 2016 that there was irritation and tempers rose on both parts but note that Mr Scorer last saw the claimant leave work wearing his uniform and are of the view that it was reasonable for him as a manager in the circumstances to question the claimant's request for a new uniform, and note that ultimately Mr Scorer agreed to arrange a new uniform for the claimant and to confirm his rota. We are not on balance persuaded that Mr Scorer in his management of the claimant was hostile or abusive towards him or acted without reasonable and proper cause in a way likely to damage trust and confidence.

 

108. In the circumstances the tribunal find assessed objectively that cumulatively the respondent's conduct, by reason of which the claimant resigned, did not amount to a fundamental breach of contract of the implied terms of mutual trust and confidence; co-operation and/or support; to promptly address grievances; or to provide a suitable working environment such that the claimant could properly conclude that the respondent was repudiating the contract of employment.

 

109. The four conditions required for constructive dismissal are not met.

 

Conclusion

 

110. The tribunal is not persuaded on a balance of probabilities that the claimant has terminated the contract under which he was employed in circumstances in which he was entitled to terminate it without notice by reason of the respondent's conduct. It is the unanimous decision of the tribunal that the claimant has not been dismissed as defined in Article 127 of the 1996 Order, but resigned and dismisses the claimant's claim of unfair dismissal.

 

 

 

Employment Judge:

Date and place of hearing: 4, 5 and 6 October 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: