THE INDUSTRIAL TRIBUNALS

CASE REF:	1091/15

CLAIMANT:		James Reid

RESPONDENT:	Darryl Davis t/a Connoisseurs Bakery	

DECISION 
The decision of the tribunal is that:
(1)	The claimant was dismissed and that dismissal was unfair;
(2)	The claimant is entitled to holiday pay;
(3)	The claimant is entitled to notice pay in the sum of £464.

Constitution of Tribunal:
Employment Judge:		Employment Judge Murray
Members:				Mrs S Doran
					Mr I Rosbothan 

Appearances:
The claimant was represented by Mr R Cushley, Barrister-at-Law, instructed by Mr   McGranaghan of O’Reilly Stewart Solicitors.
The respondent represented himself.

THE CLAIM

1.	The claimant claimed constructive dismissal and that his dismissal was unfair.  The claimant also claimed holiday pay and notice pay.

2.	The respondent denied dismissal and denied that notice pay was due.  The respondent conceded that holiday pay was owing but contested the amount due.  
THE ISSUES

3.	The issues for the tribunal were as follows:

(1)	Did the claimant resign in response to a breach of his contract?

(2)	Did the claimant resign in response to a last straw event being the culmination of a series of adverse events which cumulatively amounted to a breach of the implied term of trust and confidence?

(3)	Did the claimant delay too long in resigning in response to any such breach?

(4)	Is the claimant entitled to notice pay?

(5)	Is the claimant entitled to holiday pay in the sum claimed?

SOURCES OF EVIDENCE

4.	The tribunal had witness statements and oral evidence from the following:

(1)	The claimant.

(2)	Karla Bailie who dealt with personnel issues in the respondent business.

(3)	Craig Henderson who worked for the respondent.

(4)	Alan Kelly a baker for the respondent.

(5)	Rebecca Gillespie who worked in the shop for the respondent.

(6)	Robert Thompson who worked as a baker for the respondent.

(7)	Darryl Davis the proprietor of the respondent business.

THE LAW

5.	The respondent referred us to relevant provisions of the Employment (Northern Ireland) Order 1996 (as amended)(ERO) and referred us to the following authorities:

(1)	Blackburn v Aldi Stores Ltd [2013] IRLR 846

This is an EAT decision where it was held that failure to adhere to a grievance process was capable of amounting to or contributing to a breach of the implied term of trust and confidence.  We accept that dealing with grievances in a reasonably timely and adequate way is very important to the contract of employment.

(2)	Lewis v Motorworld Garages Ltd [1985] IRLR 465

The Court of Appeal held in this case that a claimant can rely on a breach of contract that he has accepted as the start of a series which together amount to a breach of the implied term of trust and confidence in the contract.

(3)	Omilaju v Waltham Forest London Borough Council [2005] IRLR 35

This Court of Appeal decision deals with the last straw concept.  The Court held in a case where the claimant relies on a breach of the implied duty of trust and confidence, an essential ingredient of the final act was that it was an act in a series.  The last act may not be blameworthy or unreasonable but has to contribute to the breach, even if relatively insignificant.  If the last act did not contribute to, or add to, earlier acts it is not necessary to examine the earlier history.

(4)	W A Goold (Pearmak) Ltd v McConnell and Another [1995] IRLR 516 EAT

The EAT stated at paragraph 11 of the decision as follows:

	“It is clear therefore that Parliament considered that good industrial relations requires employers to provide their employees with a method of dealing with grievances in a proper and timeous fashion.  This is also consistent, of course, with the codes of practice.  That being so, the industrial tribunal was entitled, in our judgment, to conclude that there was an implied term in the contract of employment that the employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have.  It was in our judgment rightly conceded at the industrial tribunal that such could be a breach of contract.”

(5)	Western Excavating v Sharp Limited [1978] IRLR 27

The Court of Appeal set out the following necessary ingredients in a constructive dismissal case:

(1)	Was the employer guilty of a repudiatory breach of contract which entitled the employee to leave without notice?

(2)	Did the claimant leave in response to the breach of contract?

(3)	Did the claimant delay too long and thus waive any breach?  

FINDINGS OF FACT AND CONCLUSIONS

6.	The tribunal considered the evidence both oral and documentary together with the submissions of both sides to find the following proved on a balance of probabilities.  The tribunal then applied the legal principles to the facts found in order to reach the following conclusions.  

7.	At the outset of the hearing a GP report had been shared with the respondent indicating the claimant’s inability to work which he alleged was due to his treatment at the hands of the respondent.  The respondent indicated that he understood that there was a pre-existing mental health history which would likely have a bearing on the claimant’s ability to work.  In these circumstances the GP notes and records were relevant to this issue and could not be provided in time for the hearing.  The tribunal decided to split the liability and remedy so that the issue of whether or not the claimant was dismissed and whether that dismissal was unfair would be dealt with first.  If the claimant was successful a remedies hearing would be arranged at a later stage to deal with the value of the case.  Prior to that hearing the relevant GP notes and records must be provided.

8.	The claimant was employed as a baker from 11 December 2011 until 20 March 2015 when his resignation took effect following his letter of resignation of 13 March 2015.

9.	The respondent’s business is a bakery which employed seven staff.

Unfair Dismissal

10.	In summary the claimant’s claim is that he had no difficulties working for the respondent until July 2013 when his solicitor sent a letter of claim in respect of an injury sustained by him at work.  The claimant’s case is that Mr Davis’ attitude towards him changed after that point so that he found fault with him and raised unjustifiable issues about his work in an effort to drive him out of the company.  The claimant pointed to a letter of concern issued on 13 January 2014 which all parties agreed was not a disciplinary sanction and related to a ‘walnuts in scones’ incident (see below).  The claimant also pointed to a final written warning issued to him during his absence on sick leave on 23 April 2014 in relation to underweight bread.  

11.	The claimant relied on the following:

(1)	A meeting in August 2014 when he alleges that Mr Davis said that he had no job to come back to.

(2)	A meeting on 30 August 2014 with Mr Carnduff and Ms Bailie when threatening remarks and abusive language were directed at him by Mr Carnduff and Mr Carnduff said he had no job to come back to.

(3)	11 September 2014 when at a meeting with Mr Carnduff the claimant was told that he had no job.

12.	The last straw event relied upon by the claimant was the failure by Mr Davis to deal in a timely and proper way with the grievance which the claimant sought to raise in correspondence from 23 September 2014.  The claimant sent a total of six letters to the respondent culminating in his letter of resignation of 13 March 2015 indicating his resignation was to take effect from 20 March 2015.  

13.	The respondent’s case was that there was legitimate reason to raise issues about the claimant’s workmanship, that the letter of concern and final written warning were justified and that the delay in dealing with the grievance was because advice had to be sought from the respondent’s insurer referred to below as “ELAS”.  

Breach of contract

14.	We have considered carefully whether the way the respondent dealt with the claimant’s grievance amounted to a breach of contract which was sufficiently serious to justify the claimant resigning in response to the breach.  After careful consideration we have decided that the respondent breached the claimant’s contract for the following principal reasons.

(1)	It took approximately six months for the respondent to set up a grievance hearing, to provide the grievance policy to the claimant, and to ask him for details in writing.

(2)	We do not accept that it is a valid defence for Mr Davis to say that he did not know that the claimant had had a threatening altercation with Mr Carnduff as nobody had told him.  If he had responded properly to the first letter seeking to raise a grievance by sending a copy of the grievance procedure and setting up a meeting in a timely way, that information would no doubt have been provided to him by the claimant.  

(3)	In the event, Mr Davis took a long time to respond to the claimant’s query about where to send his grievance by simply responding that he would deal with it.  Whilst the grievance raised did not give detail in the correspondence, the burden is on an employer to set up a timely meeting to enable a claimant to give further detail of the issue which he wishes to raise.  We find that burden to be particularly heavy on this employer given that he knew that the claimant suffered from dyslexia.

(4)	Even allowing time for the respondent to obtain advice from ELAS, there was unnecessary and unwarranted delay in dealing with the claimant’s letters.

(5)	Even on Mr Davis’ case, which was that he did not know that there had been threatening behaviour by Mr Carnduff to the claimant at the meeting in August 2014, it was made clear in the claimant’s letter of 4 March 2015 that he would be intimidated by Mr Carnduff’s presence at the proposed grievance hearing.  It was for this reason that the claimant asked that Mr Carnduff should not be there.  Given that the claimant had been raising the issue of a grievance from 23 September 2014 we find it unreasonable for Mr Davis to have delayed rearranging the meeting without Mr Carnduff until his letter of 16 March 2015 which was in fact only posted on 19 March 2015.  That letter essentially crossed in the post with the claimant’s letter of resignation which was received on 20 March 2015 albeit that it was dated 13 March 2015.  

15.	Mr Davis at all times denied that Mr Carnduff was an employee of his, stating that he was no more than a builder and had no authority to deal with the claimant in relation to his proposed phased return to work.  However at a late stage in our hearing Mr Davis conceded that at the time of the meeting in August 2014 Mr Carnduff was employed by him to deal with some matters relating to employees.  This change of approach tainted Mr Davis’ evidence to us.  

16.	The claimant had gone off sick in March 2014 and his sick lines thereafter stated that he was suffering from stress at work.  The claimant was off sick until his resignation.  The claimant called in on a regular basis to the respondent’s premises to leave in his sick lines.  In August 2014 the claimant’s GP recommended a phased return to work and this led to the meeting between the claimant, Mr Carnduff and Ms Bailie on 30 August 2014.

17.	The claimant appeared to make two conflicting points about the return to work namely that he was told by Mr Davis and Mr Carnduff that he had no job and secondly that he was not given the shifts that he wanted (namely day shifts rather than night shifts) as recommended by his GP. We find that this is not a central issue in this case given our finding below that it was the aggressive way that Mr Carnduff dealt with the claimant that amounted to a breach of contract.

18.	It was the threatening behaviour of Mr Carnduff and Mr Carnduff’s refusal to countenance the shifts suggested by the claimant at the meeting of 11 September 2014, which led the claimant to raise the issue of a grievance on 23 September 2014.  

19.	We had the audio recording and transcript of the meeting on 30 August 2014 and 11 September 2014 and it is clear that there was threatening and abusive language used by Mr Carnduff towards the claimant in the first of those meetings.  We find it most surprising that Ms Bailie had no knowledge of this occurring even though she was in the same room when it happened.  It is clear from the recordings and we find as a fact that Mr Carnduff was acting in such a way that the claimant reasonably believed that he was acting for the employer in relation to his return to work and we find that Mr Carnduff’s aggressive behaviour was in breach of the implied term of trust and confidence.

20.	The respondent alleged that, if the interaction between Mr Carnduff and the claimant amounted to a breach of contract, then the claimant had either waived any such breach, or the effect of such a breach had been diluted by the passage of time and could not be relied upon by the claimant.

21.	In accordance with the authorities (see Omilaju case above) the claimant is entitled to rely on that incident as one of the series of events culminating in the last straw event.  The last straw event, namely the inadequate response to the grievance, was connected to the clear breach of contract involved in the threatening behaviour by Mr Carnduff as the grievance related, in part, to the behaviour of Mr Carnduff.  Whilst the claimant did not particularise that in his letters seeking to raise the grievance, it would have come out at a grievance hearing if it had been arranged in a timely and appropriate way.

22.	We therefore find that the failure to deal with the grievance amounted to a breach of contract in itself and also amounted to a last straw event related to the threatening behaviour by Mr Carnduff on 30 August 2014.  The contractual term which was breached by the respondent is the implied duty of trust and confidence.

23.	The claimant was justified in resigning in response to the breach and did not delay too long in doing so.  We do not fault the claimant for failing to reconsider his decision after he had resigned when Mr Davis finally arranged a grievance hearing without the presence of Mr Carnduff.  By that stage we accept that trust and confidence had gone.

Aftermath of personal injury claim

24.	Whilst the claimant related his treatment to unwarranted issues of concern raised after his personal injury claim, we do not accept his case on that point for the following principal reasons.

25.	It is clear from diary entries kept by Mr Davis that he had started to note issues to do with the quality of the claimant’s work from January 2013.  This predated the personal injury event by five months.  

26.	The letter of concern issued on 13 January 2014 related to an incident when the claimant admitted he had put walnuts in scones rather than dates.  The claimant’s point on this was that he had told Miss Gillespie who worked in the shop that he had done this and that it was her fault for not noting this.  It seemed to be common case that it was an unusual matter to put nuts in scones and it was clearly an issue of concern to the respondent because the fact that the scones contained walnuts led to a customer complaint and to that product being recalled from the shelves. This could have had further serious ramifications in relation to nut allergies. 

27.    We accept the respondent’s case that, as the baker, the claimant’s conduct was more blameworthy than Miss Gillespie’s.  Both sides agree that the letter of concern was not a disciplinary sanction so we fail to see how that can be characterised as an attempt to drive the claimant out.  If the respondent had wanted to drive the claimant out at that point he could have disciplined the claimant for the matter but did not do so.

