FAIR EMPLOYMENT TRIBUNAL

CASE REFS:    40/10 FET
573/10

CLAIMANT:	Patrick Browne

RESPONDENT:	Perfecseal Limited

DECISION

Constitution of Tribunal:

Chairman:	Mrs Órla Murray

Members:	Mr Pearse McKenna
	Mr James Smyth

Appearances:

The claimant appeared in person.

The respondent was represented by Ms L Toolan of the Engineering Employers Federation.

The Claim

1.	The claimant’s claims were as follows:-

	(i)	that his dismissal was an act of discrimination on grounds of his political opinion;

	(ii)	that the dismissal was automatically unfair because it was made in breach of the statutory dismissal and disciplinary procedures (SDP);

	(iii)	that the dismissal was automatically unfair because it was made following a protected disclosure; and

	(iv)	that the dismissal was unfair on ordinary principles.

2.	The respondent’s case was that the claimant was fairly dismissed for gross misconduct.

The Issues

3.	The issues for the tribunal were as follows:

	(1)	was the claimant dismissed unfairly;

	(2)	was the dismissal automatically unfair for breach of the statutory procedures;

	(3)	was the dismissal automatically unfair as the reason for the dismissal was connected to the claimant having made protected disclosures;

	(4)	did the dismissal amount to less favourable treatment on grounds of the claimant’s perceived political opinion.

Sources of Evidence

4. 	The tribunal heard evidence from the claimant and his former colleague and trade union representative Mr K Doherty.  For the respondent the tribunal heard evidence from Mr J Muir, the manager who conducted the investigation and disciplinary procedure; and from Mr H McBride the manager who dealt with the claimant’s appeal.  The tribunal also had regard to the documents to which it was referred.

Findings of Fact

5.	The claimant was employed by the respondent from August 1990 until 29 January 2010 when he was summarily dismissed for gross misconduct.

6.	At the time of his dismissal, the claimant was employed as a team leader working shift patterns and had line management responsibility for several workers.  The claimant’s duties in this regard included the power to discipline workers who reported to him.  On occasion, the claimant could be the most senior person in charge of the factory.

7.	The events which ultimately led to the claimant being dismissed began when the claimant disciplined a Polish worker, named SG, by giving him a written warning for failure to carry out an instruction properly resulting in injury to other employees.  This related to the company car park which should have been properly salted on the night of 11 January 2010.  The claimant had contemplated giving SG a final written warning but gave the lesser penalty of a written warning following representations by SG’s trade union representative K Doherty.

8.	SG subsequently approached Mr Muir (a manager two steps higher than the claimant in the hierarchy of managers) to complain that he had been unfairly treated by being disciplined by the claimant for something he denied doing.  He alleged that the claimant had not instructed him to salt the car park on the night in question.  SG also alleged that, when senior managers raised questions with the claimant about injuries that had occurred because of the failure to salt the car park, the claimant had ascertained that SG had not salted the car park but had directed SG to say that he had salted it.  SG said that the claimant had assured him that everything would be alright.  SG was then aggrieved that he was later given a written warning by the claimant.

9.	SG’s complaint of unfair treatment prompted Mr Muir to investigate the circumstances surrounding SG having been disciplined in relation to the salting of the car park.

10.	Mr Muir’s investigation consisted of three meetings with SG, two meetings with K Doherty and three meetings with the claimant.

11.	Following the first round of meetings with the three men on 19 January 2010, the claimant was suspended on full pay by letter of 22 January 2010.  In that letter it was made clear that the investigation was into:

		“An alleged act of gross misconduct, specifically you are alleged to have shown deliberate dishonesty and professional incompetence, leading to a potentially serious breach of trust and confidence.  Such is the seriousness of the allegation that you should be aware that, if proven, your continued employment could be in danger”.

12.	The reason for suspending the claimant, and not suspending SG or K Doherty, was that the allegation was against the claimant and he, as a manager, was in a position of influence.  The claimant was therefore suspended to ensure that the ongoing investigation was not prejudiced.  

13.	Following his investigation, Mr Muir decided to convene a disciplinary hearing against the claimant. 

14.	On 26 January 2010 a letter was sent to the claimant arranging the disciplinary hearing.  The letter outlined the charge against the claimant, warned him that his job could be in danger, advised him of his right to representation and enclosed copies of all the investigation notes.  The letter complied with step 1 of the SDP.  The claimant was therefore well aware of the nature of the disciplinary charge and that it related to him having disciplined SG in relation to the car park.

15.	The disciplinary hearing took place on 29 January 2010.  Mr Muir read all the statements in full to the claimant and the claimant was given a full opportunity to put his side of the case.  The claimant was accompanied by a community representative.  The companion was allowed by Mr Muir despite the fact that the company procedures allowed only for a colleague or trade union official to accompany workers.

16.	During the meeting Mr Muir adjourned to consider the matter.  When the meeting reconvened Mr Muir told the claimant that he had committed a serious breach of trust and confidence which amounted to gross misconduct and the claimant was summarily dismissed.  Mr Muir considered that the claimant was at a level of management with responsibilities which meant that a sanction short of dismissal was not appropriate.  On occasion, the claimant could be the most senior manager in charge of the factory and in these circumstances it was imperative that the respondent had trust and confidence in him.

17.	The claimant and Mr Moore had always got on well together and the claimant made it clear to the tribunal that he regarded Mr Muir as “very straight”, he trusted him, and he regarded him as a good manager.  

18.	By letter of 29 January 2010 Mr Muir communicated the outcome of the disciplinary hearing to the claimant, and advised him of his right to appeal.  This complied with step 2 of the SDP.

19.	The claimant appealed by letter of 3 February 2010 and the appeal was heard by Mr H McBride on 8 February 2010.  

20.	Mr McBride was a more senior manager to Mr Muir and he had not been involved in the investigation nor in the disciplinary procedure before the appeal stage.  Mr McBride prepared for the appeal hearing by reading all the documents involved in the investigatory and disciplinary stages.

21.	At the hearing on 8 February 2010 the claimant was accompanied by Mr K Doherty.  Mr McBride raised at the outset of the meeting, reservations that he had in relation to Mr Doherty attending as Mr Doherty had accompanied SG in his disciplinary procedure and was therefore a witness to some of the matters involved in the disciplinary procedures against the claimant.  Neither the claimant nor Mr Doherty raised any concerns about the appeal hearing proceeding.  The hearing proceeded with the claimant and Mr Doherty both able to participate fully and the claimant had a full opportunity to put his side of his case.  

22.	The grounds for the claimant’s appeal were twofold, namely, that his dismissal was unfair and, that there was a conspiracy to remove him from his position. 

23.	The claimant’s allegation of a conspiracy rests on the following points made by him at the appeal hearing.

	(1)	An email sent in 2003 in which an adverse comment was made by a manager who left the respondent in 2003, relating to the claimant’s alleged unauthorised absence from work.

	(2)	An incident in 2007 when the claimant and a group of others where threatened with redundancy.  That redundancy threat was retracted the day after it was made.

	(3)	At the end of 2008 a photograph was found when a manager’s office was being cleared out.  The photograph was a cutting from a newspaper which depicted the claimant apparently attending a republican commemoration rally.  Mr Doherty alleged that he had a conversation with a former manager Mr R, before that photograph was discovered, when Mr R allegedly made reference to the claimant’s perceived political opinion and that it was incompatible with his position in the company.  Mr Doherty did not reveal this alleged conversation to the claimant until 2010 when the claimant was being disciplined.

	(4)	In 2009 the claimant raised a grievance in relation to his wages and involved the Labour Relations Agency.  That grievance appears to have been resolved at the time.

	(5)	The claimant raised in his appeal, two allegations of alleged unethical behaviour by the company in relation to storage of products in a hangar and in relation to a company with which the respondent was involved in India.

24.	These matters were not raised by the claimant during the disciplinary process with Mr Muir.  The only possible relevant reference made by the claimant was to a “witch hunt” against him.  Mr Muir therefore had no knowledge of the photograph nor of the disclosures about alleged unethical conduct by the company when he took the decision to dismiss the claimant.

25.	Following the appeal hearing Mr McBride followed up the points made by the claimant in relation to the alleged series of adverse incidents against him and in relation to the disclosures about alleged unethical conduct.

26.	Mr McBride decided to uphold the decision of a disciplinary hearing as he found that there was sufficient evidence to support the serious allegation against the claimant.  Mr McBride considered a lesser sanction but concluded that dismissal was appropriate because of the seriousness of the allegation and because of the claimant’s level in the company.

27.	The claimant had been disciplined over a period for absenteeism in relation to intermittent absences from work.  The claimant confirmed in evidence to the tribunal that he did have a poor absence record but maintained that some of the absences should not have been taken into account in relation to any disciplinary process.  

28.	Both Mr Muir and Mr McBride regarded the charge of breach of trust and confidence in relation to the disciplining of SG as very serious given the claimant’s position within the company.  The fact that the claimant had been disciplined for intermittent absence was not a factor in their decision to dismiss as the charge found against him was sufficient, of itself, to warrant dismissal as it amounted, in their view, to gross misconduct.  

The Law

29.	The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (referred to as “the Order”).  At Article 130 of the Order it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2).  One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee.  If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

30.	The task for the tribunal in a misconduct dismissal case is set out as follows by the judge in British Home Stores Ltd v Burchell 1980 ICR 303: 

		“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question … entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all there must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  Thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case”.

31.	The employer does not have to prove beyond reasonable doubt that the employee was guilty of the misconduct, but merely that it acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to it at the time.  The reasonableness of the employer’s decision is looked at at the time of the final decision to dismiss namely at the conclusion of any appeal hearing.  The tribunal’s task, in essence, is not to conduct its own investigation and come to its own view of the offence but rather, to assess whether the employer’s actions in relation to procedure and penalty fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances.  This approach has been endorsed by the Northern Ireland Court of Appeal in the case of Rogan v South Eastern & Social Care Trust [2009] NICA 47.

32.	The statutory disciplinary and dismissal procedures must also be followed in relation to any dismissal.  In summary these provide, insofar as they relate to the circumstances in this case, that an employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting.  The meeting must take place at a reasonable time, on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting.

33. 	The Fair Employment and Treatment (NI) Order 1998 (as amended) (“FETO”) prohibits discrimination on grounds of political opinion.  The task for the tribunal is to determine whether the claimant was less favourably treated compared to the treatment that would have been afforded to a person without his political opinion.  In this case the claimant did not rely on an actual comparator.

34.	The respondent referred us to Harvey on Industrial Relations and Employment Law in general.  We were not referred to any specific paragraphs.  The respondent referred us to the following cases.

(1)	Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 UK HL11

(2)	Igen Ltd v Wong 2005 EWCA CIV 142

(3)	Draper v Mears Ltd UK EAT/017406/ZT

35.	In the Shamoon case the relevant principle is outlined at paragraph 1 as follows:

	“ … employment Tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.  Was it on the proscribed ground which is the foundation of the application?  That will call for an examination of all the facts of the case.  Or was it for some other reason?  If the latter, the application fails.  If the former there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others”.

36. 	The case of Igen v Wong outlines the way the burden of proof operates in discrimination claims.  The first step is for the claimant to prove on a balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful.  If the claimant does not prove such facts his claim will fail.  If the claimant does prove such facts the burden of proof shifts to the employer to prove on the balance of probabilities that the treatment was in no sense whatsoever on the prohibited grounds.

37. 	In the Draper case the EAT quotes from the case of Alexander v Bridgen to confirm that the step 1 letter need do no more than state the disciplinary issue in broad terms.

38. 	The law relating to protected disclosures is contained in the Order at Articles 67A-67L.  In this case it is for the Tribunal to decide whether the dismissal, as confirmed on appeal, amounted to automatic unfair dismissal on the grounds that the decision to dismiss related to protected disclosures made by the claimant.

Conclusions

39.	Mr Muir’s decision to dismiss the claimant was within the band of reasonable responses for a reasonable employer.  Mr Muir conducted a reasonable investigation.  It did not amount to a defect in procedures for Mr Muir to have conducted the investigation and the disciplinary process.  

40.	We have no criticism of Mr McBride in relation to the way the appeal hearing was conducted on 8 February 2010.  We do not accept the claimant’s case that he was somehow disadvantaged by the reservations raised by Mr McBride at the outset of the meeting.  It is clear from the lengthy note of the meeting that the claimant had a full opportunity to participate and Mr Doherty had an opportunity to act properly as the trade union official accompanying the claimant.

41.	We are satisfied that the employer sacked the claimant for gross misconduct relating to the incident involving the disciplining of SG.  We are satisfied that a reasonable investigation was carried out and that both Mr Muir and Mr McBride had sufficient information before them to give them reasonable grounds to believe that the claimant was guilty of the offence alleged.  We find that the penalty of dismissal was within the band of reasonable responses for this employer in these circumstances where it was so important for the respondent to have trust in the claimant given his position in the company and the fact that he could be in charge of the factory on his own on occasion.

42.	We therefore find that the Burchell test is satisfied in that the respondent, in the form of Mr Muir and Mr McBride, believed that the claimant was guilty of the misconduct, they had reasonable grounds upon which to base that belief and a reasonable investigation had been carried out.  Dismissal was an appropriate penalty in the circumstances.

43.	We do not accept that the claimant has proved facts from which we could conclude that an act of discrimination occurred.  We are not satisfied that there was any link between the incidents listed at paragraphs 23 and 27 above.  One of the principal reasons for our conclusion on this point is that each of the incidents involved different managers some of whom had left the respondent’s employ at the time of the disciplinary proceedings which led to the claimant’s dismissal.  Mr Muir was very highly regarded by the claimant and was a 
co-religionist of the claimant.  Mr McBride had joined the company a short period before the disciplinary proceedings involving the claimant and therefore had no personal knowledge of several of the matters alleged.  In addition Mr Muir had no personal knowledge of the photo incident nor of the disclosures and we are satisfied that he took his decision to dismiss the claimant purely on the evidence he had gathered in relation to the disciplining of SG. 

44.	As the claimant has failed to prove facts from which we could conclude that an act of discrimination occurred, his claim for discrimination on grounds of perceived political opinion fails as he has failed to shift the burden of proof to the respondent.

45.	We are not satisfied that the claimant has shown any connection between the disclosures he made during the appeal hearing, and the decision to confirm the dismissal.  No disclosures were made during the disciplinary process and we are satisfied that the decision to dismiss was not tainted in any way by any such disclosures.  We are further satisfied that Mr McBride confirmed Mr Muir’s decision on the basis of the evidence relating to the incident involving SG.  We accept the evidence of Mr McBride that the disclosures had no influence of his decision to confirm the decision to dismiss.

Summary

46.	The tribunal therefore finds that the claimant was fairly dismissed for gross misconduct.

47.	The respondent complied with the SDP in full.

48.	The disclosures made by the claimant at the appeal hearing did not influence the decision to confirm the decision to dismiss.  We therefore do not find that the claimant’s dismissal was on grounds of his having made protected disclosures and his claim for unfair dismissal on this ground fails.

49.	The claimant’s claim for discrimination on grounds of perceived political opinion is dismissed.

50.	The claimant’s claims are therefore dismissed in their entirety.

Chairman:

Date and place of hearing:      24, 25, 31 January and 1 February 2011, Belfast.

Date decision recorded in register and issued to parties: