Background:

The claimant was employed as a Sales Assistant and promoted to Area Manager for the respondent. He was in that latter position from 2012 until he resigned in November 2020. In that role he had to carry out investigations in relation to disciplinary matters and grievances as they arose.

One such matter arose in August 2020 in which the claimant investigated writing that had been put on a whiteboard which had been described as rude. The General Manager, the claimant’s line manager, was unhappy with the investigation that was carried out by the claimant. He described it as ‘inadequate’ and he informed the claimant by email that another member of staff was then tasked with carrying out a ‘proper thorough investigation’.

The General Manager investigated the conduct of the claimant stating that the claimant did not do it properly and deliberately did a poor investigation. The claimant was not offered an opportunity to address deficiencies in his initial investigation. The Tribunal notes that there was no knowledge or awareness of the LRA Codes/Advisory Guidance with the General Manager asking a series of leading questions in the investigation. This investigation stated that the claimant was very informal in conducting the investigation and was overly friendly.

During a meeting with the claimant, the claimant acknowledged that he should have dug deeper into the actions even though the message on the whiteboard had been admitted. The claimant also stated that the ‘friendly’ manner of the investigation may have led to it being perceived as biased but that it was done to calm the employee in a time of stress/upset. In the General Manager’s investigatory report there were various points in which he came to personal conclusions and interpreted answers/evidence. This led to the claimant being invited to a disciplinary hearing.

The claimant went off on sick from 11th September. Stress at work was the reason given within the GPs note. Occupational health also stated that the claimant was not fit for work.  HR invited the claimant to a rescheduled disciplinary meeting in October citing the Occupational Health report which stated that the mental health issues may resolve if the disciplinary was dealt with appropriately. The claimant replied stating he was not well enough to attend the hearing.  Another meeting was scheduled for 10th November if it was ‘beneficial’ and the claimant was ‘agreeable’. The claimant asserted that this correspondence was the final straw which broke his trust and confidence which led to him resigning some 11 days later.

Outcome:

The claimant brought a claim for constructive dismissal citing that there was a breach of the implied term of trust and confidence. The claimant argued that the investigation lacked objectivity and was based upon his manager’s perspective and that the letters/emails about the disciplinary hearing and allegations of misconduct were not appropriate considering his medical condition and being off sick. 

The Tribunal noted their concerns about the apparent minimal training provided to employees not only upon being appointed but also throughout their time as managers. Considering that the witnesses, in similar positions to the claimant, stated they held investigations/grievances monthly it was worrying that they had limited knowledge or familiarity of the LRA Code of Practice or LRA Advisory Guide. There was no specific training on these either.   This was telling in relation to the General Manager appointing himself to investigate the claimant’s conduct which was against the principles of natural justice as embedded with the LRA documents.  

The issue here was that this was a case for constructive dismissal rather than one where the respondent actively dismissed. Therefore, the procedural requirements are not present in such an express way. Instead, with constructive dismissal, the test is a contractual one and not one of reasonableness. Indeed, in Western Excavating it was rejected that there is a concept of reasonable behaviour by employers into contracts of employment.

Considering the admissions made during the investigation it was considered proper and reasonable that a disciplinary hearing be carried out.  The Tribunal noted that the final correspondence to the claimant could have been more tactful but did not find it credible that the letter was an attempt to force him into a disciplinary hearing.   It was found that it did not contribute to a breach of the implied term of trust and confidence and was not the ‘final straw’.  As a result, the claim was dismissed.

Practical Guidance for Employers:

An interesting case demonstrating the different tests to be employed when it comes to constructive dismissal compared to ‘normal’ unfair dismissal.  The fact that there were some procedural flaws within the investigation was not fatal where the claimant had decided to resign, and it had to be based upon the contractual test.   This contractual test had to ask whether the correspondence and the disciplinary process was such to repudiate the contract – that was not the case and that was fatal to the claimant’s case.  

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/