Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 3106/04

CLAIMANT: Philip Purdy

RESPONDENT: Shorts Plc

DECISION

The unanimous decision of the tribunal is that the claimant was fairly dismissed on the ground of misconduct and the claim of unfair dismissal is dismissed.

Constitution of Tribunal:

Chairman: Mr N Kelly

Members: Mr J McDonell

Mr O Fields

Appearances:

The claimant was represented by Mr M McEvoy, Barrister-at-Law, instructed by Agnew Andress Higgins, Solicitors.

The respondent was represented by Ms M McGinley, of the Engineering Employers' Federation.

THE ISSUE.

1. The issue to be determined was whether the claimant had been unfairly dismissed by the respondent on 28 September 2004 contrary to Part XI of the Employment Rights (Northern Ireland) Order 1996.

RELEVANT FACTS

2. The claimant was a charge-hand who had been employed by the respondent since 1991 and had a clear disciplinary record at the time of his dismissal on 28 September 2004.
3. The claimant had been subpoenaed by a fellow employee, Mr Timothy Taylor, to give evidence in relation to a personal injury action brought by Mr Taylor. This action arose out of an incident on 10 June 1999 in which there had been an escape of vapour from a tank filled with caustic liquid and situated within the respondent's premises. Mr Taylor was claiming that he had suffered an industrial injury. The claimant gave evidence on or about 19 May 2004 and Judge Burgess gave his decision on 14 September 2004. The claim brought by Mr Taylor was rejected.
4. The Judge criticised some of the witnesses who had given evidence in the personal injury action. On page 20 of the Judgment he stated, "Turning then to the evidence of his colleagues, I do not intend to single them out by name since I intend to be also highly critical of their evidence. In two cases evidence was given that similar symptoms were suffered by these two gentlemen on this night. They stated that they had made a full report of those complaints. Initially the impression gained by the Court was that it would have been made to Mr McNeill, their then supervisor. However, Mr McNeill gave evidence that neither gentleman had made any such report to him despite the fact that he was in the company of both immediately after the incident and for some time after that. He produced the record book kept by him for the purpose of recording any such incidents and the only report that evening was by the plaintiff". The Judge went on to state on page 21 of the Judgment, "I have to say I find it strange as to why these two gentlemen would not have told Mr McNeill of their complaint, and had the necessary record completed and signed there and then. They certainly complained that this had happened before, and therefore I suggest would have been keen to have an immediate record made of this incident as it affected them. Mr McNeill was the person on the scene that night; he was supervisor of this particular area; and Mr Taylor complained to him. One has to ask oneself - why would one go somewhere else? This, together with the absence of a copy of the complaint on the personal files and the absence of anything on a computer record satisfies me that no such complaints were made. I am therefore driven to the conclusion that a deliberate attempt has been made to mislead the Court in support of the claim of the Plaintiff".
5. At page 2 of the Judgment, the Judge stated,(referring to Mr Taylor) "He reported this to his colleague, Mr Philip Purdy, the charge-hand on the clean line, who also complained in his evidence of having experienced symptoms. Mr Purdy in turn reported Mr Taylor's complaint to the supervisor, Mr McNeill". Later on the same page he went to state, "This outlines the Plaintiff's case, which I will go into in more detail later, particularly in relation to the allegations of his injuries and the evidence called on his behalf of those men working with him that night - particularly those who complained of sustaining similar injuries".
6. In the course of the hearing, the Judge had directed that a search be made in the filing and computer systems of the respondent to check if there had been any reports made in respect of the incident on 10 June 1999 by either Mr Purdy (the claimant) or by Mr Stephen Wilson. Mr George Cavanagh, the solicitor acting for the respondent and Mr Paul Barclay an employee of the respondent, conducted such a search and found no such reports.
7. Miss Fiona McVicker, a Human Resource Adviser employed by the respondent, was given a copy of the Judgment together with a note from Mr Barclay outlining the negative search in the respondent's records on or about 14 September 2004.The respondent decided to commence disciplinary proceedings.
8. The first disciplinary hearing took place on 27 September 2004. The claimant, Davy Thompson (his trade union representative), Drew Lowry, (the team manager) Fiona McVicker and a note taker were present. Mr Thompson on behalf of the claimant argued that Mr Purdy and Mr Wilson were not the two individuals identified by the Judge and that there had been in fact five witnesses in the court who could potentially have been those two individuals. He argued that the claimant had reported the incident to Mr McNeill and that he had only attended Court under a subpoena. He had not misled the Court. Mr Purdy stated that it was his responsibility to fill in an incident report form (IRF) and that everyone that night should have filled in a report. He stated that he did not tell the Court he filled in an IRF with a particular purpose in mind; i.e., because he was experiencing symptoms which would have grounded the personal injury claim. He stated he should have filled in an IRF because of the severity of the incident as a Health & Safety issue. The disciplinary hearing was then adjourned for further investigation.
9. Fiona McVicker and Drew Lowry then spoke to George Cavanagh (the Solicitor who acted on behalf of the company in the personal injury accident) to Mr Robert McNeill (the claimant's line manager) and to Paul Barclay who wrote the e-mail in connection with the search for records.
10. Mr Cavanagh took Mr Lowry and Miss McVicker through the hand-written notes he had compiled during the court hearing and stated that he believed that the two witnesses mentioned by the Judge were the claimant and Mr Wilson. Miss McVicker suggested to Mr Cavanagh that in fact Mr Wilson had never actually said in court that he had filled in an IRF.

In Mr Cavanagh's hand-written notes there is a record of a question asked of the claimant which was, "You weren't injured at all?" and the claimant's reply, "No". Miss McVicker put it to Mr Cavanagh that this was a double negative ie., that the claimant was saying, "No, I was injured". The tribunal is somewhat puzzled as to why the hand-written notes were read in that manner and why Miss McVicker felt it was appropriate to make such a suggestion to Mr Cavanagh. In any event the tribunal concludes that this was not a double negative but a simple statement by the claimant that he was not injured. In the context where it appears, the tribunal regards this as a statement explaining that while Mr Taylor alleged that he was seriously affected by the vapour, the claimant was complaining simply of irritation and to a much lesser degree than Mr Taylor.

11. Mr McNeill was interviewed on 27 September, and he stated that the claimant had not reported the incident to him. The tribunal notes that the claimant did report the incident to Mr McNeill verbally when it occurred and concludes that Mr McNeill's evidence in this respect referred to a formal IRF rather than the verbal report. Mr McNeill also stated that he was in no doubt that the Judge was referring to Stephen Wilson and the claimant. He stated that of the five witnesses, (the claimant, Stephen Wilson, Mr Downey, Mr McCready and Mr Moss), Mr Downey was elsewhere in the plant as was Mr McCready. Mr Moss was not present on the shift and had only spoken in general terms in court. That left only Mr Wilson and the claimant.
12. The tribunal concludes that the contemporaneous hand-written notes completed by Mr Cavanagh were relied on heavily by the respondent in considering the disciplinary charge against the claimant and that those notes were indeed the most reliable guide as to what was actually said during the course of the court proceedings.
13. In relation to the claimant the relevant parts of the exchanges appear to be as follows:-

"Any difficulty? - general irritation - just on face.

Did you make a report? - myself and everyone there filled in IRF - I'd be very surprised if we didn't.

Eyes streaming - (illegible)? I noticed everyone there was blotchy and red. I have a lot of irritation on my face, hands and neck. I applied cream to my face and neck.

Cream for treatment or protection? - both.

Why did you not go to medical? - I was not as severely affected. I didn't feel I was in danger. It wasn't the first or the last time and I have never been to medical.

You didn't make connection with the cloud of vapour? - there was something in the air which was burning me.

All the more reason to seek medical help? - disagree.

You weren't injured at all? - no.

IRF filled in? - very surprised if we didn't.

Might not have? - my responsibility to record the incident.

Robert McNeill dealt with Taylor's report? - yes.

He had responsibility for a particular book? - yes.

Did you fill in book with Mr McNeill? - that's why I'm surprised.

Can you recollect filling in form with Mr McNeill? - no.

With another manager? - no.

Or anyone else? - no. But I remember filling in accident report on shop floor.

Did you fill it in that night? - not 100% sure perhaps we filled it in on the day shift.

(At this point the Judge intervened) Are you now saying you filled in report? - I do.

And you are surprised it is not where it should be? - yes.

Who did you fill it in with? - it would have to have been someone on shifts.

Remember who? - no. I assume it had to have been one of five.

When? - very soon after.

That night? - yes I'm almost certain".

14. The following parts of the hand-written notes appear to be relevant to Mr Stephen Wilson:

"(Referring to the cloud of vapour) But not towards you? - no.

But you did feel it? - yes.

Aware that Taylor with medical, why not you? - yes, I didn't have the same severe reaction. He seemed to be burning a lot more.

Were his eyes streaming? - not that I remember. I can't recall.

Why not get it checked out? - it's a daily thing - we're always being told there is nothing wrong with it. All we can do is wash ourselves.

The reason you didn't go is that there was nothing wrong? - no.

You didn't fill in IRF? - I can't recall.

Do you now accept you did not fill in an IRF? - it could have been another book. There were more than one.

15. The tribunal concludes that the respondent did determine and was entitled to determine that (1) Mr Purdy clearly stated in a response to a direct intervention from the Judge that he had filled in an IRF form and (2) that this was an untrue statement on the part of the claimant and that he knew that it was untrue. The claimant was aware that he had not completed an IRF form. The claimant also stated that everybody filled in an IRF form and that that was an obligation on his part. The tribunal concludes that this again was an untrue statement and that the claimant knew it was untrue. The evidence from Mr Thompson to the tribunal was that it wasn't the practice for everyone involved in an incident or who might have been injured in an incident to separately complete an IRF form. Furthermore, in the sequentially numbered book of IRF forms which the tribunal has inspected, there is, with one exception, only one report in respect of each incident not several as would have been the case if the claimant had been telling the truth.
16. The tribunal concludes that the respondent did determine and was entitled to determine that Mr Wilson did not definitively state in court that he had completed an IRF form and therefore that there was a clear distinction between the claimant's evidence to the court and Mr Wilson's evidence to the court.
17. As far as the nature of the alleged symptoms is concerned, the tribunal concludes that both Mr Wilson and Mr Purdy told the Court that they suffered irritation and concludes that both indicated to the Court that they suffered irritation to a much lesser degree than Mr Taylor, the plaintiff in the personal injury action.
18. The disciplinary hearing resumed on 28 September 2004. The views of Mr McNeill and Mr Cavanagh were put to the claimant and his representative. The claimant denied that he had misled the Court and stated that he had filled in a report of what happened on the night of the incident. It was hand-written but not on an IRF form. Miss McVicker and Mr Lowry concluded that the claimant had attempted to mislead the Court; he was summarily dismissed for gross misconduct.
19. The claimant appealed against that decision on 28 September 2004 and stated that his representatives had not been afforded enough time to investigate the matter and had not been given all the relevant information. No specific request was made for particular documents or information and the tribunal notes that no request was made for additional time during either of the disciplinary hearings. Reports relating to a Health and Safety investigation were not furnished to the claimant or his representative at this stage but the tribunal has concluded that they would not have been of any assistance to the claimant.
20. The appeal hearing was held on 19 October 2004. A three person panel comprised Mr Harry Wilkinson (Manager), Mr Trevor Poots (Manager) and Mr Paul Irvine (HR). The claimant was present together with Mr David Thompson his trade union representative and a more senior trade union representative, Mr David McMurray.
21. Mr David Thompson and Mr David McMurray both gave evidence that during the course of the appeal hearing they had produced a photocopy of an IRF book. Mr Wilkinson and Mr Irvine gave evidence that this book had not been produced and that discussion had centred solely on one IRF form numbered 00012 which had been completed on behalf of Mr Taylor in relation to the incident on 10 June 1999. Nothing of great significance appears to turn on this but the tribunal concludes that it is probable that the book was produced in photocopied form, not least because Mr Irvine's notes record "produced IRF book".
22. The claimant and his representatives argued that he had been wrongly identified as one of the two people referred to by the Judge and a suggestion was made that Mr McCready was more likely to have been one of the individuals named. Mr McCready was no longer employed by the company. Given the specific reference to Mr Purdy on page 2 of the Judgment, and given the references in Mr Cavanagh's contemporaneous notes, the tribunal concludes that it was not necessary for the respondent to make any further enquiries in respect of Mr McCready to determine whether or not the claimant was properly identified as one of the two witnesses who were alleged to have tried to mislead the Court.
23. The original decision was upheld and the decision to dismiss affirmed.
24. Mr Stephen Wilson was asked to attend a disciplinary hearing on 27 September 2004. Present were Mr Wilson, Mr Lowry and Mr David Thompson as his trade union representative and Miss McVicker. He was similiarly charged that he had attempted to mislead the Court. The disciplinary panel, after hearing from Mr Wilson and after having considered Mr Cavanagh's contemporaneous notes concluded that Mr Wilson had not told the Court that he had filled in an IRF and therefore the charge was not upheld and no penalty was imposed.
25. An IRF numbered 00018 and apparently completed and signed by the claimant was received by Mr McMurray in the post at Transport House in June 2005. There was no covering letter or note. The claimant admitted in evidence to the tribunal that the hand writing and signature looked like his but could offer no explanation as to how this IRF came to be in existence. The tribunal is satisfied that the IRF numbered 00018 in the bound book is the only genuine IRF with that number and concludes that the IRF received by Mr McMurray is a fabrication. This post-dates the date of the dismissal and therefore can have no bearing on the fairness or otherwise of the dismissal.

RELEVANT LAW

26. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides that it is for the employer to establish the reason for the dismissal. Once that reason has been established, the determination of whether or not the dismissal is fair depends on whether in the circumstances the employer acted reasonably in treating the reason as a sufficient reason for dismissing the employee and that question should be determined in accordance with equity and the substantial merits of the case.
27. The decision in British Home Stores Limited -v- Burchell [1978] IRLR 389 states that in determining whether dismissal is unfair in the circumstances, a tribunal has to decide whether the employer who dismisses on grounds of misconduct had entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That itself involves three elements. First, there must be established by the employer the fact of that belief; that the employer did believe. Secondly, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief. Thirdly, the employer at the stage at which he formed that belief on those grounds must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.
28. The Court of Appeal in the case of Sainsbury's Supermarkets Limited -v- Hitt [2003] IRLR 23 stated that a tribunal in this situation cannot substitute its own judgement as to what amounts to reasonable investigation but must apply an objective standard ie., the standard of the reasonable employer as to what amounts to a reasonable investigation.
29. The disciplinary appeal was by way of a review rather than an appeal and this was criticised by the claimant. The law in this area was recently reviewed by the GB Court of Appeal in Andrew James Taylor v OCS Group Ltd [2006] EWCA CIV 702. It stated " The use of the words "rehearing" and "review", albeit only intended as an illustration, does create a risk that ETs will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to their view of whether an appeal hearing was a rehearing or a mere review. This error is avoided if ETs realise that their task is to apply the statutory test. In doing that, they should consider the fairness of the whole of the disciplinary process".

It went on to say "In saying this, it may appear that we are suggesting that ETs should consider procedural fairness separately from other issues arising. We are not; indeed it is trite law that section 98(4) requires the ET to approach its task broadly as an industrial jury. That means they should consider the procedural issues together with the reason for the dismissal as they have found it to be. The two impact on each other and the ET's task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss".

CONCLUSIONS

30. . The tribunal has concluded that;

(i) The respondent was entitled to conclude, on the evidence before it, that the claimant was one of the two witnesses identified by the Judge as having attempted to mislead the court. The respondent had evidence from Mr McNeill and Mr Cavanagh, the contemporaneous handwritten notes of the exchanges in court, Mr Barclay's evidence of having been directed to conduct a search in the company records for reports which might have been made by the claimant and the references in the judgement itself.

(ii) The respondent was entitled to conclude that the claimant, for whatever reason, lied to the Court when giving evidence under subpoena in Mr Taylor's personal injury action. The claimant first of all stated definitively that he had filled in an IRF form. That was something which he must have known to have been untrue. He attempted to bolster this by alleging that everyone would have and were obliged to have filled in an IRF form whether injured or not as part of normal Health & Safety practice in Shorts. That was also untrue. It is plain from the IRF book that the practice was that only one report would have been made in respect of an incident and indeed in terms of practicality, there would have been little point in several people filling out IRF forms or any other form of a report relating to an incident when the respondent company and its Health & Safety Department, were fully appraised of the situation and were conducting an investigation.

(iii) The tribunal has some concerns about the evidence which Mr Wilson gave to the court which could be fairly described as equivocal. However, it is clear that he did not definitively state in court that he had filled in an IRF form. The tribunal concludes that the employer was entitled to draw a distinction between the claimant and Mr Wilson and to uphold the disciplinary charge in the one case and not in the other. It is perhaps not a decision which every employer would have made but it was a decision which a reasonable employer could have made.

(iv) The tribunal has also considered the extent to which the respondent investigated the alleged misconduct. The tribunal notes in particular that the employer did not stop with the Judge's remarks contained within the Judgment. The respondent adjourned the first disciplinary hearing to check with Mr McNeill and more importantly with Mr Cavanagh and to consider his contemporaneous notes in detail. The respondent also considered the fact that the Judge had directed that a specific search be made for reports completed by Mr Purdy and Mr Wilson. The tribunal concludes that the employer had gone to reasonable lengths in conducting the investigation.

(v) The respondent had in fact formed a genuine belief that the claimant was one of the two individuals identified by the Judge and that he had attempted to mislead the Court. That belief was on reasonable grounds following a reasonable investigation.

(vi) The disciplinary and appeal process conducted by the respondent was fair. The claimant and his representatives were given a full opportunity to challenge the evidence and to put forward alternative explanations. The tribunal concludes that there were no significant procedural defects.

(vii) Finally, the tribunal considered the penalty which was imposed by the respondent in this case. While we cannot understand what the claimant thought he was going to achieve by giving the false evidence which he gave in the civil court, the employer was entitled to conclude that he had given false evidence and that he had thought that that would in some way assist Mr Taylor in establishing a claim which was otherwise unjustified. The tribunal concludes that the employer was entitled to regard this as gross misconduct and to dismiss summarily.

Chairman:

Date and place of hearing: 4 – 7 March 2006; 31 May – 2 June 2006, Belfast

Date decision recorded in register and issued to parties: