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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> O'Connor v Presbyterian Church in Ireland [2007] NIIT 3076_04IT (01 November 2007)
URL: http://www.bailii.org/nie/cases/NIIT/2007/3076_04IT.html
Cite as: [2007] NIIT 3076_4IT, [2007] NIIT 3076_04IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 3076/04
CLAIMANT: Laurence O’Connor
RESPONDENTS: Presbyterian Church in Ireland, Board of Social Witness
DECISION
The unanimous decision of the Tribunal is that the claimant was unfairly dismissed by the respondents. The Tribunal orders the respondents to pay the claimant the sum of £10,567.41.
Constitution of Tribunal:
Chairman: Ms P Sheils
Members: Mr J Currie
Mr R Gunn
Appearances:
The claimant was represented by Mr M Waters, Barrister-at-Law, instructed by Magennis & Creighton, Solicitors.
The respondents were represented by Mr B Mulqueen, Barrister-at-Law, instructed by Cleaver Fulton Rankin, Solicitors.
The Claim and the Defence
The claimant claimed that he had been unfairly dismissed by the respondents and that the respondents had acted in breach of contract and in breach of their disciplinary and grievance procedures.
The respondents accepted that the claimant had been dismissed by them, but denied that the claimant had been unfairly dismissed or that the respondents had acted in breach of contract or in breach of any disciplinary or grievance procedures.
Sources of Evidence
1. Witnesses
On behalf of the respondents the Tribunal heard evidence from:-
Mrs Linda Wray, Director of Social Services;
Mr David Farrell, Director of Thompson House;
Mrs Eileen McClenaghan, Head of Personnel, Presbyterian Church in Ireland;
Mr Lindsay Conway, Director of Social Services and Secretary to the Board of Social Witness;
Mr David Lamb, Conveyor of the Personnel Committee;
Reverend Robert Vallely, Convenor of the Board of Social Witness;
Ms Andrea Doran, Probation Officer; and
Ms Angela Ramsey, Probation Officer.
On behalf of the claimant the Tribunal heard evidence from:-
The claimant;
Mr John Warren, the claimant’s former representative at the disciplinary appeal hearing and the first industrial tribunal hearing (aborted).
Documents
2. The Tribunal indicated at the outset that it would have regard only to documents that would be drawn to its attention. In all the Tribunal had one main bundle, three supplementary bundles and various miscellaneous documents which were submitted by both parties before and during the hearing. The Tribunal also had sight of the Northern Ireland Social Care Council Code of Practice.
Submissions
3. The parties’ representatives made submissions to the Tribunal.
The claimant’s representative made submissions in writing.
The respondents’ representative elected to make oral submissions.
Findings of fact
4. Having considered the oral and documentary evidence before us, the Tribunal found the following relevant facts, either admitted or proved on a balance of probabilities:-
(1) The claimant was employed by the Presbyterian Church in Ireland, the Board of Social Witness, in February 1996 until his dismissal in November 2004. He was employed as a Residential Social Worker in the respondents’ hostel, Thompson House, in Belfast. The claimant had a clear employment record throughout the eight years he worked for the respondents.
(2) Thompson House is a project of the Presbyterian Church in Ireland and is managed by the Board of Social Witness. It is a hostel for male offenders and ex-offenders and is a bail hostel for men on remand. The hostel offers accommodation and support towards a return to independent living and its principal aims include creating a Christian environment in which residents are encouraged towards the Christian way of life.
(3) This Christian ethos is actively pursued in the hostel where men are offered bible study and ‘supportive chats’. Hostel staff were employed on the basis that they subscribed to this principal aim and they were required to support the hostel’s Christian ethos in the way they carried out their work.
(4) Thompson House comprises of two separate houses at the end of a row of houses. The two houses are joined together by a corridor. The hostel accommodates up to 15 men. One section of the hostel offers catered accommodation and the other section offers semi-independent living with a degree of self-sufficiency.
(5) There were approximately 12 staff members employed at Thompson House at the relevant time. The number of staff employed in the hostel on a daily basis varied from time to time and includes social workers, project workers and ancillary staff.
(6) On the evening of 7 August 2004, the claimant was working at the hostel. At approximately 6.15 pm a resident (to be referred to hereafter as ‘RS’) arrived at the hostel door. He was an 18 year old man on bail for first time charges of theft and burglary. He had been admitted to the hostel to address his offending behaviour and his alcohol and drug abuse and to assist him gain permanent accommodation.
(7) RS was accompanied by his girlfriend and another female friend. He asked the claimant if he could use the snooker room. The snooker room was at the rear of the one of the house (No 426) beyond the yard at the back of the house. The claimant advised RS that the snooker room had been booked for 6.30 pm by other residents but he agreed to allow RS to use it until that time.
(8) The claimant and the other worker on duty that night, Ms Devon Wallace, discussed the situation as both suspected RS was under the influence of either alcohol or drugs. Neither could detect the smell of alcohol but there was a pungent smell of perfume. The claimant noted that RS was ‘not quite himself’ and that his behaviour was louder and more aggressive than normal.
(9) The claimant was also anxious about the age of the two female companions with RS. The claimant checked RS’ file to ascertain if there were recorded details of the ages of the female companions but could find none.
(10) The claimant then went into the dining room and heard extremely loud music coming from the snooker room. The claimant went into the snooker room and as the music was so loud he had to use gestures and hand signals to indicate to RS to turn down the music.
(11) The claimant approached the music centre to turn down the music, he was unable to find the volume switch and RS showed him where it was. The claimant turned the music off completely at first by mistake. He turned it back on immediately at a level that was lower than it had been but high enough that the claimant thought appropriate.
(12) RS complained to the claimant about his turning down the music and a disagreement then ensued between them which became heated. The claimant advised RS that the music was too loud and that it would cause a disturbance and attract adverse attention to the hostel. RS disagreed and said that as the hostel was at the end of a block of houses the music was unlikely to be heard.
(13) The claimant remonstrated with RS and explained to him that on a previous occasion in the past a group of 10 and 12 men had broken into the hostel to cause trouble. RS refused to believe this and called the claimant a liar. RS asked the claimant who had done this and the claimant told RS that it had been ‘local Provos’.