28.	The final written warning was issued following a hearing on 24 February 2014 which Mr Davis arranged following advice from ELAS.  Mr Davis could not tell us whether that was a disciplinary hearing or not and for this reason we accept the claimant’s case that he could not be sure that it was a disciplinary hearing.  This matter concerned underweight bread which the claimant admits occurred but he gave an explanation in relation to bakers’ practice when correct weights were not available.

29.	Whilst we heard some evidence from several witnesses about this issue the fact remains that the claimant admitted that he produced underweight bread, the respondent was legitimately concerned about this because it related to weights and measures issues which could have serious legal consequences for him, and the respondent was entitled to deal with this in a disciplinary fashion.  The disciplinary process was dealt with incompetently but we do not accept that this was connected to the final straw event nor do we accept that it was a breach of contract of itself which justified resignation almost a year later.  

30.	The other matter relied upon by the claimant in relation to the alleged course of conduct raising spurious issues about his performance was in relation to burnt products.  It was the claimant’s case that he did burn products but no more than anyone else.  We heard conflicting evidence from witnesses as to whether or not the claimant actually burnt more products than others.  

31.	It is clear from the documents and evidence to which we were referred that the issue of burnt products was raised with the claimant on a number of occasions by Mr Davis.  This matter did not however result in any disciplinary action being taken.  We therefore reject the claimant’s contention that this issue was raised as part of a drive by the respondent to get rid of him.

Summary

32.	We find that the claimant was dismissed because of the breach of his contract in relation to the grievance procedure.  This breached a specific term of the contract in relation to the grievance policy which was produced to us at hearing.  We do not accept that any slippage of time in the timetable set out in a grievance policy would inevitably amount to a fundamental breach of contract but, in this case, the protracted delay and the inadequate response was such that it amounted to a breach of the contract and a breach of the implied term of trust and confidence.  

33.	In the alternative, the inadequate response to the grievance was a last straw event connected to the aggressive encounter in August 2014 which clearly amounted to a breach of the implied term of trust and confidence.

34.	The claimant’s dismissal was unfair and he is entitled to compensation.  

35.	Compensation will be determined at a remedy hearing to be arranged in due course.  At that hearing the tribunal will consider evidence in relation to the claimant’s ability to work in order to calculate the future loss element of the compensatory award.  In this regard the tribunal will have regard to relevant GP notes and records which must be provided in advance of the hearing.  

Holiday Pay

36.	Both sides provided calculation of the holiday pay due.  The respondent agreed that the sum of £1,286.43 was owing for holiday pay.  The claimant claimed £1,612.50.

37.	Both sides gave confused evidence in relation to the holiday calculation.  We find the following facts from the evidence:

(1)	The respondent accepted that the claimant carried over 5.5 days from 2013 to 2014.  

(2)	The claimant agreed that he took four days’ holidays in February 2014 and that these related to the holidays carried over from 2013.  

(3)	The respondent accepted that the claimant was entitled to a balance of 1.5 days in relation to his 2013 entitlement.

(4)	The claimant was therefore entitled to his full 2014 entitlement.

(5)	The parties agreed that the claimant had accrued holidays in 2015 between January and 20 March 2015.  

38.	As neither side was clear in relation to the holiday pay calculation but both sides agreed that at least £1,286.43 was due and owing, the parties agreed that the cheque which had already been sent by Mr Davis to the claimant could be cashed at the end of November 2015.  The precise calculation of the remaining sum due will be carried out at the remedy hearing in the absence of agreement between the parties.  It is open to the parties to seek the assistance of the Labour Relations Agency in relation to the calculation of the figures given the agreed facts and the facts we have found as set out above.
Notice Pay

39.	The claimant resigned with one week’s notice for which he was paid.  As he had been employed for three full years at the date of his termination, he was entitled to three weeks’ pay under ERO.  

40.	The claimant’s gross weekly wage was £270.40.  His net weekly wage was £232.00.  His age at the date of dismissal was 52 years.

41.	The claimant’s claim on the schedule of loss for notice pay amounted to two weeks’ net pay in the sum of £464.00.  We confirm that that sum is payable to the claimant.  

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

Employment Judge:

Date and place of hearing:  11, 13 and 23 November 2015, Belfast.

Date decision recorded in register and issued to parties: