D. Cases

The Claimant was employed by the Respondent Company. Her hours were 7.30am-5.30pm, with a one hour lunch break, Monday to Friday. She commenced maternity leave on 3 October 2010. She was due to return on 4 April 2011. She received a phone call from the Group HR Manager while on maternity leave. The Claimant asked if the Company could rearrange her hours or give her part-time hours. The Claimant emailed the HR Manager on 3 March 2011 and stated that she would not be returning to work after her maternity leave as no arrangement was possible to reduce her hours. She discovered that her replacement worked from 8am-6pm. During cross examination she agreed that she had asked the HR Manager for a reduction in hours or part-time work. She was unaware of the Company’s grievance procedure.  

The Group HR Manager gave evidence. She rang the Claimant towards the end of her maternity leave to find out if she was returning or taking unpaid leave. The Claimant asked for a reduction in hours or to go part-time. The HR Manager did not think that part-time hours would be possible. She and the Line Manager spoke to the Operations Director. It was decided that the section was too busy to accommodate a reduction in hours. She phoned the Claimant and told her that unfortunately it was not possible to reduce her hours. The Claimant said that she had no alternative but to leave. The HR Manager told her not to rush into anything and that she could take unpaid leave and see if anything else could be arranged.  

In a majority decision, the Employment Appeals Tribunal found that the Claimant, in requesting a reduction of hours, had led the Respondent to believe that she could not work the designated hours required; and that at all times the Claimant had the option to invoke the grievance procedure in relation to her request for a reduction of hours. The Tribunal found that the Respondent cannot be deemed to have acted unreasonably and therefore the Claimant’s case failed.  

This case highlights amongst a number of areas the importance to Organisations of ensuring that Employees are at all times aware of an Organisation’s grievance procedure.

UD1750 - Vanessa Margate v Atlanco - Option of Invoking Grievance Procedure

This case relates to a constructive dismissal claim where the Claimant alleged he was constructively dismissed citing a number of reasons including that he felt excluded from other staff.   The Respondent claimed that he made exceptions for the Claimant in including him in staff activities as he thought highly of him and was aware of the Asperger’s syndrome from which the Claimant suffered.  

The Tribunal found that in a constructive dismissal case it is crucial that the Claimant informs the Employer fully of complaints being made against him in order for the Employer to be given an opportunity to resolve the issues. The Tribunal found that there was no breach of the Claimant’s contract and could not establish that the Claimant’s decision to terminate the contract was reasonable.  

It is important for Organisations to note that in a constructive dismissal case the burden of proof is on the Employee to prove that they had no other option but to leave the employment, and that they had exhausted procedures such as the grievance procedure in order to attempt to resolve the issue. Organisations should take all grievances seriously and reasonably attempt to resolve any issues that arise.

 UD2314 - Employee Vs Employer - Burden of Proof

This case relates to an appeal by the Complainant of the decision of the Equality Officer in a number of discrimination claims one of which was constructive dismissal. The Equality Officer found the Complainant had failed to establish a prima facie case of discrimination on the grounds of race in relation to conditions of employment, harassment on grounds of race and discriminatory dismissal on grounds of race.  

The Complainant was a Romanian national who worked for the Respondent from 2002 until 2007 and submitted that the Respondent discriminated against him when it acted in an openly hostile and discriminatory manner over a prolonged period.   The Court was not satisfied that on the balance of probabilities that there was an inference of discrimination on grounds of race. In relation to the claim of constructive dismissal the Court found this did not meet the criteria in Conway v Ulster Bank UD474/1981 where it was found that an Employee must substantially utilise the grievance procedure in an attempt to remedy complaints before resigning. It was submitted that the Complainant did not invoke the grievance procedure as his grievance was with the MD and there was no suitable Manager to submit a grievance to.

The Court determined that the Complainant did not establish facts from which a prima facie case of discrimination on the grounds of race can be inferred.  

Organisations should be aware of the importance of issuing written documentation to Employees, in particular disciplinary and grievance procedures. It is important that Organisations can prove that they have provided the relevant policies and procedures to Employees and that they have confirmed receipt of same.

ADE1069 - The Central Hotel v Mr. Iacob Laurentiu - Importance of Documentation