THE INDUSTRIAL TRIBUNALS

CASE REF:	818/07

CLAIMANT:			Kevin McAleenan	

RESPONDENT:		MRB Creative Ltd (In Liquidation)

DECISION
The unanimous decision of the tribunal is that the claimant’s claim of unfair dismissal is well founded.  It is ordered that the respondent shall pay to the claimant compensation of £5,735 in respect of that unfair dismissal.

Constitution of tribunal:
Chairman:		Mr P Buggy
Members:		Mr J Hughes
			Mrs T Hughes

Appearances:
The claimant was represented by Mr M McEvoy, instructed by Rosemary Connolly Solicitors.
The respondent was not represented.

REASONS
1.	The respondent is insolvent.  Therefore, it is clear that any sum payable pursuant to these proceedings would have to be paid by the Department for Employment and Learning for Northern Ireland (“DELNI”).

2.	DELNI pays only in respect of basic awards.  Therefore, in these proceedings, the claimant has sought only a basic award, by way of compensation for unfair dismissal.  The Department was informed of these proceedings and decided not to be represented at this hearing.

3.	Against that background, we decided to dispose of the proceedings in the absence of the respondent and in the absence of the Department.  In doing so, we considered the information which was in the possession of the tribunal, which consisted of all the information set out in a bundle of documents which the claimant’s solicitors had helpfully prepared.

4.	At the end of the hearing we issued our decision orally and now record that decision in writing.  During the course of the hearing, we gave oral reasons and now confirm those reasons in writing.

The claim

5.	The claimant resigned from the employment of the respondent.  However, a resignation is to be treated as a dismissal for the purposes of the unfair dismissals legislation if the situation contemplated in Article 171(1)(c) of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) exists.

6.	According to Article 171(1)(c), for the purposes of the unfair dismissals legislation, an employee is dismissed by his employer if:

“(c)	the employee terminates the contract under which he is employed … in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.  

In other words, in an Article 171(1)(c) situation, an employee is constructively dismissed.

7.	The claimant has informed us that he was employed by the respondent from June 1990 until 2 March 2007, and that he was born on 1 November 1960, and that (at the date of termination of his employment) he was earning in excess of £310 per week.  

8.	The latter sum is significant because, in relation to dismissal at the time of the claimant’s termination of employment, basic awards have to be calculated by reference to a maximum week’s pay of £310.  

9.	On the basis of the years of service, the date of birth, and the maximum in respect of a week’s pay, Mr McEvoy calculated that the claimant was entitled to the sum of £5,735.  This is based on one week’s pay for every year of service up to the age of 41, and on 1.5 week’s pay for every year of service thereafter.

The sources of evidence

10.	The claimant gave evidence on his own behalf.  We also saw, and took account of,  a bundle of documents which had been provided to the tribunal by the claimant’s solicitors.

The facts

11.	In relation to matters relevant to the issues which have been determined, we made the following findings of fact:

(1)	The claimant’s account of events, as set out in his claim form and in an associated statement of grievance, is broadly accurate. 
 
(2)	The claimant had been employed for many years as a graphics designer, and in that capacity, carried out the role of “Studio Manager” in the company.  

(3)	However, in the autumn of 2006, as the result of an ownership change, the company made it clear to the claimant that it was determined to radically change his terms and conditions of employment, whether he liked it or not.

(4)	The effect of the changes was that it had the potential to “de-skill” the claimant, in respect of his graphics design role, relegating him to a much reduced role as an office administrator.  Another feature of the unilateral change of job responsibilities was that the claimant, who had been supervising several staff, would cease to have any staff reporting to him.

(5)	The claimant objected to these unilateral changes of terms and conditions.  He pursued an internal grievance about the matter.  This was a two-stage internal grievance procedure.  The claimant pursued both stages.  He was unsuccessful at both stages.

(6)	Soon after it became clear that he was unsuccessful at the second stage of the internal grievance procedure, the claimant resigned.

The law

12.	The following are legal principles which we consider to be relevant in the context of this case:

(1)	In order to establish that he has been constructively dismissed, an employee must show the following.  First, that his employer has committed a serious breach of the contract, which goes to the root of the contract.  Secondly, the employee must have left because of the breach.  Thirdly, the employee must not have waived the breach (for example, by delaying his resignation too long, or by doing anything else which indicates his intention to continue with the employment, despite the breach).

(2)	A unilateral change in the nature of the job is an example of conduct which may constitute a breach of contract which is sufficiently serious to provide the foundation for a successful complaint of constructive dismissal: See Hilton v Shiner Ltd – Builders Merchants [2001] IRLR 727 and Lamb Securities Trillium Ltd v Thornley [2005] IRLR 765, which were cited to us by Mr McEvoy.

(3)	Once an employee proves that he has been dismissed, the onus shifts to the respondent to show that he was dismissed for one of the potentially fair reasons mentioned at Article 130(2) of the Order.  (See Article 130(1) of the Order).

Conclusions

13.	Our conclusions are as follows:

(1)	We are satisfied that the respondent was guilty of a serious breach of contract, by making it clear that it was determined to unilaterally modify the claimant’s job role, to the extent indicated above.  We are satisfied that this was a sufficiently serious breach to provide the foundation for a claim of constructive dismissal.  We are satisfied that the claimant left in response to that breach.  We are also satisfied that he did not delay his resignation too long.

(2)	So the claimant was dismissed.  

(3)	This claim for unfair dismissal must, in the circumstances, be upheld because the respondent has failed to show that the dismissal was for one of the potentially fair reasons mentioned at Article 130(2) of the 1996 Order.  Indeed, on the basis of the evidence provided by the claimant, we are satisfied that the reason for dismissal did not fall within the scope of the Article 130(2) list.

(4)	We are satisfied that the claimant’s basic award amounts to £5,735 and that it should be calculated in the manner suggested by Mr McEvoy.  (See paragraph 8 above).

Interest on industrial tribunal awards

14.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:	19 January 2009, at Belfast	

Date decision recorded in register and issued to parties: