Complainant

Respondent

Parties

Nadine Scott

AIB Bank

Representatives

Kieran Kelly, Flynn O'Driscoll Business Lawyers

Mairéad McKenna BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00034694-001

17/02/2020

The complainant commenced working for the respondent as a bank official in October 1999.  Almost 20 years later, in January 2019, she was a mortgage advisor based in Drogheda and she went absent from work due to anxiety.  In her evidence, she said that she had a panic attack at work, although she made no mention of the anxiety being work-related until her second appointment with the respondent’s occupational health consultant (OHC) in May 2019.  At her third consultation in July 2019, the opinion of the OHC was that the complainant was fit to return to work on a phased basis from August 14th; however, she handed in her notice on August 27th and her employment ended four weeks later.  On the complaint form that she submitted to the WRC on February 17th 2020, the complainant claimed that, “my employer left me with no option but to resign and I make this claim for constructive dismissal as a result.”

Written Submission on behalf of the Complainant

The following is a very brief summary of the submission provided to the WRC by the complainant’s solicitor, Mr Kelly, on March 24th 2021.  Supporting documents were provided when the complaint was submitted in February 2020.

Medmark is the respondent’s occupational health service provider.  Following her absence in January 2019, the complainant attended appointments with an OHC in Medmark in March, May and July 2019.  A copy of the Medmark report of July 22nd shows that the OHC stated the complainant “should be fit to resume work shortly.”  August 14th 2019 was agreed with the complainant as a “target return to work date.”

Mr Kelly submitted that it is a vital point in the complainant’s case that the respondent “misinterpreted, whether deliberately or in error, a significant and critical aspect of the medical advice given to the respondent by their own occupational health assessor.”  He made this argument because, on July 26th 2019, Ms Kim Howell, a HR specialist for the respondent, wrote to the complainant informing her that the OHC had advised that she was fit to return to work from August 14th on a phased basis.  Mr Kelly’s point is that the consultant actually stated that the complainant should be fit to return to work.  He also argued that August 14th was agreed as a target date, and that it was not fixed as a date when the complainant would be fit to return to work.

Mr Kelly noted that the opinion of the OHC was that the complainant should have a decreased workload for six to eight weeks following her return and that the management may wish to engage with her to discuss her work-related concerns.  Ms Howell’s letter of July 26th makes no reference to the OHC’s opinion that the complainant’s workload should be reduced and Ms Howell did not seek to engage with the complainant regarding her work-related concerns.  Ms Howell offered the complainant the opportunity to meet with her “people leader.”  Mr Kelly said that “this falls considerably short of the advice and recommendation” of the respondent’s medical consultant which was to engage with the complainant regarding her concerns.  Mr Kelly submitted that the respondent had a duty to arrange a meeting to ensure that the complainant would know that her return to work would not simply involve reduced hours, but that there would be a managed and reduced workload for six to eight weeks.

On August 12th 2019, the complainant sent a letter and a medical certificate from her doctor in which the doctor stated her opinion that the complainant was not fit to return to work on August 14th.  She said that the complainant was attending counselling and that she would be reviewed on September 5th, with a view to returning to work on Monday, September 9th.

Ms Howell replied to the complainant by email on August 12th, informing her that “the recommendation of Occupational Health supersedes that of your GP.”  She informed the complainant that she was expected to return to work on August 14th.  Mr Kelly submitted that, at a minimum, the respondent should have arranged a further appointment with the OHC, who, on July 22nd, advised that she would see the complainant again at their request.  Instead, the complainant was informed that her “failure to return to work on the 14th of August will be considered non-compliance with the Absence Management Policy and will have an adverse impact on your occupational sick pay.”  Mr Kelly submitted that, having referred to August 14th as a “target date” for the complainant to return to work, this was an entirely unreasonable course of action on the part of the respondent.  Mr Kelly referred to the April and May Medmark reports which also refer to a “target date” for a return to work and he submitted that the date of August 14th was not a date fixed “as a date of absolute certainty that the Claimant was fit for work.”  He argued that the “return to work ultimatum” contained in the letter of July 26th from Ms Howell was “simply based on erroneous fact.” 

Mr Kelly referred to a meeting the complainant attended with her line manager, Debbie Clarke, on May 17th, at which Ms Clarke did not ask the complainant about work-related concerns.  Ms Clarke raised the possibility that the complainant could take some form of special leave or parental leave.  In a follow-up letter from Ms Howell on May 24th, she made no reference to work-related concerns.  The option of a career break or special leave was not offered to the complainant.

The complainant did not return to work on August 14th and on August 20th 2019, Ms Howell wrote to her, telling her that she was “now in breach of the Absence Management Policy and as a result you have been removed from pay effective from 14th of August 2019.”  Ms Howell went on:

“However, I am affording you a final opportunity to bring yourself back into compliance with the Absence Management Policy.  You are required to report for work on Monday, 2nd September 2019 at your normal starting time.  Once you return, your pay will be reinstated.  Failure to return to work on this day will result in the bank considering its options which may result in disciplinary proceedings being instigated.  Of course, should you wish to return to work before this date, this will be facilitated and I ask that you confirm same to me.”

Mr Kelly submitted that the offer to bring herself back into compliance “is an insufficient cure to this breach of contract.  He said that the unilateral decision that September 2nd is the new return to work date is a contradiction of the complainant’s doctor, who stated that she would be fit on September 5th, and also, not supported by any medical assessment.

On August 27th, the complainant met her line manager and gave her a letter of resignation.  In her letter she said that she was writing the letter “with deep regret” but that she was in a position “of having to make a choice between disciplinary action which would have serious connotations for any future employment within the industry or tender my resignation.”  Ms Clarke asked her to re-consider while she tried to find out if extended leave or personal leave would be available.  On September 3rd, Ms Clarke phoned the complainant and told her that there was no special leave available.  The complainant replied that she was not fit for work and that she could not go to work and was not prepared to have a disciplinary record.

Legal Submissions

Mr Kelly referred to the definition of constructive dismissal which is set out at section 1 of the Unfair Dismissals Act, which I will address in my findings and conclusions.  He referred to the fact that claims of constructive dismissal are based on two tests, the contract test and the reasonableness test and he cited the decision of the Supreme Court in Berber v Dunnes Stores[1], which incorporated the views of Lord Denning in Western Excavating (ECC) Limited v Sharp[2].  Considering the common law breach of contract of repudiation, Mr Justice Finnegan held that,

 “In determining whether there has been a breach of the implied term of mutual trust and confidence in employment contracts:

1  The test is objective.

2  The test requires that the conduct of both the employer and the employee be considered.

3  The conduct of the parties as a whole and the cumulative effect must be looked at.

4  The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

Mr Kelly submitted that the complainant was out of work for a considerable length of time due to work-related stress and anxiety.  She was assessed by the respondent’s OHC and by her own doctor.  Having proposed that she take extended leave, this was not offered.  She was wrongly informed that the opinion of the respondent’s OHC superseded the opinion of her doctor. 

The complainant’s medical certificate of August 12th 2019 “was rejected out of hand” by the respondent who informed her that she was in breach of the Absence Management Policy by not returning to work.  This added to the work-related stress being experienced by the complainant.  The respondent also failed to engage with the complainant to manage her workload on her return to work.  Mr Kelly submitted that it was the cumulative effect of this treatment on the complainant, and the threat of a disciplinary sanction, that resulted in her decision to resign.  The complainant’s case is that this is the repudiatory breach which is confirmed by the actions of the respondent.

Mr Kelly argued that, if the conduct of the employer is not a repudiatory breach of contract, then the employee’s actions pass the reasonableness test.  He claims that it is disingenuous for the respondent to raise the issue of the grievance procedure, which he argued, is not fatal to any claim of constructive dismissal.  Relying on the decision of the Employment Appeals Tribunal (EAT) in Allen v Independent Newspapers (Ireland Limited)[3], Mr Kelly said that it was reasonable for the complainant not to invoke the respondent’s grievance procedure. 

Mr Kelly addressed the respondent’s assertion that the complainant’s manager, Ms Clarke asked the complainant about work-related concerns at a meeting in May 2019 and that the complainant declined to speak about her concerns.  He said that the complainant has no recollection of this, and that nothing was ever committed to writing regarding this issue.  He said that this is important, because the OHC advised the respondent to engage with the complainant regarding her work problems.

Concluding his submission, Mr Kelly said that it is questionable if the grievance procedure could have been implemented.  The complainant had not been advised of the prospect of using the procedure, and secondly, she had no access to the procedure, as she was out sick with no connection to her work computer.  In any event, the complainant is not making a case that she was subjected to bullying or that she was subject to misconduct which could give rise to a grievance.  She was concerned about her workload.  Mr Kelly said that the respondent cannot put forward with any reality a defence that the complainant did not go through the grievance procedure.

Evidence of the Complainant

Opening her evidence, the complainant outlined her career with the respondent since she joined the Bank in 1999.  Since 2018, she has worked on a new team focussing on home mortgages.  She reports to the head of homes, Ms Debbie Clarke.

In January 2019, the complainant said that she was diagnosed as suffering from anxiety.  She had chest pains in work and she said that her “head was all over the place.  She said that she sent in medical reports, first to Ms Clarke, and then to the HR department. 

The complainant described the three consultations she had with an OHC in Medmark.  At the first consultation on March 20th 2019, the OHC said that she would be ready to return to work on April 18th.  She sent in a medical cert from her own doctor on April 9th, and she didn’t go back to work.  She went to the OHC again on May 19th, and she said she told the consultant that she wasn’t better.  She said that she couldn’t point to a specific issue in work that was causing her to be anxious.  She said that she met Ms Clarke in May and told her that she had booked a holiday.  She said that she wanted to let Ms Clarke know that she was leaving the country.  She explained to Ms Clarke that she didn’t know when she would be able to return to work.  She said that Ms Clarke tried to support her and they discussed the possibility that she could take leave from the Bank, other than sick leave. 

On June 17th 2019, the complainant said that she met Ms Clarke again, who told her that there was no possibility that she could take a career break.  She said that she offered her the option of two weeks’ parental leave.  Ms Clarke told her that she was considered to be fit for work, but she said that she told her that she wasn’t fit.  She submitted a medical cert for the month of July.

On July 18th, the complainant had a third appointment with an OHC in Medmark.  She hadn’t met the doctor before and she said that she was easier to talk to than the consultant she met on the previous two occasions.  On July 26th, she got a letter from Kim Howell in the HR department, informing her that she was considered fit to return to work on August 14th.  She said that she felt under pressure to return to work, but she sent in a medical cert on August 12th in which her doctor said that she would be fit to return on September 12th.

On August 27th, the complainant said that she met Ms Clarke in Costa Coffee in Drogheda.  She said that she couldn’t face disciplinary action and she felt that she had no option but to resign.  She said, “I had to put my health first” and that she was “being pushed into returning” when she wasn’t fit.  She said that she gave Ms Clarke her letter of resignation.  Ms Clarke asked the complainant to change her mind and asked her to “leave it with me.”

The complainant said that if she had had the option of a career break or special leave, she may not have resigned, but she said, “I had to put me first.”

When she met with Ms Clarke in May, the complainant said that she may have told her about her work-related concerns.

The complainant said that she was on full pay from January 29th 2019 for six months until the end of July.  From August 1st, she was on half pay.  Her social welfare illness benefit was topped up by the respondent to full pay for six months until the end of July 2019 and then to half pay until August 14th, after which she was not paid sick pay.  The complainant said that she was on social welfare illness benefit until January 2021, when she claimed job-seekers’ benefit.  She said that she has not looked for work due to the Covid-19 pandemic.

Cross-examining of the Complainant

Ms McKenna suggested to the complainant that it was coincidental that her recovery came about when her social welfare illness benefit came to an end.

Ms McKenna submitted that the complainant was a manager in the Bank and that she must have been aware of the grievance procedure.  The complainant denied that she knew about the procedure.  Ms McKenna replied that this answer wasn’t believable.

When she was at work, and before she was absent with anxiety, the complainant never raised a complaint about a work-related issue to her line manager.  Ms McKenna referred to the meeting on May 17th 2019 that the complainant had with Ms Clarke when Ms Clarke asked her if she had a problem at work.  The complainant replied that she didn’t remember that conversation.  Ms McKenna said that Ms Clarke will give evidence that she was directed by the HR specialist to ask the complainant about work-related issues and that she replied that she had no issues at work.

The complainant said that she had a panic attack in work on January 29th 2019.  She said that she didn’t dispute that Ms Clarke supported her.  Ms McKenna said that Ms Clarke will say that she kept in touch with the complainant and that she never complained about work or about any person at work.

Ms McKenna referred to the Bank’s sick pay policy where employees are paid full pay (less social welfare illness benefit) for six months and then half pay for six months.  She said that a procedure is required to administer the sick pay scheme.

Referring to Medmark, the complainant agreed that she attended appointments.  She said that Medmark was working on behalf of the Bank.  Ms McKenna said that the complainant was critical of the response of the OHC that she met in April 2019, but she didn’t make a complaint about the consultation.  The complainant said that she “felt that her line of questioning couldn’t have led to a conclusion that I was fit for work.”  She said that she didn’t think that the OHC could diagnose her as fit to work when her own doctor said she wasn’t fit.  Ms McKenna pointed to the fact that the OHC said that the complainant would be fit for work on April 18th 2019 and she didn’t recommend further treatment.  When she didn’t return to work, Ms McKenna pointed out that there was no criticism from the Bank.

When she met Ms Clarke for coffee on April 24th 2019, Ms McKenna put it to the complainant that she didn’t mention any work-related problems.  She said that Ms Clarke recalls that they chatted about the complainant building a new house.  Ms McKenna suggested that the complainant was involved in this project and she agreed that she was, but that she had “no immediate involvement.”

On April 9th, the complainant’s doctor had issued a letter to say the complainant was on medication that suited her and that her symptoms were improving.  She suggested that she would be able to return to work “around June 4th.  On April 26th, Mc McKenna said that Kim Howell from the HR department phoned the complainant about another appointment with Medmark.  The complainant raised a concern about the consultant she met at her two previous appointments.  Ms McKenna said that the complainant was encouraged to be up front with the OHC.  An appointment was arranged after 10.00am, to suit her availability.  The Medmark report notes that the complainant reported no improvement in her anxiety symptoms.  The OHC agreed with the complainant’s doctor that she would be fit for work on June 4th. 

On May 17th, the complainant met with Ms Clarke again.  Ms McKenna reminded her that she told Ms Clarke that she was going to Italy on holidays.  She said that Ms Clarke spoke about taking parental leave.  The complainant replied that Ms Clarke supported her request for extended leave.

Although the complainant was due back at work on June 4th, on May 30th, Ms Clarke phoned the complainant to confirm that she could take three weeks’ holidays and return to work on July 2nd.  The complainant disputed that she agreed that she would be back at work on July 2nd, saying that she agreed to think about it.  She said that she was investigating the possibility of a career break.

On June 17th, Ms McKenna said that the complainant met Ms Clarke again, and informed her that it wasn’t possible to take a career break or one year off.  Ms Clarke told the complainant that she expected her back at work on July 2nd.  The complainant said that she told Ms Clarke that she was still not fit for work.

Ms McKenna referred to a cert from the complainant’s doctor dated June 24th, which stated that she was unfit for work from July 2nd until the 16th.  Ms McKenna said that, when the doctor wrote this cert, the complainant knew that she was due back at work.

On July 18th, the complainant attended the OHC for the third and final time.  On this occasion, she met a consultant that she hadn’t seen previously.  The consultant recommended that she should be fit to resume work on a phased basis on a target date of August 14th.  This was confirmed in a letter from Kim Howell in the HR department on July 26th.  Ms McKenna asked the complainant why she didn’t contact Ms Clarke at this point.  She replied that she felt that she was being bullied into returning to work and that her “head wasn’t in the right place.”

Ms McKenna asked the complainant why she didn’t reach out to Ms Clarke, with whom she had a good relationship, or to Ms Howell in HR.  She asked her why she didn’t invoke the grievance procedure.  On August 12th, the complainant sent the respondent a letter from her doctor in which the doctor said that she couldn’t return to work on August 14th, but that she might be well on September 9th.  On the same day, August 12th, Ms Howell replied to the complainant and encouraged her to speak with Ms Clarke in advance of August 14th.  There is no reference in this letter to the disciplinary procedure.  The letter of August 20th states that, the complainant’s failure to return to work on September 2nd may result in disciplinary proceedings being instigated.

Ms McKenna submitted that the Bank is entitled to prefer the opinion of their OHC. 

On August 27th 2019, the complainant met Ms Clarke for the last time.  She gave her a bunch of flowers and a letter of resignation.  Ms McKenna said that Ms Clarke tried to persuade the complainant not to resign.  The complainant replied that she told Ms Clarke that she “didn’t really want to do this but I don’t want a disciplinary sanction on my record.”  Ms McKenna said that Ms Clarke asked the complainant to look at other options but the complainant said that she would have faced disciplinary action.

On September 3rd, Ms McKenna said that Ms Clarke phoned the complainant and asked her if she had re-considered her decision.  The complainant replied that she asked Ms Clarke about other options and she said that there was no possibility of a career break or extended leave.

The complainant said that since she resigned, she has made no attempt to seek work.

Concluding her cross-examining, Ms McKenna said that Ms Clarke will say that the complainant wanted to take a year off as parental leave, but that she suggested that she could support an application for shorter blocks of parental leave.

Written Submission on behalf of the Respondent

The submission provided by the respondent was sent to the WRC on December 16th 2020.  It was written before the complainant’s submission was sent to the WRC.  The respondent’s document sets out the chronology of events that ended with the resignation of the complainant on August 27th 2019.  It is the respondent’s case that the complainant was not constructively dismissed.

The respondent has a Sick Pay Policy and an Absence Management Policy, and copies of both were provided in the book of documents sent to the WRC in advance of the hearing.  The Absence Management Policy is to ensure that staff receive welfare and support from the Bank during periods of illness and to minimise the effect of absences on other staff and customers.  Employees are obliged to adhere to the terms of the Absence Management Policy and to co-operate with the Bank in addressing and managing absence from work.

Before she went absent from work in January 2019, the complainant did not raise any grievances related to work issues and she did not identify any concerns that were causing her to be anxious at work.  The respondent’s submission notes the consultations that the complainant had with Medmark’s OHC in April and May 2019.  The report of May 14th from the OHC noted that at the consultation on May 9th, the complainant disclosed work-related issues that were not previously discussed.  These related to a workload burden and work processes.  A meeting was arranged for the complainant to discuss her concerns with her manager, Ms Debbie Clarke.

When she met Ms Clarke on May 17th, the complainant didn’t raise any concerns about work.  It was agreed that she would take holidays from June 4th.  The complainant had expressed an interest in a special absence break or parental leave and Ms Clarke agreed to look into the possibility of this for her.  The complainant said that she would return to work after her holidays.  Following the meeting, the HR specialist, Ms Kim Howell, wrote to the complainant, sending her copies of the parental leave policy and the special leave policy.  Ms Howell asked her to respond indicating her preference by May 30th.

On May 30th, Ms Clarke spoke to the complainant who informed her that she was considering parental leave or a one-year career break.  On June 17th, Ms Clarke informed the complainant that a career break would not be facilitated and that she was expected to return to work on July 2nd.  The complainant did not return to work, but sent a retrospective medical cert back-dated from June 4th.  Her annual leave was reimbursed and she was placed back on sick leave and referred to the OHC.

The outcome from the consultation with an OHC on July 18th was that the complainant would be fit to return to work on August 14th.  We know from the complainant’s submission that she did not return and that she resigned on August 27th.  At a meeting with on that day, Ms Clarke asked the complainant to re-consider her resignation until such time as Ms Clarke could finalise options on extended leave.  The complainant refused this offer and on September 3rd, she confirmed her intention to resign.

Legal Submissions

In her submission, Ms McKenna also referred to the definition of constructive dismissal at section 1 of the Unfair Dismissals Act and she also cited the Supreme Court decision in Berber v Dunnes Stores (footnote 1) which was referred to by the complainant’s solicitor. Ms McKenna submitted that the standard of conduct described by Mr Justice Finnegan concerning a repudiatory breach of contract is the approach I must follow in considering this complaint.  I must look objectively at whether there has been a repudiatory breach or whether the employer engaged in conduct which made it reasonable for the complainant to terminate her contract.

The first element of a test of constructive dismissal is that the complainant must establish that the conduct of the respondent was such that it was evident that they no longer intended to be bound by the contract of employment or that their conduct was so unreasonable that the complainant was justified in resigning.  Ms McKenna submitted that the complainant has singularly failed to identify any element of the respondent’s actions which repudiated her contract or which suggests that they no longer wished to be bound by her contract.  The respondent wanted the complainant to return to work and her manager met with her to address any concerns she had about returning.

Ms McKenna also argued that the complainant failed the second element of the test to establish that she was constructively dismissed when she did not invoke the respondent’s grievance procedure and offered no explanation for failing to do so.

Ms McKenna referred to the decision of the EAT in Conway v Ulster bank Limited[4] where the Tribunal concluded that the employee’s resignation was unreasonable in circumstances where she had not pursued her concerns about her job by using the Bank’s grievance procedure.  Ms McKenna cited the decision in Harrold v St Michael’s House[5] as a case with a similar outcome, where the EAT noted that an employee has an obligation to exhaust internal disciplinary and appeal procedures before lodging a claim for unfair dismissal.

Like Mr Kelly, Ms McKenna referred to the case of Liz Allen and Independent Newspapers (footnote 3).  Here, the Tribunal found that it was acceptable for Ms Allen not to invoke her employer’s grievance procedure because a previous effort had given rise to an unsatisfactory outcome.  In that case, the Tribunal found that,

“…the claimant’s conclusion that she could have no confidence in the respondent to either properly or effectively address her grievances was a reasonable conclusion in the circumstances.”

Ms McKenna submitted that no such circumstances pertain in this case and that it was not reasonable for the complainant not to use the respondent’s grievance procedure in the circumstances where she had no reasonable cause to believe that this would be ineffective in addressing her complaints.

Concluding the respondent’s submission, Ms McKenna said that the complainant voluntarily resigned from her job and the termination of her employment does not fall within the scope of the Unfair Dismissals Act 1977.  She asserted that the respondent acted entirely reasonably in its relationship with the complainant and that nothing occurred which made it reasonable for her to terminate her contract without given notice to her employer.

Evidence of the Complainant’s Line Manager, Ms Debbie Clarke

Ms Clarke said that she had a good relationship with the complainant.  She recalled the meeting with her on May 17th 2019 in Costa Coffee in Drogheda.  The purpose of the meeting was to discuss an issue in the OHC’s report, related to the complainant’s concerns about her job.  Ms Clarke said that the complainant “very specifically said to me that there were no workplace issues” that she was concerned about.  There had been an issue with regard to the location of desks and Ms Clarke said that she told the complainant that the desk issue was sorted out.  The complainant asked about taking three weeks’ holidays from June 4th.  She also asked about a career break and parental leave and Ms Clarke said that she asked the HR department to send details of these types of leave to the complainant.

On June 17th, Ms Clarke said that she arranged to meet the complainant to agree her phased return to work.  She told the complainant that the option of a career break wasn’t available but that she would support an application for parental leave.  The complainant said that she would take six months’ parental leave.  Ms Clarke said that the tone of the meeting changed when the complainant told her that she was still on sick leave.  She expressed some dissatisfaction that she was considered fit to return to work.

On August 27th, Ms Clarke met the complainant again in Costa Coffee in Drogheda.  She said that she was taken aback when she saw the complainant approaching with an envelope and a bunch of flowers.  Ms Clarke said that she was upset at this unexpected turn of events.  The complainant was a valued and respected employee who was very good at her job.  She said that she told her that “it didn’t have to be this way” and that she didn’t want to accept the letter.  The complainant said that her decision was final.  Ms Clarke said that she suggested that she could ask for approval for some form of leave to support the complainant, but the complainant said that she didn’t want a disciplinary sanction on her file.

Having received her letter of resignation, Ms Clarke said that she phoned the complainant on September 3rd to ask her if she had re-considered her decision.  She said that the complainant told her that her mind was made up and that she had to look after her health.

Cross-examining of Ms Clarke

Questioned by Mr Kelly about her conversation with the complainant on September 3rd, Ms Clarke said that she told her that other options were still open.  She said that the career break wasn’t an option and that it wasn’t possible to take her full entitlement to parental leave in one block, but that parental leave was still an option, if taken in smaller blocks.  Mr Kelly said that the complainant recalls that Ms Clarke’s purpose on the call was to tell her that there were no options.

After the meeting of August 27th, Ms Clarke said that she sent a copy of the resignation letter to Ms Howell in HR.  She spoke to a senior manager about the complainant’s request for a career break.  She said that she contacted the HR department again after the September 3rd phone call.

Mr Kelly asked Ms Clarke if the possibility of leave was discussed at the meeting on August 27th.  Ms Clarke said that she brought up the issue of parental leave.  She said that this could have been facilitated.

On May 17th, Ms Clarke said that the complainant asked for some form of leave, a career break, parental leave or special leave.  She said that she asked the HR department to send the policies to the complainant and she said that she would speak to her manager about options.

On May 16th 2019, the day before her meeting with the complainant, Mr Kelly said that Ms Howell in the HR department sent Ms Clarke an email with a link to a policy on special leave.  Mr Kelly said that it doesn’t make sense that she didn’t raise this possibility with the complainant.  Ms Clarke said that the complainant asked about special leave at the meeting.

Mr Kelly referred to the email Ms Clarke sent to Ms Howell on May 30th in which she said that the complainant is aware of her return-to-work date of June 4th and that she was taking three weeks’ holidays.  She also told Ms Howell that the complainant was considering taking a career break.

Ms Clarke said that she didn’t see the complainant’s medical reports and that the complainant didn’t speak to her about her health problem.

Asked again about the meeting with the complainant on May 17th, Ms Clarke repeated that the complainant said that she had no concerns about issues at work.  Mr Kelly said that the complainant does not recall saying this.

Although the hearing adjourned at this point and the intention was to continue the cross-examination of Ms Clarke at the resumed hearing, at the opening of the hearing on February 14th 2022, the parties agreed that the evidence was concluded.

The Relevant Law

It is the complainant’s case that she was constructively dismissed, meaning that she had to leave her job because of the conduct of her employer.  We know that the definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract without giving prior notice of the termination to the employer…”

As has been set out by both parties in this complaint, an employee who claims that they have been constructively dismissed must satisfy two tests, known as the “contract test” and the “test of reasonableness.”  As a third component to this burden of proof, an employee who decides to resign and who argues that their resignation was because of the conduct of their employer, is generally expected to make an effort, by utilising their employer’s procedures, to have their grievances addressed.

Explanation for the Complainant’s Decision to Resign

In her submission and, in her evidence at the hearing, the complainant presented several explanations for her decision to resign.  In the first instance, Mr Kelly submitted that the respondent’s instruction to the complainant to return to work on August 14th 2019 followed from an incorrect interpretation of the OHC’s report, where a “target date” of August 14th was suggested as a date when the complainant “should be” fit to return to work.  It is worth referring to the earlier report of the first OHC of May 9th 2019, when, on that occasion, the consultant wrote:

“Following receipt of her GP report after our scheduled appointment, I note her GP is of the opinion that Ms Scott should be well to resume work on 04.06.19.  I am of the view that Ms Scott should be fit to resume work on this date (04.06.19).  Should Ms Scott not resume work by this time I suggest this is managed by usual company processes.”

It is to the complainant’s advantage that the respondent did not end the medical consultations at this point, but that she was referred for another consultation in July. 

I find that there was nothing erroneous in the respondent’s decision to accept the opinion of the second OHC that the complainant was likely to be capable of returning to work on August 14th.  No medical evidence or information was offered by the complainant to suggest that there was some treatment or course of therapy that she was engaged in or that she had to complete before she was fit to return.  The doctor’s opinion that the complainant “should be” fit is predicated on the basis that nothing untoward would occur between the date of the opinion, July 22nd, and the return-to-work date of August 14th and it was not unreasonable, in my view, for the HR specialist to write to the complainant and to confirm that August 14th was the date on which she was expected back at work.  Finally, on this point, it was open to the complainant to respond to Ms Howell’s letter of July 26th, and to let her know that she wouldn’t be well enough to return to work on August 14th.  She did precisely this when she sent in another medical cert on August 12th.

As a second component of the unfair and unreasonable treatment that the complainant alleges she was subjected to, Mr Kelly referred to the OHC’s recommendation that she should return to work on a phased basis and that discussions should take place regarding a reduction in her workload.  I note that, as early as May 22nd 2019, the complainant’s line manager, Ms Clarke wrote to the HR specialist, Ms Howell, confirming that she had spoken to the complainant that day and advised her of the OHC’s recommendation that she should return to work on June 4th.  In her email, Ms Clarke told Ms Howell that she discussed a phased return to work with the complainant.  I note also, that, in her letter of July 26th to the complainant, Ms Howell repeated that “Occupational Health have recommended a gradual phased return, working 50 percent of your normal working hours for weeks one and two and 75 percent of normal working hours for weeks three and four.”  In her letter, she offered the complainant the opportunity to meet her manager before she returned to work and she said that she would liaise with the manager to arrange a time and location to meet.  The complainant did not take up this offer.

I accept that Ms Howell did not make a specific reference to a “workload reduction” in her letters; however, I find that no unfairness arises from this, as it is clear that the complainant was to return to work on a reduced hours basis, which effectively means a reduced workload.  In her evidence, the complainant made no mention of any workload concerns, or any problem of having to work late or long hours and I am not convinced that she had any concerns about her workload.  In any event, the door was open to her to raise these concerns with her manager in advance of her return to work.  The fact that she did not do so strengthens my view that workload was not a problem for the complainant.

The third reason given by the complainant for deciding to resign is the respondent’s failure, following the report of the OHC on July 22nd, to send the complainant back to Medmark for a fourth consultation.  Between the first consultation in March 2019 and the third consultation in July, nothing had changed for the complainant and, at each appointment, the consultant found that she would fit for work within a few weeks.  The consultant who met the complainant in May was unequivocal in her agreement with the complainant’s GP that she would be capable of returning to work on June 4th.  It is apparent to me that there would have been no advantage to the respondent or the complainant in a further appointment with the OHC and I find that no unfairness arises from not taking up the option of another consultation. 

While the complainant had chest pains at work on January 29th 2019, there was no suggestion, and no evidence was submitted that this was caused by an issue at work.  It was not until her second meeting with the OHC in May 2019, that the complainant disclosed a concern about her workload and work processes.  This was immediately acted upon by the respondent, with Ms Howell asking Ms Clarke to meet the complainant to find out what this problem was.  Ms Clarke’s evidence was that, during their meeting on May 17th, the complainant said that she had no concerns about any problem at work and her concern about the location of a desk had been resolved.  The complainant said that she couldn’t recall this conversation.  I find that her evidence in this respect was unconvincing. 

It is the complainant’s case that the respondent breached her contract of employment by removing her from the sick pay scheme and by not paying her wages with effect from August 14th 2019.  When the complainant was absent from work, she was paid in accordance with the respondent’s sick pay policy.  This meant that, for the first six months, from January 29th until July 29th 2019, she was paid her full wages less her social welfare illness benefit.  The OHC decided that she was capable of returning to work in April and June 2019, but she did not return and the respondent continued to pay her sick pay.  From August 1st, she was on half pay, and was considered to be well enough to return on August 14th.  I find that, when she did not return on August 14th, she was not entitled to sick pay and the respondent’s decision to stop paying her wages was not a breach of her contract.

For the complainant, Mr Kelly argued that it was unreasonable for the respondent to regard the opinion of the OHC as superseding that of her own doctor.  It occurs to me that an individual’s doctor will have as their priority their patient’s interests from the perspective of health and lifestyle.  This is the reason that an employer goes to the considerable expense of contracting an occupational healthcare provider.  The OHC is concerned to examine whether the individual is fit and capable of working and, in the absence of robust contradictory medical evidence, the respondent is entitled to regard that opinion as safe and valid.

Mr Kelly argued that the cumulative effect of this treatment was a repudiatory breach of the complainant’s contract and that this is the reason she resigned from her job on August 27th 2019.

In her evidence at the hearing, the complainant said that she felt that she had to resign, because of her employer’s threat to invoke the disciplinary procedure.  If this explanation was valid, it would turn every standard disciplinary procedure on its head, because every employee at risk of a disciplinary sanction could claim that they have been constructively dismissed.  In her letter of August 20th 2019, Ms Howell indicated that the complainant’s failure to return to work on September 2nd “may result in disciplinary proceedings being instigated.”  There was no guarantee that the outcome would be a disciplinary sanction and it was open to the complainant to produce medical evidence to show that she was too sick to return to work.  In this way, she could have avoided a disciplinary sanction.  The fact that she did not do so indicates to me that it is probable that she was capable of returning to work, but that she did not want to go back.

The Burden of Proof in Constructive Dismissal Cases

As both representatives pointed out at the hearing of this matter, an employee who claims that they have been constructively dismissed must satisfy two tests, known as the “contract test” and the “test of reasonableness.”  In Western Excavating (ECC) Limited v Sharp  (footnote 2) the contract test was summarised as follows:

“If the 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 of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance.”

The reasonableness test also assesses the conduct of the employer, and whether,

“…the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with any longer…If so, the employee is justified in leaving.”

I find that the complainant has not pointed to any action on the part of her employer that demonstrates that there was a significant, or for that matter, a minor breach of her contract.  I find that she was treated with patience and tolerance, and that it was open to the employer to stop paying her sick pay when she did not return to work in June 2019, but that they did not do so.  I find no evidence of any action on the part of the respondent that the complainant can point to that was so unfair and unreasonable that she was compelled to resign. 

It is often the case in a complaint of constructive dismissal that an employee doesn’t succeed because they fail to invoke their employer’s grievance procedure.  I agree with Mr Kelly that the grievance procedure was of no use to the complainant, because she wasn’t complaining about bullying or about misconduct, or about some dilution of her terms and conditions.  While she was clearly unhappy with the cessation of her sick pay, she was treated in accordance with the respondent’s sick pay policy.  It is my view that the complainant was correct in her decision that there was nothing to be gained in pursuing this as a grievance.

Conclusion

Having listened to the complainant’s evidence at the hearing, I find that she has not demonstrated that the conduct of her employer was so unacceptable that she had to resign.  It is my view that she was treated fairly and that there was scope for her to continue in employment with the respondent if she had wanted to do so.  I find therefore, that the complainant’s decision to resign is not compatible with the definition of a constructive dismissal set out at section 1 of the Unfair Dismissals Act.

On this basis of the findings and conclusions set out above, I decide that this complaint under the Unfair Dismissals Act is not well founded.

Absence due to illness, constructive dismissal