Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1549/17

 

 

 

CLAIMANT: Valerie Beattie

 

 

RESPONDENTS: 1. Charis Cancer Care Limited

2. Friends of Charis Limited

 

 

 

DECISION

(1)           It is the unanimous decision of the tribunal that the claimant was not unfairly constructively dismissed. Her claim in that regard is therefore dismissed against both respondents.

 

(2)           It is the unanimous decision of the tribunal that the first named respondent failed to provide the claimant with sufficient particulars of employment. The first named respondent is ordered to pay to the claimant the sum of £2083.33. The claim against the second named respondent is dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Browne

 

Members: Mrs D Adams

Mr R Hanna

 

 

Appearances:

 

The claimant was represented by Mr P Ferrity, Barrister-at-Law, instructed by Elliott Duffy Garrett, solicitors.

 

The respondent was represented by Ms A Finnegan, Barrister-at-Law, instructed by DWF (Northern Ireland) LLP Solicitors.

 

 

ISSUES AND EVIDENCE

 

1.             The issues to be determined by the tribunal were:

 

(i) Was the claimant constructively dismissed?

 

The relevant legislation is contained in Article 127 (i) of The Employment Rights (Northern Ireland Order) 1996:

"Circumstances in which an employee is dismissed

 

127.-” (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2) F1. . . , only if)-”

 

(a) the contract under which he is employed is terminated by the employer (whether with or without notice),

 

[F2(b) he is employed under a limited-term contract that terminates by virtue of the limiting event without being renewed, or]

 

(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) Did the respondents fail to provide the claimant with an initial particulars of employment?

 

The relevant legislation is contained in Article 33 of The Employment Rights (Northern Ireland) Order 1996:

 

"Statement of initial employment particulars

 

33.-” (1) Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment.

 

(2) The statement may (subject to Article 34(4)) be given in instalments and (whether or not given in instalments) shall be given not later than two months after the beginning of the employment.

 

(3) The statement shall contain particulars of-”

 

(a) the names of the employer and employee,

 

(b) the date when the employment began, and

 

(c) the date on which the employee's period of continuous employment began (taking into account any employment with a previous employer which counts towards that period).

 

(4) The statement shall also contain particulars, as at a specified date not more than seven days before the statement (or the instalment containing them) is given, of-”

 

(a) the scale or rate of remuneration or the method of calculating remuneration,

 

(b) the intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals),

 

(c) any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),

 

(d) any terms and conditions relating to any of the following-

 

(i) entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee's entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated),

 

(ii) incapacity for work due to sickness or injury, including any provision for sick pay, and

 

(iii) pensions and pension schemes,

 

(e) the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment,

 

(f) the title of the job which the employee is employed to do or a brief description of the work for which he is employed,

 

(g) where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end,

 

(h) either the place of work or, where the employee is required or permitted to work at various places, an indication of that and of the address of the employer,

 

(j) any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made, and

 

(k) where the employee is required to work outside the United Kingdom for a period of more than one month-”

 

(i) the period for which he is to work outside the United Kingdom,

 

(ii) the currency in which remuneration is to be paid while he is working outside the United Kingdom,

 

(iii) any additional remuneration payable to him, and any benefits to be provided to or in respect of him, by reason of his being required to work outside the United Kingdom, and

 

(iv) any terms and conditions relating to his return to the United Kingdom.

 

(5) Paragraph (4)(d)(iii) does not apply to an employee of a body or authority if-”

 

(a) the employee's pension rights depend on the terms of a pension scheme established under any statutory provision, and

 

(b) any such provision requires the body or authority to give to a new employee information concerning the employee's pension rights or the determination of questions affecting those rights."

 

2.             The claimant became involved with the first-named respondent in 2008, at which time Mr Jim Henry donated a house on the shores of Lough Fea in County Tyrone to Charis, a cancer support charity, at which the charity had its first base. The claimant a few years earlier had been diagnosed with cancer, from which she had recovered, and she was keen to volunteer to help raise funds for Charis, as she had received great assistance from it. Her husband, Mr Jim Beattie, was made a trustee of the first-named respondent charity in October 2009, and was appointed as a director of the newly-formed Friends of Charis upon its incorporation in 2010.

 

3.             To that end, the claimant, based as a volunteer at the Lough Fea house, set about organising numerous events, and quickly proved to be a formidably capable volunteer fundraiser, helping to generate tens of thousands of pounds per year for the charity. It seems fair to say that for many people, both inside and outside the charity, the claimant became the most prominent public face of Charis.

 

4.             The tribunal is satisfied that the evidence amply demonstrates the key role played by the claimant in the day to day functioning of the shop. Much of the claimant's case however is based upon her assertion that she was in fact the actual manager of the shop, implying a formal position, offered and accepted, with a contract of employment, express or implied.

 

5.             The claimant, in the first line of her claim form ET1 stated "...I am a former employee of one or both" of the respondents.

 

6.             The respondents' case is that Mr Jim Beattie was in fact the manager of the shop, although their argument, in terms, appears to the tribunal to be that the term "manager" was a cover-all description of what he did there, rather than being a defined role capable of elevation to the status of a contract of employment, either expressly or by implication.

 

7.             It appeared to the tribunal that the second-named respondent was created at the time of, and in anticipation of, the opening of the Friends of Charis shop. The claimant's husband was appointed as a director of the second-named respondent, in addition to his role as trustee of the first-named respondent.

 

8.             Its sole area of responsibility appears to be for the running of that shop, to protect the first-named respondent from legal liability in the event that the shop failed commercially. It was the claimant's case that her idea to open the shop was not initially well received even by her husband, as a trustee, or by the other trustees.

 

9.             Not only was the idea of the shop the claimant's; it was she who found the premises, and negotiated with their owner to rent it to the charity.

 

10.          In the event, the shop was a huge success, raising up to £100,000 per year. In consequence, any wrinkles of legal differentiation between the two legal entities quickly became smoothed out in the perception of those who worked or shopped there. Such perception was perhaps reinforced in the mind of the claimant because she was appointed as salaried fundraiser shortly in advance of the shop opening, and, at her request, she was permitted by the respondents to relocate from the Lough Fea house to her own office in the shop as her base.

 

11.          It is the respondents' case that the claimant's appointment as salaried fundraiser was not related to the opening of the shop, but in recognition of the considerable amount of time spent by the claimant each week working as a volunteer, generating very substantial funds.

 

12.          It is the view of the tribunal that the respondents were probably initially much more sceptical about the shop's prospects of success than they were prepared to concede in evidence. The tribunal's view is reinforced in that regard by the setting-up of the second-named respondent as a "firewall", to protect the charity's funds if the shop became a white elephant.

 

13.          That caution would also be more likely to gravitate strength away from any assertion by the claimant of the respondents' intention to establish or recognise a formal role of shop manager. Such a role would inevitably incur additional expenditure of salary on an enterprise, viewed by almost everyone apart from the claimant as doomed to failure.

 

14.          There was never any payment to Mr Beattie which could be deemed to be a salary, or any additional money paid to the claimant; nor was their remuneration for working in the shop ever raised at any board meetings. There was, in short, no evidence of any consideration of a formal management structure within the shop until the claimant and her husband withdrew their services.

 

15.          The absence of any form of contract of employment forms a separate element in this case regarding the claimant's post as fundraiser, but the evidence of her being offered and accepting a salary for fundraising differs substantially from the role in the shop. There was no evidence that she had ever been offered any additional post as shop manager, or that her salary would be adjusted accordingly, to account for the extra workload in advance of the shop opening.

 

16.          The tribunal has concluded that nothing else or additional was offered to her, because the respondents at the outset had every expectation that the shop would not be a success.

 

17.          The tribunal also concluded that creating a formal role of shop manager at any stage would give rise to the employment rights and responsibilities of an employee, an additional layer of responsibility the respondents would be unlikely to be keen to take on.

 

18.          There appeared to the tribunal to be no evidence that the creation of such a position had ever been considered by or proposed to the respondents; nor that its very existence had ever been raised by the claimant until her grievance procedure after she had gone on sick leave in June 2016.

 

19.          The respondents' case was that Mr Jim Beattie, the claimant's husband, was the shop manager. They called a number of witnesses to that effect, and pointed also to the minutes of meetings, which, on their case, recorded, for example, that Mr Beattie at board meetings had taken the lead in delivering reports on matters relating to the shop. It was emphasised on behalf of the respondents that the claimant, when she attended board meetings, only did so in her capacity as fundraiser.

 

20.          In contrast, the claimant sought to assert that she was, and was widely known to be, the shop manager, and that her husband's role was primarily confined to the furniture department. To that end, the claimant called a number of witnesses, primarily volunteers who worked at the shop.

 

21.          The tribunal concluded that the witnesses' evidence was undoubtedly an honest expression of their impressions and understandings from their observations of the claimant's and Mr Beattie's roles in the shop.

 

22.          Similarly, the respondents called witnesses, whose number also included people who worked in the shop, and their evidence flatly contradicted those for the claimant as to their perception and understanding of who was the shop manager.

 

23.          For example, Mr Shawn Gray, who worked in the shop, giving evidence on behalf of the respondents, stated that he had been told by Mr Beattie "not to take any notice of [the claimant] because he [Mr Beattie] was the boss".

 

24.          Mr Gray explained that the claimant acted as if she were the boss, but that he only ever regarded Mr Beattie as being the shop manager.

 

25.          After the claimant went on sick leave from 16th May 2016, Mr Martin Bradley, who previously worked in the shop, was contacted and was offered the job of "interim shop manager" after Jim Beattie resigned and the claimant went off on sick leave. Mr Bradley stated in evidence that while he worked in the shop, he had always thought that Jim Beattie was the manager.

 

26.          Mr Bradley stated during his evidence that he accepted the post, pending the return of the claimant from sick leave. At the outset, he sought specific clarification from the respondents as to the role of the claimant upon her return. On his version of events, he was informed by the respondents that her role was as fundraiser.

 

27.          Mr Bradley, when questioned as to why, if the shop manager was so clearly Jim Beattie, he required clarification about the role of the claimant, replied that perhaps his "wording was maybe not the best"; he did not however seek to change or clarify it. The tribunal concluded that Mr Bradley's original answer again reflected the nebulous nature of the chain of command in the shop.

 

28.          It was advanced on behalf of the respondents that Mr Beattie regularly stated to volunteers that he was the manager. This in the view of the tribunal served only to demonstrate that there was a cloud of uncertainty around the subject.

 

29.          The tribunal concluded that this lack of unanimity as between the volunteers in the shop probably was an accurate reflection of the lack of structure in the running of the shop, made more acute because the two people most closely involved in running it were a married couple, with their own relationship dynamics.

 

30.          Mr John McLaughlin, whose prospective evidence to the tribunal was threaded throughout the respondents' case as put to the claimant and her witnesses at the hearing, was later medically certified as being too unwell to give evidence. This understandably caused great consternation to the claimant, who clearly was anxious to have his evidence robustly challenged.

 

31.          The tribunal too had been anticipating his evidence, since the respondents made repeated reference to it. In the event, however, his medical condition was such that he did not attend. The tribunal draws no adverse inference from his failure to attend, as there was no evidence that it was anything other than genuine, underlined by written medical reports from his doctor. The tribunal places no reliance upon any reference to his version of events, either in his witness statement, or as put to the claimant and her witnesses.

 

32.          The tribunal concluded that, regardless of which of the Beatties was the dominant force within the shop, the true legal situation was that there was no actual designated employment role of shop manager. As such, the tribunal concludes that the claimant has failed to establish that there was at the material time any actual post of shop manager. Such conclusion does not mean that there was not a need for one, nor that the claimant and her husband did not de facto manage the shop between them.

 

33.          It appeared to the tribunal that both respondents, whose core directors and trustee were almost identical, were from the outset content to allow the claimant to shoulder the additional burden of whatever she decided to organise at the shop, initially because they were sceptical about its viability.

 

34.          As a result of its findings about the absence of a formal structure regarding the management of the shop, the tribunal concludes that the claimant was not employed by the second-named respondent. The claimant therefore could not be dismissed by it, constructively or otherwise, from a job which did not exist, and that claim is dismissed against the second-named respondent.

 

35.          In light of that finding, the second-named respondent was under no legal obligation to provide a statement of the main terms and conditions of employment, and that claim is also dismissed as against the second-named respondent.

 

36.          There remains the question as to whether the claimant might have been constructively dismissed from her salaried post of fundraiser by the first-named respondent. Whilst the two respondents were technically separate legal entities, the tribunal is satisfied that the proximity of their function and united purpose, and the identities of those responsible for them, whose decisions affecting one inevitably were taken on behalf of both, rendered both for practical purposes indistinguishable from the other. That view is confirmed by the fact that the grievance procedure, carried out by the first-named respondent as the claimant's employer, included reference to her work in the shop, and culminated in her being offered discussion about a new post of shop manager, which function, except when it suited their purposes, ought properly only to have been within the gift of the second-named respondent.

 

37.          The timing of the claimant's initial absence from work as of 16 May 2016, certified as being due to "stress at work", appeared to the tribunal to be precipitated in early May 2016 by her perception of the treatment by both respondents of her and her husband, arising from the discovery of alleged tampering with an electricity meter in the shop. Her view of how this was handled as being "the last straw" was given by her in a letter in early July 2016 to Kathleen O'Loughlin, who conducted a welfare meeting with her on 29 June 2016.

38.          This discovery had culminated in the resignation of Mr Beattie in early June 2016 as a trustee and director respectively of both respondents, although there was no suggestion by the respondents, then or later, that Mr Beattie had had any involvement in it.

 

39.          The tribunal is not required to adjudicate upon the tampering in itself. The tribunal is however satisfied that the second-named respondent had a duty to take action to investigate the allegations, and that its conduct during the investigation and remedial action in that regard was reasonable and appropriate. There was no evidence that the trustees or directors of either the first or second-named respondent had spread or fed any stories about Mr Beattie's alleged role in, or knowledge of, the tampering.

 

40.          As regards the claimant's initial welfare meeting on 29th June 2016, it is of note that the claimant's focus appears very much to have been upon a lack of leadership and excess workload emanating from her work as a fundraiser, adding that she was "able to manage the shop ok." The tribunal finds that this comment probably meant that she was able to manage the amount of work in the shop, as opposed to being its manager, but the main point in this context is that she had no complaint at her welfare meeting as regards the volume of work there.

 

41.          Much of the lack of support complained of by the claimant in her role as fundraiser appeared to the tribunal to be related to the work she did in addition what might reasonably be expected. This appeared to the tribunal to be frequent late nights, attending events she had organised, or events organised by others to raise funds for Charis, which she, accompanied by her husband, attended, in order to receive cheques, and publicly thank the donors.

42.          This appeared from the outset to be largely of the claimant's own volition, in keeping with her innovative and dynamic approach to her work. It appeared to the tribunal that the claimant became, and perceived herself to be, something of a victim of her own success, not least because the more she did, the more she was allowed and expected to do by the board members.

 

43.          It appeared to the tribunal that it gradually took its toll, and started to wear thin, especially when the claimant started to question the support from the trustees and directors of the charity. During her initial grievance meeting on 25th August 2016 with Mr Tom Diamond, the claimant, in response to his question as to what help she and her husband would like, replied "emotionally - we were left to do everything". She went on to describe the board of the charity as "the people who disappear."

 

44.          The tribunal has formed the view from the evidence that the claimant eventually came to the conclusion that the officials within Charis were neglecting their responsibilities, stating at her grievance appeal that none of them ever attended the many "out of hours" events. The claimant stated to Kathleen O'Loughlin, conducting the initial welfare meeting on 29th June 2016, that "I don't think they realise the amount of work involved in this job".

 

45.          Of note also is the fact that, throughout the process, which started as a welfare meeting and transformed in to a grievance procedure, including an appeal, the first-named respondent followed practice and procedure which the tribunal regards as entirely appropriate. Whilst there was a breach of internal time guidelines regarding the timing of Mr Diamond's response, the conduct of the procedure itself is not the subject of complaint by the claimant. The first-named respondent paid external experts, both to conduct the welfare procedure, and to facilitate the grievance procedure. It is of note that one of those experts in fact suggested that the claimant's welfare procedure ought to become a grievance procedure.

 

46.          It is also of relevance that the first-named respondent, at the very end of the grievance appeal outcome of 16 December, in effect offered the claimant the opportunity to discuss her appointment as shop manager. This, combined with its context of still not accepting the claimant's assertion that she had been the shop manager, appears to have incensed the claimant, who promptly resigned from her employment. Whilst in her letter of resignation she referred to issues such as excessive workload, her main focus appears to have been the disagreement over her role in the shop, stating that "there couldn't be a resolution until I was recognised as the manager of the shop."

 

47.          The tribunal however considers that such an offer, which, in view of the clear acknowledgment by the respondents of the contribution of the claimant to the success of the shop, was highly likely to be genuine, and would be as high a public affirmation of the charity's trust and confidence in her as could reasonably be hoped for.

48.          Such public endorsement would in turn reasonably be perceived as a public rebuke to anyone who suggested or suspected that the claimant or Jim Beattie had in any way been involved in the rumoured financial impropriety affecting the charity.

 

49.          The tribunal approaches with great caution the possibility of over-emphasising the list-order in which the claimant places her grievances with the respondent. It is however noticeable that, in her grievance documentation; in her original complaint to the tribunal; and in her witness statement, in her terms the "final straw" and primary catalyst for her departure on sick leave was the resignation of her husband, and the way in which she perceived herself and him to have been treated. It also appeared to the tribunal that her primary personal focus appears to have been upon the respondents' lack of recognition of her status within the shop.

 

50.          The tenor of the minutes of the welfare meeting, the grievance procedure and the appeal gives a clear impression of the claimant in effect negotiating with the charity to be given what she felt was due to her and her husband, before she would consider returning. The tribunal noted that, at the grievance hearing, and again at her appeal, the respondents had unequivocally offered, as an integral part of proposals to encourage the claimant to return, a realistic outcome that the claimant would formally be appointed as manager of the shop. That offer however appeared not to be enough for the claimant, who perceived herself already to hold that position.

 

51.          The claimant at the tribunal hearing made much of the statement to her by Mr Diamond that "we needed someone to run the shop while you were absent", when explaining why Mr Martin Bradley had been appointed as interim manager. The respondents countered this by stating that "you" should be taken as being in the plural. There was ample evidence that the claimant during that meeting repeatedly referred to herself and her husband, in the sense that they worked as a team. The tribunal considers that the respondents, and those connected with Charis, viewed each as synonymous with the other.

 

52.          It is considered by the tribunal that the claimant was prepared to wait until the respondents acceded to her demands to be accorded what she had decided was her due recognition, on and in her terms. A primary feature of her grievances was her perception of the respondents' treatment of her husband. He was not employed by the charity, and that issue could have no legitimate place in her grievance as an employee, since there existed no contractual nexus between her role and his treatment.

53.          The tribunal is satisfied that the respondents conducted a reasonable and fair procedure when it became aware of the claimant's complaints. The offers made, and repeated by, the respondent, and rejected by the claimant during that procedure, were found by the tribunal to be reasonable and fair, and actually acceded to the requests of the claimant vis-a-vis her contract of employment, in a genuine and reasonable attempt to persuade the claimant to return.

54.          The tribunal considers that the first-named respondent in its conduct of that process genuinely sought to resolve the issues, and to achieve a mutually beneficial outcome. In doing so, the claimant's assertion, integral to establishing a case of constructive dismissal, that the respondents had by their conduct undermined her trust and confidence to the point where she could no longer be expected to work for them, is considered by the tribunal not to be made out. The tribunal therefore finds that the claimant was not unfairly constructively dismissed.

55.          As such, the tribunal concludes that the claimant has not established on the balance of probabilities that she was constructively dismissed by the first-named respondent, and that claim against the first-named respondent is dismissed.

 

56.          The first-named respondent from the outset has accepted that it failed to provide the claimant with a statement of the main terms and conditions of her employment. This is because no such document has ever existed. The reason advanced by the first-named respondent is that, one day, the claimant was a volunteer fundraiser; the next, she was paid to do the same work.

 

57.          The tribunal regards this absence and explanation as totally unsatisfactory. The first-named respondent had a statutory duty to provide a contract of employment. Its complete disregard of its statutory obligation on that issue stands in stark contrast to its instant, punctilious reliance upon the claimant's lack of employment status as shop manager when deciding it was not required to inform her of the shop closure.

 

58.          The tribunal considers that much of the anguish to the claimant and to the charity in this case could easily have been avoided had the officials of the first-named respondent complied with their legal obligations towards the claimant.

59.          The tribunal has a statutory obligation to order the first-named respondent to pay two weeks' pay to the claimant. The tribunal considers however that the maximum award of four weeks' pay should be awarded as being just and equitable. It was not the claimant's responsibility to seek a copy of the contract; it was always the responsibility of the first-named respondent to supply it to her.

 

60.          The first named respondent is therefore ordered to pay to the claimant the sum of £2083.33.

 

61.          This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 18, 19, 20, 23 + 24 October 2017 and 15 December 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: