THE EMPLOYMENT TRIBUNAL

CASE REFS:   249/16
8/16 FET

CLAIMANT:		Conor McCabe

RESPONDENT:		Northern Ireland Railways Limited

DECISION

The unanimous decision of the tribunal is that the claimant had been technically unfairly dismissed.  However, that dismissal, while technically unfair for the purposes of the Employment Rights (Northern Ireland) Order 1996, had been entirely due to the claimant’s contributory and blameworthy conduct.  The appropriate reduction of any remedy is therefore 100%.

Constitution of Tribunal:
Vice President:	Mr N Kelly
Members:		Mr I Carroll
			Mr M McKeown

Appearances:
The claimant was represented by Ms S Agnew, Barrister-at-Law, instructed by O’Hare Solicitors.
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Carson McDowell LLP, Solicitors.

Background

1.	The claimant had been employed as a train conductor by the respondent for approximately eight years.

2.	The respondent concluded that, on 9 August 2015, the claimant had been guilty of various procedural breaches which had affected safety.  

3.	Following an investigation and a disciplinary process the claimant was dismissed for gross misconduct.  The claimant appealed that decision in two successive internal appeals.  The dismissal was upheld on each occasion.

4.	On 8 January 2016, the claimant lodged a claim of unfair dismissal in this tribunal.  In his claim form he referred to other employees of a different religion being treated differently.  For that reason, the claim was also registered in the Fair Employment Tribunal.  However, that aspect of the original claim was not maintained and it has proceeded solely as a claim of unfair dismissal, contrary to the Employment Rights (Northern Ireland) Order 1996.  

5.	At the request of the parties, the tribunal decided to deal with the issue of liability only.  The parties indicated that if the claim to the tribunal was successful, the issue of remedy might well be resolved.  If it could not be resolved, the matter could be addressed at a separate remedy hearing.  The tribunal stated that it would also deal with the issue of contributory conduct.  If remedy did become an issue, a finding in relation to contributory conduct would be necessary before consideration could be given to that issue.  

The hearing

6.	The case had been case-managed.  Directions had been given in relation to the interlocutory procedure and in relation to the exchange of witness statements.  

7.	Each witness, in turn, swore or affirmed to tell the truth, adopted their witness statement as their entire evidence-in-chief and proceeded immediately to cross-examination and then brief re-examination.  

8.	Since the fact of the dismissal was not in dispute, the respondent gave evidence first.  Three witnesses gave evidence for the respondent:-

(i)	Ms Katraina Leathem, who at the relevant time had been the Conductor’s Manager for the respondent, and the claimant’s direct line manager.  She had conducted the initial investigation and then the disciplinary hearing.

(ii)	Mr Hilton Parr, who at the relevant times had been the Rail Services Director.  He had conducted the first appeal hearing and had dismissed that appeal.  

(iii)	Mr Ciaran Doherty, who at the relevant times had been the General Manager, Operations and Safety.  He had conducted the second appeal hearing and had dismissed that appeal.  

9.	The claimant gave evidence on his own behalf.  The claimant had also exchanged, in accordance with directions, a witness statement on behalf of Mr Jason McCleary, who had been the driver of the train on 9 August 2015 during the relevant incidents.  However, Mr McCleary did not attend the tribunal to swear or affirm to the witness statement or to be cross-examined.  A Witness Attendance Order had not been sought.  In any event, the witness statement contained nothing that was directly relevant to the case before the tribunal and which was in dispute.  Mr McCleary’s witness statement was therefore disregarded in total by the tribunal.

10.	The case was heard on Wednesday and Thursday 7 – 8 September 2016 and concluded with oral submissions from both counsel.  The panel met after the conclusion of the hearing on 8 September 2016 to reach its decision.  This document is that decision.  

Relevant law

11.	The proper approach for an Employment Tribunal to take when considering the fairness of a misconduct dismissal is well settled and was considered by the Court of Appeal in Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47.  

12.	Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

“130-(1)	In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a)	the reason (or if more than one, the principal reason) for the dismissal and

(b)	that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

			    (2)		a reason falls within this paragraph if it – 

						(b)	relates to the conduct of the employee, 

(4)	where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – 

(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b)	shall be determined in accordance with equity and the substantial merits of the case.”

13.	The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin  v  Citybus Ltd [2008] NICA 42 where the Court held:-

“(49)	The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores  v  Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v  Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley  v  Post Office and HSBC Bank PLc (formerly Midland Bank) –v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury  v  Hitt [2003] ICR 111.

(50)	In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

	“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

(1)	the starting point should always be the words of [equivalent GB legislation] themselves;

(2)	in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3)	in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4)	in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another; 

(5)	the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.”
			
(51)	To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) 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, it 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.  And 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.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.  It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt.  The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

14.	In Bowater  v  North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal.  The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal.                               Lord Justice Longmore stated at Paragraph 18 of the decision that:-

“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case.  The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come.  But the employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

	He continued at Paragraph 19:-

“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET.  It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal.”

15.	In Fuller  v  London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer.  Lord Justice Mummery stated at Paragraph 7 of the decision that:-

“In brief the council’s case on appeal is that the ET erred in law.  It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’.  That favourite form of words is not statutory or mandatory.  Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity.”

	At Paragraph 38 of the decision, he continued:-

“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair.  If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”

16.	In Salford Royal NHS Foundation Trust  v  Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that that tribunal had substituted their judgment of what was a fair dismissal for that of a reasonable employer.  At Paragraph 13 of the judgment, Lord Justice Elias stated:-

“Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances.  In A  v  B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee.  So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite”

“In A  v  B the EAT said this:- Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers.  Of course even in the most serious cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.”

17.	It is important therefore for the tribunal to remember that it has a limited jurisdiction in relation to claims of alleged unfair dismissal.  It may not rehear and re-determine the disciplinary decision originally made by the employer; it cannot substitute its own decision for the decision reached by that employer.  In the case of a misconduct dismissal, such as the present case, the tribunal must first determine the reason for the dismissal:  ie whether in this case the dismissal was on the basis of conduct and must determine whether the employer believed that the claimant had been guilty of that misconduct.  The tribunal must then consider whether the employer had conducted a reasonable investigation into the alleged misconduct and whether the employer had then acquired reasonable grounds for its belief in guilt; not whether the tribunal would have reached the same decision on the same evidence or even on different evidence.  The tribunal must then consider finally whether the decision to dismiss was proportionate in all the circumstances of the case.   

18.	One of the relevant circumstances for determining fairness for the purpose of Article 130 may be consistency.  It is clear that there cannot be a tariff system in disciplinary procedures and that this issue must be approached carefully by employers and by tribunals.  That said, in Post Office  v  Fennell [1981] IRLR 221 the Court of Appeal (GB) said:-

“It seems to me that the expression ‘equity’ as there used [in the GB equivalent to Article 130] comprehends the concept that employees who misbehave in much the same way should have meted out to them much the same punishment, and it seems to me that an industrial tribunal is entitled to say that, where that is not done, and one man is penalised much more heavily than others who have committed similar offences in the past, the employer has not acted reasonably in treating whatever the offence is as a sufficient reason for dismissal.”

19.	That decision refers to disciplinary action in the past.  The importance of inconsistency is greater when the comparison is between two individuals who were complicit in broadly the same disregard of safety rules at the same time and where one received only a written warning and one is dismissed.

20.	As indicated above, caution needs to be taken in relation to arguments on inconsistency.  See Hadjioannou  v  Coral Casinos Ltd [1991] IRLR 352.  

	In Paul  v East Surrey District Health Authority [1995] IRLR 305, the Court of Appeal (GB) considered an argument on inconsistency.  In that case an employee had been dismissed after drinking on duty and becoming abusive.  He argued that others who had been drinking had not been treated in the same way.  They had been given a formal warning or a reprimand.  The Court stated:-

“I consider that all industrial tribunals would be wise to heed the warning of Waterhouse J, giving the judgment of an Employment Appeal Tribunal in Hadjioannou  v  Coral Casinos Ltd [1991] IRLR 352, when at Paragraph 25, he said:

‘We accept that analysis by counsel for the respondents of the potential relevance of the arguments based on disparity.  We should add, however, as counsel as urged upon us, that industrial tribunals would be wise to scrutinise arguments based upon disparity with particular care.  It is only in the limited circumstances that we have indicated that the argument is likely to be relevant, and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument.  The danger of the argument is that a tribunal may be led away from a proper consideration of the issues raised by [Section 98(4) of the ERA].  The emphasise on that Section is upon the particular circumstances of the individual employee’s case.  It would be most regrettable if tribunals or employers were to be encouraged to adopt of rules of thumb, or codes, for dealing with industrial relations and in particular, issues arising when dismissal is being considered.  It is of the highest importance that flexibility should be retained, and we hope that nothing we say in the course of our judgment will encourage employers or tribunals to think that a tariff approach to industrial misconduct is appropriate.  One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation.’

I would endorse the guidance that ultimately the question for the employer is whether in a particular case dismissal is a reasonable response to the misconduct proved.  If the employer has an established policy applied for similar misconduct, it would not be fair to change the policy without warning.  If the employer has no established policy but has on other occasions dealt differently with misconduct properly regarded as similar, fairness demands that he should consider that whether in all the circumstances, including the degree of misconduct proved, more serious disciplinary action is justified.

An employer is entitled to take into account not only the nature of the conduct and the surrounding facts but also any mitigating personal circumstances affecting the employee concerned.  The attitude of the employee to his conduct may be a relevant factor in deciding whether a repetition is likely.  Thus an employee who admits the conduct proved as unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions, argues with management or makes unfounded suggestions that his fellow employees have conspired to accuse him falsely.  I mention this because I consider that if the industrial tribunal in this case had had regard to these factors they would have not regarded the actions of the employer in Mrs Rice’s case as disparate or have said that Mr Verling’s misconduct should have been treated just as seriously, if not more seriously, than Mr Paul’s.”

21.	Clearly an employer cannot be considered to have acted unfairly in relation to inconsistency if he had been unaware of the misconduct of the potential comparator.  That is not the case in the present case.  Similarly, if an employer consciously distinguishes between two cases, the dismissal can only be successfully challenged if there no rational reason for the distinction drawn between those cases.  Again, that is not the case in the present case.  

	In this case the employer, certainly at the stages of the two internal appeals, knew of the charge and the penalty given to the driver of the train but did not seek to rationalise any distinction between that charge and that penalty and the charge and the penalty given to the claimant.

22.	Contributory conduct

	If the tribunal concludes that an employee was guilty of culpable or blameworthy conduct which contributed to his dismissal, see Nelson  v  BBC (No 2) [1979] IRLR 346, compensation in respect of both the basic and compensatory awards may be reduced by an appropriate percentage.  In determining whether the conduct is blameworthy, the test is objective.  It does not matter whether the employee knew the conduct was wrong – see Ladbroke Racing Ltd  v  Mason [1978] ICR 149.

	If the employee is wholly to blame for the dismissal, compensation may be reduced by 100% - see Hollier  v  Plysu Ltd [1983] IRLR 260.

	See also Dalzell  v  McIlvenna [1744/13] – employmenttribunalsni.gov.uk - which was upheld by the Court of Appeal in an oral decision.

Relevant findings of fact 

23.	The claimant was employed as a train conductor from 23 July 2007 to 21 October 2015.  He had a clear disciplinary record and a broadly satisfactory work record.

24.	This case centres on a train journey which took place between Belfast to Portadown on 9 August 2015.  The claimant had been a conductor.  Mr Jason McCleary had been the train driver.  They were the entire crew on the train.  

25.	The railway industry is highly regulated.  The safety of passengers and staff is obvious critical to its operation.  Both the conductor and driver have specific roles which are set out in procedures.  While both have safety critical roles, the driver is ultimately in control.  That said, he relies on certain signals and approvals from the conductor and also relies on checks being made by the conductor.  If he is not satisfied with the work of a conductor, or is not satisfied that an operation is safe, he can and should override any instruction or guidance given by the conductor.  

26.	When a train is at a platform, preparing to leave, the conductor should stand on the platform with all the doors of the train open to enable passengers to get on and off the train.  His role is to observe passengers getting on and off the train and to ensure safety.  It is implicit in all of that that the conductor should watch the doors and the passengers and not face away from the doors.  

	When any disembarking passengers have left the train and when embarking passengers have boarded the train, the conductor gets back on the train from the platform.  He should close all of the doors on the train except his (generally at the back of the train).  He then gets back off the train again and stands on the platform for a second time.  He checks the platform and observes the doors.  When satisfied as to the safety of the passengers, he gets back on the train.  He signals to the driver to proceed.  He stays at the door checking the platform in case he has to signal an emergency stop.  

27.	Drivers and conductors have separate terms and conditions of employment and are managed separately.  Disciplinary proceedings are conducted separately by different managers.  The terms and conditions of service issued to drivers were revised in September 2012.  For some reason, the equivalent documents for train conductors have not been revised since the last century.  

	There are differences between the disciplinary code for the drivers and that for the conductors.  In particular, the disciplinary code applicable to drivers gives examples of what the respondent recognises as offences under the three separate categories of ‘minor misconduct’, ‘major misconduct’ and ‘gross misconduct’.  While it is clear from that document that such categorisation is not rigid and that the ultimate categorisation will depend on ‘the severity of the offence in question’, the document includes ‘deliberately ignoring safety-rules and thereby endangering one’s own or another’s wellbeing or safety’ as gross misconduct.  

	The disciplinary code for conductors also indicates that the list of examples given under each category is not exhaustive and that it may ‘vary with the severity of the offence in question’.  However, the examples include ‘negligence in relation to safety-rules’ in the middle category of offence, ie under ‘major misconduct’.  Apart from that difference in categorisation, the drivers rules refer to ‘deliberately ignoring’ and the conductor’s rules refer to ‘negligence in relation to’.

28.	In relation to the disciplinary rules applicable to two safety critical members of staff who work together as a team, it is odd that the wording of the disciplinary codes differ.

29.	Both sets of disciplinary rules specify that the respondent has the responsibility of ensuring that disciplinary rules are applied both fairly and consistently [tribunal’s emphasis].

30.	The terms and conditions of service issued to drivers state:-

“A Train Driver’s first responsibility will always be to do whatever they can to ensure the safety of their passengers, the public, their colleagues and themselves.  At the earliest opportunity the Professional Driver will bring to the attention of the appropriate responsible person any defect or occurrence which may or will have a detrimental impact on safety, service quality or productivity utilising agreed company procedures.  When engaged in Train Driving duties, the Professional Driver will commit to ensuring the highest standard of service quality including safety, punctuality and reliability.”

31.	On 9 August 2015, the claimant had been rostered as the conductor on the passenger train going from Belfast to Portadown.  Mr Jason McCleary was the driver.  The train stopped, inter alia, at Lisburn, Moira and Lurgan.  

32.	No incident, whether related to safety or not, had been reported to the respondent by either the claimant or by Mr McCleary at the conclusion of that journey or during that journey.

33.	The respondent was contacted by the PSNI shortly after 9 August 2015.  They were seeking information on an assault on a member of the public at Lurgan train station on 9 August 2015 in which an individual had been assaulted and had his jaw broken.  

34.	A manager of the respondent company, Mr Holly, interviewed the claimant on 20 August 2015.  Mr Holly asked the claimant if he had been aware of any issue on the relevant train journey.  The claimant told Mr Holly that he could not remember anything.  Mr Holly asked the claimant whether there was anything which he wished to report in relation to Lurgan.  The claimant again replied that nothing occurred to him.  When he was advised of the PSNI involvement in an assault investigation, the claimant stated that he had been unaware of any assault.  

35.	On further investigation, Ms Leathem, the conductor’s manager, downloaded the CCTV for that journey and concluded that the claimant could not be seen on the train in Lurgan and that in fact could be seen in the driving cab.  

36.	It was clear that it is not in dispute that a conductor is not permitted to enter or remain in the driver’s cab.  The presence of anyone other than the driver in that cab can cause distraction for the driver and is regarded as a significant safety risk.  The claimant and indeed the driver had been at all times aware of this position.  Despite that, it was clear from the CCTV that the claimant had entered the cab on two occasions and had remained on both occasions in the cab.  It was also clear that the driver had allowed him to enter and remain in the cab in contravention of clear procedures.  It is also clear that the driver would have been aware of at least some of the claimant’s failures to follow dispatch procedures.  That would have been clear to the respondent.

37.	On 23 September 2015, two weeks after the incident, the claimant attended an investigatory meeting conducted by Ms Leathem.  The claimant’s trade union representative was present.  The claimant was asked, by Ms Leathem:-

		“Can you tell us what happened during your shift on the 9th of August?”

	The claimant replied that:-

		“I can’t really remember much.”

38.	When asked again, the claimant stated that after leaving Lisburn station he had had a pain in his back so he had gone to the front of the train and had asked the driver if he had any painkillers.  He had been admitted into the driver’s cab by the driver.  He had remained in the driver’s cab until Lurgan station.  At Lurgan station he stated he left the train by the driver’s door.  He stated that there had been a few drunken passengers and also a girl being sick.  When asked why he had not explained to Mr Holly on 20 August 2015 that he had entered and remained in the driver’s cab, he stated that Mr Holly had asked him about an assault which he knew nothing about.  He stated that:-

“It was just a normal night, didn’t think there was anything out of the ordinary.”

39.	On 24 September 2015, Ms Leathem interviewed another employee of the respondent who had been travelling as a passenger on the relevant train.  He stated that there had been an incident at Lurgan train station.  While he had not observed that incident he stated that he had seen someone on the ground but he had not seen much as there had been a crowd around that person.

40.	On 9 October 2015 the Traction Manager who appears to have had management responsibility for the drivers, interviewed Mr McCleary in an investigatory interview.  Mr McCleary was advised that the question of an unauthorised person being in the driver’s cab in the course of a journey was being investigated.  A separate issue in relation to an alleged assault on the member of the public was also being investigated.  Mr McCleary stated that they had left Lisburn station as normal.  The claimant had then entered the cab and had asked the driver for painkillers because of a sore back.  Mr McCleary gave him two paracetamol.  He stated that he had told the claimant that he could not sit in the cab.  However, the claimant had remained sitting where he was.  He stated that there had been no conversation.  He stated that he drove and the claimant sat.  

	It is clear that the claimant and the driver had been close friends.  The driver had been the claimant’s best man at his wedding.  It is highly unlikely that there had been no conversation during this part of the journey and that the pair of them sat quietly in the driver’s cab.  More importantly, from the point of view of this case, the respondent had been entitled to be entirely sceptical about this version of events.  

41.	Mr McCleary stated that at the Moira station, the claimant had got up and looked out the window and told Mr McCleary ‘shut the doors’.  Mr McCleary did so and carried on as normal.  He did not follow normal dispatch safety procedures and Mr McCleary knew that he had not.  He stated that at Lurgan the claimant had got out of the driver’s door and that the train had been dispatched as normal.  He stated that he had heard drunks at the Lurgan station and ‘the usual carry on’.  He stated he had not seen anything.  

42.	It was put to Mr McCleary that the CCTV showed that after leaving the Lurgan station the claimant re-entered the driving cab.  He stated ‘I can’t recall him being in again’.

	Mr McCleary was advised of the rules and regulations in relation to have an unauthorised person in the driver’s cab.  He was reminded that a driver has the responsibility and authority to remove anyone from the cab whether a manager or engineer.  He was also only reminded that only a person with a valid cab pass can enter a driving cab.  The tribunal concludes that a train driver would have known all of this in any event.  

43.	The respondent issued two disciplinary charges against the claimant.  The first charge was a charge of gross misconduct.  It related to a breach of safety rules on 9 August 2015.  It referred, in particular, to the claimant entering the driver’s cab on two occasions without authorisation and that he had dispatched the train at Moira station incorrectly by simply looking out of the driver’s cab window.  It also referred to incorrect dispatch procedures at Lurgan train station.

	The second charge was a charge of major misconduct and related to a failure to provide customer service duties between Lisburn station and Lurgan station and a failure to report an incident at the Lurgan train station.

44.	In contrast, Mr McCleary had been charged only with minor misconduct, in that he ‘ignored safety rules resulting in a violation of train dispatch rules and procedures at Moira station’.  There was no mention in that of his part in relation to dispatch procedures at Lurgan train station or indeed about his complicity in allowing the claimant to enter the driver’s cab on two occasions and to remain in the driver’s cab on each occasion without reporting that to any authority and without removing the claimant.  

	That minor conduct had resulted in a written warning (not even a final written warning).  

45.	On the proforma charge sheet setting out separately each of the two charges against the claimant, the claimant was invited to write his response to each of those charges.  In relation to each of those charges he wrote ‘guilty’.

46.	The claimant was invited to attend a disciplinary interview on 16 October 2015.  He was advised that summary dismissal was a potential penalty for the gross misconduct charge and that a final written warning was the potential penalty for the major misconduct charge.  He was advised of his right to be represented.  The claimant and his representative had been provided with a written timeline setting out the events shown in the CCTV.  They did not dispute that timeline.  

47.	During the disciplinary interview the claimant maintained that he had not seen anything in relation to the incident at Lurgan train station.  He stated there had been drunks banging on the side of the train and a woman being sick at the back of the train.  He stated that he had gone to help the woman who was being sick.  The claimant, in the course of the tribunal hearing, alleged that the reference to going to the back of the train to help the sick woman had come from his trade union representative and that he had totally disagreed with it.  That position is simply not credible.  It is clear from the notes that this was a version of events which had been put forward directly by the claimant.  

48.	During the disciplinary interview, the claimant accepted being in the driver’s cab.  He stated that he had had a sore back and that he had had to deal with drunks and a woman who was being sick.  He stated again that he had seen no one sitting on the yellow line at the edge of the platform.  The claimant again stated that there had been drunks banging on the side of the train and again stated that a woman was being sick at the back of the train and that because he had been worried, he had gone to help her.  It was put to the claimant, in plain terms, that he did not walk to the back of the train and he was advised again to watch the CCTV.

49.	The claimant argued that he had dispatched the train properly at Lurgan but had not dispatched it properly at Moira.  He stated that he did not remember going back into the driver’s cab for the second time.  It was put to him that it did not look on CCTV as if he had had a sore back.  He had been walking up and down the train quite freely and that on coming out of the driver’s cab he had leant on one of the seats to talk to the signalman and that he had continued to do so for some time.  

50.	Ms Leathem upheld both charges.  She would have read the investigatory interview with Mr McCleary and would, in any event, have been aware of his involvement.  She wrote to the claimant accordingly on 21 October 2015.  She did not seek to rationalise any distinction between the claimant and Mr McCleary.

51.	In relation to the charge of gross misconduct, she concluded that the claimant had not mentioned being in pain or going to the driver’s cab for painkillers or simply dispatching the train at Moira by putting his head out of the window when he had been spoken to by Mr Holly on 20 August 2015.  The claimant had entered the driver’s cab shortly after leaving Lisburn and had remained there until the train arrived at Lurgan.  The claimant had accepted full responsibility for being in the cab.  However, Ms Leathem noted that the claimant knew that it had been recorded on CCTV within the train and that the respondent had already spoken to the driver.  She noted that the claimant had re-entered the driver’s cab on a second occasion and had remained there for a further two minutes.  She stated that there had been no evidence that the claimant had been in pain.  Ms Leathem did not accept that the claimant had dispatched the train properly from Lurgan.  She stated that he had walked from the driver’s door down the platform to the first carriage.  He had turned around and waved to the crossing keeper, got on the train and locked the doors with his back to the doors and immediately walked back up to train to the driver’s cab.  She stated he did not check the platform before locking the doors, had not ensured that the platform had been clear after locking the doors; that there had been no one in danger and that he did not wait at the doors until the train started to move.  She also stated that it was clear on the CCTV that the assaulted passenger had been sitting on the platform with his head in his hands several feet away from where the claimant had got on the train and that he had been visible from the window as the train moved away from the platform.  

52.	In that letter, Ms Leathem made it plain that she had considered various mitigating factors.  In particular, she referred to his eight years’ service and his good record.  She also referred to his offer to go through re-training and his statement that it would never happen again.  

53.	In relation to the second charge of major misconduct in relation to workmanship and failure to report an incident, Ms Leathem concluded that it was clear on the CCTV that the injured passenger had been sitting on the platform with his head on his hands and that this should have been reported by the claimant.  The claimant had failed to sell any tickets between Lisburn and Portadown.  There had been no evidence of any back pain and he had entered the cab of the train on two occasions.  

54.	The claimant appealed and that first appeal was heard by Mr Hilton Parr on 11 November 2015.  The claimant was again represented by his trade union representative.  Mr Parr was the direct line manager of Ms Leathem, who had heard the disciplinary hearing and who had issued the disciplinary decision.  

55.	Mr Parr reviewed the documentation and the CCTV footage before considering the appeal.  He would therefore have seen that the driver, Mr Cleary, had been involved in the disciplinary offences.  He would also have been aware that Mr McCleary had been subject only to a charge of minor misconduct and that he had, by that stage, received a written warning but no other penalty.  

56.	Mr Parr was clear to the tribunal that he felt that the driver had been treated extremely leniently and wrongly.  He felt that the driver’s offence warranted dismissal.  He was disappointed at the leniency shown to Mr McCleary.  He had not attempted to rationalise it or to explain it when dismissing the claimant’s appeal.  He did not do so to this tribunal.  

57.	The claimant’s appeal had been essentially that there had been insufficient consideration given to his explanation, ie his sore back, and that the decision had been too harsh.  He also argued that other conductors charged with the same offence had not been dismissed and that his clear disciplinary record had not properly been taken into account.  

58.	The appeal hearing took place on 11 November 2015.  The claimant accepted that his service on the relevant day had not been satisfactory.  He knew that he had been in the wrong.  The claimant disputed the respondent’s version of events at Lurgan train station.  He stated that, as far as he was concerned, there had been no one lying on the platform when the train left.  He stated that he had not dispatched the train properly because he had been threatened with a bottle of Buckfast.  

59.	The claimant argued that he had been willing to re-take the conductor’s exam and that he had a good record.  

60.	The claimant referred to other cases where conductors had been subjected to disciplinary procedures for entering the driver’s cab while a train had been in motion.  In each of the cases, final written warnings had been given.  Mr Parr took the view that those were not proper comparators for the claimant.  In his case, he had entered the cab twice and had failed to dispatch the train properly on two occasions.  It had not been, as it had been in the other cases, a matter of entering the driver’s cab once and without serious difficulties in relation to the dispatch of the train.  

61.	Mr Parr concluded that the decision to dismiss had been appropriate.  He stated:-

“It was clear to me from the appeal Conor did not consistently follow the rules and regulations and as a result the panel felt he could not be relied upon to deliver the high level of safety required to operate a passenger rail service.”

The claimant was offered a final appeal.  That appeal was heard by                         Mr Ciaran Doherty, the General Manager, Operations and Safety.  

62.	The second appeal took place on 8 December 2015.  The claimant was again accompanied by his trade union representative.  In the course of that appeal, the claimant again admitted the offence and appealed for leniency regarding the sanction.  Mr Doherty asked the respondent’s HR Department, after the appeal hearing, whether there had been precedent cases.  None were found which matched the claimant’s case.  It is also to be noted that the claimant had been represented by his union and that if any identical or reasonably analogous case had existed, it would have been brought to the attention of either Mr Parr or Mr Doherty or indeed to this tribunal.  It seems clear to this tribunal that they had no proper comparator as far as the conductors are concerned.  The three cases of conductors referred to by the claimant do not assist him in a consistency argument.  That said, there remains the issue of the driver who had been closely involved in the same incident, had been ultimately responsible for the safety of the train and who had been exceptionally leniently treated by the respondent.  

63.	Mr Doherty concluded that the claimant had wilfully neglected to follow the safety procedures.  He concluded that the claimant had admitted that he had been guilty.  The only issue was whether dismissal had been appropriate in the circumstances.  Two issues had led to the dismissal, ie entering the driver’s cab on two occasions while the train had been in motion and in failing to dispatch the train properly at Moira and Lurgan.  He concluded that dismissal had been the appropriate penalty.  He stated that he had had regard to the claimant’s length of service and the fact he had agreed to re-training.  However he did not believe that that had been sufficient mitigation.  

Decision

64.	The tribunal concludes that the reason for the dismissal had been misconduct.  There had been no other reason.

65.	The respondent argued that the driver and the conductor (the claimant) had been subject to two different disciplinary codes and had been disciplined by two different managers at two different times.  The respondent also argued that there had been differences between the culpability of the two individuals in relation to safety rules in relation to the presence of a conductor in the driver’s cab while a train had been in motion, and in relation to the safe dispatch of the train from Moira and Lurgan.  The respondent therefore argued that the driver was not a proper comparator for the purposes of a consistency argument.

66.	The tribunal does not accept the respondent’s arguments in this respect.  Clearly there cannot be tariff system in relation to penalties in misconduct cases within a single employer.  If that were the case, a single example of leniency or indeed severity could have long lasting and unjustified consequences.  However, the reasonableness of a decision must include an element of consistency.  Indeed, the respondent in relation to both disciplinary codes made a point of stating that the respondent would ensure that the rules and regulations would be applied consistently.  In the present case there had been two safety critical employees charged with the safety of that train journey.  The driver, Mr McCleary, had been ultimately responsible.  While the claimant, as conductor, had had specific roles to play in relation to the safe dispatch of the train from the stations at Moira and Lurgan, he had not been solely responsible for the safe dispatch of those trains.  The driver also had responsibility.  The driver also knew that it had been wrong for the claimant to enter his cab on two occasions and to stay in that cab on those two occasions for a period of some minutes.  He had been a trained driver.  He knew the rules.  He knew that there had been a danger of his attention being distracted.  He had not directed the claimant to leave the cab; in fact he had admitted the claimant on two occasions to his cab.  He did not report the incident, either at the time or immediately thereafter.  He did not stop the train until the claimant left the cab.  In short, he had been completely complicit in the claimant’s presence in the driver’s cab while the train had been in motion.  He had been also the higher paid of the two individuals and had been the person who had been ultimately responsible for the safety of the train and its passengers.  

67.	The cogency of any argument in relation to consistency diminishes the further away in terms of time, or in terms of similarity, one gets between the actual offence and the comparator offence.  However, in the present case, the claimant and Mr McCleary had been engaged in essentially a joint enterprise.  The driver had known not just that the claimant had wrongly been in his cab for two periods; he had known, or ought to have known, that the claimant had not properly followed at least some dispatch procedures.  It is also notable that the driver had not noticed the injured member of the public sitting or lying at the end of the platform as he drove away from Lurgan.  

68.	It is no answer for the respondent to say that the two individuals had been charged and dealt with under two disciplinary codes.  They had worked as a team for the same employer, on the same journey and in the same circumstances.  It does not matter in terms of the fairness of the dismissal that, for some archaic reason, drivers and conductors are treated under two different procedures.  Equally, it does not matter that the decision to charge the driver only with minor misconduct and the decision to issue only a written warning had been reached by a different manager.  The managers who had dealt with the claimant’s initial disciplinary hearing and the two appeal hearings, and the manager who had dealt with Mr McCleary’s disciplinary hearing had all been employed by the respondent.  It was for the respondent to ensure some form of consistency and some form of rationality in both disciplinary charges and in disciplinary decisions.  

69.	The tribunal therefore, and with some considerable reluctance, comes to the conclusion that this had been technically an unfair dismissal for the purposes of the 1996 Order.  It had not been a fair dismissal in all the circumstances of the case, having regard to justice and equity.  

70.	That said, the tribunal is not in place to award entirely unmeritorious claimants.  Justice and equity applies not just to liability it also applies to remedy and particularly to the assessment of contributory conduct.  

71.	In this case, it is quite clear that both the claimant and the driver had richly merited dismissal.  A reasonable employer applying the objective standard would have been entitled to have dismissed both.  It is also clear that all trust and confidence that the employer had in the claimant had effectively been destroyed by the claimant’s actions on 9 August 2015.  The claimant had clearly been guilty of blameworthy conduct.  That blameworthy conduct had led to his dismissal.  Nothing else had led to his dismissal.  On balance, we have concluded that the dismissal was technically unfair because of the glaring disparity between the treatment afforded to the claimant and to the driver, Mr McCleary.  However, the appropriate reduction in terms of contributory conduct in relation to both the basic and compensatory award has to be 100%.  It would not be in any sense just to award compensation or remedy of any sort in these circumstances.  

Vice President:

Date and place of hearing:	7 – 8 September 2016, Belfast

Date decision recorded in register and issued to parties: