NI Court of Appeal: Manager who reported theft constructively dismissed by company

A company which was found to have constructively dismissed a woman who had been employed as a manager for over 8 years, has had its appeal dismissed by the Court of Appeal in Belfast.

Delivering the judgment of the three-judge Court, Lord Justice Reginald Weir stated that he was in agreement with the findings of an industrial tribunal which was unanimous in holding that when the woman reported the theft of stock by a delivery driver for a bread company, that the company was more interested in maintaining its trade connection with the bread company than in properly investigating the allegations of theft and the subsequent victimisation by the woman’s Area Manager.

Background

Ms Lindsay Knox was employed as a Manager a Henderson Retail Ltd store from July 2007 until she resigned in April 2015. She alleged that on 2 and 23 August 2014 she had detected that a delivery driver for a bread company had stolen stock from her store, which she reported to “M”, her Area Manager.

Her resignation letter alleged that after she had reported the alleged thefts and indicated she felt unable to work with the alleged thief who was still delivering to the store, M placed her under further pressure until she was too ill to work. She felt she had no choice but to resign as, after engaging with the grievance procedure, the company refused to provide a safe working environment by still requiring her to work in the same environment as the person whose actions caused her ill-health. Ms Knox’s resignation letter says that during the grievance procedure the company dismissed her concerns and sought to force her to engage in mediation with the person in respect of whom she had raised her grievance. She felt that the company had failed in its duty of care to her, that its actions amounted to a breach of contract and that her health had suffered as a result

Industrial Tribunal

The Tribunal found that Henderson Retail breached the implied term of trust and confidence and the wider contractual duty to co‑operate with Ms Knox, who resigned in response to that breach.

The Tribunal also found that the investigation was neither adequate, thorough enough, or properly handled, particularly in its assessment of Ms Knox’s genuinely held belief regarding the alleged thefts and the attitude of M displayed towards her subsequently.

The Tribunal was further satisfied that the breach was fundamental and therefore sufficiently important to justify her resignation, or, alternatively the failure in the mediation process was the last in a series of incidents flowing from the alleged thefts (and compounded by the nature of the investigation), ultimately justifying Ms Knox leaving Henderson Retail’s employment.

Occupational health reports also substantiated Ms Knox’s claims as to the impact of the ongoing events upon her health, and the Tribunal did not consider contributory conduct to be a factor in Ms Knox’s case.

Court of Appeal

The Court summarised Henderson Retail’s grounds of appeal as:

  1. The decision was perverse.
  2. There were material findings of fact either unsupported by or contrary to the evidence.
  3. There was ex facie an error of law, a misapplication of law or misdirection of law in relation to the application of the law of constructive dismissal and the law in relation to the drawing of adverse inferences.

Firstly, the Court reject arguments that the Tribunal had drawn adverse inferences from the fact that M did not give evidence; and the that the Tribunal was not entitled to look beyond the grievance process when “law and logic” implored it to do so.

The Court was satisfied that the Tribunal considered ample evidence upon which it could be satisfied that Henderson Retail breached the implied term of trust and confidence and its wider contractual duty to co-operate with Ms Knox, for example:

  • the company was more interested in maintaining its trade connection with the bread company than in properly investigating the allegations of theft and the subsequent victimisation by M;
  • where there was no independent evidence of the content of exchanges between Ms Knox and others the investigation simply rejected Ms Knox’s allegations without attempting to discern where the truth lay;
  • the company paid no or insufficient attention to the reports from occupational health about the effects upon Ms Knox’s health and the need for action to be taken to resolve matters;
  • the company made no effort to devise a method of minimising ongoing contact between Ms Knox and M so as to safeguard Ms Knox’s interests and her health in continuing in the company’s employment.

In response to the suggestion that the Tribunal failed to give proper reasons for its decision, the Court found that the terms of the Tribunal’s decision “amply” satisfied the standard summarised by Bingham LJ in Meek v City of Birmingham District Council (1987) IRLR 250 CA.

Accordingly, Henderson Retail’s appeal against the decision of the Tribunal was dismissed.

  • by Seosamh Gráinséir for Irish Legal News