(14) RS did not believe the claimant’s story and called him a liar at which point the claimant threw up his hands and made a remark to RS which became the subject of the subsequent disciplinary proceedings and ultimately led to the claimant’s dismissal.
(15) There are two distinct versions of the remark in question. In the incident report form completed by the claimant on the night and in all subsequent evidence given by him during disciplinary proceedings, his claim form to the Tribunal and during the hearing, the claimant’s version consistently was that, having told RS that there had been trouble before from ‘local Provos’, that if they called round (that evening) to complain, the claimant would introduce them to RS so that RS could explain the noise to them.
(16) The other version of the remark made by the claimant was contained in a complaint form signed by RS. This complaint form had been completed by David Farrow, Director of Thompson House, as dictated to him by RS. It was common practice in the hostel for professionals to complete documentation on behalf of residents who subsequently signed the relevant documents. It was accepted by the claimant that the complaint as handwritten was the version of the incident told by RS to Mr Farrow.
(17) In this version of the incident, RS stated that the claimant had said with reference to the ‘local provos’, “would you like me to get them round to have a word with you”. The respondents contended that RS’ version of the remark ‘would you like me to get them round to have a word with you’ would have appeared to be a threat to a 18 year old Protestant young man from predominantly Protestant East Belfast now living in predominantly Catholic North Belfast. The respondents also contended that any version of the remark, by virtue of a reference to the ‘local provos’, would have had the same threatening effect.
(18) The Tribunal found that the actual remark made to RS was the version the claimant said he had made. The Tribunal concluded this on the basis that the claimant had been consistent throughout in stating his version of the remark starting from the date of the incident report right through to this second Tribunal hearing. The other version of this remark appears once only in RS’ complaint form and was not proved.
(19) Following the disagreement between himself and the claimant, RS and his companions left the hostel at approximately 6.30 pm. RS was due to return to the hostel to meet the conditions of his bail at a curfew time of 8.00 pm. When RS did not return to the hostel by that time, the claimant rang Antrim Road Police Station to report this absence.
(20) At approximately 8.30 pm the police came to the hostel. The claimant believed that the police had come to the hostel in response to his phone call. However one of the policemen, Constable Rafferty, asked the claimant about the incident in the snooker room and advised the claimant that RS had reported to the police that the claimant had threatened him with the provos. Constable Rafferty also told the claimant that RS had reported the incident to Social Services.
(21) Constable Rafferty indicated to the claimant that they did not accept RS’ account that he had been threatened by the claimant. However, Constable Rafferty indicated that in view of the fact RS was on police bail he thought it best to remove RS from the hostel as it would be easier for the police to deal with it. Consequently, RS collected his belongings and left with the police.
(22) The claimant tried to contact the Director, Mr David Farrow, during the course of the remainder of the evening, but was unable to contact him. He left a message for him on his voicemail/pager. The claimant wrote the incident up in the Incidents Book. The claimant recounted the incident to David Farrow at his handover the next morning, 8 August 2004, at the end of his shift and then went home.
(23) Mr Farrow immediately contacted Lindsay Conway, Director of Social Services and Secretary to the Board of Social Witness. Mr Conway was on holiday in Scotland and Mr Farrow contacted him on his mobile phone. Mr Farrow reported the incident to Mr Conway and in so doing advised Mr Conway that RS was too frightened to stay at the hostel and that RS was thereby in breach of his bail conditions. Mr Farrow and Mr Conway had a discussion about the consequence of this for Thompson House on the basis that if a resident was thus in breach of bail it would be very embarrassing for Thompson House if this became known in the High Court.
(24) On hearing from Mr Farrow that RS had been removed from the hostel by the police, Mr Conway did a number of things. He contacted the police. He was advised by the police that they were unclear as to whether RS was in fact in breach of his bail conditions. He then contacted David Farrow again and advised him to put the claimant on precautionary suspension. Mr Conway then contacted his press officer to put him on notice that this matter might arise as an issue in the High Court on any subsequent bail application by RS.
(25) Mr Conway’s evidence was that he had a concern to avoid RS having to return to custody. However it was apparent to the Tribunal that Mr Conway’s primary, if not sole, concern was the impact that RS being removed from the hostel would have on the viability of Thompson House as a reputable bail hostel. Mr Conway made no enquiry of the police as to RS’ whereabouts, either when he rang the police from Scotland nor in any subsequent occasion before RS returned to the hostel, some four days later. Mr Conway had no conversation with the police in relation to the actual incident itself and acted in response of Mr Farrow’s account of the incident.
(26) When Mr Conway returned from holiday he went straight to a conference in Coleraine. The only other step taken by Mr Conway was to compile a pen picture/portrait of the resident in question, RS.
(27) There was considerable divergence in the evidence given by the respondents’ witnesses about how this pen picture had been compiled. The Tribunal did not accept Mr Farrow’s evidence that he had prepared this pen picture. The Tribunal found Mr Farrow’s evidence unreliable on the basis that he appeared to have considerable difficulties recollecting events. It was Mrs Wray’s evidence that Mr Farrow had dictated the pen picture to Mr Conway and it was Mr Conway’s evidence that he had compiled it from information given to him by Mr Farrow.
(28) The Tribunal finds that this pen picture was compiled by Mr Conway on information given to him by Mr Farrow. The Tribunal accepts that this pen portrait was compiled by Mr Conway to facilitate him as he had no personal direct knowledge of RS.
(29) Mrs Linda Wray, Director of Social Services, returned from annual leave on 18 August 2004, at which stage Mr Conway advised her that the claimant had been suspended. At this stage, Mrs Wray instigated an investigation.
(30) Mrs Wray instructed Mr Farrow to obtain statements from staff on duty on the night of the incident. A statement was subsequently produced from Ms Devon Wallis, staff member on duty on the night of the incident. No other statements were sought or obtained by Mrs Wray. Mrs Wray did not speak to the claimant or take any statement from him. In particular no statements were requested from any hostel residents who had been around or nearby in the hostel on the evening in question. No such resident was asked if they had overheard, witnessed the incident or observed RS or the claimant. Mrs Wray indicated that she believed that no resident could have been sufficiently close to the incident to witness it and anything of value. Mrs Wray also indicated that the PCI had a policy of not involving hostel residents in staff disputes. There was no documentary evidence of this policy and the Tribunal did not accept that Mrs Wray had curtailed her investigation on the basis of any such policy. The Tribunal found that Mrs Wray had acted on the basis of her belief that no one had been sufficiently close to the event to add anything of relevance.
(31) Mrs Wray closely studied the documents she had to hand as a result of her investigation. These documents included the resident’s complaint form, the pen portrait of the resident, the statement from Ms Devon Wallis, and the incident report form as prepared by the claimant on the night of the incident. On reading these documents Mrs Wray classified the incident as gross misconduct.
(32) Mrs Wray wrote to the claimant and invited him to attend a disciplinary hearing on 1 September 2004. The letter made it clear that the claimant’s misconduct had been classified under the disciplinary rules and procedures as gross misconduct and specifically that his conduct was ‘in breach of professional codes of practice’ and ‘conduct which may bring the employer into disrepute, with particular consideration of its Christian ethos’, ‘along with a detrimental effect of (the misconduct) on the resident’.
The first of these charges was based on a new Code of Practice, the Northern Ireland Social Care Council (the NISCC) Code of Practice for both social care employees and social care employers. The terms of this Code had been incorporated into the PCI disciplinary rules and procedures which had been amended to include them.
(33) Mrs Wray’s letter to the claimant enclosed the PCI amended disciplinary rules and procedure under which the matter would be dealt with. Her letter did not however enclose a copy of the NISCC Code of Practice on which the charges had been based nor did it refer to the fact that the charge had been based on this Code. Further, her letter did not indicate that the PCI disciplinary rules and procedures had been amended in line with that Code of Practice.
(34) The amended disciplinary rules and procedures were the result of the centralising of administration within PCI, the need to bring them into line with the Labour Relations Agency’s Code of Practice and the need to incorporate the NISCC’s Code of Practice. They were completed in February 2004. They were distributed to some committees within the PCI but they had not been sent to individual staff members nor had staff, including the claimant, been advised in writing, or at all that their contracts had been changed to take account of this amended version of the disciplinary rules and procedures.
(35) The claimant had a copy of the PCI disciplinary rules and procedures that had been given to him with his contract. This version of the rules did not include any of the ground of gross misconduct with which the claimant had been charged. There was an “offence” under the old rules, under Major Misconduct “unsatisfactory attitude to customers/clients/residents”.
The claimant’s contract also stated that employees would be advised in writing of any contractual changes that might be introduced, including any changes to the disciplinary rules and procedures. No staff, including the claimant, had been informed that their contracts had been so changed.
(36) The Tribunal did note that the claimant had received an information briefing conducted by Mr Conway on this Code of Practice. At this briefing he had been told that the standards in the Code would be incorporated into PCI requirements for conduct, when it became operative. However the Code had not become operative and did not apply to the claimant at the time of the incident. It was also accepted by the respondents that no employee, including the claimant, had been advised in writing or at all that this new ground of gross misconduct had been incorporated into the rules.
(37) The disciplinary hearing was conducted by Doctor J Buick, Chairman of Thompson House Committee, Mrs Linda Wray, Mrs Eileen McClenaghan, and a Personnel Officer, Mrs Simpson, attended to take the minutes. The claimant had been advised that he had the right to be accompanied by a fellow employee or a trade union official, but the claimant was unrepresented at the disciplinary hearing.
(38) At the disciplinary hearing the claimant was asked to respond to each of the three areas that had been outlined to him in Mrs Wray’s letter. The claimant denied that he had threatened RS and indicated that he believed RS was “on something” and that he had misinterpreted what the claimant had actually said and stated again that his comment to RS had been that he would ‘introduce him to them (the Provos) and let him (RS) explain why the music was so loud’.
(39) The claimant accepted at this hearing that RS could have misinterpreted what had been said to him and might have felt that he was being threatened by him, but the claimant indicated that this had not been his intention. The claimant accepted that he could see how someone could have felt threatened and intimidated by the comments he had made. The claimant stated that he felt that his remark had been stupid.
The claimant was asked how he could have handled the situation differently and he answered by saying that he had thought a lot about what he could have said but that he still felt that it would have ended the same way. The claimant volunteered to retake any basic training in respect of how to handle difficult situations. He conceded that he had fallen short on this occasion but was happy to do what was required to redeem the situation. The claimant added that he did not think that he had been guilty of any misconduct and that if he had felt that he had been guilty of any misconduct that he would have resigned immediately.
(41) The disciplinary panel noted the claimant’s clear disciplinary record but felt that in light of the seriousness of the circumstances they had no alternative but to dismiss him.
(42) Mrs Wray subsequently wrote to the claimant and advised him that the decision of gross misconduct stood and that he was to be dismissed. Mrs Wray indicated that the disciplinary hearing panel had found that the claimant’s actions were in breach of his professional codes of conduct in that the claimant had not used his knowledge, skills and experience to deal appropriately with the situation, that he was unable to suggest an alternative appropriate method for managing the situation other than to offer to “introduce RS to the Provos”, that the claimant was unable to appreciate that using such language was an unqualified threat and that the claimant did not show respect to the resident as an individual and failed to safeguard his dignity and rights whilst respecting his culture.
(43) The letter also indicated that the panel had taken account of the fact that at the hearing the claimant had given nothing to indicate that he understood the implications of what he had said to the resident in respect of ‘conduct which may bring the employer into disrepute as a Christian organisation’ and the ‘detrimental effects of the comments on the resident’. The dismissal letter also indicated that the disciplinary panel had also taken account of the fact that the claimant had denied that he was guilty of any misconduct.
(44) The claimant lodged an appeal in relation to this decision. The claimant contacted a Mr John Warren to act as his representative. Mr Warren was an experienced trade union representative with the union NIPSA.
(45) The respondents initially refused to accept Mr Warren as the claimant’s representative. This refusal was based on Mrs McClenaghan’s enquiry to NIPSA who were unable to confirm that Mr Warren was qualified to accompany the claimant at a disciplinary or grievance hearing under the disciplinary rules of procedure, in that he was not a fellow worker of the claimant or that he had not been certified by his union as a ‘worker’s companion’. Mr Warren challenged the respondents’ decision and in so doing he referred the respondents to the amended disciplinary rules and procedures on which he sought to rely to persuade them to change their minds.
(46) Mrs McClenaghan did not concede to Mr Warren’s challenge but as a discretionary measure Mr Warren was subsequently granted permission to accompany the claimant to and represent him at the disciplinary appeal hearing on the 28 September.
(47) The bases of the appeal were that an adequate investigation had not been carried out, that there had been no threat to RS, and that the treatment of the claimant’s misconduct as gross misconduct was incorrect and contrary to the PCI Staff Disciplinary Rules and Procedure.
(48) The claimant also contended that an essential aspect of his appeal was that he had been charged and dealt with under a new set of disciplinary rules of procedure (the amended disciplinary rules and procedures) which were significantly different to the set he had and which he maintained should have applied to him. However although it was stated by the claimant’s then representative, Mr John Warren, that he had received a copy of the amended rules for the first time at the appeal hearing it was clear from the evidence in relation to the arguments put forward by Mr Warren to the respondents about his entitlement to be the claimant’s representative that he had had sight of the “new” (amended) set of rules some time prior to the appeal hearing and had quoted from this set in his correspondence with the respondents.
(49) Accordingly the Tribunal found that the claimant had received copies of the amended disciplinary rules and procedures before the first disciplinary hearing and that he and his representative Mr Warren had received and had had sight of the updated disciplinary rules and procedures before the appeal hearing.
(50) At the Tribunal the claimant challenged the competence of the members of the appeal panel to hear the appeal and whether it was appropriate for them to do so. It was contended that Mr Warren had done so at the outset of the appeal hearing. However the Tribunal noted that Mr Warren had asked each of the appeal panel members to state their qualifications and their role Mr Warren did not further challenge the appeal members at that stage.
(51) The Tribunal noted that the claimant challenged only Reverend Vallely’s competence as an appeal panel member in his claim form.
(52) The Tribunal noted that none of the panel members had any working knowledge or experience of the Labour Relations Code of Practice or of the operation of the disciplinary rules and procedures of the PCI.
(53) Mr Conway was the Secretary to the Board of Social Witness and as such was the most appropriate person to hear the appeal. Mr Conway’s prior involvement in the incident was cited as a reason for it not being appropriate for him to be on the appeal panel.
(54) The Tribunal noted that Mr Conway had directed that the claimant be suspended. However this was a “precautionary” suspension as provided for in both sets of the disciplinary rules and procedures which clearly stated that such suspension, with pay, was on the basis where, in cases of gross misconduct, the respondents could “buy” time to carry out a full investigation. However the updated set of these rules also indicated that “A decision to suspend with pay does not imply a pre-judgement on the outcome of the investigation.”
(55) Mr Conway had also compiled the pen portrait of RS. He had also directed Mr Farrow to ask RS if he wished to make a complaint. However the Tribunal noted that the steps taken and directions given by Mr Conway were procedural only. Mr Conway was not involved in the first disciplinary hearing or in any of the preparations for it or for the appeal.
(56) The Tribunal noted that in a set of Management Committee meeting minutes Reverend Vallely had “concurred” with the decision of the first disciplinary hearing when that decision had been reported to that meeting by Mrs Wray. It was suggested by the claimant’s representative that this acknowledgement by Reverend Vallely should have disqualified him from sitting as an appeal panel member. However the Tribunal noted that no details of the hearing were given and no details of the basis for the decision were given. The Tribunal accepted that his involvement in this had been an acknowledgement by Reverend Vallely of his support for those staff who had conducted the matter and not an acceptance by him that the hearing had reached the correct conclusion.
(57) Accordingly the Tribunal found that neither Mr Conway’s nor the Reverend Vallely’s prior involvement should have prevented them from hearing the appeal. However the Tribunal did note that none of the appeal panel members had experience of conducting hearings under the PCI disciplinary rules and procedures and that none of them had received any training from PCI on these or on the Labour Relations Agency’s Code of Practice.
(58) Although one member of the appeal panel, Mr Lamb, stated that he believed that the appeal panel members were “probably” of the view that the claimant had not threatened RS it was clear that this was not a view shared by Mr Conway or by Reverend Vallely. They remained of the view that the claimant had threatened RS. Mr Lamb stated that although he accepted that there had been no threat to RS he still had an objection to the words used by the claimant.
(59) The appeal panel heard for the first time that Mr Warren had contacted the police to hear for himself their version of events and that Constable Rafferty had stated to Mr Warren that he had not believed RS and that he had thought RS was “playing games”.
(60) The appeal panel considered this evidence and then decided to uphold the decision to dismiss the claimant on the basis that “the words and actions used [by the claimant] were in breach of section 2, and in particular 2:2 of the NISSC Code of Practice for Social Care Workers” and that the PCI Staff Disciplinary Rules and Procedure state that “actions in breach of professional codes of practice” constitute “gross misconduct.” However the appeal panel decided that they would only implement this decision if their contact with PSNI after the appeal hearing did not corroborate Mr Warren’s account of the PSNI’s view of the incident, that they had thought that RS was “playing games”.
(61) Mr Lindsay Conway wrote to PSNI and asked them to confirm that Mr Warren had contacted them and that this was their view of the event. The PSNI responded and confirmed that a representative of the claimant’s had contacted Constable Rafferty and that, while he denied using the actual expression ”playing games “, Constable Rafferty indicated an acceptance by all present “ that what was said by (the claimant) was initially taken out of context and no threat was intended. No formal complaint was recorded by RS”.
(62) No evidence was given as to how Mr Conway relayed this information to the other panel members and there was no evidence given that the appeal panel met to or did consider this correspondence. The Tribunal heard that the corroboration sought by the panel members was of the actual description given by Constable Rafferty, as in that RS “was playing games”, and not of the more general point that the police had not thought there had been a serious threat made to RS.
(63) It was clear from the evidence and the Tribunal found as a fact that none of the appeal panel members knew the resident RS and were influenced by the pen portrait that had been compiled by Mr Conway. Although the Tribunal accepted that this pen portrait had been compiled from facts on RS’s file at the time of the incident the Tribunal found that the pen portrait influenced the appeal panel members to form the belief that a resident such as that description would probably have felt threatened in these circumstances. The Tribunal found that this view disregarded the fact that RS did not state in his complaint that he had felt threatened by the claimant and also disregarded the view of the incident as taken by the PSNI.
(64) No evidence was given to the Tribunal that the appeal panel gave any consideration to the claimant’s clear employment history.
(65) In the event the appeal panel decided to uphold its decision. The claimant was advised by letter dated 19 November 2004 that the decision to dismiss him had been upheld. He was informed that this was on the basis that he had been found to be in breach of paragraph 2 and 2:2 of the Northern Ireland Social Care Council Code of Practice which states, “As a social care worker, you must strive to establish and maintain the trust and confidence of service users and carers.” Paragraph 2:2 states “Communicating in an appropriate, open, accurate and straightforward way”.
(66) The letter stated that this was a breach of the claimant’s professional relationship and that he had thereby conducted himself in a manner that breached the Christian ethos of the Board of Social Witness.
(67) The claimant was advised by letter dated 22 November 2004 that his dismissal would take effect from that same date. He received eight weeks pay in lieu of notice and money in lieu of his outstanding annual leave.
(68) The Tribunal noted that Mrs Wray subsequently contacted the Northern Ireland Social Care Council and advised them of the decision to dismiss the claimant even though at the time of his dismissal the Code was not operative and did not apply to the claimant or require the respondent to do this. However this operated to prevent the claimant securing work as a professionally qualified social worker until during this hearing in January 2007 when the claimant was advised by the NISCC that they were going to register him as a professional social worker and he could apply for and accept jobs as such.
Submissions
5. The Tribunal received and considered two sets of submissions from the claimant’s representative, skeletal submissions and supplementary submissions. The respondents’ representative made oral submissions. In both cases these submissions provided the Tribunal with a comprehensive overview of the evidence and referred the Tribunal to the following cases and texts;
Murphy v Epsom College [1983] IRLR 395, and approved in the Court of Appeal, [1984] IRLR 271
Babar Indian Restaurant v Rawat [1985] IRLR 57
Smith v City of Glasgow District Council [1987] IRLR 326 HL
Post Office Counters v Heavey [1989 IRLR 513
W Devis and Sons Ltd v Atkins [1976] 2All ER 822
Spink v Express Foods Group Ltd [1990] IRLR 320
Singh v London Country Bus Service [1976] IRLR 176
Iceland Frozen Foods
British Home Stores Ltd-v- Burchell [1978] IRLR 379
Polkey v AE Dayton Services Ltd [1987] IRLR 503
Harvey
Clark v Civil Aviation Authority [1991] IRLR 412.
Tesco Group of Companies (Holdings) Ltd v Hill [1977] IRLR 63
Trusthouse Forte (Catering) Ltd v Adonis [1984] IRLR 382
Emerson v Northern Ireland Fire Service Case Ref 184/03
W Brooks & Son v Skinner [1984] IRLR 379.
The Applicable Law
6. The Tribunal considered the relevant statutory provisions and case law.
7. The statutory provisions are contained in the Employment Rights (Northern Ireland) Order 1996 where Article 126 of that Order 1996 sets out the right of an employee not to be unfairly dismissed by his employer.
Article 130 of that Order goes on to state that:-
(1) In determining … whether the dismissal of an employee is fair or unfair, it is for the employer to show -
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
A reason falls within this paragraph if it
(b) relates to the misconduct of the employee
Article 130(4) goes on:-
Where the employer has fulfilled the requirements of paragraph (1), the determination of 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.
Case Law
8. The Tribunal considered the cases to which it had been referred. In reaching its decision the Tribunal paid particular regard to the case of British Home Stores Ltd -v- Burchell [1978] IRLR 379 which sets out the task for the tribunal to assess whether the dismissal was fair or not. The tribunal must determine whether the employer believed that the claimant was guilty of the misconduct, that the employer had reasonable grounds for that belief and that the employer had carried out as much reasonable investigation into the matter as was reasonable in all the circumstances of the case. That case also indicated that it was not for a tribunal to replace its own view of what it would have done in the same circumstances.
The Tribunal also considered the more recent case of Iceland Frozen Foods Ltd - Jones [1982] IRLR 439 which sets out the same principles as guidance:
The tribunal must consider the reasonableness of the employer’s conduct and not consider whether the tribunal itself considers the dismissal to be fair
In most cases there is a band of reasonable responses ranging between the view that one employer might reasonably take to the view another employer might reasonably take.
The Tribunal’s function is to determine whether, in the particular circumstances of the case before it, the decision to dismiss falls within the band of reasonable responses which a reasonable employer might have adopted.
The Tribunal’s Conclusions
9. (1) The claimant was dismissed for the reason of his conduct. The conduct was a remark made by the claimant to one of the hostel’s residents. It was the respondents’ case that the remark had been a threat to the resident and that it had been an inappropriate and unprofessional remark to make. It was accepted by the claimant that he had made a different version of the remark in question but the claimant denied that his remark had been intended as a threat to the resident. The claimant did accept that the remark he did make was inappropriate. The issue for the Tribunal was whether or not the dismissal of the claimant for having made this remark was reasonable and fair.
(2) In order to reach a conclusion on this the Tribunal must consider the procedural steps taken by the respondents to assess if these were conducted in accordance with reasonable and fairness and the Tribunal must consider whether dismissal in the circumstances of this case was a sanction which fell into the range of reasonable responses.
The Reasonableness of the Procedures
(3) Under both the respondents’ original disciplinary rules of procedure and the amended rules of procedure, findings of gross misconduct inevitably led to dismissal. However, both rules of procedure indicated that misconduct under the headings of either ‘minor or major misconduct’ could also be regarded as gross misconduct if deemed serious enough to be so considered.
(4) The claimant was charged with three separate charges under the amended disciplinary rules of procedure. These were:-
Actions in breach of professional codes of conduct.
Conduct which may bring the employer into disrepute as a Christian organisation.
The detrimental effects his comments had on the resident.
(5) The first two charges were deemed gross misconduct under the amended disciplinary rules and procedure. The third charge ‘detrimental effect of the claimant’s comment on the resident’ did not exist in the amended rules and procedure. None of the charges existed at all in the claimant’s original rules and procedure. Under those rules there was an unacceptable behaviour, deemed major misconduct, called ‘unsatisfactory attitude to customers/clients/residents’ but this was the closest description of behaviour under any classification of misconduct that existed under the claimant’s original rules and procedure.
(6) The Tribunal concluded that this was an issue of some significance in its assessment of whether or not the decision to dismiss the claimant was fair. This was because it is clear law and justice that an employer’s disciplinary rules in themselves act as a form of warning to offending employees, W Brooks & Son v Skinner [1984] IRLR 379. Although the Tribunal found that the claimant had been furnished with a copy of the updated rules of procedure when the respondents had written to him first advising him of the details of the first disciplinary hearing and that the claimant had become aware of the difference in the contents of those updated rules and his old rules during the course of the disciplinary process, nevertheless it was a finding of the Tribunal that the claimant had not been aware of the updated rules prior to his first disciplinary hearing nor had they been incorporated into his contract by the manner deemed by that contract, ie by the claimant having been advised of the changes to the rules in writing.
(7) The Tribunal’s conclusion was that the claimant had not been appraised of the significant changes made in the updated rules and how these could impact on him before he was charged with an offence under them and that this was a significant factor that the Tribunal took into account in its assessment of the fairness or not of the dismissal.
(8) It is important to note that in reaching this conclusion the Tribunal was not persuaded by the claimant’s arguments that if he had been charged under the old rules of procedure, under major misconduct, that dismissal would have been less likely to occur. It is not for the Tribunal to decide if a lesser sanction would have been a better option. The Tribunal’s focus is whether or not the dismissal that took place was itself fair.
(9) The Tribunal also noted that although in both versions of the rules of procedures there was scope for the respondents to suspend with pay those suspected of gross misconduct this was not a mandatory requirement in either. The Tribunal noted that the respondents claimed that they had suspended the claimant on the basis of his own record of the incident and on the basis of a telephone call that Mr Conway made to the police.
(10) However the Tribunal has found as facts that no one spoke to the claimant before he was suspended to check the details of the incident, that Mr Conway had no discussion with the police about the details of the incident itself and that Mr Conway’s primary concern was that RS had in fact left the hostel and the implications this would have on the credibility and viability of the hostel. Accordingly the Tribunal concluded that the bases for the suspension were inadequate and that the suspension itself was unreasonable in the circumstances.
(11) The Tribunal also considered the investigation carried out by the respondents. The Tribunal concluded that the respondents conducted an investigation in a somewhat limited manner and that it was not a full and proper investigation in the circumstances. In reaching this conclusion the Tribunal took account of the following factors:-
(12) The respondents indicated that the investigation had included ‘consideration’ of statements, by which was meant the claimant’s incident report, the complaint form completed by RS and a statement obtained from the other staff member on duty on the night in question. The Tribunal did not accept that the claimant’s account of the incident as recorded by him in the Incident Book could be regarded as his “statement” as it had not been taken from him in the course of an investigation conducted by the respondents into the complaint received from RS. When the claimant completed the Incident Book he did so as a matter of course and duty. He did not do so in response to the complaint received. His “statement” was therefore not obtained in that context.
(13) The Tribunal also noted that the respondents placed great reliance on the complaint form as signed by RS. At no stage in it does RS state that he was threatened by the claimant or that he was afraid of him or of remaining at or returning to the hostel. Beyond this complaint form there was no further evidence sought or obtained of RS’s view of the incident during the investigation or post the first disciplinary hearing when it first became clear to the respondents that the claimant was denying that he had threatened RS.
(14) Furthermore the Tribunal noted that there were no statements taken from any residents in the hostel on the night of the incident. The Tribunal did not accept that such statements were not sought because there was a policy of not involving residents in staffing issues. The Tribunal took this view because this policy was not produced and the force of this evidence was undermined by the other aspect of Mrs Wray’s evidence, that she made an assessment that none of the residents would have been near enough to the incident to have witnessed anything of any significance or value.
(15) However Mrs Wray could not have known that none of the residents had anything of significance or value to offer. Some useful evidence on the state RS was in on the night of the incident may have come to light. This may have either corroborated the claimant’s case that RS “was not himself” or contradicted it. It may have thrown some light on the demeanour of RS and on whether or not he had appeared fearful or threatened. It may have given a clearer picture of RS’s own behaviour on the night in question that was not hinted at in the pen portrait. In any event the Tribunal concluded that no such evidence was sought because Mrs Wray was of the view that it was not necessary, given the claimant’s own account of the incident in the Incident Book.
(16) While the law does indicate that in circumstances where the misconduct in question is admitted by the employee an investigation need not be as rigorous the Tribunal does not consider that this is the case here. There was a clear divergence between the behaviour accepted by the claimant and the misconduct with which he was charged. The claimant did accept that he had made an inappropriate remark but he did not accept that he had threatened RS nor did he accept any of the charges that were put to him. This circumstance would have been clear to the respondents if the claimant had been given an opportunity to make a statement and the need to explore the possibility of there being other evidence may have then become apparent.
(17) The Tribunal also concluded on its findings of fact that the respondents were from the outset more mindful of how the reputation of the hostel might be affected by what had occurred than they were concerned about the claimant. The Tribunal concluded that although the viability of the hostel was a legitimate concern it was uppermost in the respondents’ mind throughout the early stages of the disciplinary process, from the immediate suspension of the claimant, through the investigation and disciplinary hearings. The Tribunal concluded that this anxiety coupled with having the claimant’s own “statement” of events led to the hasty and less than complete way in which the respondents conducted these processes.
(18) Although the Tribunal did not find that the appeal panel members ought not to have been on the panel nevertheless the Tribunal was concerned to note that no member of the appeal panel had any experience of or training in the respondents’ disciplinary rules and procedures or had consulted the Labour Relations Agency Code of Practice. In applying the statutory factors in assessing the reasonableness of the dismissal, i.e. the circumstances of the case and the size and administrative resources of the respondents’ undertaking the Tribunal concluded that it was unreasonable that none of the panel members had this relevant experience or knowledge, particularly when one of the panel members occupied the senior position that he did.
Was the sanction of dismissal of the claimant within the range of reasonable responses?
(19) While it is not the function of the Tribunal to consider the respondents’ action so as to replace it with its own, the Tribunal must consider the respondents’ action and decide if, in all the circumstances, the decision to dismiss the claimant falls within the range of reasonable responses, i.e. what other employers would reasonably have done, in those same circumstances.
(20) At the disciplinary hearing the claimant remarked that if he had felt that he had been in breach of his professional standards he would have resigned immediately. The respondents took the view that this remark was an indication by the claimant that he did not accept that he had acted unprofessionally. However the Tribunal accepts that the claimant’s reluctance to accept the charge of unprofessional conduct in the circumstances of a disciplinary hearing, while facing the fear of the consequences such an admission could have is understandable.
(21) The Tribunal also noted that the respondents found that the claimant offered no alternative means by which he ought to have handled the situation other than to “introduce him RS to the Provos” and that the claimant suggested that “it would have ended in the same manner”. The respondents interpreted this to show that the claimant could not assure them that he would not repeat the event. However although the Tribunal understood the respondents’ concern that the claimant did not offer any alternative means by which he could or should have handled the situation, the Tribunal did not think that it necessarily followed that the claimant was thus suggesting that he would do the same thing again. The claimant’s remark was that, having given a lot of thought to the question of what else he could have done, concluded that the incident “would have ended in the same way”. The claimant’s answer was clearly set in the context of the actual incident.
(22) The Tribunal did note that the claimant had accepted his own conduct from the moment he completed the incident form, throughout the disciplinary procedure and through to this, the second of two industrial tribunal hearings. At the first disciplinary hearing the claimant also accepted that his remark was regrettable and that he had not handled the situation well. In noting the claimant’s acceptance of his own conduct, his indications of regret and preparedness to improve the Tribunal considered that this was in keeping with an employee who did realise that his conduct fell below a professional standard and that he was keen to make amends.
(23) The Tribunal also noted that while Mrs Wray stated that consideration had been given by the disciplinary panel to the claimant’s past good employment history there was no detail of what that panel had considered and why it had been disregarded, beyond saying that it was because that offence was so serious. There was no record of any such discussion in the disciplinary hearing notes. There was also no evidence before the Tribunal that the appeal panel gave any consideration to the claimant’s good employment record.
(24) Although the Tribunal noted that any offence under either set of disciplinary rules and procedures could be construed as gross misconduct if considered sufficiently grave or too often repeated and that dismissal for gross misconduct could be a reasonable sanction even for a first offence combined with a clear employment record nevertheless the Tribunal concluded that a reasonable employer would have given proper consideration to that clear employment record in his assessment of the appropriate sanction to impose and would have noted or cited his considerations and detailed why he was disregarding that good record. The Tribunal concluded that in failing to do so the respondents acted unreasonably.
(25) Additionally the Tribunal concluded that it was unreasonable for these or other reasonable employers so to disregard this clear record in circumstances where it was not so much the actual offence committed by the claimant as the respondents’ perception of the offence committed that operated on them to act as they did.
(26) Accordingly the Tribunal finds that the dismissal of the claimant was unfair because of the unreasonable and unfair way in which the respondents applied their procedures and because the respondents’ dismissal of the claimant did not fall within the range of reasonable responses.
10. Compensation
(1) Article 152 of the Employment Rights (Northern Ireland) Order 1996 provides that compensation awarded by a tribunal should consist of a basic award and a compensatory award.
The Basic Award
(2) Article 153 of the 1996 Order sets out the formula by which such basic award is to be calculated.
(3) Article 156(2) of the 1996 Order goes on to provide that a tribunal may, in certain circumstances, reduce a basic award to any extent, in the light of any conduct of a claimant before the dismissal where it would be just and equitable to do so .
The Compensatory Award
(4) Article 157(1) of the 1996 Order provides that the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer".
(5) Article 157(6) of the 1996 Order goes on to provide that, where the tribunal finds that a dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion as it considers to be just and equitable having regard to that finding.
(6) The Polkey decision is authority for the proposition that, in deciding on the amount of compensation which is "just and equitable" for the purposes of Article 157(1), full account has to be taken of the chance that the claimant could and would have been dismissed in any event, even if there had been no procedural shortcomings in connection with the dismissal.
(7) In this regard the Tribunal was urged to consider and apply the case of Emerson v Northern Ireland Ambulance Service. The Tribunal did consider that case. In Emerson it was concluded that the claimant’s dismissal would have been fair if none of the procedural defects rendering the dismissal unfair had been present. In that case the claimant, an ambulance man, had been provoked into using strong and bad language against an unruly female patient. During a violent exchange between them where she actually attacked him he called her a slut. It was his first offence and he had a clear employment record.
(8) However in Emerson it was accepted that the claimant had used the bad language he had used, he had been overheard using it and that those who had overheard him had been shocked to hear him say the word, however provoked. That tribunal was satisfied that even if the processes and procedures had been fairly applied to Mr Emerson he would have been dismissed and that therefore the Polkey reduction applied.
(9) The facts in that case are different to this one. Here although the claimant has never resiled from his version of the words he used and has accepted that he made reference to “Provos” he has consistently maintained that they did not contain the threat as imported to them by the respondents, no allegation of having been threatened was made by RS and no disciplinary or other more formal charge of having threatened RS was brought against the claimant.
(10) This Tribunal was satisfied that, in this case, if the processes and procedures had been fairly applied the claimant would not have been dismissed. As already indicated this Tribunal has concluded that here the decision to dismiss the claimant was not within the range of responsible responses open to a reasonable employer. Therefore the Polkey reduction does not apply.
Reduction of Compensation by Contributory Fault
(11) The Tribunal had to consider whether any award for compensation should be reduced by reason of the claimant’s conduct and contributory fault. The Tribunal did not consider it appropriate to reduce the basic award under Article 156 (2). The Tribunal gave careful consideration to the issue of reduction of the compensatory award under Article 157 (6). Although the Tribunal concluded that the claimant’s dismissal had been procedurally unfair and that his dismissal was not within the band of reasonable sanctions available to the respondents the Tribunal also concluded that the claimant had contributed to his own dismissal by the reference to a paramilitary organisation in his admonitory dealings with RS.
(12) The Tribunal accepted that the claimant did not intend to nor did he threaten RS but the Tribunal did conclude that the reference to the paramilitary organisation, “the provos”, did contribute to the respondent’s action towards him. The Tribunal took into account that the claimant accepted that his words had been unfortunate as recognition by him that his own behaviour had been less than it should have been. In reaching its conclusion that the claimant’s behaviour had contributed to his dismissal the Tribunal took account of the claimant’s role in relation to RS as a professional social worker and also took into account the nature and type of the hostel run by the respondents in which the claimant was working and RS was living.
(13) The Tribunal went on to consider the extent to which the claimant’s compensation should be reduced and found that it should be reduced by 70%. The Tribunal considered that this amount reflected that the claimant’s conduct was more likely than not to have contributed to his dismissal the degree to which the language used by the claimant in his professional role and in that particular hostel had had that consequence for him.
Duty to Mitigate Loss
(14) The Tribunal heard evidence from the claimant as to the efforts he made to obtain alternative employment. This evidence was not disputed by the respondents. The claimant was paid by the respondents until January 2005. The claimant was thereafter in receipt of incapacity benefit between January and June 2005. The claimant stated that during this period he was in a state of stress and anxiety and that he experienced appetite loss and sleeping difficulties. The claimant was treated by his general practitioner during this time and was given medication for his symptoms.
(15) In June 2005, with the agreement of his doctor, the claimant signed off incapacity benefit and signed onto the Job Seekers scheme and started to apply for work. The claimant applied for a number of posts, at least eight. He stated that he was given interviews for only some of these posts. In others the claimant indicated that he believed that the prospective employers may have been put off offering him work when they heard that he had this case outstanding. In one instance the claimant stated that a prospective employer, Extern, had not confirmed an offer of work once they received a reference for him from the respondents. The claimant eventually obtained work in October 2005. This was with the DePaul Trust as a Project Worker.
(16) The Tribunal had the benefit of a Schedule of Loss in which the calculations of the basic and compensatory awards were agreed, except insofar as the compensatory award related to the claimant’s pension loss and future loss. In respect of the claimant’s basic award and compensatory award these are as follows:-
Basis Award
£270 x 12 weeks (Aged 55 at EDT, Date of Birth 22/9/1949) £3,240
Compensatory Award
Date of dismissal 16/01/05 (notice paid)
Earnings Gross/Net at date of Dismissal £23,313 plus £28 overnight allowance (8 per month on average)
Gross/Month £2,166.75
Tax due £362.61
NI contributions £192.14
Net Income/Month £1,612.00
Period from 17/1/05 to 31/3/05 - £4,030.00
Salary scale increased to £24,000 pa from 1 April 2005 (plus on average 8 sleepovers per month at £30.08 each from 1 April 2005).
Gross/Month £2,240.64
Tax due £378.89
NI contributions £200.27
Net Income/Month £1,661.48
Period from 1/4/05 to 31/3/06 £19,937.76
Salary scale increased again to £24,708 (plus 8 sleepovers per month at £30.97)
Gross/Month £2,306.76
Tax due £393.41
NI contributions £207.54
Net Income/Month £1,705.81
Period from 1/4/06 to 31/10/06 £11,940.67
Period in question 16/01/05 until 1 November 2006
Total loss of earnings £35,908.43
Deductions during the period
Social Security Benefits:
20 weeks at £56 p.w. 01/01/05 until 20/06/05 £1,120
Plus 21/06/06 until 10/10/05 £896
Work – Stella Maris de Paul Trust:
11/10/05 until 31 October 2006 (present): £15,067 p.a. gross
£12,017.76 p.a. net
from 11/10/05 – 30/9/06 £12,733.10 p.a. net
TOTAL £14,749.10
£21,159.33
Pension Loss
(17) The Tribunal accepted the respondents’ adjustment to the claimant’s suggested pension loss on the basis that the claimant’s pensionable pay had ceased from 22 November 2004, and not 31 October 2004.
Therefore, pension loss to date of hearing,
22 November 2004 – 2 October2 006 = £2,964.06
Future Pension Loss
(18) At the time of the hearing the claimant had obtained other employment although this employment was not pensionable. However, in January 2007 the Northern Ireland Social Care Council advised the claimant that he could now become registered with the social care register which would enable him to obtain work as a qualified and pensionable social worker. The Tribunal rejected the claim that the claimant should receive future pension loss up until the date of his retirement. The Tribunal noted the conscientious efforts the claimant had made to obtain employment and his high success rate in getting interviews. Although the claimant was unable then to utilise this success because of this outstanding hearing and the poor reference nevertheless the Tribunal concluded that the claimant would be likely to obtain professional and pensionable work within a reasonable period after the bar to this had been lifted in January 2007. Accordingly the Tribunal decided that the claimant should be entitled to receive compensation in respect of loss of pension and other entitlements from the date of the hearing up to January 2007 and for a further period of six months thereafter, but not up to the date of his retirement.
Therefore, future pension loss,
2 October 2006 -2 January 2007 = £741.24
Future Loss
(19) The claimant’s current salary is £15,067 gross, £1,001.48 nett per month. This contrasts with his salary with the respondents which at 1 April 2006 was £27,681 gross, £1,705.81 nett per month. This amounts to a differential of £704.33 per month nett. The tribunal has decided that the claimant should receive compensation in respect of this for the same period as above and for the same reasons, that is, the period from the date of the hearing until six months after January 2007.
Therefore, future loss, £704.33 x 9 = £6,338.97
Other Loss
(20) In-service death benefit, £31.23 (the difference between the sum paid by the respondents and the sum the claimant would have had to pay privately) x 9 £281.07
The claimant claimed that his sick pay entitlement has diminished in his new job from 6 months at full pay plus 6 months at half pay to 10 days at full pay. The Tribunal was given no evidence or factual detail on which to base any calculation of this loss.
Loss of Loss of statutory rights £500
Total Award £35,224.67
Less 70% = £10,567.41
Accordingly the Tribunal orders the respondents to pay the claimant the sum of £10,567.41.
11. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.
Chairman:
Date and place of hearing: 2 – 5 October 2006;
6 – 10 November 2006;
7, 8, 14, 15, 18, 19 December 2006,
8, 9 and 11 January 2007 and 4 July 2007, Belfast.
Date decision recorded in register and issued to parties: