THE INDUSTRIAL TRIBUNALS

CASE REF:  2648/11

CLAIMANT:			Lisa Burke

RESPONDENT:		Hastings Hotels Group Ltd

DECISION
The unanimous decision of the tribunal is that the claimant’s claims are dismissed.

Constitution of Tribunal:
Chairman:		Mr P Kinney
Members:		Ms T Hughes
			Mr J Magennis

Appearances:
The claimant was represented by Ms Laird, Solicitor, of Watson Burton LLP, Solicitors. 
The respondent was represented by Mr Anderson, Solicitor, of O’Reilly Stewart, Solicitors.

Issues

1.	At the outset of the hearing the issues were confirmed with the parties:-

(1)	Did the claimant make a protected disclosure on 18 March 2011?

(2)	Did the claimant suffer any detriment on the grounds that she made a protected disclosure?

(3)	Was the claimant treated less favourably as a part-time worker?

(4)	Were the actions of the respondent objectively justified?

(5)	Was there a fundamental breach of contract by the respondent causing the claimant to resign from her employment?  

2.	The claimant relied on a number of incidents which will be referred to in this decision.

Facts

3.	The claimant worked for the respondent as a therapist in the Spa at the respondent’s Slieve Donard Hotel in Newcastle.  She was a respected and valued member of staff who was considered suitable for potential promotion to senior therapist should a vacancy arise.  An action plan to assist the claimant was put in place in summer 2010. 

4.	The claimant worked closely with Krzysztofa Tuszynka, the senior therapist at the Spa.  There was only one senior therapist and a head therapist, Claire Bloomfield.  Ms Bloomfield was the claimant’s line manager.  There had been a Spa manager who was made redundant due to the economic downturn.  In early 2011 the Spa was in a loss-making situation.  Claire Edkins, the Business Development Manager, was asked to focus on developing the business of the Spa.  There was a focus on utilising the therapists to maximise treatments for guests and to try to build new business for the Spa.

5.	Ms Bloomfield was on maternity leave from November 2010 to March 2011.  Ms Tuszynka covered her role.  Ms Bloomfield returned on a part-time basis in March 2011.  Ms Tuszynka had a supervisory role, not a managerial role.  The claimant did not have a supervisory role.

6.	There were some issues relating to weekend cover and staff not completing shifts.  A meeting was held by Ms Bloomfield on 16 March 2011.  There was conflict between the parties as to the correct date of the meeting.  The claimant was not at the meeting but contended it happened some time earlier.  Both Ms Tuszynka and Ms Bloomfield gave evidence that it happened on 16 March 2011.  This would also be at a time when Ms Bloomfield had returned from maternity leave.  The tribunal accepted that the meeting took place on 16 March 2011.  At this meeting the staff were told that they would have to work at weekends.  One staff member did not work on Sundays.  Ms Tuszynka raised this issue at the meeting.  She did so to clear the air and avoid subsequent gossip.  The staff member was upset.  Ms Tuszynka subsequently spoke to her to explain why she had raised the issue at the meeting.  It appeared matters were resolved.

7.	On 18 March 2011 the claimant and this staff member went to Sharon Glover, the Human Resources Manager.  They alleged that the claimant had had a conversation with Ms Tuszynka on 13 March 2011 in which Ms Tuszynka told the claimant that she intended to persuade the General Manager, Mr Toner, to change the staff member’s contract to include working on Sundays.  Ms Tuszynka denied that any conversation took place.

8.	The tribunal carefully considered the evidence on this issue.  We accept Ms Tuszynka’s evidence that the conversation did not happen as described by the claimant for the following reasons:-

(a)	The claimant’s evidence on this point, as on some others, was inconsistent.  She gave a number of different versions of the content of that conversation in, for example, her witness statement and on cross-examination.

(b)	The tribunal was generally impressed with Ms Tuszynka’s evidence throughout the hearing.

(c)	The claimant was inconsistent on the dates of events.  She alleged in evidence that the conversation with Ms Tuszynka occurred on 13 March 2011.  In her claim form she said February and again mentioned February as the start of discrimination against her in a contemporaneous note of a meeting in June 2011 with Ms Edkins and Ms Bloomfield.

(d)	The claimant did not call evidence from the staff member.  There was no reason given other than not wishing to distress her or have her go through what the claimant went through.

9.	Ms Bloomfield and Ms Glover subsequently met with the staff member to assure her that there was no change to her contract.  

10.	On 17 March 2011 there was an incident involving Ms Tuszynka and another staff member.  The claimant became aware of the incident and along with Laurin Cassidy, Head of Leisure, questioned Ms Tuszynka about her actions.  This culminated in Ms Tuszynka asking both the claimant and Ms Cassidy to leave her office.  Ms Tuszynka then reported the matter to Sharon Glover.  She did not make a complaint and no further action was taken.

11.	On 30 March 2011 the claimant requested part-time working.  She told Ms Bloomfield that the reason was that her husband had changed working hours and she wanted to spend more time with her daughter.  She made no mention of any problem with Ms Tuszynka.  Ms Bloomfield assisted the claimant with her application providing her with information as to how Ms Bloomfield had herself approached her request for part-time working.  The claimant chose to work on Fridays, Saturdays and Sundays, the busiest days at the Spa and also the days when Ms Bloomfield was not present but Ms Tuszynka was.  

12.	Therapists were required to carry out treatments on clients.  The allocation of treatments were made primarily by reception staff.  The therapist did not have access to the bookings.  Ms Tuszynka had access.  It was common business practice to move appointments around to balance the work of each therapist and to maximise the slots available for treatments.  Ms Tuszynka frequently moved appointments, including those of the claimant, as did Jenny Beck, the reception manager and other members of the reception team.  The claimant alleged that Ms Tuszynka moved treatments to unfairly increase her workload.  Ms Tuszynka denied this.  The tribunal have concluded that there was no unreasonable or unfair workload placed on the claimant for the following reasons:-

(a)	The claimant never provided specific examples of this unfair allocation to the tribunal or to the respondent during its internal investigation.  Ms Bloomfield and Ms Beck both checked through the diary and saw no evidence of any such allocations to the claimant.  

(b)	The claimant tended to make assertions unsupported by evidence.  One example was a claim that she was required to work for nine hours one day.  She pointed to a document to support this claim.  On probing it did not support the claim at all.  Similarly, the claimant asserted that Ms Tuszynka made a complaint arising from the meeting with Ms Tuszynka on 17 March 2011.  She based this assertion on a minute of the meeting, that Ms Tuszynka had with Ms Glover, saying it would not be minuted if it was not a formal complaint.

(c)	The tribunal accepted the clear evidence from a number of witnesses of the difficult economic circumstances in the Spa and the drive to maximise revenue by requiring all the therapists to provide treatments where possible.

13.	There was an occasion when the claimant did not properly ‘close down’, ie clean – a treatment room after using it.  The room was reallocated to her on her next working day.  This however was the common practice by therapists who did not close down a room properly.

14.	In April 2011 the claimant was nominated as employee of the month.  The nomination was made by Ms Tuszynka and supported by Ms Edkins at the management meeting.  The tribunal saw the e-mail in which Ms Tuszynka made the nomination.  Ms Bloomfield also confirmed that Ms Tuszynka made the nomination.  The claimant contended that the nomination was made by a duty manager in the hotel.  She refused to accept the authenticity of the e-mail alleging that it must have been fabricated to support the respondent’s case.  This allegation would not be impossible but is improbable.  The tribunal had the document together with the evidence of three witnesses.  The tribunal has no hesitation in accepting that the e-mail is genuine and that Ms Tuszynka made the nomination.

15.	In May the claimant was awarded seller of the week.  She alleged that she received a lesser prize than other winners.  She contended that the prize would normally be a £75.00 voucher.  The tribunal heard evidence from several witnesses that whilst the previous Spa manager may have made such an award in the past for seller of the month, it would never have been awarded and would have been disproportionate for seller of the week.  The tribunal finds that a £75 voucher was never awarded to seller of the week.

16.	The claimant was sent to the hotel lobby on one occasion to attempt to promote the Spa.  It was at a quiet time in the Spa.  Whilst the main emphasis for therapists was on treatments, if a therapist was free they would be allocated other duties such as going to the lobby.  The instruction on this occasion came from Ms Beck, the reception manager through Ms Tuszynka.  It was not Ms Tuszynka’s instruction.  

17.	On 12 June 2011 an incident took place between the claimant and Ms Tuszynka.  The claimant challenged why her therapist cleaning duties were reduced.  Because the claimant worked on the busiest days for treatments, deep cleaning of rooms was allocated to the quieter days.  These were days the claimant was not present.  Ms Tuszynka also told the claimant that there had been two complaints against her by clients during this exchange.  The following day the claimant made a grievance to Ms Edkins and Ms Bloomfield.  She told them that she felt she was being unfairly treated by Ms Tuszynka.  Her complaints were general in nature and lacked detail.  She told Ms Edkins and Ms Bloomfield that she kept diary notes.  Despite being asked to produce these she did not do so.  A formal meeting was arranged with Ms Glover.  The claimant was again asked for her notes.  They were not provided.  Ms Bloomfield and Ms Glover met briefly with Ms Tuszynka before she left on annual leave.  During her holiday Ms Tuszynka had a family bereavement and took unpaid leave.  She returned to work on Tuesday 19 July 2011.  She had a rest day on Wednesday 20 July and Ms Bloomfield had a rest day on 21 July.  A meeting was arranged for Friday 22 July 2011.  Ms Bloomfield was not due to work that day but made herself available for the meeting.  Whilst Ms Tuszynka was off on leave, Ms Bloomfield and Ms Beck reviewed the treatment diary to see if they could discern any unusual or inappropriate bookings of the claimant by Ms Tuszynka.  They could not.  

18.	On the morning of 22 July 2011 the claimant attended with Ms Glover.  She was unhappy that Ms Tuszynka had not been interviewed following return from holiday the previous Tuesday.  She phoned her sister for advice.  She then resigned with immediate effect.  She did not complete her booked treatments for that day.  Ms Edkins asked the claimant to wait while she got Ms Glover to discuss things.  The claimant decided not to wait.

The law

Protected disclosures

19.	A worker is protected from dismissal or other detriment if the reason or principle reason for the action is that a worker has made a protected disclosure.  One such qualifying disclosure under Article 67B(b) of the Employment Rights (Northern Ireland) Order 1996 is where a worker reasonably believes that the information shows or tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.  

Part-time working

20.	By virtue of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000, a part-time worker has the right not to suffer less favourable treatment than a full-time worker, or any detriment because he or she is a part-time worker.

Constructive dismissal

21.	By virtue of Article 127 of the Employment Rights Northern Ireland Order 1996, an employee is dismissed by her employer if the employee terminates her contract in circumstances in which she is entitled to terminate without notice by reason of the employer’s conduct.  The question is whether the employer’s conduct amounts to a repudiatory breach of contract going to the root of the contract of employment, or demonstrates that the employer no longer intends to be bound by an essential term of the contract.  

Conclusions

Protected disclosure

22.	The tribunal has found that the alleged conversation between the claimant and Ms Tuszynka did not take place as the claimant contended.  There was therefore nothing to disclose.  Even if we had found such a conversation had taken place, we are satisfied that it would not constitute a protected disclosure.  There was no evidence that a legal obligation of the respondent was likely to be broken.  The obligation in question was the contractual entitlement of another staff member.  There was no evidence that that contract was likely to be broken.  Indeed, when Human Resources were informed by the claimant of the concerns they immediately took steps to reassure the member of staff that no change could be made to her contract.

Part-time working

23.	The tribunal has made a number of findings of fact.  We have carefully considered all the evidence.  The claimant was a therapist.  Ms Tuszynka was a senior therapist.  Neither were in a managerial position although Ms Tuszynka had a supervisory role.  The tribunal was impressed by the evidence given by Ms Tuszynka.  It was less impressed with the evidence from the claimant.  As previously noted the claimant’s evidence was inconsistent and characterised by assertions, opinions and beliefs which, however genuinely held, were not supported by the evidence on the facts we have found.  She did not call witnesses who could have supported her case and much of her evidence amounted to hearsay to which the tribunal has attached little weight.  

24.	It is our conclusion that the claimant was not less favourably treated as a part-time worker than a comparable full-time worker.  We heard little useful evidence relating to any of the named full-time comparators except Ms Tuszynka.  We did not consider that Ms Tuszynka was an appropriate comparator as her role was materially different to the claimant’s.  We also took into account that Ms Tuszynka nominated the claimant for employee of the month in April at a time when the claimant alleges that Ms Tuszynka had embarked on a campaign against her.  We did not consider that there was any less favourable treatment by reason of the claimant becoming a part-time worker compared to her own full-time position.  There was no credible evidence that the claimant suffered a detriment as a result of her status as a part-time worker.  

Unfair dismissal

25.	From the facts found and for the reasons already set out, we do not find any detrimental treatment of the claimant, nor do we find that the respondent was in fundamental breach of the claimant’s contract.  In particular we consider that the respondent’s approach to dealing with the claimant’s grievance in June was reasonable and proportionate and in the circumstances of Ms Tuszynka’s absence there was no undue delay.  

	The tribunal therefore dismisses the claimant’s claims.         

Chairman:

Date and place of hearing:	28 May to 31 May 2012, Belfast		

Date decision recorded in register and issued to parties: