Dobbin v Citybus Ltd [2006] NIFET 215_02FET (03 March 2006) 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   215/02 FET
1121/02

CLAIMANT:		Gerard Dobbin

RESPONDENT:		Citybus Limited

DECISION

The unanimous decision of the Tribunal is that the respondent did unfairly dismiss the claimant.  The respondent is ordered to pay to the claimant the sum of £38,401.00.

Constitution of Tribunal:
Chairman:		Ms Sheehan
Members:		Mrs Savage
			Mr Margrain

Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Murphys, Solicitors.
The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Macaulay & Ritchie, Solicitors.

1.	This is a claim by Mr. Dobbin, the claimant, that he was unfairly dismissed without notice from his employment as a Bus Inspector with the respondent on the 7 February 2002. The respondent conceded that the claimant was dismissed summarily for gross misconduct and contended that the dismissal was fair in all the circumstances. 

2.	Initially the claim commenced before the Tribunal on the basis that the claimant was alleging religious discrimination, breach of contract and unfair dismissal. In the course of hearing the claimant withdrew the allegation of religious discrimination and the Tribunal dismissed that claim by agreement with the parties. On the last day of hearing it was indicated to the Tribunal the only claim the Tribunal was required to address was the complaint of unfair dismissal. Accordingly the claim of breach of contract was dismissed at hearing. 

3.	It was not in dispute that the dismissal was for a reason, relating to conduct, within the meaning of Article 130 (2) (b) of the Employment Rights (Northern Ireland) Order 1996. The issue for the Tribunal was whether the dismissal was fair, in particular, whether in the circumstances the respondent acted reasonably or unreasonably in treating the claimant’s conduct in respect of a co-employee Mr. Best as a sufficient reason for dismissing the applicant. Essentially the issues between the parties was whether the dismissal was "procedurally" fair and was dismissal a sanction which fell within the "range of reasonable responses" for the conduct of the claimant. This fell to be determined in accordance with equity and the substantial merits of the case. 

4.	The Tribunal were provided with witness statements contained in a bundle identified as booklet B. It included statements from the claimant, Heather Grant, Gerry Mullan, Philip O'Neill, Ted Hesketh as well as an affidavit from Frank Best and a Thomas C Smyth. There were also witnesses called who had not previously prepared written statements. These included Peter Savage, Hugh McAllister, Trevor Burns and Alan Mercer. There was submitted a bundle of documents identified as booklet A, together with additional documents produced at hearing and identified as R2 to R8 and a schedule of loss submitted on behalf of the applicant. The witnesses were all tendered for cross-examination other than Frank Best and Thomas Smyth. The Tribunal made it clear at hearing that it would only take cognisance of those documents it was referred to during the course of the hearing. The Tribunal considered the oral and the documentary evidence presented to the Tribunal and found the following facts, on the balance of probabilities, relevant to the issues identified. 

5.	The respondent company employed approximately 3700 staff in 2001. So far as Citybus business was concerned these employees would include bus drivers, inspectors, chief inspector and a number of depot managers. The respondent's staff terms and conditions of employment were governed under agreements made with the relevant trade union bodies that represented the various staff by reference to occupation. These included written disciplinary procedures and a harassment policy and procedure. The company expected managers to adhere to the written disciplinary procedure without necessarily referring all disciplinary matters to the Human Resources department. However in respect of a formal investigation of alleged harassment, there is an obligation placed on the manager receiving the complaint to copy to Human Resources a record of the events and steps taken.

6.	The respondent employed the claimant for 26 years, the last 17 years in which the claimant held the position of a bus inspector. The claimant had been sent, like all employees, a copy of the respondent's harassment policy and procedure, to his home address in October 1997. The claimant had also in 1996 been sent on a course addressing harassment. The documents, which the Tribunal were referred to, namely R6 and R7, concentrated on sexual harassment and to a lesser extant sectarian harassment. However the policy issued in October 1997 made clear to those employees who chose to read it that harassment did not need to be either sectarian or sexual for it to be considered a disciplinary matter. While we heard conflicting evidence about the training provided to managers with regard to the 1997 harassment policy, on Mr. Mullan’s own admission no training per se had been provided to him other than a meeting with other managers where the policy was discussed.

7.	The claimant accepted that he was responsible for certain conduct, namely: a comment made by him to another employee and a fellow bus inspector Frank Best, in July 2001 with regard to the authenticity of the purchase of a crystal bowl by Frank Best and presented as a retirement present to another employee; At the end of August 2001, as a result of Mr. Best agreeing to attend a course, which the claimant had refused to attend because he felt he should have been allocated overtime by his immediate line manager Chief Inspector Chris Childs, the claimant had made a phone call to Mr. Best’s home where he spoke to Mrs. Best making a reference to Mr. Best being "the lowest of the low"; reneging on an earlier arrangement made to provide holiday relief for Mr. Best in October 2001; refusing to remain at an inspector's course in September 2001 when he discovered Frank Best was also in attendance and lodging a complaint on 20 September 2001 to his immediate line manager with regard to Mr. Best's performance of his duties.

8.	These actions had led Mr. Best to initiate a complaint about the claimant's conduct to his line manager Chief Inspector Chris Childs. The Tribunal was satisfied that on 20 September 2001 both Mr. Best and the claimant agreed to attempt to informally resolve issues between them. They both requested their trade union be involved, through the aegis of Peter Donnelly, another bus inspector and trade union representative. The Tribunal is conscious that in cross examination the claimant did not recollect the involvement of Chris Childs in this arrangement but in light of paragraph 24 of the claimant's witness statement and the notes of Chris Childs the Tribunal concluded that this event had occurred.

9.	Chris Childs approached Peter Donnelly on the 21 September 2001. As neither of these persons gave evidence to the Tribunal this fact was deduced from the notes made available to the Tribunal and from the evidence, hearsay or otherwise, of other witnesses to the Tribunal. During the passage of time between the claimant's dismissal and the commencement of this hearing Chief Inspector Childs had died. No one had sought to request or summons Peter Donnelly, an employee of the respondent company, to attend the Tribunal. Peter Donnelly was never interviewed as part of the initial investigation and disciplinary hearing but was approached by Mr. Philip O'Neill as part of the first level of appeal. Mr. O’Neill found him to be unforthcoming in his recollection of events. It was in any event clear to this Tribunal that as a result of whatever words Peter Donnelly used in his conversation with Mr. Best on the morning of 22 September 2001, Mr. Best decided not to pursue the informal resolution of his complaint against the claimant but instead to pursue a formal complaint of harassment under the respondent's harassment policy. The Tribunal concluded on the evidence before it that Mr. Best learnt from Peter Donnelly on the 22 September 2001 that "he had been accused of not buying the presentation crystal bowl but of using one from his home" to present to a retired employee Dessie Cochrane. Mr. Best reported sick and complained to the respondent that the claimant had slandered him.

10.	On the 24th or 25 September 2001 Chief Inspector Childs interviewed Inspector Forsythe with regard to Mr. Best's complaint that the claimant had slandered him to Inspector Forsthye. It would not appear from the note of this meeting that Inspector Forsthye substantiated the complaint. In the same period Chief Inspector Childs also interviewed Inspector Pat Fennell who confirmed to him that the claimant had made a comment to him re the non-purchase of a crystal vase for the Dessie Cochrane presentation. He also appears to have advised Chief Inspector Childs that everyone in the job was aware of it, including drivers who had been singing "Crystal Chandelier".

11.	On 26 September 2001 a formal letter of complaint of harassment against the claimant is received by Chief Inspector Childs from Mr. Best. Chief Inspector Childs requested this written complaint from Mr. Best. The claimant complains that Chris Childs appeared to have advised Mr. Best of his options relating to the alleged harassment. The Tribunal found nothing adverse with such conduct given that paragraph 6.3 of the harassment policy and paragraph 5.2 of the complaint procedure placed such a responsibility on management. 

12.	It is clear that Chief Inspector Childs complied with the respondent's harassment procedure so far as Mr. Best was concerned with particular reference to paragraph 6.2.1 of the formal complaint procedure. It is equally clear that Chief Inspector Childs did not so comply with the procedure so far as the claimant is concerned, in particular with paragraph 6.2.2. which required "the manager to meet with the alleged harasser and (1) outline the nature of the complaint. (2) Advise that contact should be made with their trade union official where appropriate. (3) Confirm that the complaint is being handled under the formal procedure. (4) Ensure that the person is aware of the next stage of the procedure. Paragraph 6.2.3 of the formal complaint procedure requires that “both complainant and alleged harasser shall be advised to, so far as practicable, avoid direct or indirect contact with the other party. Under no circumstances should there be any direct or indirect contact in relation to the complaint”.

13.	The respondent's harassment policy and procedure contained a number of appendices. These included a pro forma letter for acknowledging a complaint to the person making the complaint but no pro forma for acknowledging to the alleged harasser the matters required of management at paragraph 6.2.2. This could have provided an explanation for the failure of Chris Childs to comply with the procedure - but for the fact that another appendices provided a checklist where the manager was required to note the dates of the various actions taken with regard to the procedure. On this document Chris Childs clearly dates the first meeting with the complainant and the alleged harasser as occurring in August 2001, predating the receipt of the written complaint and the date of the meeting between Mr. Best and Peter Donnelly. This discrepancy was not picked up by personnel in Human Resources, who were forwarded a copy of this document, the initial investigatory team established to investigate the harassment complaint, the disciplinary team - who were the investigatory team, or any of the persons who heard the various appeals against dismissal. It appeared to the Tribunal that a cursory examination to ensure that procedures had been followed would have disclosed this fact. This failure undermined to a large extent the claim made on behalf of the respondent that managers had been trained in this procedure and that those hearing the claimant’s appeal took time to satisfy themselves that procedures had been adhered to.     

14.	Mr. Best’s letter of complaint referred to harassing and slanderous behaviour by the claimant. The complaint dated the first incident of harassment as occurring on the 28 August 2001, being the date of the phone call that the claimant made to his home and in Mr. Best's absence spoke to Mrs. Best. It also referred to the claimant's subsequent change of mind with regard to covering annual leave but also said that that incident was not in Mr. Best's view "relevant to this report". Mr. Best's complaint did cover the walk out by the claimant from the course on the 13 September 2001, the claimant's complaint about Mr. Best's performance of duties on the 20 September 2001 and the discovery on the 22 September 2001 that the claimant had accused him of dishonesty in July 2001 to Chief Inspector Childs. 

15.	On receipt of this complaint Chris Childs forwarded it on to Heather Grant of Human Resources. The respondent's procedure indicates that after the steps required at paragraphs 6.2.1 and 6.2.2 have occurred, then the investigation of the complaint will commence. This process is set out at paragraph 6.2.4 of the procedure and involves a number of steps by "the investigation team". The procedure states that the investigation team will comprise “the Manager and a representative designated by the Human Resources Director". The policy appears to this Tribunal to read as if the manager who receives the complaint and carries out the initial requirements set out at paragraph 6.2.1 and 6.2.2 will be the manager involved as part of the investigatory team. However, in this instance the investigatory team was Heather Grant (an employee in the Human Resources department) and Gerard Mullan (a depot manager for Newtownabbey depot). 

16.	The claimant alleged that the appropriate manager to investigate was either Chris Childs or the depot manager for the depot in which both the claimant and Mr. Best were based. He alleged that there was something sinister in the appointment of Mr. Mullan who "may have owed the respondent" and therefore not been fair in his treatment of the claimant. The Tribunal did hear some contradictory evidence as to how investigatory teams were established. In this instance, as in others, it appears that the Human Resources Director, Mr. Mercer, determined, in conjunction with Heather Grant that the investigation team should be her and a manager from another depot as Mr. Mercer considered that Chris Childs did not have the necessary experience to investigate a complaint of this nature. The Tribunal could not fault that conclusion - given the failure of Chris Childs to complete the initial steps in the manner set out in the procedure document. However it was surprising to the Tribunal that having determined that Chris Childs would play no role in the investigation, the letter inviting the claimant to the first meeting with the investigation team was signed by Chris Childs. The total absence of any reference to the fact that the meeting was not only with Heather Grant but also Mr. Mullan is surprising.  The Tribunal considered it at odds with the respondent’s case, as to the constitution of the investigation team, that Chris Childs sent this correspondence when he was ostensibly not a member of the investigation team. In light of other contacts between the investigation panel and Chris Childs detailed in the paragraph below the Tribunal determined that Chris Childs played a role in the investigation of the alleged harassment that did not accord with procedure and brought into question the impartiality of the investigation team. 

17.	The Tribunal considered the e-mail dated 26 September 2001 sent by the personal assistant of Philip O'Neill to Heather Grant in which he stated, "I understand that Chris Childs has had a report on a serious harassment incident involving a number of Inspectors at Citybus May Street. I have asked him in the first instance to speak to you in regards to an immediate investigation and to this end I would ask you to contact him direct on Ext 3356".  A letter sent by Philip O'Neill to Mrs. Best dated 8 October 2001 shows he believed that Chris Childs and Heather Grant were the investigation team set up to investigate her husband's complaint. Heather Grant held the post of Human Resources Adviser, a post that Mr. O'Neill described as a "key contact post for such incidents". 

18.	Heather Grant in giving evidence asserted that she had already had contact with Chris Childs in regard to this alleged harassment situation prior to the formal complaint. Chris Childs had sought advice in respect of the informal resolution of Mr. Best's complaint against the claimant in September 2001. No note existed of this contact. The Tribunal is doubtful of the accuracy of her assertion that the contact concerned more the process rather than the substantive nature of the complaint.  While the Tribunal was not surprised at Ms Grant's assertion that she would not make a note of all managers who call and ask her for advice, the Tribunal found it surprising and ill advised, that no note was taken, in situations where the advice sought was in respect of an allegation of harassment. It was clear that the respondent's policy envisaged the formal complaint procedure arising in a number of ways including "where the unwanted behaviour continues or is of a severe nature or if the complainant prefers to use the formal process". It appeared to the Tribunal that it would be difficult for Human Resources to advise that the time had come in a situation to move to formal process in the absence of notes or records as to earlier incidents or contact. 

19.	The letter dated 28 September 2001 to the claimant gave no indication that the meeting was the first investigatory meeting being held under the respondent's harassment formal complaint procedure. The Tribunal was satisfied that at the time the claimant attended the meeting on the 3 October 2001 he was totally unaware that the situation had changed from the 20 September 2001 and that Mr. Best had now made a formal complaint of harassment against him. It was regrettable that when the claimant approached his trade union, prior to attending the meeting of 3 October 2001, he was misinformed as to the nature of the meeting. This highlights the importance of reducing into writing at the very least the nature of the meeting, if not the complaints to be met.

20.	At the outset of the meeting on 3 October 2001 between the investigation team and the claimant, no effort was made by the investigation team to ascertain that the claimant knew, as required by the harassment procedure the nature of the complaint. The Tribunal found no evidence that the team at the outset of the meeting "informed him of the allegation". Instead the team chose to ascertain the events that occurred between the claimant and Mr. Best by posing a series of questions without ever appearing to refer specifically to the complaint as made by Mr. Best in his letter 26 September 2001. 

21.	The claimant agreed at hearing that the records of the investigatory meetings are an accurate reflection of what he said at the time. On that basis the Tribunal concluded the claimant had conceded to the investigation team that he had committed some of the acts complained of by Mr. Best. However he did not admit that he spread the allegation with regard to the non-purchase of the crystal bowl amongst other employees. The claimant displayed a lack of candour at times with the investigation team. 

22.	Although Mr. Mullan appeared to have a note to prompt him to check with the witnesses the practice of phone calls between Mr. Best and the claimant, there is no note that any such check was made during the investigation. 

