IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

IN THE MATTER:

 

BETWEEN

 

TANIA NEWALL

CLAIMANT

 

AND

 

SANDPIPER CI

RESPONDENT

 

JUDGMENT

 

Reference:                  [2022] TRE 171

Hearing Date              20 and 21 March 2023

Before:                        Advocate Cyril E Whelan, Deputy Chairman, Ms C Bowes and

                                    Ms J Bridge, panel members

Appearance:

For the Claimant:        In person

For the Respondent:   Mr Stephen Forrester

 

DECISION

The claims in respect of constructive unfair dismissal and untaken rest periods fail.

 

REASONS

1. This is a case in which the facts, rather than the law, have predominated. Inevitably we have had to set out the evidence of witnesses in some detail, therefore.

2. The claimant (“Mrs Newall”) worked for the respondent (“Sandpiper”) for some 21 years. At the time material to her claim she was the manager of the Sandpiper shop in Val Plaisant, St. Helier.

3. Her claims are for constructive unfair dismissal and for compensation in respect of rest breaks to which she was entitled over a long course of time, but which she says she was never able to take because of the pressures of work at the shop.

 

4. The facts are reasonably straightforward, and give rise to some certainties, the first of which is that Mrs Newall was a loyal and conscientious employee well-regarded by Sandpiper, who sought to retain her services even after her resignation, as later described. Having observed her abilities over the course of the day and a half hearing, we are not surprised that Sandpiper wanted to retain her services.

5. Another certainty is that Sandpiper is a large employer, with appropriate protocols and procedures in place and known to staff. These include a grievance procedure. There is a well-defined management structure, also well known to staff.

6. A further certainty is that at the time material to the claim there was a labour shortage in Jersey as indeed there still is. Anthony Bray, a Sandpiper senior store manager put the matter to us in this way: “Recruitment across all industries has been tough locally and globally and has been a challenge, especially following Covid and Brexit.”

7. These certainties are the background against which the events which immediately concern the Tribunal played out. Mrs Newall describes those events in this way. She had been troubled by an injured hand for some time but she had chosen to disregard it as best she could so as to keep working for the benefit of Sandpiper. She had been given a medical certificate but had elected not to rely on it. It transpired that she had a glass fragment lodged bone deep in her hand. She described it as a workplace injury, although we were to hear that she had not reported it in accordance with the relevant Sandpiper procedure at the time. She had regarded the injury as a paper-cut and had played it down.

8. We note that it was a senior officer of Sandpiper, Mr Andrew Holmes, the Food Retail Director, who upon seeing the condition of Mrs Newall’s hand while he was on a business visit to her shop, encouraged her to go directly to the hospital. This was on 28 May 2022.

9. In the event, day surgery on Mrs Newall’s hand was scheduled for 21 June 2022 to be preceded by a Covid test on 19th of June and isolation thereafter. This news was given to her on Wednesday, 15 June, and she was due to be on leave the next day, Thursday 16 June 2022. In that way the need for her duties to be covered by others arose, so that she rang her line manager, Mr Anthony Bray, to alert him to that need. This was the course which Sandpiper HR had directed her to take when she had spoken to them; she had initially been unable to contact Mr Bray. The advice from HR had been to take care of her hand and not to worry about the need for cover, but to report it to Mr Bray the next day (Thursday 16 June 2022); he would be responsible for organising the necessary cover. Mrs Newall proceeded accordingly.

10. At this point we reach the crux of the claim. On notifying Mr Bray of the need for cover, by telephone, Mrs Newall says that she was met with invective from Mr Bray. She describes him as “screaming and shouting at me – I was speaking to Anthony on the phone from my kitchen

 

and my husband was in the living room and could hear the screaming and shouting of Anthony. That was how loud it was… Much more was shouted down the phone, trying to make me feel bad and guilty about the store not being covered and leaving Monica alone… Just screaming and shouting about cover. When Anthony stopped screaming, but still with a raised voice (shouting) he said to me “are you off – are you off today?” I said yes. He then shouted at me “go to the shop go to the shop and find cover for your shop for your time off” I couldn’t believe this was happening. I was disrespected, verbally abused and screamed at for something that was not my fault and after working months short staffed, working extra hours (that I don’t get paid) not taking breaks to have everything done (80% of breaks not taken during the 21 years as there is no time) after all this I have in the end someone treating me like this.… After 21 years of hard work, honesty and loyalty on that same day I emailed and gave my notice (16 June 2022) due to the way Anthony treated me that day.”

11. There is no doubt that Mrs Newall bases her claim for constructive unfair dismissal only on that conversation with Mr Bray. It will be seen from the above that Mrs Newall says in terms that this is the case. She repeats it later in the same statement when she complains that she was made to work with Mr Bray during the period of her notice, describing him as the manager “that was my reason of my notice” . A consistent theme of that statement is that the resignation arose only from that conversation “21 years later I was verbally abused and treated like a criminal on that day.”

12. Against that factual background, the questions for us resolve to these: did Mr Bray act in the manner described by Mrs Newall; if so, did his treatment of her on that occasion (16 June 2022), over the telephone, amount to constructive unfair dismissal by the employer, Sandpiper?

13. Taking the first of those questions, we note the following things from the evidence presented to us and which we accept: i) while still employed by  Sandpiper Mrs Newall declined  the opportunity to raise a grievance against Mr Bray in accordance with the company’s available protocol; ii) it was only on leaving Sandpiper’s employment that Mrs Newall did raise a grievance against Mr Bray for his treatment of her during the phone call of Thursday 16 June, three months earlier.

14. That grievance was investigated by Rachel Hirst, a senior director from an unrelated part of the Sandpiper group. She found that there was no case to answer against Mr Bray. We set no store by that investigation, noting that Mrs Newall made the complaint on leaving the company and was not present, and had not been invited to be present, to provide her side of the story. The investigation heard only from Mr Bray and his deputy. We regard the Sandpiper process on that occasion as having little to do with natural justice; Mr Bray was apparently

 

heard over the course of some two hours and Mrs Newall was not heard at all. It is true that she had left the company but her contact details were still available.

15. The evidence of Mr Andrew Holmes is relevant at this point. He has the complete responsibility for all food retail stores in the Channel Islands operated by Sandpiper. He is the senior director involved in the narrative of this case. He confirms that on a business visit to the Val Plaisant premises he saw the condition of Mrs Newall’s hand, as described above, and directed her to go immediately to the hospital. She did not tell him that this was the result of a workplace accident, although Mrs Newall later reported it as such and had to take some time off work for day surgery. He confirms that Mrs Newall had the benefit of certain agreements particular to herself, so that she could work only specific hours in order to support her family needs. Also she was given a guaranteed parking space at the store in order for her to accommodate the needs of her son. Mr Holmes says that Mr Bray and Mrs Newall have worked side-by-side in the past and there was never any feedback from Mrs Newall to suggest that she was unhappy with Mr Bray’s management. Mr Bray would often support her with stocktakes, resourcing, and borrowing staff from other stores to ensure that Mrs Newall was able to manage the Val Plaisant premises.

16. Having questioned Mr Bray about Mrs Newall’s complaint, Mr Holmes found himself comfortable with Mr Bray’s response and as Mrs Newall didn’t want to raise a grievance, there was no further recourse. Mrs Newall never indicated to Mr Holmes that she did not want to work with Mr Bray and she continued to work with him during her notice period.

17. During the course of that notice period Mr Holmes spoke with Mrs Newall about her changing her mind and remaining with the company. He described her as a long serving member of the management team, and he was anxious to find her a role with which she would be happy. He wanted to support her development within the business. Mrs Newall would repeatedly say that she would think about the various offers but that the main reason for leaving was that she didn’t want to work in retail anymore and needed a better work life balance for her and her family.

18. Mr Holmes goes on to say that he had been made aware that Mrs Newall had put in two consecutive accident reports during the course of her notice, one of which related to her back and the effect which the accident had on her ability to work in the capacity which she did at Val Plaisant. Mr Holmes says that the welfare of staff is Sandpiper’s first concern and he needed to address the position immediately.

19. Mrs Newall had one week left on her notice period, so she was given the rest of the day off and, as part of the duty of care, she would be moved to the group’s Benest store for the rest of the final week. This was because that store could accommodate somebody to work

 

sitting at a till and undertake light duties thus accommodating Mrs Newall’s back complaint. Moreover, there were not many stores in the group that could provide the parking space which had been agreed with Mrs Newall historically, but Benest’s was one such store. The decision was made solely for Mrs Newall’s benefit and as part of the group’s duty of care towards her. Mr Bray was based at Benest’s, as the store manager.

20. Mr Holmes did not understand it to be an issue for Mrs Newall to work in the same location as Mr Bray as she had continued to report to him through her 12 weeks’ notice period and made no grievance about the relationship.

21.  However, on her first day at Benest’s she said that she wasn’t happy working there. She was asked if she wanted to leave the store immediately and she said that she was prepared to finish a shift there; a meeting was arranged at the King Street store to address the difficulty which Mrs Newall had raised.

22. At this meeting Mrs Newall mentioned that she was surprised that she had been put to work in Mr Bray’s store. Mr Holmes expressed his own surprise at what she said as she had never before mentioned that Mr Bray was a problem to her, apart from the conversation that had taken place regarding the resourcing of the store back in June.

23. At this point Mrs Newall was offered various options to continue with Sandpiper. She said that she was finished working in stores and had previously shown an interest in training. Mr Holmes agreed to give her time to think and review what she wanted to do and gave her the next few days off on full pay. Eventually Mrs Newall said that she was leaving as agreed and that her issue was with Mr Bray. She was asked why she had not made a grievance report at any time during her notice period despite being previously asked if she would like to do this so any grievance could be investigated. She replied that she didn’t know. She was again given the option in this meeting and she said that she would make a complaint then. She proceeded to do so only on the point of departure from Sandpiper’s employ, and the outcome has been described in the evidence of Ms Hirst.

24. Also of importance is the evidence of Joy Jezequel to whom Mrs Newall mentioned the conversation with Mr Bray. Mrs Jezequel’s job title is ‘Group People Manager’. Her evidence is that Mrs Newall said that “she doesn’t want to leave but I can get a job somewhere else doing 39 hours for more money and less stress.” Asked what was making her feel stressed, Mrs Newall replied that Anthony Bray had shouted at her on the phone during a conversation about resourcing and had asked her to go in on her day off to sort this out and she felt that this was unacceptable to be spoken to in that way. Ms Jezequel asked Mrs Newall if she would like to raise this as a grievance so that it could be investigated. Mrs Newall had declined, saying that she understood that everyone was under pressure.

 

25. In summary at this point of the factual examination, we find it important to note the evidence that Mrs Newall refused the offer of making an official grievance saying that everyone is under stress; that she could get a job elsewhere for fewer hours with more pay and less stress; that she needed more settled hours to meet her personal family circumstances and so that she was not constantly feeling guilty about the running of the shop for which she was responsible as manager.

26. As noted, various alternatives were offered to Mrs Newall but she said she did not want to work in shops any more she wanted to work in training and had been offered such jobs elsewhere.

27. We find this evidence to be of significance in revealing reasons other than that upon which the claim is brought – treatment by Mr Bray – as capable of motivating Mrs Newall’s decisions to leave Sandpiper’s employ.

28. The evidence of Linda Hodgson is also of significance on this point. Mrs Hodgson is employed in HR within Sandpiper and in that capacity spoke with Mrs Newall about her resignation. This was at a meeting of 27 June 2022, with Mr Holmes in attendance. Mrs Hodgson gives evidence as follows: she says that Mrs Newall told her that ‘ there was nothing left for her at Sandpiper’; she repeated the understanding of a case of supposed inequality of pay; at no point did Mrs Newall mention Anthony Bray. Mrs Hodgson says this: “Mrs Newall was always fully aware of her responsibilities and understood all her duties as a store manager within our business including health and safety, store process and breaking entitlements, and she never spoke to me regarding any of these being issues.”

29. At this point we move to the perspective which Mr Bray offered us. He has worked for Sandpiper for some 13 years as a store manager and is a senior store manager. Currently he oversees five other shops as well as his own and his role is to support the other shop managers with any problems they have and ensure that they are on track to meet targets and manage their shops effectively. He says that he was keen to have Mrs Newall in his ‘cluster’ as she was one of Sandpiper’s more experienced managers who ran a good store. She was a respected store manager and his relationship with her has always been professional; they spoke often and met frequently.

30. Mr Bray describes Mrs Newall as often having difficulties with staff behaviour and conduct about which she would ask for support from him and which he would always provide. Mrs Newall was in charge of doing the staff rota for her store. She was the manager and this was her responsibility. In addition she was responsible for managing rest breaks for herself and her team and had never raised any issue with Mr Bray regarding these things.

 

 

31. Mr Bray says that recruitment is generally very difficult and it is important to note, he says, that the Val Plaisant store was not disproportionately worse affected than any other store. He goes on to say that in fact more often than not the Val Plaisant store would receive cover from other stores, rather than itself contributing to the pool.

32. To ensure that all stores within the group could operate, precise procedures were put in place. These included forward planning by completing a minimum of three weeks’ forward rota; the identification of shortfalls in numbers; approaches to staff generally, a defined capacity for overtime; to liaise with other stores to ask for support; and to work directly with other managers on the issue by telephone rather than by email. Mr Bray says that at times Mrs Newall did not follow the recruitment process, and instead would send generic emails to all stores knowing that this method was not recommended and received only limited responses generally.

33.  Mr Bray had regular conversations with Mrs Newall to explain that her role as store manager was to resource the store effectively and to be proactive in finding cover. Nevertheless he always had to make sure that he was looking for solutions to support her and gives the example of himself attending a stock take and taking two staff members with him in November 2021. By way of further example he says that at the May 2022 stock take he sent three staff members from his own store to support Mrs Newall at Val Plaisant. In short Mrs Newall was not planning the staffing resource effectively and this was causing difficulties for the store at Val Plaisant. He advised Mrs Newall about how actively to request support from the wider business, but she did not follow his direction.

34. The crucial conversation of Thursday, 16 June 2022, by telephone centred on the need to understand why she had not followed the guidance and the store was still not adequately covered going into the weekend. She did say that she had sent an email but again she understood that this was not the correct and agreed process by which she needed to abide.

35. During the discussion Mr Bray suggested that Mrs Newall go into the shop to use the store telephone and all her contact numbers that are stored there to try to find a solution for her store staffing cover as requested. She was not off sick on that day but was merely down on the rota for a day off. As a manager in a busy retail environment, said Mr Bray, there is sometimes a necessity to be flexible to ensure that trading can continue properly. He is clear that he did not raise his voice during that conversation. He made the call from the telephone in his office in the presence of his deputy manager, Mr Page, and the call ended by Mrs Newall agreeing to go into the shop.

36. Mr Bray describes his conversation with Mrs Newall as direct but fair and professional and as a sequel to numerous conversations to try to support her with staffing resources for her store as she had not done what she had been asked, so leaving the store’s trading position

 

vulnerable. He had always worked well with Mrs Newall, but he had to be able to address issues as her line manager. He continued to work with her and she attended weekly meetings and never made him aware of any problems with their working relationship “she acted and behaved the way she had always done towards me”. We heard that the previous working relationship between them had been uneventful, apart from the conversations about support.

37. Mr Bray denied shouting or being abusive over the telephone; this was not his management style he told us,and pointed to a 13 year record with Sandpiper in which no complaint of this, or indeed any, sort had been made against him.

38. During the crucial telephone call of 16 June 2022, Mrs Newall had made no mention of being in pain, said Mr Bray. We note that Mrs Newall gives no evidence of having done so, and we cannot find that in those circumstances the requirement on her to perform an essential management task on what would otherwise have been a day of leave was unreasonable, much less a repudiatory breach of the employment contract.

39. As to the transfer to the Benest store, the account given by Mr Bray coincides with that given by Mr Holmes as set out above.

40. Mr Bray’s evidence as to the tenor of the conversation with Mrs Newall by telephone on 16 June 2022 is supported by a third party who gave us evidence that he was present when the conversation took place, namely Mr Calvin Page who is employed by Sandpiper as assistant store manager to Mr Bray. Mr Page gave evidence that at no point during the telephone conversation at the centre of the case did Mr Bray swear or raise his voice. He was no more than being firm because what was being asked for should already have been done by Mrs Newall rather than leaving the store and colleagues under pressure. Mr Page says this: “it was not an uncomfortable conversation and I felt completely comfortable being in the room.”  However, we were unable to verify that the differing versions of events given respectively by Mrs Newall and Mr Page related to the same telephone call, or to the entire phone call. We noted particularly that Mrs Newall was able to demonstrate to us by telephone records that the call was initiated by her telephoning Mr Bray, whereas Mr Page and Mr Bray gave evidence of the reverse. The grievance investigation was unable to shed light; as we have noted, Mrs Newall was not invited to give her side of the story, having left Sandpiper’s employ. We do, though, take account of Mr Page’s evidence when he says that he has worked with Mr Bray for a number of years and Mr Bray has never treated a member of staff in a bad way; he has always remained calm and professional and treats his staff with respect and understanding.

41. We are in no doubt that the shop in this case was difficult to operate as were, and are, many comparable retail outlets in Jersey. Staff shortages across the retail and hospitality sectors are known to have created profound trading difficulties. We do not doubt that these

 

difficulties caused this comparatively small retail outlet in Val Plaisant to struggle to maintain trading performance and even statutory necessities. Mrs Newall’s account of working life at the shop was forceful and consistent about these things.

42. The picture which we have is of Mrs Newall working hard against the odds created by the shortage of staff, to the extent of working more hours than those for which she was paid. We have described her as conscientious, and we do so again. We believe her to be a deeply committed company employee who worked hard and anxiously in Sandpiper’s interest for some 21 years. It is right to say that Sandpiper does not dispute this.

43. On all of the evidence presented to us both in writing and at the hearing, where we were able to observe the demeanour of the witnesses and to test the evidence, we reach the following conclusion as to the factual question which we had to ask ourselves: namely, we are unable to conclude that Mr Bray addressed Mrs Newall unreasonably or abusively during the telephone conversation of 16 of June 2022 .

44. We accept his evidence that he did no more than firmly to remind Mrs Newall of her responsibilities for the trading of the shop which she was paid to manage.

45.  Having found that the account upon which Mrs Newall has based her claim for constructive unfair dismissal is not supported by the weight of the evidence, we have no basis on which to find in her favour on that claim.

46. We had sympathy for Mrs Newall who had been a loyal and valued employee for decades and who Sandpiper were anxious to retain.

47. It may be that Mrs Newall was a victim of her own loyalty. No doubt management of the Val Plaisant shop in the circumstances of the labour market as it then existed was greatly demanding and stretched her to a point at which she felt unable to balance the job and the needs of her family; no doubt she was in no frame of mind to receive a reminder of her management duties by Mr Bray on the occasion of which she makes complaint, particularly with day surgery imminent.

48. However none of these things alone or in combination is enough to compose a case of constructive unfair dismissal, that is to say a catastrophic breakdown in the employment relationship, irreparable and caused by some fundamental breach on the part of the employer. This is not that case.

49. Put more formally, the tribunal has addressed the question of what amounts to a constructive dismissal on many previous occasions.  In summary, an employee has the right to treat himself/herself as discharged of his/her contractual obligations only where the employer is guilty of conduct which goes to the root of the contract or which shows the

 

employer no longer intends to be bound by one or more of the essential terms of the contract [Carratu v United Fashions Limited JET 110/2011; Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27, CA]. Thus, the employer’s conduct must constitute a repudiatory breach of the contract.

50. The essential markers are these: the employer must be in breach of the contract of employment; the breach must be fundamental i.e. a repudiatory breach; the resignation must be a response to that breach; and the employee must not delay too long in resigning following the breach. If he or she does then it may be found that the breach has been waived.

51. We found there to be inconsistencies and contradictions in the evidence given to us by the parties. Litigation of any sort in which this was not the case would be unusual. However, after careful examination of everything that has been put to us, we find that the evidence given to us by Mrs Newall does not clear the first hurdle; we are unable to accept that Mr Bray spoke callously or with the vehemence attributed to him during the disputed telephone conversation.

 52. Mrs Newall will certainly be disappointed by that finding, but we would have to answer her in this way. Sandpiper had a grievance procedure. If the conversation with Mr Bray had indeed caused her to think that he had broken the implied contractual term of trust and confidence owed to her by Sandpiper she should have used the grievance procedure to which the employer expressly drew her attention at the time. That is why such procedures exist, namely to facilitate a near contemporary thorough and impartial investigation. In not taking up the offer of raising such a grievance, Mrs Newall deprived herself and Sandpiper of the opportunity to investigate and address the employment relationship in proper terms at the proper time.

53. As it is, we are left with evidence of Sandpiper demonstrating trust and confidence in Mrs Newall by trying to retain her services, with Mrs Newall saying in return that she would think about the offers being made to her. That is not evidence either of an employer demonstrating an intention no longer to be bound by the contract of employment, or of an employee finding the employment relationship to be once and for all damaged beyond repair. That, incidentally, would be the position we would have reached in response to the question whether proven unreasonable treatment by Mr Bray on that single occasion would have amounted to constructive unfair dismissal.

54. We have gone on to ask ourselves whether the stretched conditions under which Mrs Newall found herself working should themselves be viewed as conduct on the part of the employer to be considered as amounting to constructive unfair dismissal, with the disputed telephone call being the last straw. But that was not the case which was put to us and we cannot adjudicate the case which was not put. (Chapman v Simon 1994 IRLR 124 CA.). Mrs Newall said on a number of occasions that the shop conditions were not her complaint, they

 

were no more than the foundation of the indignation which she felt towards Anthony Bray’s attitude to her during the disputed telephone call. She told us that had he spoken and acted reasonably to her during that call she would not have then resigned.

55. It is fair to say that as to working conditions, we were alive to  the evidence put in by Sandpiper as to the sector difficulties of recruitment and the organised steps which it took to combat the relevant strictures resulting from the labour market at the time. 

56. On the question of placing Mrs Newall at Benest’s (Mr Bray’s store) during the notice period, we note that this took place after the resignation and so cannot have caused it. As a matter of fairness, however, we have considered carefully the explanation of Mr Holmes and Mr Bray for that placement and accept it. We note in particular that upon expressing discomfort at the placement Mrs Newall was allowed to leave and was given paid leave of absence until her notice had run its course.

57. On the question of rest periods we have noted Article 10(1)(a) of the Employment (Jersey) Law 2003 as follows:(1)     An employee is entitled to –

(a)     an uninterrupted rest period of no less than 20 minutes in each continuous period of no less than 6 hours during which the employee works for his or her employer;

58. This provision became effective only from 1 January 2022. Mrs Newall would be entitled to compensation under this provision only from that date to the date on which the employment ended, namely 16 September 2022.

59. The alleged absence of rest periods is raised on the claim form by way of indignation at the alleged way Mr Bray treated Mrs Newall during the telephone conversation of 16 June 2022. She says this “not taking breaks to have everything done (80% of breaks not taken during the 21 years) there is no time. After all this I have in the end someone treating me like this.”

60. Mrs Newall has offered no particularisation and it is impossible for the tribunal to adjudicate a claim put forward in that way.

61. There is anyway no evidence sufficient to show that Sandpiper prevented Mrs Newall from taking the rest periods to which she was entitled. The tribunal has not been able to move beyond the final paragraph of Mr Holmes’s witness statement which was in these terms: “regarding rest breaks allegedly not being taken, I can confirm that this has never been raised as an issue for herself or the team. As an experienced store manager with 21 years’ experience is her responsibility to manage the team’s daily routine and breaks including her own.”

 

 

62. In summary, our findings are that the claims for constructive unfair dismissal and for compensation in respect of untaken rest breaks do not succeed.

63. We conclude by saying that as a result of her appearance before us, we believe Mrs Newall to have been an honest and accomplished person, putting events as she truly saw them in a restrained and impressive way over the course of a long hearing. We thanked both parties for the courteous way in which they had dealt with each other and with the tribunal throughout.

 

 

Advocate C E Whelan, Deputy Chair                                                 Dated:  31 March 2023