1. FACTS
The claimant commenced employment with the respondent organisation in April 2008 as a co-ordinator and reported to BT. In February 2009, she discovered that a large number of pornographic images were contained in her computer. Her computer did not have a password and a number of staff members would have had access to it. She reported the matter to the HSE and with BT and he refused to remove the computer on the basis that it might look like he had something to do with it if he did. She also rang the head office of the organisation which was based in Chicago and they hung up on her.
On discovering that she had reported the matter to head office, BT was angry with her and relations between the claimant and BT became strained. Then on 5 March 2009, BT informed her that he was suspending her from her position with pay pending an investigation. On 16 March 2009, the claimant received a letter from BT stating that she was being offered mediation with an independent employee assistance programme.
The investigation did not take place until July 2009 and the computer was in BT’s possession up until that time. The claimant felt like the investigation did not focus on her being suspended and implied that she was the one who had done something wrong. At no point was BT’s behaviour addressed and the computer analysis was never mentioned. The report issued at the conclusion of the investigation in September 2009 was rejected by the claimant on the basis that it did not offer any solutions to the issue. The claimant did not go back to work as the images and her suspension were never addressed and she alleged that she was constructively dismissed from her employment with the respondent.
2. DETERMINATION
The tribunal found that no grounds existed to justify the claimant’s suspension, particularly as it was carried out by a man whose role in the matter was seriously flawed and questionable. It was determined that:
* She should not have been left suspended for such a significant length of time;
* She should not have been placed in a position leaving others/clients to question her reputation;
* The respondent did owe the claimant a duty of care, which said duty was breached;
* The respondent fundamentally breached the claimant's contract in that they prevented her from carrying out her contract duties from the middle of March to the middle of September, 2009 without justification; and
* In all the circumstances it was reasonable for the claimant to take the take the approach she did.
3. LEGAL REVIEW
This case shows the importance for the employer of having proper procedures in place. The tribunal were heavily influenced by the fact that the claimant’s reputation was left on the line due to the inordinate delay in carrying out the investigation. The major failing was suspending the claimant. It is very rare to suspend a grievant. There was a clear lack of procedures in place both at the respondent office and at the head office in Chicago.
It our view, an employer should have fully developed policies and procedures drawn up to deal with all issues fairly and promptly. Employers must always bear in mind that internal procedures must be conducted in a fair and efficient manner. With constructive dismissal cases, the tribunal will examine the conduct of both the employer and employee, together with all the circumstances surrounding the resignation, to establish whether or not the decision of the employee to resign was a reasonable one. The reasonableness of both the employer and employee’s actions is therefore a significant factor in cases of constructive dismissal.
This case gives a clear example of the type of conduct by an employer that may lead to a successful claim for constructive dismissal.
4. CONCLUSION
This case clearly demonstrates what the tribunal will consider in any constructive dismissal claim. In the first instance the employee will have to convince a tribunal that their resignation wasn’t voluntary. From an employer’s point of view the employer’s conduct in any investigation and follow up on complaints will be crucial in determining whether the employer acted reasonably towards the employee.
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