23.	There is no doubt that the claimant was cautioned at the end of the meeting on 3 October 2001 to refrain from talk on the subject in the workplace and that he "should refrain from any contact between himself and Inspector Best except for normal working requirements". In the view of the Tribunal this did not equate with the requirement set out in paragraph 6.2.3 of the respondent's procedure that the "alleged harasser shall be advised to, so far as practicable, avoid contact with the other party. Under no circumstances should there be any direct or indirect contact in relation to the complaint".  This failure to ensure that the respondent’s procedures had been fully complied with, in particular, to warn the claimant in respect of indirect contact is significant when one considers the events that followed involving a driver identified as O’Kane and his trade union representative Kevin McGarry that led to the claimant being disciplined for intimidation as part of this harassment complaint. 

24.	On 25 October 2001, as a result of contact made by the claimant with a bus driver identified as Driver O’Kane, a shop steward named Kevin McGarry approached the claimant to ascertain the situation so far as driver O’Kane was concerned. The Tribunal considered the notes of the various meetings held by the investigation team with regard to this matter. It is of some concern to the Tribunal that the investigation team appears to have taken into account matters allegedly said by Chris Childs to the investigation team - when there was no formal meeting with Chris Childs on this matter. Further there are no notes made by Mr. Mullan as to the nature of the information he received from Chris Childs on this contact between Frank Best and Kevin McGarry. There is no mention in the note of the meeting held with Mr. Best by the investigation team that he had been put in fear as a result of the contact Kevin McGarry made. However Mr. Mullan, in the investigation meeting with Kevin McGarry expressly stated to Mr. McGarry "he needed to tell the whole facts as he had phoned someone and put fear into them". It is clear from the note of the meeting with Mr. Best and Mr. McGarry that the investigation team had already formed a particular view about this contact. 

25.	The claimant initiated the contact with Driver O'Kane and provided the means of contact with Mr. Best to Kevin McGarry. The notes of the interview with Driver O'Kane, in the view of the Tribunal had a ring of truth in its contents. It indicates the motivation behind the claimant's actions - "he knew he was in deep shit with the hassle between him and Inspector Best and he was going to put Driver O’Kane name forward as Inspector Best had taken him off the bus". The claimant when interviewed by the investigation team about this contact between him and Driver O'Kane and Kevin McGarry did himself no favours, as he was less than candid about how the contact came about. More importantly he repeated quite strongly to the investigation team his views on the purchase of the crystal bowl in July 2001. It is equally unfortunate that at this stage of the investigation Ms Grant gave erroneous information to the claimant in connection with the receipts that had been produced to the investigation team by Mr. Best. At this meeting the claimant appeared to acknowledge that he had told people what he believed when they asked him questions. However there was no attempt by the investigation team to elicit from the claimant the names of any of the persons or the time frame within which these comments were first made or repeated. 

26.	The investigation team concluded that this approach to Driver O'Kane and Kevin McGarry was "intimidation" on the part of the claimant. The Tribunal did not consider that a reasonable employer looking at the available evidence impartially could reach that conclusion on the basis of the enquiry made by the investigating team.  There was a failure to consider the actual report made by Mr. Best to them and the alternative explanations put forward, namely that Mr. Dobbin finding himself under investigation, was willing to take the complainant down with him who he knew had also breached company procedures in other matters. It is difficult to understand the conclusion of the investigation and disciplinary team that this conduct amounted to harassment, given that the claimant’s report of Mr. Best’s conduct appeared to be true and therefore did not fall neatly within the definition of harassment detailed in the company procedure. There was no evidence that the investigation or disciplinary team even considered the definition in the policy document against the report received before concluding that this action per se was harassment. The Tribunal considered it significant that at no time, after the completion of the investigation into Mr. Dobbin, was any referral or decision made by anyone in authority that an investigation should be carried out with regard to the personal use of a driver, on Citybus time, to carry out work not related to Citybus business.

27.	Step 3 of the respondent’s harassment complaint procedure states that the "investigation team will meet with any witnesses or other people who can provide information relevant to the investigation." Mr. Best was unaware of the "slander" until he met with Peter Donnelly on the 22 September 2001. Accordingly if the drivers had been singing "crystal chandelier" Mr. Best hadn't heard them or associated the singing with him. The claimant asserted that the only persons he had made this comment to were Chris Childs and another bus inspector Pat Fennell. Until the morning of the 22 September 2001 Mr. Best had been prepared to resolve his concerns over the actions of the claimant by informal resolution. The investigation team did not appear to dwell on or seek clarification as to the briefing provided by Chief Inspector Childs to Peter Donnelly. Mr. Mullan, at hearing accepted that it was important to establish who said what to whom with regard to the "crystal bowl". It was not in dispute between the parties that the actions of Peter Donnelly clearly played a role in changing the situation, from informal to a formal complaint, yet at no time did the investigation team consider that Peter Donnelly should be interviewed about this matter. 

28.	There did not appear to be any direct evidence sought by the investigation team as to the timeframe within which this singing had occurred. Mr. Dobbin had gone on holiday the first two weeks in August 2001, so for Mr. Dobbin to have renewed the comments it could only have occurred from mid August 2001 to September 2001. There is no inquiry by the investigation team with Pat Fennell, despite the note made by Chris Childs of his meeting with Pat Fennell, as to when Pat Fennell first heard this singing of the "crystal chandelier" or when Gerry Dobbin first told him of his suspicions. The investigation team did not seek to check whether Pat Fennell had spoken to anyone else. This lack of enquiry is surprising if the investigation team had an open mind at the outset as to whom was responsible for this "spreading" of the rumour regarding the "crystal bowl".

29.	Step 5 of the harassment procedure states "The investigation team, having obtained all the information and clarification they feel necessary, will prepare a report outlining the facts and indicate whether a case of harassment has been substantiated." Step 6 states "The Manager will then prepare a written report outlining the facts, indicating the findings and whether a case of harassment is substantiated". Step 7 states that "The decision will then be communicated in writing by the Manager to both the complainant and the alleged Harasser. Every effort shall be made to have this procedure completed within 15 working days of the complaint having been received." Step 8 states "The Manager shall initiate disciplinary action where appropriate". The document produced to the Tribunal entitled "Interim Report into Harassment Complaint by Frank Best" does not comply with either step 5 or 6 of the procedure. There is little if any indication in this document of the findings that support or led the investigation team to their final conclusions. Equally the procedure makes no reference to an “interim” report. This again undermined the respondent’s assertion that training had been provided on these policy and procedural documents or that the policy documents were before them when performing their role in the investigation or disciplinary process.

30.	There had been some dispute at hearing between the parties initially as to the appropriate agreement that governed the procedure to be followed in respect of a disciplinary charge against the claimant. The Tribunal was satisfied that the Memorandum of Agreement -Inspector was the relevant document. This agreement had been settled in 1991. It appears not to have been revised since that date. The disciplinary procedure in that agreement refers to the employee being informed in writing of the nature of his offence and "if he so desires be heard in person before the appropriate officer of the Company or his duty".  The Tribunal was not referred to any definition within the document of “appropriate officer” and accordingly assumes it must be given its natural meaning. In these circumstances the Tribunal found it questionable why the respondent company considered that the investigation team were the appropriate persons to deal with the disciplinary hearing. Heather Grant signed the letter issuing a disciplinary charge to the claimant as evidenced by the letter of 9 November 2001. The Tribunal did not find credible the assertion by the respondent that Heather Grant was not an equal partner in the disciplinary process. The notes of the hearing indicate that she played an active role in the process. 

31.	Mr. Mullan gave evidence that he had no prior experience of being asked by the respondent company to conduct the disciplinary hearing – where he had been involved in the investigatory team of a harassment complaint. Mr. Mullan conceded that he had made up his mind on the nature of the claimant’s conduct prior to commencing the disciplinary hearing and that the hearing was solely about penalty. This was not so surprising; it appeared to the Tribunal an inherent risk, when the respondent company determines that the investigatory team should also be the disciplinary panel. 

32.	The Tribunal found it noteworthy that at the last meeting of the investigatory panel the claimant enquired as to the "type of harassment they were investigating". It was indicated to him that the panel would first have to determine whether Mr. Best was harassed and then decide what they were going to do. Mrs. Grant indicated that harassment did not always fall into a particular category. It is quite clear to the Tribunal at no time was the claimant told that the charge against him was  "serious and persistent harassment". The charge when issued to him made no mention of "serious or persistent".    

33.	The respondent disciplined the claimant for the manner in which he conducted himself during the investigation. Both Mr. Mullan and Mrs. Grant make a number of references during the disciplinary hearing to comments made by the claimant to the panel about his views on the "crystal bowl" during the investigation process. The Tribunal noted that Mr. Mullan contacted Chris Childs after the disciplinary hearing to put to him some points made during the disciplinary hearing. There is a note made of this conversation unlike the other telephone calls Mr. Mullan had with Chris Childs during the investigation process. It is notable that the matters referred to by Mr. Childs, on this point, were not included in the notes of the meeting the investigation team held with him on 3 October 2001. However the note taken on 5 February 2002 is practically referred to verbatim in the written disciplinary decision drafted by Mr. Mullan. Indeed the disciplinary panel "felt it was significant that Inspector Dobbin had options that he ignored in favour of a complaint against Inspector Best". These are the options that in the telephone call of 5 February 2002 Chris Childs advised Mr. Mullan that he had pointed out to the claimant as available to him at the time - before the complaint against Inspector Best was allegedly received. This was new evidence that was never disclosed to the claimant to comment on. 

34.	The final decision as recorded in the written document produced at hearing shows the disciplinary panel failing to record that the letter of complaint written by Mrs. Best with regard to the telephone call indicates that the claimant apologised as soon as she stopped him continuing his complaint about Mr. Best. While finding it relevant that Mr. Dobbin refused to attend a course that Mr. Best was present at, there is no comment or observation with regard to the evidence gleaned during their investigation that Mr. Best had admitted being in a similar position with another inspector, who he had not spoken to for some considerable period. 

35.	The Tribunal found it of serious concern that comments made by the claimant during the investigatory process were included in the findings of "serious and persistent harassment" when those matters occurred during what was supposed to be a confidential process into a complaint of harassment that occurred within the timeframe of 28 August up to 22 September 2001. The rationale used by the disciplinary panel to justify taking into account comments made solely to them as part of the investigatory process is unclear. 

36.	It is clear to this Tribunal that the panel in speaking to Chris Childs during the process breached the confidentiality of the process. The events that occurred essentially took place on the 27 and 28 August 2001, 13 September 2001 and the 20 September 2001. Those events were mainly at the lower level form of harassment - the verbal abuse on finding out that Mr. Best was going to go to the course, the phone call to the Best household, the snubbing of Mr. Best at the course in September and the complaint made to line management regarding the machines on 20 September. It was clear that the most serious allegation of harassment concerned the allegations with regard to the crystal bowl. 

37.	A number of the findings made by the disciplinary panel were duplicitous. The finding of derogatory statements regarding Mr. Best to other parties - in that the only comments outlined appear at paragraph (vii) of the decision and are already matters that have been dealt with under other headings in the decision. 

38.	There was little evidence available - or indeed sought - to support the finding that there had been "accusations of theft made to Inspector Best, his colleagues and the drivers in May Street" by the claimant. Inspector Best never complained that any such accusation was made to him. The colleagues are not identified anywhere in the decision. It is clear both from this decision and the evidence of Mr. Mullan at hearing that he concluded that it was more likely than not that Mr. Dobbin was responsible for the singing of the crystal chandelier by the drivers in May Street yet no person interviewed by Mr. Mullan or Mrs. Grant gave any evidence of hearing this singing. The singing was never placed within any timeframe. The more serious the allegation the more important it is for the investigating or determining body to exercise diligence and care before concluding that such an allegation is sustained. The required care and diligence was absent from this investigation or disciplinary hearing. The evidence was not even tested, as Mr. Mullan and Mrs. Grant were "judges in their own cause". 

39.	While Mr. Mullan claimed at hearing that consideration was given to options other than dismissal it is fair to say there is nothing on the papers before the Tribunal to support that contention. While the investigation team at an earlier stage of the investigation appeared to recognise that "what you believe in your head is one thing, but you are not entitled to go around saying it to other people”, they appeared to forget this maxim at the disciplinary stage.  It appeared to the Tribunal, that Mr. Dobbins’s refusal, throughout the investigation and disciplinary process, to retreat from his belief that there was something wrong about the "crystal bowl" was a major factor in the respondent’s decision to conclude that dismissal was the only appropriate disciplinary disposal. 

40.	The 1991 agreement relevant to Inspectors does not set out, like the later agreement, identified as “the platform agreement “ between the respondent and trade unions representing the bus operating staff, amended on 1 September 1997, a detailed procedure as to the relevant line of management and examples of misconduct, which can lead to different disciplinary action. The comparison with the agreement relevant to Inspectors is not favourable. 

41.	The Code of Practice on Discipline set out in the platform agreement examples of minor, major and gross misconduct. Its purpose is clearly stated as "to promote fairness consistency and order in the treatment of individuals...and employees the opportunity to improve their behaviour or performance". It identifies three distinct levels of misconduct recognised by the company and while the list is not exhaustive "it should be used as an indication as to where other types of misconduct will fall". In relation to the procedure to be followed - the company states that it recognises that an employee has the following rights: "the right to be made fully aware of any allegations being made against him; the right to a fair hearing with the opportunity to state his case”. 

42.	The procedure set out in the platform agreement as to the line of management involved in the disciplinary process does not materially differ from that set out in the 1991 document other than the reference to an “appropriate officer” is replaced with a reference to the District Manager or his Deputy. The right of appeal is to the Area Operations Manager. In all cases of dismissal there is an appeal to the Managing Director. 

43.	The Tribunal considered it relevant that the platform agreement, which came into operation just the month before the Harassment procedure was issued to all staff, sets out very specific disciplinary outcomes in the event of major misconduct - a final written warning which may be accompanied with a period of suspension. In cases where an employee is found guilty of gross misconduct the platform agreement states the employee "may be summarily dismissed". 

44.	An appeal against the decision to dismiss was lodged with the respondent. The person who was to determine the appeal was Philip O'Neill, the relevant area manager. At the outset of his evidence Mr. O’Neill first asked the Tribunal to adopt his prepared statement as his evidence in chief but sought to retract from its contents, the last sentence of the third paragraph that indicated he had encouraged the complainant Mr. Best to continue his complaint against the claimant. Later in the proceedings this witness sought to retract further parts of this paragraph in his written statement to reflect his assertion that he had no contact with Mr. Best until dealing with the appeal hearing in February 2002. The explanation given for this retraction was that although he had signed the prepared statement he had not picked up at the time the erroneous information contained therein. The Tribunal found Mr. O'Neill's evidence troubling given, that when the first request to amend was made by him, Mr. O’Neill made no mention to the Tribunal that the paragraph contained further erroneous information. Mr. O’Neill did not appear to be a man given to "stupid" actions - yet he described his actions with regard to this prepared statement in such terms. It was against this background that the Tribunal considered the rest of the evidence provided by Mr. O’Neill. 

45.	An e-mail had been sent on Mr. O’Neill’s behalf to Heather Grant in September 2001 requesting an immediate investigation into a complaint of harassment described as "serious". Mr. O'Neill claimed that this was not a view expressed by him but merely the manner in which he recorded the information provided to him by Chris Childs. The Tribunal was not convinced that this accurately reflected the situation.

46.	The appeal by Mr. O’Neill was more by way of review rather than rehearing. Although Mr. O'Neill did take steps to address issues that were raised by the claimant or his trade union representative, he did not appear to direct himself to check that the first disciplinary body had taken appropriate steps or that the company's procedures had been adhered to.  The Tribunal makes this observation, as it was clear at hearing that Mr. O'Neill despite claiming that such checks had been made had failed to pick up on errors in the procedure, detailed in the harassment document, by Mr. Childs so far as the claimant was concerned. Mr. O’Neill also did not appear to note errors in dates in Mr. Child's allegedly contemporaneous notes of meetings with Mr. Best and Mr. Dobbin. It was noteworthy in the view of the Tribunal that the dating of notes allegedly made by Chris Childs on more than one occasion had dates that were wrong. This was surprising if the documents were created as alleged, in or about the time that the events occurred. The fact that dates were inaccurate on more than one occasion does raise a question mark over when the notes were made. However the substance of the notes were not greatly at variance with that of the evidence of the claimant and therefore did not rule out their relevance to the Tribunal as to certain steps taken by this employee in respect of the complaint of harassment. This somewhat undermined Mr. O’Neill’s conclusion that the "Company stated procedures had been followed in a diligent manner". 

47.	Mr. O’Neill as part of the appeal process did elicit that the investigation/disciplinary team had not investigated the genuineness of the receipts provided to them by Mr. Best. Mr. O'Neill accepted further information from Mr. Childs as to the date the claimant reported to him his suspicions regarding Mr. Best and the crystal bowl - even though no mention of such an important fact was contained in the contemporaneous notes. Mr. O’Neill as a result of his further meetings with Peter Donnelly, Pat Fennell and Chris Childs concluded that the claimant had only raised this concern "days before attempts were taking place to try and resolve the matter in an informal manner". It is clear from Mr. O’Neill’s note of his meeting in February 2002 with Peter Donnelly that Peter Donnelly described Frank Best in derogatory terms – referring to him as "Crystal Gayle".  When questioned by Mr. O’Neill as to why he would make such a remark, the response recorded as elicited from Peter Donnelly was that "it was common talk". This additional information gleaned by Mr. O'Neill, and taken into account by him in affirming the decision of the initial disciplinary body was never disclosed to the claimant or his representative. 

48.	The Tribunal accepts that the claimant refused to attend a reconvened hearing of the appeal. At the same time a duty lay on the respondent to disclose to the claimant or his representative any additional information that could have a bearing on the final decision. It is quite clear to this Tribunal that even if Mr. O’Neill accepted that the report by the claimant of his suspicions with regard to the crystal bowl to Chris Childs occurred on the 20 September 2001, then the report occurred before Mr. Best and Mr. Dobbin agreed to involve Peter Donnelly as a mediator in the informal resolution of Mr. Best’s complaint of harassment.  This undermined Mr. O’Neill’s conclusion that the informal process “failed when further allegations of misappropriation of money were made by Mr. Dobbin against Mr. Best”. 

49.	It is apparent that Mr. O’Neill concluded that Mr. Donnelly “appears to have inadvertently told Mr. Best about comments made by Mr. Dobbin to both Mr. Fennell and Mr. Childs”. This was the conduct that the claimant accepted had occurred. Mr. O’Neill at hearing ruled out that Mr. Childs could have been the source of Mr. Donnelly’s knowledge, but he did not appear to have considered the possibility before reaching this conclusion on the appeal. There was no evidence that any of the main parties involved, on the available evidence, appeared to have heard this “common talk” prior to 20 or 22 September 2001. Mr. O’Neill’s conclusion that Mr. Dobbin had been spreading the rumours is not placed within a timescale. The decision appeared to ignore the fact that Inspector Fennell had made a somewhat similar comment to Mr. Best in the earlier part of the summer of 2001. No enquiry appears to have been made with Inspector Fennell or anyone else to ascertain whether Inspector Fennell spoke to anyone else with regard to this matter.  

50.	On the matter of the appropriate penalty, Mr. O’Neill, in his position as area manager, would have been familiar with the disciplinary procedure and policy for both Inspectors and Drivers. His written decision referred to the contents of the harassment policy but no explanation or rationale is provided to explain why he considered that this conduct was correctly placed within the category of gross misconduct. Mr. O’Neill is clearly aware of the platform agreement, amended in September 1997, a policy, provided one month earlier to the Harassment Policy which included examples of harassment that fall within the category of major misconduct and gross misconduct. Major misconduct is stated to include “lesser cases of sexual harassment and lesser cases of sectarian harassment”. The same document also included in major misconduct “threatening or offensive behaviour and offensive language”. Examples of gross misconduct in the same document included “serious or persistent cases of sexual harassment, serious or persistent cases of sectarian harassment, serious breaches of the Companies’ Equal Opportunities Policy”. Mr. O’Neill accepted that the claimant’s harassment of Mr. Best is not based on one or more of eight protected characteristics set out in the harassment policy. He refers to a more general clause in the harassment policy – clause four –“Employees whose general behaviour can lead to or cause distress in others will be treated equally seriously”. 

51.	Mr. O’Neill does not state his own view, as the appellate authority, on the conclusion of the investigation team that the harassment of Mr. Best was both serious and persistent. Mr. Mullan had classified the harassment as "systematic". "Systematic" in the ordinary sense of the word is defined as "methodical, done according to a plan, regular or deliberate". The available evidence could not reasonably support a finding that the actions of Mr. Dobbin were "deliberate, calculated and sustained". There were without doubt acts of harassment by Mr. Dobbin to Mr. Best but they occurred over a short period of time and were generally of a low-grade nature. The Tribunal concluded that no reasonable employer viewing these actions, against the totality of the company's procedures could conclude that they amounted to "serious and persistent harassment".

52.	The Tribunal found it difficult to understand how a reasonable employer against the background of these policies could classify the actions of the claimant, as described to this Tribunal, as a more serious type of misconduct than “lesser cases of sexual harassment or sectarian harassment”. The failure to address this issue undermines Mr. O’Neill’s conclusion that “Mr. Mullan’s determination that the matter was one of gross misconduct appears appropriate for this form of unacceptable behaviour”.  

53.	Mr. O’Neill records a number of matters that apparently caused Mr. Mullan to conclude that dismissal was the only available sanction. A number of inaccuracies appear in those matters such as “make no apology” to Mrs. Best when her letter of complaint referred to an apology; refers to intrusion on “Mr. Best’s private life by making calls to his house” when there was only one call; the conclusion that “there was no chance of reconciliation – when Mr. Mullan had no evidence to that effect during his investigation nor had he concluded such when he initially made his decision to dismiss. Mr. O’Neill makes no comment on these inaccuracies and concludes “more importantly his (Mr. Dobbin’s) failure to accept the error of his ways” gave no confidence that he could be trusted in a supervisory role. 

54.	The Tribunal did not consider that the failures in the appeal process were due to the claimant’s involvement in a regrading dispute that had been ongoing for some years. The decision to uphold the dismissal appeared to have more to do with an early view having been taken of the claimant’s conduct, the wish to appear to be seen to be dealing effectively with any harassment and the claimant’s persistence that his theory in respect of the crystal bowl was correct.

55.	The claimant’s final appeal lay with Mr. Edward Hesketh, the managing director of the respondent company. The Tribunal is not convinced that Mr. Hesketh read all the papers relevant to this appeal. The Tribunal concluded that he went through the motions of the appeal. This conclusion was reached, as there appears to be no ascertainment by this witness of any of the earlier procedural deficiencies highlighted earlier in this decision. The attitude taken by the claimant and his trade union representatives that “no issue was taken with the contents” of Mr. O’Neill’s letter confirming dismissal would not obviate this witness of his responsibility to determine whether dismissal was the appropriate sanction for the behaviour of Mr. Dobbin. 

56.	Mr. Dobbin had a lengthy record of employment with the respondent and a clear disciplinary record, other than for one odd entry made by Chris Childs some years previously. However this witness stated in the letter confirming the claimant’s dismissal that he “found nothing in his record of benefit to him in determining penalty”. It was noteworthy that Mr. Hesketh’s own notes of the appeal hearing record that “he had to weigh carefully the fact that Mr. Dobbin’s change of attitude was very much at the last minute and the responsibility of an employer to deal properly with cases of harassment”. There was nothing in the documentation made available to the Tribunal to assess how or if this weighing exercise was effected. 

57.	Mr. Hesketh, at hearing, accepted that it was most unusual for an inspector “particularly one with that length of service” to be dismissed. The Tribunal found this pertinent when they considered the appellate role played by Mr. Hesketh in nearly all dismissal cases. It was fair to conclude he was aware of the provisions in the platform agreement with regard to the classification as major misconduct for “lesser cases of sexual or sectarian harassment”. This Tribunal concluded that Mr. Hesketh did not consider any option other than dismissal, as he was unable in evidence to recollect what they were and no details of any options considered appear on the available notes.  During Mr. Hesketh’s evidence he advised the Tribunal that “these decisions are not easy, have to weigh in balance length of service against what he did and also importantly the company being seen to have an effective harassment policy – at the end of the day if everyone threw themselves at my feet and eventually got off, I think it wouldn’t help our policy in relation to harassment or otherwise”. The Tribunal concluded that this element was the matter that determined that dismissal was the only appropriate sanction for the claimant.

58.	Both parties made oral submissions. The claimant also submitted prepared written submissions. In summary it was submitted on behalf of the claimant that he accepted he was responsible for certain conduct but where he deviated from the respondent was the classification of that conduct as “gross misconduct warranting dismissal”. It was contended that there existed alternative explanations for the responsibility for any rumour circulating in the workplace with regard to the crystal bowl which were not investigated adequately or at all by the respondent, that the movement of Mr. Best’s complaint of harassment from informal resolution to formal was not as a result of any action of the claimant after the 20 September 2001. The test was whether a reasonable employer would have dismissed in those circumstances for that misconduct. There was also a question of procedural fairness and that essentially the claimant would assert that the second principle of British Home Stores v Burchell did not exist – “there was not a reasonable basis for the finding of “Serious and persistent harassment”. The respondent did not have in mind reasonable grounds to sustain the belief that the claimant was guilty of slander and intimidation. While the claimants actions in respect of Driver O’Kane and Kevin McGarry were ill judged there was no evidence of threats or fear. The penalty imposed was entirely disproportionate to the circumstances – in particular given his service to the respondent company. If the Tribunal considered it gross misconduct but the penalty disproportionate this would affect compensation. It is not the claimant’s case that there was a grand conspiracy to dismiss the claimant but it is submitted that the investigation went in a set direction from the start – that the e-mail of Philip O’Neill who described the complaint as “serious” infected the process. This issue over Mr. O’Neill’s retraction from his prepared statement is a matter for the Tribunal – but if he had been in contact with Mr. Best it would raise questions about his role in the appeal process. Mr. Mullan in law should never have heard the disciplinary hearing given that he accepts that he had reached findings as to the claimant’s guilt as part of the investigatory process. The appeals in this case could not cure that procedural deficiency, as they were not by way of rehearing. The failure of the claimant to attend a reconvened appeal hearing might have been able to be held against the claimant had Mr. O’Neill indicated to the claimant or his representative that he had new information from Chris Childs or Peter Donnelly which he wished to give the claimant an opportunity to comment on, but no such notification was received. There is also a need for consistency by an employer. This case had its difficulties as some of the main parties were either too unwell to attend or were deceased. The claimant accepts that there is contributory fault in this case but where it falls is a matter for the Tribunal, mindful of the authority of Hollier (1983) IRLR 260.    

59.	It was submitted on behalf of the respondent that since the second day of hearing this has simply been a case of alleged unfair dismissal. It is incontrovertible that this is a dismissal on conduct and the burden of satisfying the Tribunal that it is a fair dismissal in the terms of Article 130 (4) of the Employment Rights (Northern Ireland) Order 1996 is cast in neutral terms. It is not placed on the employer. Iceland Frozen Foods v Jones the reasonableness of the employer’s conduct has to be considered as to whether it falls within the band of reasonable responses for the employer. Equally whether the sanction imposed falls within the band of reasonable responses. In addressing that test the Tribunal should bear in mind a number of important features. While Harvey on Employment law puts much weight on the Codes of Practice, there are also decisions, which indicate that a breach of procedure must be “sufficiently important that injustice done or the reasonableness of the procedure brought in to question”. In this case while there may have been departure from the letter of the policy, there was no departure from the spirit of the policy. There is little in the replies to particulars served on behalf of the claimant as to how any deviations from the process has impacted adversely on the claimant. The Tribunal should recollect that length of service would not be a factor of sufficient weight where gross misconduct is concerned. The consistency principle can only apply where there is similarity between the persons. The question as to whether the employer honestly believed the applicant guilty of misconduct can only be answered in the affirmative in this case. The claimant’s very late allegation of a plot, linked to the regrading exercise has no credence. In regard to the bona fides of Mr. O’Neill, he says that the allegation in his statement that he advised Mr. Best to press on with his complaint was a mistake and it is not clear where that mistake came from. The allegation of a plot is undermined by the evidence and should be given no weight. A lot of the incidents that found the charge of misconduct are admitted to – to a greater or lesser extent. The claimant intervened in the investigatory process – “to dish the dirt on Mr. Best”. It is suggested to the Tribunal that the claimant was aware of the charge he faced and his initial refusal to answer on 3 October 2001 had more to do with attitude. The breaches of the procedure by Mr. Childs highlighted in the evidence were of minor divergence and not the cause of any injustice. 

60.	The Tribunal has had regard to the provisions of Article 130 (4) of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order) in determining whether the respondent acted reasonably in treating the claimant’s conduct as sufficient reason for dismissal.

61.	British Home Stores v Burchell (1980) ICR 303 has established a three fold test that must be satisfied if dismissal of the claimant, by the respondent, for a reason relating to conduct is to be fair. The respondent must show that he had a genuine belief on reasonable grounds, after reasonable investigation that the applicants’ behaviour justifies dismissal.

62.	The Code of Practice on Disciplinary Procedures provides that employees should be given a clear indication of the type of conduct, which may warrant summary dismissal. Paragraph 1550 of D1 of “Harvey on Industrial Relations and Employment Law” (Harvey) implies that as a general rule dismissal for a first offence can be justified mainly in two situations. First, where the act is one of gross misconduct and is so serious that dismissal is a reasonable sanction to impose notwithstanding the lack of any history of misconduct. The second is where the employee has made it clear that he is not prepared to alter his attitude so that a warning would not lead to any improvement. An employer will find it easier to justify a dismissal for a particular single act of misconduct where a rule explicitly states that breach will or may lead to a dismissal than where such a rule is absent – see paragraph 1568 of the same Division. The significance of having clear rules communicated to the work force was also expressed by the EAT in W Brooks & Son v Skinner [1984] IRLR 379 – “it seems to this Tribunal that whether or not an employer is justified in treating a particular matter of conduct as sufficient to justify a dismissal must include the question whether the employee knew, in a particular case, that his conduct would merit summary dismissal… Therefore, this Tribunal considers that the question whether the respondent knew he would be dismissed was a relevant matter – not the only matter – but it was a relevant matter for the Tribunal to take into consideration”.  In this case the Tribunal concluded for the facts set out above that it was only during the investigation process that the claimant became aware that he could be dismissed for such conduct.

63.	Even where misconduct is admitted by an employee the requirement of reasonableness in Article 130 (4) of the 1996 Order relates not only to the outcome in terms of the penalty imposed by the employer but also to the process by which the employer arrived at that decision. Accordingly this Tribunal had to ask itself whether dismissal fell within the “band of reasonable responses” having applied that test to the circumstances of this case and the procedure used by the respondent in reaching the decision to dismiss – Sainsbury’s Supermarket Ltd v Hitt [2003] IRLR 23 CA. 

64.	In carrying out a reasonable investigation the respondent is required to investigate the complaint of misconduct fully and fairly. The Code of Practice on Disciplinary Procedures relevant at this time advises when applying disciplinary procedures employers should have regard to the requirements of natural justice. The importance of the need for the claimant to be able to make representations on the allegation made against him – namely of serious and persistent harassment – was not recognised by those dealing with the investigation and disciplinary hearing. At no time prior to the end of the disciplinary hearing was the claimant notified that that was the disciplinary charge against him. Instead he was notified of a charge of harassment simpliciter. 

65.	The nature of the questioning by Heather Grant as recorded in the minutes of the investigation and disciplinary hearings was at times more than inquisitorial, however it is when the investigation team appear to give evidence on matters that are at issue – such as Mr. Mullan proposing to Kevin McGarry that he had put Mr. Best in fear or Mrs. Grant incorrectly stating that the receipts were from a shop in Dungannon – that the question of their impartiality is brought into focus. The inaccuracies in Mr. Mullan’s written decision, on a number of the matters, as well as including in the alleged misconduct statements made by the applicant during the investigation process are difficult to explain other than he appeared to feel a need to describe the conduct of the claimant in such a way that would justify it being described as ”serious and persistent” as otherwise it would not fit the description of gross misconduct.

66.	In determining the issue whether the reason for dismissal was of such a kind as to justify the dismissal of an employee holding the position that the applicant held. A breach of the Code of Practice on Disciplinary Procedure does not render a dismissal automatically unfair but is a matter to be taken into consideration by the Tribunal. While there were procedural defects in the initial investigation and disciplinary hearings, the claimant was given an opportunity to appeal. 

67.	The Tribunal considered the actions of the respondent and in particular the e-mail between Philip O’Neill and Heather Grant, the discussions between Chris Childs and Heather Grant, the unnoted discussions between the investigation team and Chris Childs, as well as the correspondence Chris Childs sent to the claimant during the investigation process. The Tribunal recognises that an investigation must be seen to be impartial. The Tribunal considered the authority of Slater v Leicestershire Health Authority [1989] IRLR 16 CA which held that merely because a person conducting a disciplinary hearing has carried out a preliminary investigation does not mean that that person is unable to conduct a fair hearing or inquiry into events. However an essential principle of natural justice is the right to an unbiased or impartial Tribunal. Whilst an investigator can be a judge provided they have not formed a fixed view on the facts prior to the hearing – paragraph 1516 of Harvey. However in this case Mr. Mullan on his own admission had formed a view on the nature of the conduct of the claimant by 9 November 2001 – sometime before the disciplinary hearing was held. In light of the size and resources of the respondent company it would not have been impossible for another manager to be found to hear the disciplinary hearing in this matter. 

68.	The Tribunal was satisfied that that the involvement of Philip O’Neill in sending the    e-mail to Heather Grant did not prevent him conducting the appeal hearing, although in the opinion of the Tribunal it would have been preferable if no description or opinion on the nature of the harassment had been stated at such an early stage. 

69.	There were clear breaches of the company’s own procedure that were not picked up by the investigation team. The Tribunal did not accept the respondent’s contention that these were minor breaches. The right to know the matter for which he was under investigation and the procedure that applied is a basic fundamental right. The claimant was denied this.  Neither the initial investigatory or disciplinary team nor any of the appellate authorities noticed this breach. 

70.	Procedural defects in the initial disciplinary process may be remedied on appeal provided the appeal is sufficiently comprehensive and takes the form in essence of a rehearing and not merely a review – Whitbread & Co plc v Mills [1988] IRLR 501. The appeal in this instance was one of review rather than rehearing. Mr. O’Neill made significant findings with regard to the timing of the report to Chris Childs by the claimant of the allegation concerning the crystal bowl and the actions of Peter Donnelly yet at no time disclosed these findings to the claimant or his representative prior to issuing his decision. 

71.	The matter that caused the greatest concern to the Tribunal was whether or not Mr. O’Neill as first indicated in his prepared statement of evidence had during the period of the investigation and prior to hearing the appeal provided “earlier advice to Inspector Best to continue with his formal complaint… in my capacity as Central Area Network Manager advising an employee of his options”. The partial retraction of this statement was followed by an enquiry from the chairman of the Tribunal as to how the paragraph should read. Mr. O’Neill had read out the paragraph, omitting only the last sentence, leaving in the reference to “earlier advice to Inspector Best to continue with his formal complaint”. Later in the hearing Mr. O’Neill sought the retraction of the whole paragraph. The lack of any explanation as to how this erroneous information came to be included firstly in a signed prepared written statement for this hearing and then repeated partly when giving his evidence gave credence to the belief that there was some truth in the assertion. The witness confirmed in giving evidence that he signed the statement, having read it but did not notice this erroneous information. While the witness wished to place the reason for this error on “stupidity”, this witness held a senior position in the respondent company and did not appear to be a person lacking understanding of the importance of written documents.  The manner in which these events occurred did not assist in satisfying the Tribunal that there were no grounds for concern on this point. The Tribunal concluded that there was some contact between Mr. O’Neill and Mr. Best that brought into question his impartiality in determining the appeal lodged by the claimant with regard to his dismissal. This impartiality could explain the acceptance without question it would appear by Mr. O’Neill of the classification of the claimant’s conduct as gross misconduct despite the examples of major misconduct provided in other company documentation issued around the same time as the harassment policy.   

72.	The final appeal by Mr. Hesketh was not a genuine review of the previous decisions taken at the various levels of management. This witness gave the Tribunal the impression that he was more concerned to ensure that the harassment policy be seen to be effective than to consider whether this employee could have known he would be dismissed for this conduct and that the conduct warranted his summary dismissal. This witness gave evidence as to how rare it was within the company for an employee at this level and with such length of service to be dismissed. The Tribunal concluded that the company gave no consideration to the claimant’s long service and disciplinary record, nor of the actual conduct as found by the respondent against other examples of major and gross misconduct detailed in the company’s procedures.

73.	While the Tribunal heard evidence with regard to alleged incidents of actions by an Inspector Jeffers with regard to Peter Savage, the Tribunal determined that it was not possible to conclude that the incidents were of a sufficiently similar nature to raise any issue of consistency or inconsistency on the part of the respondent, as there appears to have been an informal resolution of these incidents, without the knowledge of senior levels of management other than Chris Childs who was no longer available to provide any evidence on the matter. 

74.	We are satisfied, in all the circumstances of this case, that the decision to dismiss by the respondent was outside the range of reasonable responses. In arriving at that conclusion, we have had particular regard to the following matters: 

a)	Certain acts of misconduct, such as not talking to another member of staff and refusing to attend a course because a member of staff was present, were acts that had happened with other employees and had not incurred disciplinary sanction. The employee Mr. Best who complained of harassment on his own admission had not been on talking terms with another Inspector for some years;

b)	The repetition of the claimant’s allegations concerning the crystal bowl occurred mainly within the confidential process of the investigation into the complaint of harassment; 

c)	The failure by the respondent to make any enquiry to establish when the rumour regarding the crystal bowl was circulated to the drivers at May Street;

d)	The lack of impartiality by the disciplinary panel and Mr. O’Neill as the first line of appeal; 

e)	The lack of objective justification for classifying the actions of the claimant as “serious and persistent acts of harassment” and 

f)	The failure to give regard to the claimant’s length and record of service.	

The remedies issues

75.	The claimant accepted that his conduct had contributed to his dismissal. Therefore the issue is essentially the deductions to be made to any compensation determined by the Tribunal. This was not a case where the Tribunal considered that dismissal would have occurred had fair and proper procedures been followed. 

76.	The claimant’s representative produced a written schedule of loss and a calculation as to the basic award. These figures did not appear to be in dispute between the parties to any great extent save on the issue of the appropriate calculation with regard to loss of pension. 

77.	Accordingly on the basis that the statutory maximum at the relevant date of dismissal was £250 per week, and that the claimant had six years of service aged over 41 and 14 years aged over 21 years, subject to the statutory maximum of 20 years service – the basic award amounted to £5,750.

78.	The total calculation with regard to the net loss of earning was agreed at £46,119 as any loss of earnings ceased to accrue after the 12 September 2005. 

79.	In regard to the loss of pension rights the Tribunal had regard to Harvey paragraphs 2602 to 2625 and the guidelines booklet provided to Tribunal chairman entitled “Compensation for loss of pension rights” provided to Employment Tribunals (Guidelines). It appeared to the Tribunal that given the circumstances of the claimant – who had after a period of ill health returned to full employment, the nature of the pension scheme provided by the respondent - and the employment situation within the respondent company, the simplified approach as suggested by the respondent’s representative is not appropriate. 

80.	The parties had been referred to the Guidelines and the hearing had adjourned overnight to allow them to consider and incorporate any relevant information from the Guidelines in to their submissions on pension loss to the Tribunal. The Tribunal, as in Clancy v Cannock Chase Technical College 2001 IRLR 331, recognised our task to compute a figure that we considered “just and equitable in all the circumstances in respect of loss sustained…by way of loss of pension rights in so far as that loss is attributable to action taken by the employer”. 

81.	The pension provided by the respondent was a final salary scheme and in his current employment no pension scheme is provided. There appeared no chance of the claimant losing that employment due to economic reasons. On this basis and in light of the provisions of paragraphs 4.4, 4.10 to 4.14, chapter 8 and appendices 5 and 6 of the Guidelines it appeared more appropriate to this Tribunal to adopt the “substantial loss approach”. Essentially it is the “difference between the deferred pension (including any cost of living increase and other benefits) and the pension and other benefits that he would have received had he not been unlawfully dismissed that constitutes his loss”.

82.	The claimant has no pension in his current employment. The Tribunal considered the calculations as detailed in the schedule of loss prepared on behalf of the claimant. 

83.	The Tribunal concurred that the relevant age in this case was 65 years. The Tribunal concluded that the applicant submission included the appropriate factors from tables 5.2 and 6.2 of Appendix 5 and 6 respectively. As the claimant was in employment as a driver currently, it appeared to the Tribunal, given the nature of the respondent’s business, that no additional withdrawal factor should be made thereby reflecting the likelihood the claimant would have remained in his previous employment until retirement. The claimant’s submission and written calculation as to compensation for loss of earnings had already been adjusted as recommended at paragraph 8.10 of the Guidelines, to reflect that the claimant no longer has to make employee contributions to a pension scheme of approximately 5%. The figure adopted for the annual amount of pension was based on the pension statement provided to the claimant on 31 March 2001 indicating a salary at £19,800. However where the claimant’s calculation had included fractions to reflect the additional months of service over and above the full years of service completed, it appeared to the Tribunal that the calculation was more appropriately effected by reference to complete years of service only.   

84.	The claimant was 48 years on the last birthday at dismissal as his date of birth is 16 November 1953. The value of prospective final salary pension rights up to the retirement age of 65 (had the claimant not been dismissed) is 1/80 x 43 (26 years service and 17 years to retirement at 65) x 19,800 x 15.18 =  £161,553.15, say £161,553. The value of accrued final salary pension rights to date of dismissal from former employment is 1/80 x 26 x 19,800 x 12 = £77,220. As the Tribunal determined that it was unlikely that the claimant would obtain further pensionable employment in light of his age and current employment situation, the Tribunal concluded that the sum to be awarded in respect of pension loss is calculated as the difference between these two figures namely £84,333. 

85.	The Tribunal also considered it appropriate to award a figure in the sum of £150 in respect of loss of statutory rights.   

86.	This gave a possible award in respect of compensatory award to the sum of £130,602. However the Tribunal then considered the question of deductions from compensation, on account of the claimant’s conduct, which are provided for in Article 157(6) and Article 156(2) of the 1996 Order.

87.	Article 157(6) deals with reductions from compensatory awards in respect of contributory conduct and Article 156 (2) provides for reductions from basic awards on account of any conduct of the claimant (whether it contributed to the dismissal or not), provided that such conduct occurred prior to the date of dismissal.

88.	Article 157 (6) provides as follows: -

89.	“Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding”.

90.	Browne- Wilkinson J commented as follows, with regard to the equivalent section in the relevant legislation for England and Wales, in Gibson v British Transport Docks Board [1982] IRLR 228 “What has to be shown is that the conduct of the applicant contributed to the dismissal. If the applicant has been guilty of improper conduct, which gave rise to a situation in which he was dismissed and that conduct was blameworthy, then it is open to the Tribunal to find that the conduct contributed to the dismissal. That is how the section has been uniformly applied”. 

91.	That view of the law is also relevant in the context of Article 156 (2) because contributory conduct is also included among the types of conduct, which fall within the scope of that provision.  “where the Tribunal considers that any conduct of the complainant before the dismissal … was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Tribunal shall reduce or further reduce that amount accordingly”. 

92.	There are some differences between the scope of Article 157 (6) and Article 156 (2). 

93.	It is clear from the findings of fact detailed above that the actions of the claimant contributed to his dismissal. In particular his obduracy in persisting with threats of involving police in the matter, his failure to accept the offer of a reconvened appeal hearing could not have assisted his case for retention as an employee and his actions in providing Kevin McGarry with the means of contacting Mr. Best to essentially advise that he was going to highlight to his employer certain misconduct on Mr. Best’s part, in the view of this Tribunal largely contributed to the lack of recognition given by his employer to his record and length of service. Further it is clear to this Tribunal that the claimant gave to the respondent little appearance of regret for his actions with regard to this accusation in respect of the crystal bowl. The Tribunal considered that the actions of the claimant and the manner in which he met the proceedings taken against him by his employer substantially contributed to the respondent’s negative attitude to the claimant continuing in their employment and the decision to dismiss him. 

94.	The overriding factor for the Tribunal to consider, in making the compensatory award is that the Tribunal should award what is “just and equitable in all the circumstances having regard to the loss sustained …in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”.  

95.	The Tribunal considered Hollier v Plysu Ltd [1983] IRLR 264, Campbell v Dunoon and Cowal Housing Association Ltd [1993] IRLR 496 and Cox v London borough of Camden [1996] IRLR 389. Mrs. Hollier, like the claimant in this case, had lengthy service and was in a supervisory role, when she was unfairly dismissed due to the failure to make an adequate investigation but the Tribunal considered that she “largely” contributed to her dismissal by the manner in which she faced the trouble she found herself in with her employer. Although the Campbell case concerned unfair dismissal arising from a redundancy situation, like the claimant in this case the Tribunals conclusion as to the deduction to be made arose from the lack of interest displayed by the employees to participate in the consultation process. The Tribunal in particular found the more senior employees, more blameworthy.  It appeared to this Tribunal, using a commonsense approach, that the claimant’s approach to the investigation and disciplinary process, the confrontational manner he displayed at times to Heather Grant, his actions in approaching other employees to warn of “dishing the dirt on Mr. Best” as well as his reluctance to retract the allegations made in respect of the purchase of the crystal bowl, largely contributed to the manner in which his misconduct was viewed by the respondent. Accordingly the Tribunal considered that the appropriate deduction to be made was in the amount of 75%. However the Tribunal did not consider it “just and equitable” to make any reduction to the basic award. It appeared to the Tribunal that only once this initial calculation is done, the provisions of Article 158 of the 1996 Order fall to be considered. In these circumstances the basic award is £5,750 and the final compensatory award is £32,650.50, say £32,651. Accordingly the respondent is ordered to pay to the claimant the sum of £38,401. 

96.	The claimant received family tax credit from the 27 September 2002 for a period of 108 weeks to the value of £5,480 of which £1,700 has already been recouped. The Employment (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (NI) 1996 apply to the balance of that amount.

97.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.

Chairman:

Date and place of hearing:	20 February 2006 – 3 March 2006, Belfast

Date decision recorded in register and issued to parties: