Complainant

Respondent

Parties

Orla  Smyth

The Teresian School

Representatives

McInnes Dunne Murphy Solicitors

Rosemary Mallon B.L. instructed by Mason Hayes Curran LL.P

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-00046553-001

06/10/2021

The complainant, Ms. Orla Smyth, was offered the position of Montessori teacher in September 1997, following interview. 

She received no written contract until March 2020, and it was a term of her job that she was to teach kindergarten children only, which she did for her entire career until the termination of her employment on August 20th, 2021.

Following a number of attempts by the junior school Principal to change her terms and conditions of employment in April 2019 and subsequently, and an increasingly hostile attitude towards her on the part of a number of her colleagues, there was a toxic environment at work, of which the respondent was made aware by the complainant, but nothing was done.

The principal. Ms. McHale first told the complainant in April 2019 that she wanted her to teach an older class, and not just the class she was employed to teach. When Ms. Smyth said that she did not wish to do this, Ms McHale responded that her role would be changed whether she liked it or not, and that she could do this absent any contractual discretion simply because "she was the principal'.

   Ms. McHale told Ms. Smyth that from September 2019 onwards she would be working until 2.45pm every day, two hours, and twenty minutes per week more than colleagues who taught older children, with neither any consultation nor her agreement to this.  Infact, Ms. Smyth had indicated her agreement to work the extra hours onthebasisthathercolleagues would also workthesame hours.

  Ms. McHale persisted in requiring that the complainant work extra hours and Ms. Smyth ultimately felt obliged to sign a contract of employment which reflected this, and also her agreement to teach six-year-olds, but not any children older than this, in March 2020. However, she did so under protest until all matters were resolved.

   On various occasions throughout 2018, 2019 and 2020, Ms. Smyth was subjected to increasingly hostile behaviour from colleagues, specifically at a staff meeting on May 10th, 2019 and isolated by them, on the basis that they believed her unwillingness to teach classes outside of her contractual obligations was in some way unfair to them,

   At a meeting on May 28th, 2019, Ms Smyth told Ms Doherty, now the school manager of the hostility she was experiencing from colleagues, andofthestressitwascausingher.

    Ms. Doherty stated both at the meeting and subsequently in a letter to Ms. Smyth on July 4th that any such "negativity" would "dissipate once [she] was finishing at the same time as [her] colleagues".  At no point during the meeting did Ms. Doherty advise Ms. Smyth that she could avail of the school's grievance or Respect and Dignity in Our Work Policy.

Ms. Smyth met with Ms. McHale on August 22nd, 2019, to again raise with her the difficulties she had been experiencing at work at the hands of her colleagues, and the manner in which the school was disregarding her terms and conditions of employment. However, Ms McHale was unsympathetic.

   From September 2019 onwards, Ms. McHale's behaviour towards Ms. Smyth became even colder and more distant, and she did not engage with her constructively in any way. 

The complainant became ill in September 2020, did not return to work. She made a formal complaint of bullying on February 25th, 2021,

Following an unsuccessful attempt to resolve Ms. Smyth's complaint by mediation, which concluded on May 11th, 2021, she sought the appointment of an external investigator on June 9th, 2021, which emphasised her anxiety to have the investigation started and her concern at the delay in relation to this.

No response was received to this email, and a second request was sent to the respondent’s solicitors on June 22nd, 2021, which stated that if an investigator was not appointed within seven days the complainant would consider resigning and issuing a constructive dismissal claim.

   The respondent’s solicitor responded by email later that day to confirm that an investigator had been appointed and that further details would be provided in the next few days.                           Ms. Smyth was contacted by the investigator, who told her that terms of reference were to be circulated by him shortly.

   Despite the assurance given by the investigator to Ms. Smyth that she would be given terms of reference shortly, none had been provided by July 2nd, 2021, and on that same day a further request was made for the terms of reference, and while they were provided later that day, they were so deficient as to render the commencement of the investigation impossible.

The complainant’s solicitor wrote to the respondent’s solicitors on July 7th, pointing out deficiencies in the terms of reference in detail and on 13th and 20th respectively seeking to have these remedied.  The email on the 20th made clear that the delay at that point was intolerable, that Ms. Smyth was continuing to suffer stress and anxiety as a result of this, and that she would resign by the end of that week in default of adequate terms of reference not having been provided by then.

Ms. Smyth did not, in fact, resign within this timeframe, in the hope that the investigation would be commenced, but revised terms of reference had still not been provided by August 20th 2021, a full month later (and a full two months since the appointment of the investigator), such that she felt at that point that she had no option but to resign.

Following this, revised terms of reference were provided by the respondent on August 25th, which suggested, incredibly, that there had been no reason for Ms. Smyth to resign and that the Respondent now had "serious concerns" about whether or not Ms. Smyth was reallyinterestedabouthavinghercomplaintinvestigated atall.

There was a further letter from Ms. McHale to Ms. Smyth dated 26 August 2021 which, just as incredibly, stated that the Respondent had always been "very responsive" to Ms. Smyths's complaints and criticised her previous cancellation of her meeting with the investigator pending proper terms of reference for his investigation as having been "unfair to Mr. Sheridan and unreasonable", whilst at the same time requesting that she re-consider her resignation, and a further email from MHC dated 27th August, proposing atimetable for aninvestigation.

This was rejected in correspondence on September 1st, 2021, in which the absurdity of the position being adopted by the Respondent in these regards was pointed out, as wasthe fact that Ms Smyth no longer had any trust and confidence in the Respondent, and that she would not be retracting her resignation accordingly.

Evidence was given on affirmation by Professor Harry Kennedy, a consultant forensic psychiatrist who had examined the complainant on a number of occasions in 2018 and 2019.  He gave details to the hearing of his diagnosis which he attributed to ‘adverse events’ in the workplace.

He confirmed that he was aware of a request for an investigation and in his opinion the delay in carrying out the investigation caused or perpetuated the complainant’s condition, but that the complainant’s condition continued after she ceased attending work.  While he noted the presence of some non-work-related events difficulties at work seemed to trigger her illness. In his view, it was unlikely that the complainant could return to work.

Under cross examination the witness said that he had been aware of the appointment of a mediator but not of an investigator, nor had he seen correspondence about the respondent’s response. He also accepted that the delay in bringing the matter to a hearing at the WRC could also be an exacerbating factor.

While he was aware that the complainant had undertaken a role as a tutor this was different to working in the school context, but he accepted that subject to that distinction the complainant was fit for some work but was not sure if she could do more.

This concluded the evidence of Professor Kennedy.

Section 1 (1) of the Unfair Dismissals Act 1977-2015 ("the UDA") provides, amongst other things, that a constructive dismissal arises upon

 "The termination by the employee of his contract of employment with his employer, whether prior notice of 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 of employment without giving prior notice of the termination to the employer,".

To succeed in a claim of constructive dismissal, a complainant must establish that the employer had either breached a material term of the contract, or, absent any such breach, had nonetheless behaved so unreasonably as to have left the complainant no option but to have resigned his or her employment.

A complainant must also establish that, prior to resigning, she had taken reasonable steps to exhaust any internal grievance or similar procedure available in the respondent for the resolution of disputes between employee and employer.

In considering these matters, the Adjudication Officer may have regard to the "reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal", as provided for by section 6(7) of the UDA.

As was held to be the case by the Labour Court in Marek Zalewski v ATR Restoration Ltd., UDD1818, however, this does not extend to any steps taken by the employer post the date of termination, which should be disregarded by the Adjudication Officer accordingly.

Inlight oftheserious nature ofthebullying complaint brought byMs. Smyth, shewas entitledtohavethisinvestigated bytherespondent withreasonable expedition, both asanexpressmatterofcontractinaccordance withthePolicy,andbyreferencetothe most basicrequirements offairprocedures generally speaking.

Having regard to the respondent's continued failure to comply with these entitlements, it is submitted that her decision to ultimately resign from its employment was reasonable.

The respondent was clearly in breach of its express contractual commitments and duty of care to Ms. Smyth, and/or had behaved so unreasonably as to leave her with no option but to resign, meaning that she was constructively dismissed, as was held to be the case in Zalewski, where the complainant was found to have been constructively dismissed on the basis that he had similarly been denied his entitlement to an investigation into his bullying complaint.

 As was also held to be the case in Zalewski, the Respondent's attempt to belatedly mend its hand by providing revised terms of reference for the investigation on 25 August 2021, five days after Ms. Smyth's employment had terminated, must be disregarded.

Ms. Smyth tried to avail of the relevant workplace procedure to have her complaint resolved but was prevented from exhausting this by the respondent itself.

That she lost that trust and confidence in circumstances where, over a period of nearly two and a half months, despite her repeated requests for a full and fair investigation into a serious complaint of bullying made by her a further three and a half months prior to this, no such investigation was commenced, is hardly surprising.

It is consequently submitted that Ms. Smyth was constructively dismissed and that the respondent’s failure to investigate her complaint of bullying in a timely way throughout the summer of 2021 was in breach of contract and / or so unreasonable as to have left her with no option but to resign from her employment on August 20th, 2021.

In Rehab Group v Annette Roberts UD/19/100/ UDD2026 the complainant had contended she had had to resign because her bullying allegations were not dealt with by the respondent, specifically, that one of her colleagues had been persistently abusive to her and had created a toxic environment.  Following an incident in January 2018, the complainant in Rehab Group emailed her manager on January 5th to complain to her about the incident, and to advise that she was going on sick leave due to work related stress.

At a meeting on March 22nd, 2018, the complainant confirmed to the respondent that she wished the matter to be addressed by way of a formal investigation, and that she thought this had been clear in an earlier email. Following this, the respondent told the complainant that it would speak with the alleged bully and follow up with the complainant regarding next steps by 9 April 2018.

It did not do so, however, and on April 12th, the complainant sought an update from the Respondent, but the investigation had not yet commenced.

As she had still not received any update by April 20th, the complainant in that case resigned, and subsequently claimed that she had been constructively dismissed on the grounds of the respondent’s behaviour in not addressing her complaint in a timely way.

The respondent contended that it had begun the process of appointing an investigator and at Adjudication the complaint was lost.

On appeal, the Labour Court held that the respondent’s failure to address the matter promptly, coupled with its failure to revert to the complainant by 9 April 2018 following the meeting of 22 March, as it had committed to do, highlighted the Respondent’s unwillingness to prioritise addressing the complainant ’s concerns in a timely way.

It is this complainant’s position that the respondent’s failure to investigate her complaint of bullying in a timely way caused the stress and anxiety from which she had been suffering since September 2020 to continue throughout the summer of 2021 and following the termination of her employment on  August 20th  2021, or at the very least contributed to this, such that she has been unable to mitigate the loss caused to her thereby by engaging in alternative employment subsequently, and that she is consequently entitled to be compensated in respect of the said loss.

This contention is supported by Professor Harry Kennedy, Consultant Forensic Psychiatrist, who examined the complainant  on October 5th and 24th  2022, Professor Kennedy states at paragraph 9 of the “Opinion” section of the former of these reports that the complainant  has “suffered a psychological injury (panic attacks ICD-10 F41.0) in addition to a prolonged depressive stress reaction with low mood (ICD-10 F43.21) and an adjustment reaction with mixed anxiety and depressive reaction (ICD-10 F43.22) caused by adverse events and difficulties at work as described above. In my opinion these psychiatric injuries have been exacerbated by delays in resolving her case”.

At paragraph 3 of the “Opinion” section of the latter report, Professor Kennedy states that the complainant ’s “current inability to take up work with another school can be related to difficulties in a competitive market as an older person and the continuing emotional impact of her experiences with her former employer. In my opinion, this represents a loss of amenity due to the psychiatric injury arising from her experiences with her former employer.”

In Liz Allen v Independent Newspapers (Ireland) Limited, UD 641/2000, the Employment Appeals Tribunal (“EAT”) determined that the complainant had been constructively dismissed by reason of the Respondent’s failure to adequately address her grievances, and that the psychiatric illness suffered by her subsequently, which rendered her unavailable for work and therefore unable to mitigate her loss, was caused by the factors which led to her constructive dismissal. As a result of this, the EAT went on to determine that the complainant should be compensated in respect of a period of loss of 72 weeks, at the rate of pay earned by her whilst employed by the Respondent.

The EAT furthermore approved the decision of the English Employment Appeal Tribunal in the case of Devine v Designer Flowers Wholesale Florist Sundries 1993 IRLR5 17, wherein it was held that

 “An employee who has become unfit for work wholly or partly as a result of an unfair dismissal is entitled to compensation for loss of earnings for at least a reasonable period following the dismissal until she might reasonably have been expected to find other employment. The Industrial Tribunal must have regard to the loss sustained by the employee, consider how far it is attributable to action taken by the employer, and arrive at a sum which it considers just and equitable. There is no reason why the personal circumstances of the employee, including the effect of dismissal on her health, should not be taken into account in ascertaining the appropriate amount of compensation. However, the employee will not necessarily be entitled to loss of earnings for the whole period of unfitness for work. The fact that unfitness followed upon and was attributable to dismissal does not perforce imply the whole period of unfitness thereupon must be attributable to the actions of the employer. There may be questions, for example, as to whether the unfitness might have manifested itself in any event.”

The respondent introduced Dr Peter Whitty as an expert witness. He gave evidence on affirmation.

Dr Whitty has been a Consultant Psychiatrist since 2007 and provided details on his qualifications, both in general psychiatry and specifically in occupational psychiatry, which he defined as that relating to a person’s ability to work.

He gave evidence of his diagnosis and said that in January 2022, in his opinion, the complainant had been fit to return to work, and that she had improved sufficiently between August 2020 and January 2021 to do so.

He noted that she lacked confidence, but she was not ‘disabled’. On this point he accepted that he disagreed with Professor Kennedy. However, he believed that the conclusion of the current proceedings would also make a positive contribution to her recovery.

In cross examination he confirmed that he had not seen the notes of the complainant’s GP and accepted that the delay had ‘quite possibly’ contributed to the complainant’s poor health. He repeated that the complainant remained fit to return to work in that she is not disabled.

This concluded the evidence of Dr Whitty.

In its formal submission the respondent said that all stages of the process been to be looked at.

Looking at the timeframe of events in particular the grievance complaint was made by the complainant on February 25th, 2021.

Three weeks later a mediator was appointed and a week later, on March 19th the mediator contacted the complainant who agreed to the mediation on March 30th.

The respondent submits that there is no unusual delay up to this point.

Then the complainant requested the appointment of an investigator on June 9th and an investigator was appointed thirteen days later on June 22nd. The investigator made contact with the complainant as she has confirmed.

One week later, on July 2nd following a query from the complainant as to why no dates had been arranged for the investigation, the respondent replied on that same day with the Terms of Reference of the investigation.

On July 7th the complainant objected, not simply to the Terms of Reference, but also objected to the investigation proceeding. At that point the investigation meetings had been set up and had to be postponed at the insistence of the complainant.

So, from that point the delay is attributable to the complainant. There was further correspondence from the complainant on July 13th and 20th and she resigned on August 20th.

In needs to be borne in mind that not only was this during the school holiday but that the various pandemic restrictions were in force.

Looking at this sequence of events there was no unreasonable delay on the part of the respondent and not sufficient to justify the complainant resigning her position and claiming constructive dismissal. Indeed, the initial response by the respondent was prompt.

The respondent disputes that the case of Roberts v Rehab UD 19/100 is one that can be relied on due to the difference on its facts.

The only delay in this case was between July 7th and August 20th and the earlier, positive responses by the respondent are important.

Regarding the complainant’s reliance on the Liz Allen v Independent Newspapers (Ireland) Limited, UD 641/2000 the first question is whether the complainant’s illness caused by bullying, which in that case it was, and totally attributable to bullying. In this case the complainant is saying that the delay caused her illness, not bullying and the respondent notes that the delay in having the matter heard by the WRC must also be considered here.

The respondent submits that the Allen case does not apply, and the expert evidence of Dr Whitty was that the complainant was fit to return to work and that a lack of confidence to do so does not mean that she was medically unfit; on the contrary the complainant was fir to return to work and was, in fact undertaking some work.

The facts are well set out above.

By way of outlining the background the complainant has described the dispute about her working hours and an apparent reaction from her co-workers to this.

These events took place in 2018, 2019 and 2020, in some cases quite a while before the final chapter of the narrative, and the earlier events are of very limited relevance to a determination of this particular complaint.

The complainant went on sick leave in September 2020 and did not return to work.

The clock specifically starts ticking on February 25th, 2021, when the complainant made her formal complaint. The sequence of events thereafter is set out in summary in the respondent’s submission and for the convenience of the reader I repeat it here.

Three weeks after the complaint a mediator was appointed and a week later, on March 19th the mediator contacted the complainant who agreed to participate in the mediation on March 30th. The mediation concluded without resolution and the complainant requested the appointment of an investigator on June 9th.

An investigator was appointed thirteen days later on June 22nd, and he made contact with the complainant as she has confirmed.

One week later, on July 2nd following a query from the complainant as to why no dates had been arranged for the investigation, the respondent replied on that same day with the Terms of Reference of the investigation.

On July 7th the complainant objected not simply to the Terms of Reference but also objected to the investigation proceeding.

So, starting from that point any initial delay is attributable to the complainant. There was further correspondence from the complainant on July 13th and 20th and she resigned on August 8th.

The respondent submitted that by way of explanation or mitigation of any delay that, not only was this during the school holiday, but the various pandemic restrictions were in force.

I will assess this in greater detail below.

A constructive dismissal takes place when an employer’s behaviour is so unreasonable that the employee is justified in unilaterally breaking the contract.

The burden of proof is set high in such cases for the same reason that it is in unfair dismissals cases of the normal type. A breach of the employment contract sufficient to fall under the Unfair Dismissals Act must be very serious and well  justified.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

The Supreme Court has said that

 ‘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.’

Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment.  It is, after all, breach of a legally binding contract.

When an employer wishes to terminate the contract of employment, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

The most common source of complaints under the Act is when an employer has terminated the employment, and these are then the key tests as to whether the dismissal has been a fair one.

On the other hand, and in general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning. In most, if not all cases an action for breach of the employment contract is unlikely to arise.

A different situation arises when an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery or other workplace dispute resolution procedures.

In Kirwan v Primark (UD 270/2003) the EAT held noted that the claimant said that she was only going through the motions and therefore there was not a genuine attempt to utilise the grievance procedures and her case failed.

The classic formulation of the legal test in respect of constructive dismissal was set out in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27.

This laid out two separate tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as: 

“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 as discharged from any other performance.” 

It is important to note that the contract test requires repudiation of contract and not merely breach of contract.  The ‘reasonableness test’ provides that the conduct of the employer should be assessed and whether it

 “Conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.” 

The reasonableness test requires the complainant to have “substantially utilised the grievance procedure to attempt to remedy her complaints” [Conway v Ulster Bank UD474/1981]. The reasonableness test requires an assessment of the employer’s conduct and the extent to which the complainant sought to utilise procedures and raise her concerns.

The respondent relied on a decision of the Labour Court in Rehab Group v Annette Roberts UD/19/100/ UDD2026.

While employment rights cases are inevitably very ‘fact specific’ it is important to note that in that case the Labour Court concluded, in upholding the appeal, in relation to the options open to the respondent.

‘Whatever approach was decided upon, it was not in the view of the Court either reasonable and in accordance with the respondent’s own procedure, which provides for such a complaint to be dealt with promptly for the complainant to be left in a position where no action whatsoever was taken by the respondent in respect of the complaint made in early January right up until her resignation was accepted for months later in early May ‘

It would be entirely incorrect and unfair to characterise the response of the employer in this case as representing ‘no action whatsoever’.

I find that from the receipt of the complaint up to July 7th the response by the employer was appropriate and timely, and this has not been disputed by the complainant.

On that date the solicitor for the complainant raised a number of objections to the Terms of Reference which were described as ‘regrettably deficient in a number of material respects’. The first of these alleged deficits was a failure to provide that the investigator should ‘interview any witness, or other person who might have evidence that is relevant to the complaint, who is cited by [the complainant]’

The second was that relevant witness statements should be provided to the complainant.

Another related to the taking of minutes of interviews and another to the right of the complainant to be accompanied by someone other than a person provided for in the respondent’s procedures.

The final objection, and perhaps most mystifyingly, was what the letter described as ‘most importantly of all’ the failure to provide for someone ‘to adjudicate upon and take any necessary action on’ the investigator’s report.

These issues are described by the complainant as being of ‘fundamental importance’, such that meetings that had already been set up with the investigator were then postponed at the complainant’s request and the investigation suspended.

While there are no rigid requirements for the conduct of an investigation, this set of objections, and the gravity attributed to them must be seen as lacking in substance.

Some of the issues referred to are minor administrative matters that any competent investigator would have applied to the investigation regardless of what was in the Terms of Reference (provision of witness statements, reports, or minutes of meetings).

They could easily have been clarified with the investigator (and, especially as the Terms of Reference at Point 11 gave him the authority to ‘make decisions on any issue regarding process or procedure not specifically provided for in the policy’.

   It will be recalled that the complainant’s solicitor described the Terms of Reference as being ‘so deficient as to render the commencement of the investigation impossible’.

   On the contrary, I can see no reason why the investigation could not have proceeded to the first interview stage while these, for the most part, relatively minor matters were being sorted out.

The respondent’s solicitor also states in correspondence on August 25th (after the complainant had resigned) that the complainant’s solicitor had been given ‘confirmation’ that the points raised in the letter of July 7th would be met, and although I did not see evidence of any such confirmation, I accept that it is likely that this was done.

Returning to the complainant’s objections, the determination of which witnesses need to be interviewed is primarily a matter for the investigator in consultation with the parties. Most investigators will seek to exercise some discretion in relation to witnesses having regard to their probative value, and not simply interview everyone ‘cited’ by a complainant which can often add unnecessary delay and cost to an investigation.

And finally, it is no part of the business of Terms of Reference to address who will act on the outcome of an investigation, other than to identify the recipient of the investigation report (which in this case they did).

It is perfectly reasonable that a complainant should seek additional information, including on this latter point, but it does not represent a matter of ‘fundamental’ or indeed any importance in relation to the work of the investigator whose function is simply to carry out an investigation, nor has it any place in the Terms of Reference.

The complainant did not receive any response and wrote again on July 13th (a simple reminder that no reply had been received). He wrote again on July 20th stating that the complainant was finding ‘the ongoing delay’ in investigating her complaint ‘virtually intolerable at this stage’ and referring to ‘a five-month period’ since the complaints had been made and stating that the delay was ‘significant and unacceptable’.

This correspondence further threatened that, in the absence of a firm timeline for the investigation the complainant ‘will have no option but to resign [her] employment on the basis that the school’s behaviour has been utterly unreasonable and indeed in breach of their contractual right to a timely investigation…’

Even allowing for a degree of hyperbole common in such correspondence, this is something of an overstatement.

The fact is that the extent of the ‘intolerable’ period of delay at this stage was a matter of some nine working days, and, even without making any judgement on the validity of the points raised in the letter of July 7th that delay was entirely attributable to the intervention of the complainant’s solicitor.

At that point it was not due to any action or omission on the part of the respondent, unless we are to apply an entirely unreasonable standard rarely, if ever seen in business or legal transactions at any time but rarer still in the middle of summer and of a pandemic.

The complainant did resign on August 20th.

Accordingly, the question comes down to whether the delay, and the reasons for it between July 7th and the complainant’s resignation are sufficient to ground her complaint of constructive unfair dismissal.

In my view, the answer is that they fall very considerably short of doing so. The process was interrupted by the complainant on July 7th and even allowing for her concerns about the procedure there were other options to allow the investigation to proceed.

Or, alternatively, even if the complaints were of ‘fundamental importance’ a delay of some six weeks in the summer holiday period and a pandemic, while not acceptable, does not meet the higher standard necessary to ground a decision to terminate the employment.

Her intention to resign had clearly been germinating from a much earlier stage, as is indicated by the letter of July 20th. Such a delay in an investigation, while not acceptable would not be unusual (at any time), and especially noting that the delay had been triggered by objections by the complainant’s solicitor and the other circumstances referred to.

It is easy to understand that the accumulated delays, and their impact on the complainant may have been taking a toll on her, but, on these facts, they do not meet the legal tests for a constructive unfair dismissal, and she had been legally represented throughout the period.

The references in the correspondence from the complainant’s solicitor to a ‘five month’ delay are a distortion of the reality, notably in the context of the legal tests for constructive unfair dismissal.

This must have been well known to the author of the correspondence, who also, on July 20th (Tuesday, at 5.21pm) was threatening that the complainant would resign three days later (on Friday 23rd) which would have been just over two weeks after the complainant effectively withdrew from the investigation.

This is to be seen also in the complainant’s letter of resignation dated August 20th where she states.

‘Despite the best efforts made by me and my solicitor over the last few months, no proper Terms of Reference for the formal investigation sought by me have been prepared or received to this date’

This assertion is flatly contradicted by the facts set out above and it is demonstrably untrue. It raises a doubt about the intent of the complainant in relation to participating in the investigation at that point, even before the period of delay in August which was to follow these events.

The complainant and her solicitor had been sent Terms of Reference on July 7th (which, while not perfect were adequate, or could easily have been made so,) which they not only rejected on what might be regarded as relatively technical, if not frivolous grounds but insisted that the investigation be paused until they were amended.

The decision to withdraw from the investigation on such grounds as have just been referred to and quoted above was a poor one.

Extraordinarily, within less than two weeks of this objection to the investigation proceeding the complainant was threatening, through her solicitor, to resign her position.

True, there had been some delay in responding to the changes sought, (although again I note the statement in the letter from the respondent’s solicitor on August 25th to the complainant’s solicitor referred to above that confirmation had been given to the latter by the former ‘that your requests (regarding any deficits in the Terms of Reference) would be met’.

That is rather different to what is alleged here, which is essentially untrue.

The complainant’s submission above asserts that the complainant.

 ‘Did not, in fact, resign within this timeframe, in the hope that the investigation would be commenced, but revised terms of reference had still not been provided by 20 August 2021, a full month later (and a full two months since the appointment of the investigator), such that she felt at that point that she had no option but to resign.’

While it is true that she did not resign, it is also the case that she was of a mind to do so less than two weeks after her objection to the Terms of Reference, which can only be seen as a very negative indication of her disposition towards the process at such an early stage.

It is a very telling fact and cannot be ignored, or simply dismissed as hyperbole.

She eventually did resign five weeks later in a period during which the school was closed and in which there had been no further correspondence from her.

Her attempts to co-opt delays before this into the argument to enhance her case will not suffice to meet the various tests regarding constructive dismissal set out above.

The long narrative set out in the respondent’s submission stretching back to 2018 may have been a factor in her eventual withdrawal from the process, and I make no judgement on that as it is irrelevant to the application of the various tests above which relate to constructive dismissal, and it is not material to my decision.

The complainant was not justified in terminating her contract of employment by reference to those tests which are set out in the various authorities above, specifically that inConway v Ulster Bank UD474/1981 that a person has “substantially utilised the grievance procedure to attempt to remedy her complaints’ .  

She did not do so, and her complaint of constructive unfair dismissal does not succeed.

For the reasons set out above complaint CA-00046553-001 is not upheld and the complainant was not constructively unfairly dismissed.

Constructive unfair dismissal