Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 528/05

CLAIMANT: Andrew Bell

RESPONDENT: Martin Groundland & Co Limited

t/a Symingtons Jewellers

DECISION

The unanimous decision of the tribunal is that the claimant has failed to establish that he was unfairly dismissed and consequently the claim must fail.

Constitution of Tribunal:

Chairman: Mr T Browne

Members: Mrs Gilmartin

Mr Rosbotham

Appearances:

The claimant represented himself.

The respondent was represented by Mr Conor Hamill, Barrister-at-Law, instructed by Elliott, Duffy & Garrett, Solicitors.

1. The issues

The tribunal had to decide whether the claimant had been unfairly dismissed from his employment because he had brought to the respondent's attention matters of health or safety in connection with his employment. It was common case that the claimant did not have the 12 months' employment required by Article 140(1) of the Employment Rights (Northern Ireland) Order 1996 to enable him to claim unfair dismissal under Article 127 of that Order.

The claimant's case however was that he had been unfairly dismissed within the terms of Article 132 of the 1996 Order, which states:-

"(i) an employee who is dismissed shall be regarded …. as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that –

(c) he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety".

If an employee is found by a tribunal to have been dismissed in those circumstances then, by virtue of Article 140(3)(c) any qualifying period of employment does not apply.

The issues for the tribunal in this case therefore were to determine whether the claimant had been dismissed and, if so, whether the reason or the principal reason was because of health and safety issues he had brought to the respondent's attention.

The tribunal, in determining these issues, found the following facts from the oral evidence adduced by both parties, as well as the agreed written material, the originating application and the notice of appearance.

Whilst the respondent initially denied that the claimant had been dismissed, subsequent correspondence from their Solicitors confirms that they now accept that he was dismissed from his employment on Thursday, 20 February 2005.

The claimant commenced his employment with the respondent as a sales assistant in their jewellery outlet in Castlecourt, Belfast, in September 2004. This is the only such store in Northern Ireland, although the respondent operates a further 17 such shops in Scotland and England.

The tribunal found that, because this is the only branch in Northern Ireland, any shortfall in attendance of staff caused enormous problems in replacing them at short notice.

Any such difficulty was found by the tribunal to be made more acute by what the respondent described as an extraordinary turnover of staff in the Castlecourt shop.

This shortage of staff caused problems, not only in the day-to-day running of the shop, it also had an effect upon the clear company policy that there should be at least two staff on the shop floor at any one time.

Whilst the tribunal accepted the respondent's contention that such a policy was not required for insurance purposes, it found that the potential for theft or robbery, due to lack of staff, was a real and reasonable concern of the claimant as a potential victim.

The tribunal also found that the likelihood of potential thieves attempting to steal, either surreptitiously or by force, would significantly be increased if there was only one member of staff on the shop floor.

Miss Sherwin accepted in her evidence that the claimant had raised this health and safety issue with her once in December 2004. That assertion was not accepted by the claimant, who stated that he had raised it several times with Miss Sherwin since he started work in September 2004.

The tribunal preferred the claimant's evidence as to the alleged instructions by Miss Sherwin to new members of staff as to 'body-checking' potential thieves.

The tribunal also accepted that the claimant had, in fact, raised the matter of insufficient staff in a health and safety context with her on several occasions.

The tribunal found that, in the absence of a formal alternative method of drawing to the respondent's attention, the claimant was compelled to do so personally. There was no evidence however that in doing so he was ever in danger of being dismissed or subjected to any detriment for doing so.

The tribunal found this to be exemplified by the fact that on New Year's Eve the claimant contacted a company director in Scotland, to inform him that there were not enough staff in the shop that day to comply with the company's policy if the claimant left the premises for a period to go on personal business. Mr Benson gave the claimant permission to close the shop, giving him sufficient time to complete his personal business.

Further to that incident, when Mrs Joan Carroll visited the branch in her role as Personnel Manager from Headquarters in Scotland on 10 January 2005, she was very impressed by the claimant.

The tribunal found that whilst Mrs Carroll by then was aware of the New Year's Eve difficulty, there was no animosity on the part of the respondent company towards the claimant. Indeed, Mrs Carroll and the claimant gave each other the clear impression that all was well, and there was no suggestion that Miss Sherwin had given her any negative impression about the claimant.

The tribunal found that Mrs Carroll had a sufficiently high opinion of the claimant at their first meeting that she encouraged him to stay on in the shop when he discussed leaving the shop to move into property development.

The tribunal found that this weighed heavily against any notion that the claimant was regarded as a nuisance or was an unvalued employee.

The tribunal found that the claimant did not raise any negative issue with Mrs Carroll, and went out of his way to give her the impression that he was fully and, perhaps, solely loyal to and supportive of Miss Sherwin in her management of the shop.

Soon after 10 January 2005, the claimant developed an abscess in his tooth and had to take a few days off work. This would always have caused staffing problems, but the tribunal found that such a situation was worse after Christmas, because the contracts of temporary staff taken on over the Christmas period had, by that stage, expired.

The tribunal found that Miss Sherwin bore the responsibility of finding replacement staff (including her own father) at little or no notice.

When the claimant returned to work on Thursday 20 January 2005, the tribunal found that both the claimant and Miss Sherwin were already ill-disposed towards each other.

The tribunal found that the claimant had probably been brooding over the period of his sickness at what he thought was Miss Sherwin's rudeness, when he telephoned to tell her that he would not be at work for a second day. It seemed to the tribunal that Miss Sherwin was also greatly irritated by the claimant's failure to come to work.

It was common case that at some stage before the claimant started working for the respondent, he had asked Miss Sherwin to go out with him but she had declined his request.

There were several incidents during the evidence of the claimant and Miss Sherwin when it was apparent to the tribunal that this personal history negatively affected both of them in their working relationship more than either was able to acknowledge.

During the course of the escalating row between the claimant and Miss Sherwin on 20 January 2005, it was common case that one topic which arose was that of short-staffing and the consequent health and safety implications. In response to the claimant's views on this matter, Miss Sherwin told the claimant that she would not be able to facilitate his customary Monday absence, when he was studying part-time at the University of Ulster.

Miss Sherwin tried to justify this action in her evidence by saying that she did not think he would mind if he was so concerned about the staffing issue.

The tribunal felt, however, that such a response to the claimant's criticism in that regard was said in the heat of the moment and was not an appropriate response to what, in another atmosphere, would have been a legitimate topic for discussion.

2. Conclusions

The tribunal found that the issue of health and safety raised by the claimant on 20 January 2005, arose in an atmosphere that was anything but conducive to rational discussion.

Whilst the tribunal found that the claimant maintained his composure better than Miss Sherwin, the tribunal concluded that he was confrontational in challenging the authority of his superior to the point where even if he had been dismissed on health and safety grounds, the tribunal concluded that he had not done so "by reasonable means" as required by Article 132(1)(c).

The tribunal found that there was compelling evidence to suggest that the claimant felt that his academic achievements and previous work experience placed him significantly above the rank in which he then was employed.

The tribunal accepts Miss Sherwin's view that, on 20 January 2005, the claimant set out to start a fight and emotionally upset her. In this he clearly succeeded.

The tribunal also accepted Miss Sherwin's view that she felt it was not right to be bullied by a member of staff, which is why she attempted to get him to leave by dismissing him.

The claimant challenged not only the authority of his immediate superior, but also that of Mrs Carroll, whom Miss Sherwin contacted in Scotland by telephone when the claimant refused to leave.

The grounds for dismissal, written by Miss Sherwin on the exit interview document on 20 January 2005, were "dissatisfactory working conditions" and "personality clash".

Whilst the first ground, which was not explored in-depth in evidence, might include the health and safety aspect, the second is clear and is clearly applicable to this case.

In order for the tribunal to find for the claimant, it would have to find on the balance of probabilities. that, in accordance with Article 132(1) – "the reason (or if more than one, the principal reason)" was on a health or safety ground as specified in Article 132(2).

The tribunal unanimously concluded however that, whilst a health and safety issue was raised by the claimant during his employment before 20 January 2005, there was no evidence that this was in any way held against him by Miss Sherwin or the respondent.

Whilst the topic was raised in the course of the argument between the claimant and Miss Sherwin on 20 January 2005, the tribunal viewed it as being part of a turbulent series of exchanges which themselves arose from a deep-seated set of other personal factors.

The tribunal concluded that it could not be said in this case that the reason or principal reason for the claimant's dismissal had been established by him to the required standard as being on the ground of health or safety. Indeed, it was the view of the tribunal that the reason or principal reason for his dismissal had been his deliberate confrontation with his superior.

In the absence of 12 months' employment, the claimant is not eligible on the evidence before the tribunal, otherwise to have the merits of any such reason or the process of his dismissal examined, and consequently, his claim must fail.

Chairman:

Date and place of hearings: Belfast, 29 November 2005 and 5 January 2006

Date decision recorded in register and issued to parties: