Court of Appeal in Northern Ireland Decisions

"… a phone call made to Mr Best's home, referred to the respondent's change of mind with regard to covering Mr Best's annual leave, the walk out by the respondent from the course on the 13 September 2001, the complaint about Mr Best's performance of duties on the 20 September 2001 and the discovery on the 22 September 2001 that the respondent had accused him of dishonesty in July 2001 to Chief Inspector Childs."

"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 the classification of the respondent's actions as 'serious and persistent acts of harassment' and

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

"74. Did the Industrial Tribunal err in law in failing to accept that the dismissal of the respondent was within the range of reasonable responses open to the appellant in light of the facts found or admitted?

75. Did the Industrial Tribunal err in law in deciding that the extent of the procedural defects in the investigatory, disciplinary and appeal process held by the appellant were sufficient to make the dismissal unfair?

76. Did the Industrial Tribunal err in law when considering the 'equity and merits', as required by Article 130(4) of the Employment Rights (Northern Ireland) Order 1996, by including in their consideration of the 'circumstances of the case' the relevant policies of the appellant in particular the guidance to employees and management as to the likely classifications of certain acts of misconduct and the likely disciplinary penalty to be incurred included in the revised "Platform Agreement"?

77. If the dismissal was unfair did the Industrial Tribunal err in law in holding that, notwithstanding the misconduct of the respondent and his approach to the investigation and disciplinary process, the deduction from the compensatory award in respect of the respondent's contribution to his dismissal should be limited to 75%."

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 it 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-

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) relates to the conduct of the employee,

(4) In any other case 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.

Thus the issue in the case before the Tribunal was whether or not the dismissal for conduct was fair or unfair in accordance with paragraph (4).

"In order to bring the intentions of the General Harassment Policy and Procedures alive it is important that you read, understand and behave in accordance with the document. By doing so you will help create a better working environment for yourself, colleagues and customers."

"Harassment is defined as any verbal or physical abuse, derogatory statements, displays of emblems, or discriminating remarks made by one or more persons in the work environment or in the course of work which are any of the following –

unwanted and unreciprocated;

causes humiliation, offence, alarm or distress;

interferes with job performance or creates an unpleasant working environment;

trivialises people as individuals or as a group and emphasises their sexuality, marital status, religious beliefs, political opinion, ethnic origins, disability or age over their role as workers."

"Harassment may take many forms. It can range from extreme forms such as violence and bullying to less obvious actions like ignoring someone at work. The following, though not an exhaustive list, are examples of harassment.

Physical contact ranging from touching to serious assault;

Verbal harassment through jokes, offensive language, gossip and slander, sectarian songs etc;

Written harassment through circulation of any sectarian notes, letters etc;

Abusive phone calls which may be to someone's workplace or their home;

Visual displays of posters, graffiti, obscene gestures, flags, bunting and emblems;

Isolation or non co-operation at work; exclusion from social activities."

"Intimidation or harassment in any form is unacceptable behaviour. Sectarian, racial and sexual harassment constitute unlawful discrimination under Fair Employment, Racial Equality and Sex Discrimination Legislation respectively. Causing alarm or distress may constitute harassment under the Protection from Harassment (NI) Order 1997. Translink will treat such action as gross misconduct which may warrant dismissal.

Employees whose general behaviour can lead to or cause distress in others will be treated equally seriously."

making a phone call to Mr Best's home during which he spoke to Mrs Best and described Mr Best 'as the lowest of the low';

reneging on an earlier arrangement to provide holiday relief for Mr Best;

refusing to remain at an Inspector's course when he discovered Mr Best was present;

lodging a complaint to his line manager with regard to Mr Best's performance of his duties, and

alleging to a fellow Inspector that monies collected by Mr Best for a retirement gift for another employee were not used to purchase the gift and that Mr Best had used a crystal bowl that he already possessed.

"70. The Tribunal essentially concluded in light of the evidence both oral and documentary that the reason that the respondent was dismissed was a desire by some of the appellant's employees to be seen to have an effective harassment policy. The layers of deficiencies in the appellant's dealing with the respondent led the Tribunal to conclude that the overall process was so unfair that the Tribunal was not satisfied on the balance of probabilities that there was a genuine belief on reasonable grounds after a reasonable investigation on the part of the appellant that the respondent had been guilty of "serious and persistent harassment" which warranted his dismissal.

71. This was not a case where the Tribunal considered that dismissal would have occurred had fair and proper procedures been followed."

"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 (part of the investigation team) 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".

The case against Mr Dobbin is that he harassed Mr Best by, amongst other things, acting in a spiteful and intimidating manner and eventually making derogatory and slanderous comments in the course of his work. These were both unwanted and unreciprocated. The malicious statements caused offence, distress and intrusion to Mr Best and his wife to such an extent that Mr Best was unable to continue at work for a period of time as a result of stress. It would appear that the root cause for this behaviour towards Mr Best originated as a result of a dispute over overtime between Mr Dobbin and his immediate Line Manager, Mr. Childs, after which Mr Dobbin set about the systematic harassment of Mr Best because he would not co-operate with Mr Dobbin's desire to "get back" at Mr Childs. The investigation team concluded that there was sufficient substance in the complaint against Mr Dobbin on the grounds of serious and persistent harassment which took the form of intimidation and slander and they subsequently decided to enact disciplinary proceedings. It is my understanding that Mr Dobbin has never disputed his involvement in these acts and has shown no regret."

"My enquiries have found the investigation into the complaint of harassment to be thorough, fair and reasonable and I have found that the Company stated procedures have been followed in a diligent manner.

"During the appeal hearing I asked Mr Dobbin how he thought the matter could have been dealt with. Mr Dobbin's only comments were to admit his role and attempted to further justify his behaviour by stating that he was "annoyed and felt his suspicion over the alleged misappropriation of cash collected in respect of the purchase of crystal were justified." I am not impressed by Mr Dobbin's argument that Mr Childs was 'solely to blame for not resolving the matter and allowing it to fester'. I noted that whilst Mr Dobbin says he was amenable to help resolve the matter, the facts of the investigation show that he instigated and sustained the harassment of Mr Best. He could not claim to be fully co-operating with the investigation team's efforts when it was clear that he was continuing to further aggravate the situation by making unsubstantiated allegations against Mr Best."

Regrettably, I am in agreement with the investigation team that Mr Dobbin's actions and, more importantly, his failure to accept the error of his ways, gives no confidence that he could be trusted to continue in a supervisory role.

"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."

"Mr Carson [the Regional Organiser of the respondent's Trade Union] opened by drawing attention to Mr Dobbin's long service within the Company, 27 years in total including a significant period as an Inspector. Mr Dobbin had come through the ranks and through the hard times of the troubles. Mr Carson set the context of Mr. Dobbin's behaviour within a pressured working environment in May Street. It had been Mr Best's initiative to recognize someone else's contribution to public transport by way of a presentation. A joke had been made that the bowl presented was one of Mr Best's old golfing trophies. It was now acknowledged that Mr Dobbin's raising the issue of receipt was an over-reaction on his part."

…………

"Mr Hesketh referred to Mr O'Neill's letter dated 12 March. Mr Dobbin confirmed that he had examined a copy of this letter and took no issue with the contents. Mr Dobbin went on to say that his behaviour had been totally out of character."

………….

"Mr Hesketh referred to the difficulty faced by an employer in these circumstances. Mr Dobbin accepted that all the relevant matters had been thoroughly investigated and the steps taken by the Company were appropriate."

………..

"Mr Carson made a final plea for Mr Dobbin to be given another chance."

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"Mr Hesketh indicated that he wanted to take some time to further review and consider all aspects of this case. He had known Mr Dobbin personally for some years, and very much regretted meeting him in these circumstances. However 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 was to deal properly with cases of harassment."

"The only matters advanced to me as grounds of appeal were that his behaviour was out of character and that his length of service should be taken into account. I shall now deal with each of these points:

(i) In view of the prolonged sequence of events, I cannot accept the submission that Mr Dobbin acted out of character. This was very different from an isolated incident which could perhaps occur in such a way, and could be viewed differently. Initially it would appear that Mr Dobbin was annoyed with Mr Childs in relation to the allocation of overtime. Mr O'Neill has clearly demonstrated there were no grounds for this view. In any event, Mr Dobbin's response was to attempt to direct others not to co-operate with Mr Childs when he should, if he felt aggrieved, have pursued the matter through proper channels. Mr Best quite rightly refused to participate in this activity and, as a result, Mr Dobbin subjected him to persistent harassment. Mr Best then made an informal complaint against Mr Dobbin, as he was entitled to do, and made this formal when he learned from a colleague that Mr Dobbin had been damaging his reputation by making a serious allegation that he had misappropriated cash collected for a retirement present for another employee. Subsequently Mr Dobbin impugned the objectivity of the Managers appoint to carry out the investigation without giving any explanation of why the Investigation Team might be biased against him.

(ii) I have also given consideration to Mr Dobbin's relatively long service I and his record in the Company. I have found nothing in his record
which is of benefit to him in determining the penalty. I have therefore concluded that, due to the gravity and persistence of Mr Dobbin's harassment, his introduction of the malicious allegation that Mr Best had misappropriated cash and his attitude towards this whole matter, which he only modified when he appeared before me, dismissal is an appropriate penalty in all the circumstances.

I have very carefully considered the representations made on Mr Dobbin's behalf and the substantial volume of relevant information in this case. It is my conclusion that Mr Dobbin was correctly found guilty as charged and that dismissal is the appropriate penalty."

(a) misdirected itself in law, misunderstood the law or misapplied the law;

(b) reached a particular conclusion or finding of fact for which there was no evidential basis; or

(c) reached a perverse decision which no reasonable tribunal directing itself properly on the law could have reached.

"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 section 57(3) of the [Employment Protection (Consolidation) Act 1978] is as follows:

(1) the starting point should always be the words of section 57(3) 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, another quite reasonably take another;

(5) the function of the 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."

"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, 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. 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."

"In my judgment, the employment tribunals should continue to apply the law enacted in section 98(1), (2) and (4) of the Employment Rights Act 1996 giving to those subsections the same interpretation as was placed for many years by this court and the Employment Appeal Tribunal on the equivalent provisions in section 57(1), (2) and (3) of the Employment Protection (Consolidation) Act 1978. This means that for all practical purposes:

"Their proper function is to determine whether the decision to dismiss the employee fell within the band of reasonable responses "which a reasonable employer might have adopted.

In one sense it is true that, if the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer. But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to "reasonably or unreasonably" and not by reference to their own subjective views of what they would in fact have done as an employer in the same circumstances. In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not."

"Instead, it should have asked whether, by the standards of the reasonable employer, the Bank had established reasonable grounds for its belief that Mr Madden was guilty of misconduct and whether the bank's investigation into the matter was reasonable in the circumstances."

"The extent of the tribunal's substitution of itself as employer in place of the bank, rather than taking a view of the matter from the standpoint of the reasonable employer, is evident from the tenor of the views expressed by the tribunal on the quality and weight of the available evidence against Mr. Madden. I refer to the tribunal's cumulative critical comments on the bank's internal investigation by Mr. Murphy, on the disciplinary hearing by Mr. Fielder and on the probative value of the material on which Mr. Fielder based the summary dismissal: that "there was no clear culprit for the misappropriation of the cards;" that there was "no firm evidence of the precise dates on which the cards were taken;" that there was "no direct evidence that Mr. Madden had accessed the Nixdorf system;" that there was no investigation of the "personal or financial affairs" of other members of the staff; that no account was taken of the nature of the goods bought with the stolen cards; that Mr. Fielder failed to take account of the fact that a man in Mr. Madden's financial and career position would not have jeopardised all for such a "relatively paltry theft;" that "the facts of the case should have produced more than reasonable doubt in Mr. Fielder's mind;" that the investigators had closed their minds to any possibility other than the guilt of Mr. Madden; that Mr. Fielder "came to a hasty conclusion that Mr. Madden was probably guilty" and was content to accept the report of the investigators too readily and uncritically; and that Mr. Fielder's decision to dismiss Mr. Madden, who had a stainless record of 11 years' service, would effectively ruin his career and was not taken on reasonable grounds.

1. Did the Industrial Tribunal err in law in failing to accept that the dismissal of the respondent was within the range of reasonable responses open to the appellant in light of the facts found or admitted?

2. Did the Industrial Tribunal err in law in deciding that the extent of the procedural defects in the investigatory, disciplinary and appeal process held by the appellant were sufficient to make the dismissal unfair?

3. Did the Industrial Tribunal err in law when considering the "equity and merits", as required by Article 130(4) of the Employment Rights (Northern Ireland) Order 1996, by including in their consideration of the "circumstances of the case" the relevant policies of the appellant in particular the guidance to employees and management as to the likely classifications of certain acts of misconduct and the likely disciplinary penalty to be incurred included in the revised "Platform Agreement"?

4. If the dismissal was unfair did the Industrial Tribunal err in law in holding that notwithstanding the misconduct of the respondent and his approach to the investigation and disciplinary process, the deduction from the compensatory award in respect of the respondent's contribution to his dismissal should be limited to 75%.

Question 1 – Yes;

Question 2 – Yes;

Question 3 – Yes; and

Question 4 – does not arise.

Thus, the appeal is allowed.