FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 104/16 FET
CLAIMANT: Patrick McNamee
RESPONDENT: Edmundson Electrical Ltd
The unanimous decision of the Tribunal is that all claims are dismissed.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mrs A Hamilton
Mr B Hanna
The claimant was represented by Mr M O'Brien, Barrister-at-Law, instructed by Toal & Heron, Solicitors.
The respondent was represented by Mr I McGlashan, of Collinson Grant.
1. The respondent is a company which supplies electrical goods to trade and industry customers. It operates through 370 individual profit centres in Great Britain, Northern Ireland and Ireland. Each individual profit centre generally operates and trades as a stand-alone business but each profit centre is owned by the respondent. Overall, some 4,000 staff are employed by the respondent.
2. The claimant started work with the respondent as the manager of the Letterkenny profit centre on 6 November 2012 and then became manager of the Belfast profit centre on 2 January 2013. That profit centre traded as ' The Electrical Equipment Company'.
3. Following an investigation and subsequent disciplinary action, the claimant was summarily dismissed for gross misconduct on 18 October 2016. His internal appeal against dismissal was unsuccessful.
4. The claimant lodged a claim in the Industrial Tribunal and the Fair Employment Tribunal on 30 November 2016. The issues raised by the claimant are:-
"(a) The claimant alleges that he had been subject to unlawful discrimination and unlawful harassment on the ground of his religious belief, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998.
(b) The claimant alleges that he had been unlawfully subjected to victimisation contrary to the 1998 Order in relation to his dismissal and in relation to the conduct of his internal appeal, because he had complained of unlawful discrimination and unlawful harassment.
(c) The claimant alleges that he had made a qualifying public interest disclosure in relation to a tender submitted in an open competition run by the Northern Ireland Housing Executive and that he had suffered an unlawful detriment in relation to his dismissal and in relation to the conduct of his internal appeal, contrary to the Employment Rights (Northern Ireland) Order 1996.
(d) The claimant alleged that he had been unfairly dismissed from his employment contrary to the 1996 Order.
(e) The claimant alleges that the respondent had unlawfully refused to postpone and re-list a disciplinary hearing when requested by the claimant, contrary to Article 12 of the Employment Relations (Northern Ireland) Order 1999.
(f) The claimant alleges that the respondent had unlawfully failed to deal with his internal grievance, either before, or in conjunction with, his disciplinary proceedings. "
5. 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  NICA 47.
6. 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. "
7. The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd  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  ICR 303 and Iceland Frozen Foods Ltd v Jones  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  ICR 1283 (two appeals heard together) and J Sainsbury v Hitt  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. "
8. In Bowater v North West London Hospitals NHS Trust  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. "
9. In Fuller v London Borough at Brent  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. "
10. In Salford Royal NHS Foundation Trust v Roldan  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  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. "
11. It is important therefore for the Tribunal to remember that it has a limited jurisdiction in relation to claims of alleged unfair dismissal under the 1996 Order. 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; whether the decision to dismiss had been within the band of reasonable options open to a reasonable employer.
Postponement of Disciplinary Hearing
12. Article 12 of the Employment Relations (Northern Ireland) 1999 provides for the right to be accompanied at a disciplinary hearing by a fellow employee or by a trade union official. Paragraph 4 states:-
(a) a worker has a right under this Article to be accompanied at a hearing,
(b) his chosen companion will not be available at the time proposed for the hearing by the employer, and
(c) the worker proposes an alternative time which satisfies paragraph (5),
the employer must postpone the hearing to the time proposed by the worker. "
13. Article 12(5) states:-
"(5) an alternative time must -
(a) be reasonable, and
(b) fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer. "
14. Article 13 of the 1999 Order provides that an employee may lodge a complaint in an Industrial Tribunal if the employer has failed to comply with the right to be accompanied in Article 12.
15. Article 19 of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides:-
"(1) it is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland -
(iii) by dismissing him or subjecting him to any other detriment. "
16. Article 3(1) of the 1998 Order states:-
"(1) in this Order 'discrimination' means -
(a) discrimination on the ground of religious belief or political opinion; or
(b) discrimination by way of victimisation and 'discriminate' shall be construed accordingly. "
17. Article 3(4) of the 1988 Order provides:-
"(4) a person ('A') discriminates by way of victimisation against another person ('B') in any circumstances relevant for the purposes of this Order if -
(a) he treats B less favourably than he treats or would treat other persons in those circumstances; and
(b) he does so for the reasons mentioned in Paragraph (5).
(5) the reasons are that:-
(a) B has -
(iii) alleged that they or any other person has (whether or not the allegation so states) contravened this Order. "
18. Article 3A of the 1998 Order states:-
"(1) a person ('A') subjects another person ('B') to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3 (2B) above, where on the ground of religious belief or political opinion, A engage in unwanted conduct which has the purpose or effect of -
(a) violating B's dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. "
19. The 1996 Order contains provisions relating to protection for those who make certain disclosures known as ' protected disclosures'. Those are ' qualifying disclosures' which comply with certain requirements.
20. Article 67B of the 1996 Order defines ' qualifying disclosures' and states in relevant part:-
"In this Part, a 'qualifying disclosure' means any disclosure of information which in the reasonable belief of the worker making the disclosure, tends to show one or more of the following -
(a) that a criminal offence has been committed, is being committed, or is likely to be committed;
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject. "
21. Any ' qualifying disclosure' is subject to a requirement that it should be made in good faith and that it should be based on a reasonable belief that the disclosure is substantially true.
22. The claims were case managed on 14 March 2017. Directions were given in relation to the interlocutory procedure and the witness statement procedure. Witness statements were exchanged in advance. Each witness was to swear or affirm, adopt their witness statement as their entire evidence-in-chief and then move immediately into cross-examination and then to brief re-examination.
23. The claims were listed for hearing over 10 working days from 4 September 2017 to 15 September 2017. In the event, the evidence concluded on 7 September 2017 and submissions were heard on 8 September 2017. The Tribunal panel met on 11 September 2017 to reach their decision after reviewing the evidence and the submissions. This document is the decision.
24. The claimant gave evidence on his own behalf. He called Miss Nicky Davison, a former colleague, on a Witness Attendance Order to give evidence also on his behalf. She gave her evidence-in-chief orally and not by way of a witness statement. Mr Darrell Thompson, a former sales manager of the respondent, Mr Steve Parr, the claimant's new employer, and Mr Paul Burton, a former colleague, provided evidence on behalf of the claimant under the witness statement procedure. Mr Burton's statement was agreed and he was not cross-examined.
25. The respondent called as witnesses under the witness statement procedure:-
(i) Mr Russell Holden, the internal audit manager who had conducted the disciplinary investigation.
(ii) Mr Philip O'Shea, the Northern Ireland regional director who had been the claimant's line manager.
(iii) Mr Angus Falconer, the South East regional director who had conducted the disciplinary hearing and who had dismissed the claimant.
(iv) Mr Alan Simm, the East Midlands regional director who had heard the claimant's internal appeal and who had dismissed that appeal
(v) Mr Michael Draine the Northern Ireland regional credit manager who had heard the claimant's grievance, in which the claimant alleged that he had suffered sectarian harassment from Mr Graham Irvine, and who dismissed that grievance.
(vi) Mr Graham Irvine who works for the respondent in telesales in the Belfast profit centre.
26. Mr Draine was heard first (out of sequence) to facilitate holiday arrangements. He was retired from the employment of the respondent at the time of the Tribunal hearing.
Relevant findings of fact
27. The claimant was initially recruited by the respondent to manage the Letterkenny Profit Centre. After a brief period, the claimant was appointed to manage the profit centre in Belfast which traded as the Electrical Equipment Company ('the Belfast profit centre').
28. The claimant reported to Mr Philip O'Shea who was the regional director for Northern Ireland. Mr O'Shea reported, in turn, to the Managing Director, Mr Gordon Love. Mr Love had initially recruited the claimant.
29. Mr Michael Draine was the Regional Credit Manager for Northern Ireland. There were other profit centres in Northern Ireland, including one in Portadown which traded as Mercer's. There were several other profit centres in Ireland and in Great Britain. Each traded separately and each enjoyed a high degree of commercial autonomy. However, each profit centre reported ultimately to the Managing Director of the respondent and there were standard rules known as Standard Practice Instructions which applied to all profit centres.
30. There had been previous problems in the Belfast profit centre. The respondent had suspicions of previous malpractice including suspicions of ' write-down avoidance'. The ordinary practice was for the value of stock held by a profit centre to be written down by 50% of its value if it remained unsold after one year and to be written down by 100% of its value if it remained unsold after two years. The writing down of the value of any stock held by a profit centre impacted on the earnings of the relevant profit centre and therefore on the earnings of the manager of the profit centre.
The practice of write-down avoidance involved, insofar as relevant to the present case, returning (either actually or on paper) the relevant stock to the original supplier, issuing a debit note to that supplier, and then re-ordering the same stock or very similar stock. The re-ordered stock would be shown as newly purchased stock and would not be subject to a write-down.
31. The claimant alleged that he had been given authority on his appointment to the Belfast profit centre to do whatever was required to return the profit centre to an operating profit. This point was put repeatedly to each of the respondent's witnesses in cross-examination. The claimant also relied upon this allegation in his final submissions. Although this allegation was not put in those precise terms, it appeared to the Tribunal to be almost as if the claimant was arguing that he could do whatever he wanted in managing the profit centre, provided that profit centre returned to profit. The respondent argued that while each profit centre manager had considerable autonomy, that autonomy had been subject to the limits of standard procedures and to the limits of normal business standards.
32. After hearing the witnesses, the Tribunal is unanimously satisfied that the claimant had never been given carte blanche to do whatever he deemed was required in the operation of the profit centre provided only that profit centre generated a profit, and that the claimant was never given permission to ignore Standard Practice Instructions or to act in contravention of normal business standards. In circumstances where the claimant had been employed as a manager in a profit centre which had previously experienced suspected irregularities, including write-down avoidance, it is highly improbable that the claimant would have been given any such instruction by the respondent. He had been brought in to clean up previous malpractice; not to continue that malpractice.
33. The core of the claimant's case was that he had made two principal complaints to Mr O'Shea, his line manager, and that those complaints had been ignored. That allegation was denied by Mr O'Shea.
34. The first alleged complaint concerned a company known as Red Electrical. This company had previously entered into a Creditors Voluntary Arrangement with various companies including the respondent company. The respondent had lost a significant amount of money in respect of goods which had been supplied to that company.
35. The claimant alleged that another profit centre in Portadown (Mercer's) had extended a line of credit to Red Electrical and that, in so doing, it was exposing the respondent to significant risk. The claimant alleged that he had been refused permission to offer similar terms to Red Electrical. The claimant alleged, when he complained in February 2015, that he had received no response from Mr O'Shea. He also complained that when he raised the matter with Mr Draine, Mr Draine stated:-
"This is Northern Ireland and we do what we want. "
These allegations were denied by Mr O'Shea and by Mr Draine.
36. This complaint was alleged initially to be a protected interest disclosure for the purposes of this litigation. However this allegation was withdrawn at the start of the Tribunal hearing.
37. The claimant's allegation in respect of this matter makes no sense. If the Portadown profit centre had been exposing the respondent to significant risk as alleged by the claimant, the respondent would have taken action and would not have ignored the matter. Furthermore, although the claimant stated in evidence that he had raised this matter as a ' formal' complaint, it does not appear that the claimant had done this. He first raised the matter orally with Mr O'Shea and followed it up orally on various occasions up to 4 June 2015. There appears to have been no written complaint and nothing which could be described as a formal complaint. Again his contact with Mr Draine was oral and not in writing. The claimant seems very quickly to have lost interest in this matter and he would not have done so, if his allegation had been accurate or if he had not received a response.
38. It is clear from the contemporaneous documentation, that Mr Draine had investigated the matter and had checked the relevant invoices. He notified Mr O'Shea in an e-mail dated 7 October 2016 that no goods had left the premises of the Portadown profit centre until they have been paid for upfront by Red Electrical. The claimant sought to rely on a document dated 12 October 2016 which had been sent by Mr O'Shea to Mr Holden which set out the relevant invoices for the goods supplied to Red Electrical. Mr Holden had written in the number of days which had expired between the ' goods supplied date' and the receipt of payment. It is clear from the evidence of Mr O'Shea, Mr Draine and Mr Holden that the ' goods supplied date' was the date of the invoice and not the date on which the goods had been physically supplied to Red Electrical. Furthermore, the number of days which expired between the dates of the invoice and the date of payment varied widely and was not consistent with a standard line of credit for 30 days or 60 days.
39. It is, in any event, difficult to see what any of this has to do with the claimant's allegations of unlawful discrimination/detriment or unfair dismissal. He had made a complaint; a relatively informal complaint. That complaint appears to have been thoroughly investigated. It was not upheld and it was not pursued further by the claimant. It was not a live issue at the time of the claimant's disciplinary proceedings and the Tribunal unanimously concludes that it did not in any way influence the conduct or the outcome of those proceedings. It had no impact on the respondent's decision to dismiss the claimant or on the conduct of the internal appeal.
40. The claimant did not advance any corroborative evidence for his suspicions that a line of credit had been offered to Red Electrical and that that line of credit had been approved by Mr O'Shea. As indicated above, the Tribunal concludes that it is highly improbable that the complaint made by the claimant would not have been thoroughly investigated in circumstances where he had alleged that there had been a serious risk of financial harm to the respondent. It is equally highly improbable that the credit manager for Northern Ireland would have dismissed his concerns in the cavalier manner alleged with the claimant.
41. This complaint had been closed for some considerable time and was only resurrected by the claimant when a disciplinary investigation had commenced against him. The Tribunal considers it surprising that the claimant had sought to introduce an extraneous and irrelevant matter, instead of concentrating on the disciplinary matters which had been put to him.
42. In short, the Tribunal concludes that this matter is not relevant to the present claims. In any event, the complaint had been thoroughly investigated by the respondent and had been not upheld. The Tribunal is also satisfied that the claimant's line manager, Mr O'Shea, had reported back to the claimant to disclose his findings. If he had not, the claimant would not have let the matter rest for a lengthy period until suddenly raising the matter again in the context of his disciplinary proceedings.
Northern Ireland Housing Executive
43. The second principal complaint relied on by the claimant relates to a public tender exercise operated by the Housing Executive. That tender related to the supply of electrical equipment. The contract had previously been held by the Belfast profit centre. The claimant had submitted a tender in the exercise. The tender was not successful. On learning that result, the claimant alleged to Mr O'Shea that his tender had been deliberately sabotaged.
44. The claimant alleged that this had been a public interest disclosure for the purposes of the present litigation.
45. The claimant had sought access to the tender exercise from a computer company which advised the respondent company. He had been granted administrator rights to the tender exercise for all the Northern Ireland profit centres. That effectively put the claimant in significant control of the tender exercise in Northern Ireland, insofar as the respondent company was concerned. Mr O'Shea had been unaware of that fact.
46. The claimant accepted in cross-examination that this had been a public tender exercise and that other profit centres in Northern Ireland, Ireland or in Great Britain could have submitted bids.
47. A junior employee in the Portadown profit centre had similarly expressed an interest in the tender exercise and had been granted user rights by the same computer company. The claimant had been unaware of this fact and had therefore been unaware of the potential for conflict between competing bids from different profit centres.
48. The claimant submitted his tender online on 27 September 2015 at 9.56 am. The junior employee in Portadown submitted a tender on the same date at 10.19 am. Since the closing date for the submission of tenders had been 30 November 2015, the fact that both tenders had been submitted on the same day seems to be a remarkable coincidence. However it seems to be no more than that. It was never suggested in evidence that the junior employee in Portadown could have been aware that the claimant had just submitted a tender online.
49. The claimant's tender was removed by the submission of the second tender from the employee in Portadown.
50. The claimant complained of this matter to Mr O'Shea when he learned that his previous contract had not been renewed. He alleged specifically that his tender had been deliberately sabotaged by the employee in Portadown. He provided the necessary information to Mr O'Shea and alleged that his profit centre had suffered a significant loss of business. Mr O'Shea told the claimant that he would investigate the matter. The claimant alleged that Mr O'Shea did not come back to him with the results of any investigation. The claimant alleged that he asked Mr O'Shea on several occasions over the ' next few weeks' for information about the progress of the investigation and that he then dropped the matter. He did not contact Mr O'Shea further and he ' concentrated on my work'.
51. Mr O'Shea stated that he had taken the complaint seriously. He stated that he had spoken to the manager in Portadown and that the manager had investigated thoroughly. He had spoken to the employee in question. That employee had, on access to the online tender, been given a blank template upon which to enter her bid. She had done so and she had not realised that, in so doing, the tender submitted by the claimant would have been deleted or overwritten. Mr O'Shea stated that he had been satisfied with the explanation and that he had reverted to the claimant with that explanation in July 2016. While the claimant had not been happy, he had not further contacted Mr O'Shea about the matter.
52. The claimant appears to have taken a very dogmatic approach to this matter. In cross-examination and in his evidence-in-chief he continued to insist that this had been a matter of deliberate sabotage by the employee in Portadown. He refused to contemplate the possibility that this had been a genuine accident and that the real fault lay in the way in which computer access to the tender operation had been afforded to the claimant and to other profit centres. The Tribunal considers it highly unlikely that any employee would have deliberately deleted a tender submitted by a manager of another profit centre in a public tender operation. Such an action would have been a significant criminal offence which could have resulted in prosecution and imprisonment. It is simply inconceivable that a junior employee in another profit centre would have taken any such action, or that her management would have covered up any such action.
53. Mr O'Shea explained that he had taken the matter further with the computer company and that measures had been taken to prevent any such accident in the future.
54. The Tribunal unanimously concludes that the action taken by the employee in the Portadown profit centre had been no more than an accident. The Tribunal also concludes unanimously that it had been properly investigated by Mr O'Shea on receipt of the complaint from the claimant. Mr O'Shea had also reverted properly to the claimant in July 2016 with the result. If he had not done so, the claimant would not have let the matter rest. The claimant's statement that he had let the matter drop and that he had decided to concentrate on his work was entirely unconvincing. The loss of this tender would have resulted in a significant impact on the profitability of the profit centre and on the claimant's earnings. If he had not received a response to his complaint, he would have taken the matter further and he would have contacted Mr Love or the UK credit manager. He would have formally complained to the Northern Ireland Housing Executive and to the police. He did none of this. In cross-examination, it was clear that his only contact with the Housing Executive had been with the Portadown Office and had solely been in relation to his previous contract. Such a serious matter if it had not been resolved, would have been pursued by the claimant in a formal written manner with the Housing Executive.
55. As with the allegation in relation to Red Electrical, this matter was dropped by the claimant at an early stage; in this case in July 2016 and, on the balance of probabilities, the Tribunal concludes that the claimant had been at that point satisfied with the explanation given by Mr O'Shea. It was only raised again after several weeks by the claimant in the context of misconduct allegations to which it had been utterly irrelevant.
56. The Tribunal is unanimously satisfied that this complaint had been made by the claimant, had been properly investigated and the results of the investigation notified to the claimant. It had been irrelevant to the outcome and the conduct of the disciplinary proceedings. It had no impact on the respondent's decision to dismiss the claimant or on the conduct of the internal appeal.
57. The claimant had commenced working in the Belfast profit centre on 2 January 2013 and continued to 18 October 2016. Throughout that period he had worked with Mr Graham Irvine who was engaged in telesales in that profit centre. Mr Irvine was junior to the claimant and was subject to his management. Mr Irvine has been employed for a total of 32 years by the respondent. There is no record of any friction or disciplinary issues between Mr Irvine and the claimant in the three years and nine months between 2 January 2013 and 2 September 2016 when the incident was alleged by the claimant to have taken place.
58. The evidence of the claimant to the Tribunal was that following a discussion in relation to work-related matters, in which Mr Irvine had been reluctant to follow the claimant's instructions, Mr Irvine had stated to the claimant that he was:-
"Fed up taking orders from the likes of you."
The claimant stated that he had been ' stunned' and had asked Mr Irvine what he meant by ' the likes of you'. The claimant stated that he had asked Mr Irvine whether he was referring to his religion. The claimant alleges that that Mr Irvine then said:-
"We all are what we are, and that I haven't had to take orders from any Catholic in my life, and I am doing a good job."
59. The claimant did not suspend Mr Irvine immediately or at all. He did not institute any disciplinary action against Mr Irvine immediately or at all. He did not immediately report this matter to Mr O'Shea or to Mr Love. The claimant's evidence to the Tribunal was that he was frightened on his own behalf and on behalf of his family. He stated that he had prepared a contemporaneous statement and had given it to his brother who is a solicitor working abroad.
60. The unanimous decision of the Tribunal is that it does not accept the claimant's explanation for his delay in taking any action in relation to the alleged harassment by Mr Irvine. Any manager in those circumstances would have suspended Mr Irvine immediately, if any such harassment had taken place. Equally, any manager in those circumstances would have instituted disciplinary proceedings against Mr Irvine immediately if, again, any such harassment had in fact taken place. At the very least, any manager would have reported the matter to his superiors for immediate action. There was no evidence of any physical threat, real or imagined, against either the claimant or his family who resided in Tyrone far from the workplace. Furthermore the contemporaneous statement which the claimant alleged repeatedly in evidence that he had prepared and had given to his brother was not produced in evidence. When asked why this document had never been produced, the claimant stated that he was embarrassed and that he did not want to get his brother involved. That makes no sense at all. His brother would already have been involved to an extent when he received the statement and when he allegedly had advised the claimant on how to react. Even if the claimant had told his brother that he wanted the statement for the purposes of Tribunal litigation, it is difficult to see how the claimant could legitimately have regarded that as a source of embarrassment. In any event, all the claimant had to do was to ask his brother for the return of the statement without any explanation, if he had indeed been embarrassed by the current litigation. Furthermore, when asked on re-examination whether the statement had been prepared on the work e-mail system or on his home computer, the claimant stated that it had been prepared on his home computer. Since that was the case, and in the absence of any evidence to the contrary, the Tribunal can safely assume that, if such a contemporaneous statement had existed, the claimant could have retrieved it from his home computer.
61. It is clear that the claimant and Mr Irvine had socialised to a significant extent during the three years and nine months before the alleged incident. They had attended the same football matches on occasions in Liverpool. As indicated above, there had been no reports of earlier friction or difficulty. Mr Irvine had worked without complaint under the claimant's management for that period of time without deciding that he could not take orders from Catholics. Furthermore, his regional director Mr O'Shea and his regional credit manager, Mr Draine were both Catholics and Mr Irvine had apparently no difficulty in working with either.
62. The investigation meeting conducted by Mr Holden took place on 6 October 2016, some five weeks after the alleged incident. Even though the subject-matter of the investigation had been clearly notified to the claimant, as involving serious allegations of breaches of company procedures, the claimant opened the investigation meeting with a discussion of the Housing Executive issue and an allegation that he had received a ' sectarian threat'.
63. Mr Holden invited him to provide further details of that ' sectarian threat'. He asked the claimant if he would speak to him in confidence. The claimant replied ' maybe' but did not say what the threat was or who had made it. He stated that there was a conspiracy to remove him from the business and that he been threatened by a member of his team. He stated for some reason that he was not prepared to name this individual. He did not give any details of the alleged sectarian threat. He did not state that he was frightened to disclose further details. He stated that he did not mention it to Mr O'Shea because he had ' no confidence' in him, not because of any perceived threat.
64. The unanimous decision of the Tribunal is that this alleged incident of sectarian harassment did not occur. If it had occurred, as alleged by the claimant, or at all, it would have resulted in immediate disciplinary action against Mr Irvine. Any contemporaneous statement would have been disclosed. Full details of both the identity of the alleged harasser and of the alleged harassment would have been given to Mr Holden at the very latest on 6 October 2016, some five weeks after the alleged event, when the claimant knew that he was facing serious allegations.
65. The only conclusion that the Tribunal can legitimately draw is that the claimant invented this story to deflect attention from his alleged misconduct, to encourage the respondent to drop the disciplinary investigation and to secure a compromise agreement. It is significant that the claimant wrote to Mr Falconer on 14 October 2016 at 9.48 am, in response to his invitation to a disciplinary meeting in the following terms:-
"Irrespective of the outcome of the disciplinary hearing, it is my intention to take my complaint to the Industrial and/or Fair Employment Tribunals citing unfair dismissal if I were to be dismissed, constructive dismissal and/or religious discrimination. I will prove that I have been the victim of religious harassment and that Edmundson Electrical do not display a fair and equitable consistent approach when dealing with allegations of misconduct.
In order to prevent the above course of events, I am open to considering a termination payment by way of a compromise agreement in respect of my loss of office. The termination payment will be expected to reflect the clear improvements I have made to the business and that I cannot return to manage a business where I was harassed on religious grounds."
66. It is clear that the claimant had regarded an allegation of religious harassment as a lever to secure a compromise agreement from the respondent company. Again, no details were given in this e-mail of the alleged harassment. It is also clear that the claimant had decided not to continue his employment.
67. Details of the alleged harassment were not provided by the claimant until some five hours later on the same day, on 14 October 2016, when he wrote a letter of complaint by e-mail to Mr O'Shea, which was treated as a grievance.
68. Mrs McNamee, the claimant's wife, was appointed to provide maternity cover in the Belfast profit centre in August 2014, some 18 months after the claimant's appointment as manager. It is clear that this appointment was made with the specific authorisation of Mr O'Shea, the regional director and the claimant's line manager. The appointment was for four days per week and a total of 32 hours per week.
69. The Standard Practice Instructions issued by the respondent included a clear procedure for changing the terms on which staff were engaged. That required an agreement in principle from the regional director and the submission of a particular form (form 1016). The procedure provided in Paragraph 1.7 for the notification of any change in the number of days to be worked by the employee.
70. On 15 September 2016, the respondent received an anonymous letter in the post at their Head Office in England. That anonymous letter raised three allegations. Firstly, it alleged that the claimant had been exaggerating his wife's hours of work and stated that she had been doing no more than three days per week since July 2015. Secondly, it alleged that a rental car had been hired for Mrs McNamee's use and that the payment for that rental car had not been processed in the proper manner. Thirdly, it alleged that the profit centre had purchased items from a company which had been owned by the claimant and his wife and which the profit centre had been unable to sell.
71. Mr Holden was appointed to conduct an investigation into these allegations. On 26 September 2016 the claimant and Mrs McNamee were both suspended with immediate effect pending that investigation. The letter to each individual stated:-
"I should like to stress that this suspension is a neutral action and is to enable the allegations to be fully investigated, which will be done as quickly as possible. The decision to suspend you in no way indicates what the outcome of the investigation will be. "
Both the claimant and Mrs McNamee remained on full pay during the period of suspension ' provided that you comply with all instructions which are issued'.
72. Mr Holden interviewed seven members of staff who had been employed in the Belfast profit centre. In respect of the first allegation which concerned Mrs McNamee's working hours, each of those employees were asked:-
"To the best of your knowledge, what were the working hours Sheila McNamee spent in the business?"
Two employees stated that the hours worked were 8.00 am to 5.00 pm. One employee give no answer. One employee simply stated that Mrs McNamee started between 7.45 am and 8.15 am. He did not specify when, to his knowledge, Mrs McNamee finished work. One employee stated that Mrs McNamee worked ' long hours prior to 9, after 5'. Two employees stated that Mrs McNamee worked from 8.00 am to ' when Patrick stops'. All seven employees, apart from the one employee who did not answer, indicated that she worked for three days per week on Monday, Tuesday and Thursday each week. It is clear that her employment contract at this stage specified that she should work for four days each week and for a total of 32 hours. The number of days had a clear implication in respect of pro-rata holiday entitlement.
73. Mr Holden interviewed Mrs McNamee on 6 October 2016. Mr Draine prepared the notes of that interview. Mrs McNamee was asked for her contracted hours of employment. She replied that it was ' Monday, Tuesday, Thursday from 8.00 am until Patrick finishes'.
She did not state that she had worked for 32 hours each week.
She stated that in the first year she had worked for four days a week, then dropped back to three days a week from July 2015. That date corresponds with the date given in the anonymous letter.
74. Mrs McNamee was asked whether there had been a change in her salary. She stated:-
"I don't know. I never look at my pay-slips. "
75. Mr McNamee was interviewed by Mr Holden on the same date. When asked about Mrs McNamee's contract hours, the claimant stated:-
"Her contract hours were 32 hours a week (four days). For the first 15 months she worked 30 to 40 hours a week, more than she was paid for. Now that she knows the job she has reduced to three days a week at the start of 2016. She works the hours needed to cover the job."
He did not state, as he now states, that Mrs McNamee worked for 32 hours over the three days.
76. Mrs McNamee said she reduced to three days a week from July 2015. The claimant stated she reduced at the start of 2016. Neither were specific about the hours that the claimant had worked. Both accepted that she had reduced from four days a week to three days.
In cross-examination, the claimant alleged that she had worked, on occasions, from 8.00 am to 8.00 pm without an extended break, and that he had made this clear to Mr Holden in his interview on 6 October 2016. He had received the notes of his interview with Mr Holden for the purposes of the disciplinary hearing. He did not challenge those notes. He did not raise the alleged inaccuracy in the notes in his appeal meeting. He did not allege in his witness statement that his wife had worked from 8.00 am to 6.00 pm or 8.00 pm without an extended break and he did not allege that he had made that plain to Mr Holden.
77. It is not credible that Mrs McNamee did not check pay-slips and that she did not know whether her pay had reduced or not when her days had reduced from four days to three days. If, as the claimant alleges, she had worked the same 32 hours over three days rather than over four days, she would have said so at this point. She did not. Furthermore, it was clear that Mrs McNamee had claimed overtime payments from time to time even when her days had reduced to three days. Her holiday entitlement had not been altered to take account of the reduced number of days worked. The correct form had not been completed and the SPI had not been followed.
78. The claimant argued in the course of the Tribunal hearing that the respondent had not compiled an accurate list of the hours worked by Mrs McNamee in the Belfast profit centre. There appears to have been no accurate list compiled by the claimant who had been the manager of that profit centre. There was no clock-in system. The Tribunal concludes that it would have been impossible for the respondent to have reached any accurate conclusion. The evidence put forward by the seven other employees was inconclusive at best. It had been up to the claimant and to Mrs McNamee to have recorded the hours worked each day and to have made the position clear to Mr Holden.
79. The Tribunal concludes that it was highly unlikely that Mrs McNamee had, as alleged by the claimant in cross examination, worked for 10 hours and 40 minutes each day without a break of any sort, including any lunch break, to complete 32 hours within three working days. That had not been the proposition put forward by either the claimant or by Mrs McNamee to Mr Holden. The evidence of the other seven employees was not supportive of that version of events. Mr Darrell Thompson's interview notes recorded that he had said Mrs McNamee had worked between 8.00 am to 5.00 pm on each of the three days. He is no longer employed by the respondent. His witness statement, on behalf of the claimant, did not say this; he stated that Mrs McNamee had worked long hours and had worked through every lunch hour. When the contradiction was put to Mr Thompson, his response was confusing. He stated he worked from 8.00 am to 5.00 pm but sometime stayed to 6.00 pm. While he sometimes worked late, Mrs McNamee could have left before him. His witness statement does not suggest that his response to Mr Holden had been incorrectly recorded. It does not mention his interview with Mr Holden at all. It is difficult to see how someone whose regular hours were 8.00 am to 5.00 pm could assert that Mrs McNamee had worked longer than those hours on a regular basis when he did not always do so. The Tribunal cannot see any reason why his response to Mr Holden would have been wrongly recorded. If it had been, that would have been raised by Mr Thompson in his witness statement.
80. In relation to the second allegation in the anonymous letter, which concerned the hiring of a vehicle for Mrs McNamee, Mrs McNamee told Mr Holden that her car ' blew up' and that the claimant had hired a car from Corrigan for her to drive. Mrs McNamee stated:-
"I then drove a Hyundai car that Patrick hired."
That statement is difficult to reconcile with Paragraph 7.4.24(d) of the claim form where the claimant stated:-
"I did not give the hire car to my wife. I gave my own vehicle to my wife and I drove the hire car."
She stated that the car had also been used by two other employees but that:-
"I now have my car back and the hire car was returned to Corrigans Vehicle Hire."
81. When interviewed by Mr Holden, in relation to the second allegation, the claimant stated that his son had lost a close friend to suicide and that his son was distressed. He stated that Mrs McNamee and he had nearly split up over the company car. He stated:-
"I hired a car so I could get into work first thing without Sheila holding me back as her car was out of action at this time."
He accepted that he had not told Mr O'Shea that he was hiring this vehicle for Mrs McNamee. He stated that he had been asked to fix the business and that he needed Sheila to be in the business to help him. He accepted that it had been coded as a commercial vehicle. He stated that it had also been used by other employees.
82. It is clear that this vehicle had been hired for Mrs McNamee and for no other purpose, even though other employees may have used the vehicle from time to time. It is also clear that it had been hired and coded for expenses purposes as a commercial vehicle, even though its purpose had been to enable Mrs McNamee to travel to and from work. It is also clear that the claimant did not seek permission from Mr O'Shea for this course of action. Providing a personal vehicle in these circumstances was highly unusual and permission should have been obtained and the vehicle should have been correctly coded with the necessary income tax implications for Mrs McNamee and for the respondent. It is also clear that Ms Diana Logan, the book-keeper, had been told by the claimant that Mr O'Shea had agreed that the claimant could hire the hire car because his own mileage was so high on his own company car.
83. Having heard the witnesses, the Tribunal unanimously concludes that the claimant had provided a hire car for the use of his wife at the respondent's expense and without following proper procedures and without obtaining the necessary permission.
84. It is also worth noting that it is impossible to reconcile the claimant's evidence that Mrs McNamee worked long hours, as he did, with his evidence that she needed her own vehicle so she did not have to start work at the same time he did.
Taylor Signs Ltd ('TSL')
85. The involvement of the claimant in TSL and the fact that the claimant and Mrs McNamee owned that business was known to Mr Love, Mr O'Shea and to others in the respondent organisation. However, it is also clear that the involvement of the claimant in TSL was minimal during the period of his employment with the respondent. He had not been involved in the day-to-day management of that business, he took no drawings from that business and his sole involvement appears to have been the preparation of monthly pay. He had appointed his brother to take control of the management of that business.
86. It is also clear that TSL purchased some goods from time to time from the Belfast profit centre while it was being managed by the claimant. It had also undertaken two sub-contracts on behalf of the respondent during that period.
87. However, those particular matters do not appear to the Tribunal to be relevant to the disciplinary charge laid against the claimant. The anonymous letter had been specific when it had outlined the third allegation contained within the letter. It had referred to the purchase of stock from TSL, the fact that the profit centre could not sell that particular stock and the ' questionable stock cleanse practices' undertaken.
88. The Belfast profit centre, under the management of the claimant, had purchased several items from TSL in 2013 for approximately £7,500.00. The profit centre could not sell most of those goods and they remained in the warehouse of the respondent unsold for almost two years. On 2 October 2015, a stocktake had taken place in the Belfast profit centre. If those goods had been retained in stock, their value would have had to be written down significantly and that would have impacted upon the profits of the centre and on the earnings of the claimant.
89. On paper, the goods originally purchased in 2013 were recorded as having been returned to TSL on 2 October 2015 and a debit note had been issued accordingly. On the same day, the Belfast profit centre purchased new stock from TSL. That stock, which was recorded as newly purchased stock, cost £7,440.00, which was paid to TSL.
90. Part of the old stock which was recorded as having been returned, and the new stock which was recorded as having been a new purchase seem remarkably similar. Nine sets of items were originally purchased and very few appear to have been sold in the almost two years they were in the warehouse. A comparison between the old stock and the new stock is instructive. The sizes are identical:-
OLD STOCK PURCHASED NEW STOCK PURCHASED
2 DECEMBER 2013 2 OCTOBER 2015
1. 10 X A2 LED Slimline Light Boxes 1. 10 X A2 LED Advertising Light Boxes
2. 5 X A1 LED Slimline Light Boxes 2. 5 X A1 LED Advertising Light Boxes
3. 15 X A3 LED Magic Mirrors 3. 15 X A3 LED Advertising Mirrors
4. 10 X A2 LED Magic Mirrors 4. 10 X A2 LED Advertising Mirrors
5. 5 X A1 LED Magic Mirrors 5. 5 X A1 LED Advertising Mirrors
6. 5 X Moving Message Signs 6. 5 X LED Scrolling Signs 1M Red
1000 mm Red
7. 2 X Moving Message Signs 7. 3 X LED Scrolling Signs 2M Red
2000 mm Red
91. When Mr Holden, as part of his investigation, interviewed the seven members of staff, other than the claimant and Mrs McNamee, he asked each member of staff an open question:-
"With Patrick and Sheila currently on suspension from the business, is there anything you would like to raise which may be worthwhile being flagged?"
Ms Logan, the book-keeper, stated that the goods supplied originally by TSL in 2013 ' never went back'.
Another employee, Mr McAneney, stated that the relevant goods ' never should have been purchased' and that they had never been actively promoted. He stated initially that the original goods had definitely gone back to the supplier and that the respondent had been supplied with upgraded models. He then later stated that it had been possible that some of the original goods had come back to the respondent.
92. When interviewed by Mr Holden, as part of his investigation, Mrs McNamee said nothing of relevance to this matter. When interviewed, the claimant stated:-
"That the new order was different. The product is a different size to the previous stock."
The claimant insisted that the newly purchased products were different from the old products. However it is clear from the paperwork that the size of each item has not changed in any respect.
93. Mr Holden asked the claimant why he would buy new stock which was similar to stock which had not sold in two years. The claimant replied:-
"Just to try again."
94. The paperwork relevant to the return of the original goods does record that they were collected. However, the claimant did not produce any evidence from the company which he owned to establish either that they had actually been collected or, if they had been collected, that they had not been returned in short order.
95. The claimant throughout the Tribunal hearing alleged that this had been a legitimate ' stock cleanse' exercise and that there had been no deliberate write-down avoidance. However, the fact is that the original goods were recorded as having been returned on the same day as the stocktake and the purchase of what is recorded as new goods took place on the same day. The goods recorded in the original purchase are remarkably similar to the goods recorded in the new purchase. The seven items listed above do not alter in any respect in terms of size as the claimant had alleged in his interview with Mr Holden. There was an obvious financial advantage to the claimant in avoiding the write-down in value of the original stock. If this had simply been a ' stock cleanse', the original goods would have been returned to TSL without any replacement. Immediately purchasing goods which either were part of the original goods or were similar to the original goods which had remained unsold for two years is not consistent with a ' stock cleanse'. Even if it were accepted that the original goods had actually been returned to TSL, without immediately being returned to the respondent, and even if ' upgraded' goods had been purchased, the only logical conclusion can be that the claimant had indulged in write-down avoidance. The suggestion that the claimant, after being unable to sell these goods for two years, had decided to purchase similar and upgraded goods to ' try again' is nonsensical. If it had been a genuine attempt to ' try again', it is inconceivable that the same sizes and types of goods had been immediately re-ordered in similar quantities.
Meeting on 4 or 14 October 2016
96. The Tribunal heard evidence from Mr O'Shea and Mr Parr about a meeting which had occurred between both parties on either 4 October 2016 or 14 October 2016.
97. Mr Parr's company had been subject to a computer fraud in December 2015. A fake invoice purporting to come from the respondent had been received by Mr Parr's company in what is known as a ' phishing exercise'. It had not been generated by the respondent. Unfortunately it had been paid by Mr Parr.
98. The respondent reimbursed Mr Parr. To close their file, they had asked for a copy of the bank statement showing the payment. The respondent did not receive that copy statement.
99. There are two different versions of what happened in this meeting. Neither appear relevant to this litigation. Mr O'Shea stated that he had arranged the meeting to secure a copy of the bank statement. Mr Parr said that Mr O'Shea had arranged the meeting to obtain ' dirt' on the claimant.
100. After hearing both witnesses, the Tribunal concludes that Mr O'Shea's account of the meeting is more credible. There had been no evidence to link the claimant with the ' phishing exercise' and it is highly unlikely that Mr O'Shea would have arranged to meet Mr Parr in an attempt to create such a link. It is much more likely that the meeting had been as Mr O'Shea described it; to discuss the fraud and to obtain a copy of the bank statement.
101. In any event, the meeting seems irrelevant to the present litigation.
102. On 7 October 2016, the day after the investigation meeting, the claimant wrote to Mr Holden. He repeated his allegations about the Housing Executive tender. He described it as ' deliberate sabotage of my tender'. He repeated his allegation about Red Electrical and the alleged line of credit afforded to that company. He alleged that both matters had been presented to Mr O'Shea but had not been dealt with.
He stated that the two matters he raised were examples of ' many instances' of ' unacceptable behaviour or practice in my 3½ years'. He stated that:-
"I am unequivocal in my belief that sinister forces are at play here."
The nature of the sinister forces was unexplained.
103. On 13 October 2016, by e-mail and by letter, the claimant was requested to attend a disciplinary hearing on Monday, 17 October 2016 at 12 noon in the Park Avenue Hotel in Belfast. The letter stated:-
"The purpose of this meeting is to deal with allegations that you have undertaken a number of activities that were contrary to the best interests of Edmundson Electrical Ltd and to the personal benefit of yourself and your family. Firstly, the hours worked by Sheila McNamee are significantly less than those paid for. Secondly, you hired a car on a long-term contract that was used for the personal benefit of you and your family. Thirdly, you engaged in transactions with the company (Taylor Signs Ltd) that demonstrated a conflict of interest.
I must point out that these allegations, if found to be true, would be considered to be gross misconduct and could result in your dismissal without notice.
You have the right to be accompanied, your handbook explains by whom.
You should be aware that if you do not attend this hearing, a decision may be taken in your absence, based upon the facts known to me at that time."
The letter was signed by Mr Falconer who was to hear the disciplinary hearing.
104. The claimant was supplied with the note of his interview and that of Mrs McNamee's interview with Mr Holden. He was not supplied with the notes of the other seven interviews because they were not being relied upon by the respondent and were not exculpatory.
105. On 14 October 2016, the day after he had received notice of the disciplinary hearing, the claimant e-mailed Mr Falconer stating that he intended to refute all the allegations made against him. He stated that he intended to take this matter to a Tribunal and that he intended to allege religious harassment. He stated that he was open to considering a termination payment ' by way of a compromise agreement'. He stated:-
"I cannot return to manage a business where I was harassed on religious grounds."
He finished the e-mail by stating:-
"Also, I am currently in the process of appointing and meeting with a Trade Union representative. This process will not be complete until at least Thursday 23 October. I therefore as per legal requirement request that the disciplinary hearing is put back by a minimum of seven days."
106. The claimant did not identify the relevant trade union or the relevant representative. In the Tribunal, the claimant similarly failed to identify either. He stated that he had been advised by a ' human resources company' to join a trade union and to make this request. He did not identify this ' human resources company' either.
The claimant did not put forward an alternative date and time for the meeting, within five working days, or at all. He requested that the disciplinary hearing be put back for a minimum of seven days.
He had stated that the unnamed and unidentified representative would not be appointed until at least 23 October 2016. There was no firm indication of when he would have been ready to proceed.
107. On the same day, 14 October 2016, the claimant wrote to Mr O'Shea making, for the first time, a complaint of religious harassment against Mr Irvine. He alleged that the incident had occurred on 2 September 2016 and that he had provided a contemporaneous statement which had been made on that evening to his solicitor at that stage, who was later described as his brother. That is the contemporaneous statement allegedly completed by the claimant which has never been produced in evidence even though, if it had ever been made as described by the claimant, it could easily have been produced either from the claimant's brother or from the claimant's own home computer.
108. On 17 October 2016, at 9.16 am the claimant e-mailed Mr Falconer and stated:-
"Further to my previous message, can you confirm by 10.00 am that this is being re-scheduled."
At this stage, Mr Falconer was in the air between Heathrow and Belfast. He had not responded to the claimant's previous message. He regarded his notification as being clear and he took the view that no proper request for an alternative disciplinary hearing had been made. The claimant had also, by that stage, made it clear in his e-mail dated 14 October 2016 that he had no intention of returning to work in the Belfast profit centre.
109. On 17 October 2016 at 10.21 am, Mr Falconer, having landed at Belfast, replied by e-mail:-
"As per my previous correspondence, the disciplinary meeting is going ahead at 12 noon today".
110. The earlier communication on 17 October 2016 from the claimant had asked for confirmation by 10.00 am that the meeting was being re-scheduled. Having received no such confirmation by 10.00 am, and given the plain terms of the original notification of the disciplinary hearing, the claimant who lived in Tyrone could easily have attended the disciplinary hearing in Belfast within two hours. That, after all, would have been the claimant's motivation in asking for confirmation by 10.00 am that morning.
Even if the claimant had for some reason assumed that the disciplinary hearing would have been automatically cancelled at his request (and that is not indicated by his e-mails) he could easily have attended the meeting in Belfast if he had left his home at 10.30 am on receipt of the e-mail from Mr Falconer sent at 10.21 am. He could have telephoned to ask for a short delay. He did not do so.
The claimant had been on paid suspension and had been under a contractual obligation to make himself available.
111. Mr Falconer and Mr Holden both attended this disciplinary hearing. They had flown separately from different airports in Great Britain to Belfast. They met at the airport and drove into Belfast together. Mr Holden discussed the conduct and outcome of his investigation with Mr Falconer. The disciplinary hearing was short. It lasted for approximately one minute. In the absence of any attendance by the claimant, it could not have been otherwise. Mr Falconer and Mr Holden returned to Great Britain.
112. On 18 October 2016, Mr Falconer wrote to the claimant to confirm the outcome of the disciplinary hearing. He referred to the Employment Relations (Northern Ireland) Order 1999 and to Article 12 of that Order. He stated that the claimant had not complied with the requirements of the legislation, in that he had not put forward an alternative time and date for the disciplinary hearing which was both reasonable and within five working days beginning with the first working day after the date proposed by the respondent. He stated that he had decided to proceed in the claimant's absence. He stated that he had read the notes of the investigation and had spoken to Mr Holden.
113. He concluded that Mrs McNamee had been paid for four days while working only for three days since July 2015. He concluded that the hire car had been hired for Mrs McNamee's personal use. He concluded that there had been a clear breach of the claimant's employment terms in his transactions with TSL which had avoided ' write down' and had left the respondent with unsellable stock.
114. In relation to the alleged sectarian threat, Mr Falconer stated that no details have been provided to Mr Holden but that a subsequent grievance had been lodged. He stated that the claimant did not attend a disciplinary hearing to give evidence in relation to this and stated that he was, in any event, unclear how it could possibly have impacted on his dealings with TSL, the hiring of the car, or the salary overpayment to Mrs McNamee. He stated:-
"After careful consideration, I believe that you have attempted to mislead and avoid dealing with the issues and that you have undertaken the above activities for the sole purpose of personal gain and this is gross misconduct. I have lost all trust and confidence in you and your ability to manage the profit centre. Therefore I have decided to dismiss you with effect from today."
115. The claimant was afforded a right to appeal. The claimant confirmed, by letter of 24 October 2016, that he wished to appeal the decision. The letter attached detailed grounds of appeal. The claimant alleged procedural unfairness, in that the disciplinary hearing had proceeded on 17 October 2016 in his absence. He also alleged that the Labour Relations Agency's Code of Practice provided that a grievance and disciplinary proceedings should be dealt with concurrently. The Code also stated, according to the claimant, that the disciplinary procedure should be suspended while the grievance is dealt with.
The claimant denied that his wife had been overpaid salary. He denied that the decision to hire the car had been a breach of procedures or had been improper.
116. Mr Draine had been appointed to hear the claimant's grievance in which he had alleged sectarian harassment by Mr Irvine on 2 September 2016. Mr Draine interviewed Mr Irvine who denied the allegation.
117. Mr Draine knew Mr Irvine well. He had worked with him for about 29 years. Mr Draine was a Catholic. Mr Irvine was a Protestant. Mr Draine's instructions as credit manager had been followed without difficulty or comment by Mr Irvine. After putting the allegation to Mr Irvine, Mr Draine believed and accepted his denial. In the circumstances, that was inevitable.
118. Mr Alan Simm was appointed to hear the claimant's disciplinary appeal. The appeal hearing was held on 1 November 2016. The claimant was assisted by a colleague, Mr Gordon. There was no further mention by the claimant of a trade union or of a trade union representative.
119. Each point in the claimant's appeal was dealt with in sequence during the appeal hearing. As far a procedural fairness was concerned, Mr Simm concluded that the claimant had had no good reason for seeking a postponement of the disciplinary hearing and that he had not put forward an alternative date and time as required by the 1999 Order. He concluded that the alleged act of harassment by a junior colleague could not be relevant to the disciplinary matters.
120. He rejected the appeal in relation to Mrs McNamee's working hours. He stated that the claimant could provide no evidence to support his argument. The claimant challenged this in the course of the Tribunal. However, the claimant had been the manager and Mrs McNamee had, on his argument, worked 10 hours and 40 minutes without any break on each of the three days each week. Indeed his argument had been that to qualify for occasional overtime she had, from time to time, worked in excess of those hours. It had been up to the claimant, as manager, to record those hours and he had not done so.
It had been up to him to rebut the natural presumption that reducing four days to three days, without formal notification or permission, would have meant that Mrs McNamee had worked less hours than she had been paid for. The suggestion that she worked solidly, without any break even for lunch, for 10 hours 40 minutes each day to make up her contracted hours was not credible.
121. He concluded that the claimant had provided a car for his wife for personal reasons at the respondent's expense. The evidence on this point had been, at all stages, clear. The car had been hired by the claimant for his wife to use when her own car had broken down. It had not been hired as a ' pool car' or for the use of any other part of the business. While a few other members of staff might have use it intermittently, it had not been hired for that purpose. Mrs McNamee had used it from December 2015 to February 2016 until her own vehicle was repaired. It was then used for a brief period by another part of the profit centre. No permission had been sought for the provision of the car to Mrs McNamee. The tax implications had not been addressed. It had been coded throughout as a commercial vehicle.
122. He also dismissed the appeal in relation to his involvement with TSL. He concluded there had been a clear conflict of interest.
123. He confirmed the dismissal and dismissed the appeal on 8 November 2016.
124. On 7 November 2016 the claimant was notified that Mr Draine would hear his grievance at 10.30 am on 15 November 2016; the location was to be confirmed.
125. On 12 November 2016, Mr Draine confirmed by e-mail that the grievance meeting to discuss the claimant's allegation of sectarian harassment would be held on 15 November 2016 in the Europa Hotel.
126. On 14 November 2016, the claimant e-mailed back to day he had already made commitments that week. He stated his grievance had ' set out the facts in full'.
Extraordinarily, he asked:-
"Can you clarify in writing what needs to be discussed?"
127. On the same day, Mr Draine replied and said he did not need to attend the grievance if he did not wish to do so. If he did not, Mr Draine would proceed to determine it in his absence.
128. There was no further contact from the claimant and the grievance was dismissed on 16 November 2016.
129. There has to be sufficient evidence before the Tribunal to draw a reasonable inference of sectarian harassment before the burden of proof passes to the respondent.
130. There is insufficient evidence before the Tribunal on which such a reasonable inference can be drawn.
131. The allegation of harassment on 2 September 2016 is not credible from the reasons outlined previously in this decision. The unanimous decision of the Tribunal is that the alleged sectarian harassment did not take place.
132. The claims of sectarian harassment contrary to the 1998 Order and of a discriminatory unfair dismissal contrary to that Order therefore fail.
133. The claim of unlawful victimisation contrary to the 1998 Order also fails. There is absolutely no evidence that the claimant had been victimised for making a complaint of unlawful discrimination or harassment. Such a complaint had not been articulated until 14 October 2014, long after the anonymous letter and the instigation of disciplinary proceedings. In any event, such an allegation, against a junior employee, could have had no relevance to those proceedings.
Public Interest Disclosure Detriment
134. That part of the claim alleges that the claimant made such a disclosure in relation to the NIHE tender and that, as a result, he suffered a detriment in relation to his dismissal and the conduct of his internal appeal.
135. The claimant had originally alleged that his complaint about Red Electrical had also been such a disclosure. That claim was dropped at the start of the hearing.
136. The PID claim also fails. The complaint made by the claimant to Mr O'Shea had been that his tender had been deliberately sabotaged by a junior employee in another profit centre. That complaint was not in any sense credible or reasonable. It is highly doubtful that the claimant has, at any stage, actually believed that this had been the case.
137. In any event, this matter had been investigated and had been concluded in July 2016. No further complaints had been made by the claimant about this matter. He had not pressed Mr O'Shea further. He stated he had decided to concentrate on his work. It was only raised by the claimant on 6 October 2016 in the investigation meeting with Mr Holden; at least two months later.
138. There is no evidence before the Tribunal on which it could reasonably conclude, or even infer, that there had been any link between that complaint and the entirely separate disciplinary proceedings some time later. Similarly, there is absolutely no evidence that the complaint had in any way influenced either the conduct or the outcome of the internal appeal.
Article 12 of the 1999 Order
139. The claimant has not, at any stage, identified his trade union or the trade union representative. No correspondence had been produced with either and they played no part in the claimant's internal appeal.
140. The e-mail of 14 October 2016 from the claimant did not comply with the requirements of the 1999 Order. The Tribunal's conclusions are set out in greater detail above.
141. That claim is also dismissed.
Timing of Grievance Procedure
142. There was nothing unlawful or improper in the respondent's decision to deal separately with the claimant's grievance alleging sectarian harassment against a junior employee. The fact that a manager sought to deal with this allegation in this manner instead of instigating disciplinary proceedings at the time of the alleged incident is itself inexplicable. In any event, the allegation had been a matter entirely unrelated to the three allegations considered in the disciplinary proceedings.
143. The disciplinary investigation started on receipt of the anonymous letter on 15 September 2016. At that point, the complaints raised by the claimant in relation to the NIHE tender and in relation to Red Electrical had been investigated and had been determined for some time. Those complaints were entirely unrelated to the disciplinary action. Similarly, the allegation of sectarian harassment, even if it had not been entirely unfounded, had not even been made at that point. It was not made until one month later and was entirely irrelevant to the disciplinary investigation.
144. The decision to suspend both the claimant and his wife had been a decision which a reasonable employer could have made in all the circumstances.
145. The respondent's investigation was reasonably thorough. The claimant and his wife were the primary participants in the alleged misconduct. They were both interviewed. Seven other members of staff were interviewed but their evidence was not determinative in either way.
146. The outcome of the investigation was sufficient to justify the disciplinary charges. No reason had been advanced to justify hiring the car initially for the personal use of the claimant's wife at the expense of the business, without permission. No reason had been advanced to explain the reduction from four days to three days without notification, reduction in pay or adjustment of holiday entitlement. No satisfactory explanation had been advanced for the ' return' of goods on the day of the stocktake and the purchase of similar goods the same day from a company owned by the claimant.
147. The disciplinary charges were reasonably clear. Everyone, including the claimant, knew what the substance of the three charges were. A pedantic criticism might be made that the charges referred, in relation to Mrs McNamee's contract, to hours rather than days. However, the issue was clear. She had been hired for four days and 32 hours per week. Working for 32 hours over three days per week would have required 10 hours 40 minutes per day without a break and a reasonable employer had been entitled to conclude, on the evidence before it, that that was not credible.
148. The claimant was given sufficient notice of the disciplinary hearing. His e-mail in response, dated 14 October 2016, has been a transparent effort to muddy the waters and to delay proceedings. He also indicated he did not want to return to the profit centre and that he regarded his employment as at an end.
149. The claimant could have attended the hearing if he had wished to do so. He did not attend without any valid excuse.
150. The hearing was as fair as it could have been in the absence of the claimant.
151. The decision that gross misconduct had occurred was one which a reasonable employer could reasonably have reached on the evidence before it:-
(a) The working days of the claimant's wife had been reduced from four to three without permission or notification in accordance with the SPI. The claimant and his wife could not agreed on when this had occurred. She had stated July 2015. He had stated at the end of that year. Mrs McNamee's statement that she did not know whether her pay had reduced when her days had reduced because she did not check her pay-slips had not been credible. That is precisely when anyone would have checked their pay-slips. Furthermore, it is not consistent with the later assertion that she had worked at least 32 hours in three days by working 10 hours 40 minutes (at least) every day without a break. If she had done so, she would have told Mr Holden during the investigation meeting and it would have been recorded.
(b) The hire car had been hired for Mrs McNamee's personal use, to travel to and from work. It had been charged to the respondent without permission and it had been coded as a commercial vehicle.
(c) The relevant goods had been returned and similar goods purchased from TSL on the day of the stocktake. These were goods that could not be sold. The only conclusion that a reasonable employer could reasonably have reached is that this had been write-down avoidance.
152. The appeal had been conducted fairly. Each point raised in his appeal had been considered and rejected.
153. The Tribunal is satisfied that the reason for the disciplinary action and decision was conduct; there was no other reason. There had been a reasonable investigation leading to a reasonable belief on guilt.
154. The decision to dismiss the claimant summarily, viewed objectively, had been a decision which a reasonable employer could have reached. The claimant was the manager in a particular position of trust. The disciplinary offences were serious and had destroyed that trust.
155. The claim of unfair dismissal is therefore dismissed.
Date and place of hearing: 4 - 8 September 2017, Belfast
Date decision recorded in register and issued to parties: