Industrial Tribunals Northern Ireland Decisions

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Cite as: [2008] NIIT 1738_07IT, [2008] NIIT 1738_7IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1738/07

CLAIMANT: Cara Coleman

RESPONDENT: Norbrook Laboratories Ltd

DECISION

The unanimous decision of the tribunal is as follows:-

(A) The claimant committed a disciplinary offence by failing to comply with instructions which she was given in June 2007, in respect of working in the respondent company's Chairman's office.

(B) Dismissal for that offence, in the circumstances of this case, would not have been within the range of reasonable responses, assuming (for present purposes only) that a fair procedure had been followed.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Mr I Lindsay

Mr R Lowden

Appearances:

The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Worthingtons, Solicitors.

The respondent was represented by Mr F O'Donoghue, Queen's Counsel, instructed by the legal department of the respondent company.

REASONS

The claimant was employed by the respondent company ('the respondent') for 30 years until July 2007, when she was dismissed. In these proceedings, the claimant makes a claim of unfair dismissal.

According to the respondent, the claimant was dismissed because she failed to comply with instructions which she was given in June 2007 in respect of working in the office of the Chairman of the respondent company. The claimant asserts that she did not commit a disciplinary offence by failing to comply.

She says that the decision to dismiss her was unfair mainly for two reasons. First, she says that the dismissal was procedurally unfair. Secondly, she says that, even if the dismissal was procedurally fair, it was substantively unfair, because a decision to dismiss, in the circumstances of this case, was such a disproportionate sanction that the decision to dismiss was outside the 'range of reasonable responses'.

The respondent says that she did indeed commit a disciplinary offence by failing to comply. The respondent says that the dismissal was procedurally fair. Furthermore, according to the respondent, even if the tribunal decides that the dismissal is unfair because of procedural deficiencies, the respondent is entitled to the benefit of Article 130A of the Employment Rights (Northern Ireland) Order 1996 ('the Order').

Article 130A sets out certain minimum procedural requirements, at paragraph (1) of that Article. Paragraph (2) of Article 130A then goes on to make provision as follows:-

"(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure."

The respondent also asserts that the dismissal was within the range of reasonable responses and therefore was 'substantively' fair.

Case management

The claimant was sharply critical of a considerable number of procedural aspects of the process which culminated in the claimant's dismissal. As a result, it seemed likely to us that any main hearing covering all the liability aspects of the case would be likely to last for at least three weeks.

Against that background, we acceded to an application from Mr O'Donoghue, on behalf of the respondent, for the tribunal to deal with the liability issues in two stages, with the procedural aspects of the fairness of the dismissal being deferred to the second stage of the main hearing.

On behalf of the claimant, Mr Mulqueen opposed that application, mainly on two grounds. First, an estimated overall liability hearing time of three weeks was likely to be excessive, according to Mr Mulqueen's estimation. Secondly, he reminded us of the comments of the Court of Appeal in Ryder v Northern Ireland Policing Board [2007] NICA 43.

In Ryder, the Lord Chief Justice stated that the power to determine a preliminary point should be sparingly exercised. He added that it is often difficult to segregate in a wholly compartmentalised way a single issue in the field of employment law, from other material that may have relevance to the matter to be decided.

In the same case, Girvan LJ warned of the dangers posed by inappropriate preliminary issues. He added that, unless a point of law, if decided one way, is going to be decisive, a preliminary point will rarely be appropriate; tribunals, accordingly, must approach with caution and care the question of whether a preliminary issue should be ordered.

In deciding to deal with the liability hearing in two stages (with the present stage being dedicated to the determination of the two issues identified at paragraph 18 below), we have borne the guidance and warnings of the Court of Appeal in Ryder very much in mind. However, in the end, we have been satisfied that it is appropriate to divide the liability hearing into those two stages, because of the considerations, and against the background, mentioned below.

We were satisfied that, within a hearing duration of one week, we would be able to address both of the two issues which we have identified at paragraph 18 below. On the other hand, we were also satisfied that, if we had to address all liability issues in the course of one overall liability hearing, that hearing would probably last for at least three weeks.

Secondly, we noted that, because of the existence of Article 130A(2), issues of procedural impropriety might be of limited significance in the context of liability:-

(1) If the dismissal was substantively unfair, meticulous and comprehensive procedural propriety would be unlikely to render the dismissal fair.

(2) On the other hand, Article 130A(2) seems to provide the basis for a respectable argument for the proposition that, in the event of there being even serious procedural deficiencies, the dismissal, if substantively fair, would not always, necessarily, by reason of those procedural deficiencies, be transformed into an unfair dismissal.

Thirdly, the overriding objective of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 is to enable tribunals to deal with cases justly; dealing with a case justly (including, so far as practicable):-

(1) ensuring that it is dealt with expeditiously (as well as being dealt with fairly); and

(2) saving expense.

Clearly, the court in Ryder was not in any way suggesting that a tribunal should not have regard to that overriding objective.

The issues at this stage of the case

It was agreed between the parties that, on 22 June 2007, the claimant had refused to comply with a requirement in respect of working in the office of the Chairman of the respondent company and that she had confirmed that refusal on the following Monday morning.

We have decided that the liability hearing in these proceedings should be conducted in two stages. At this first stage, we will deal with the issues identified in the following paragraph. At the second stage, we will deal with any remaining liability issues.

The issues to be addressed at this stage of the case are as follows:-

(1) Did the claimant commit a disciplinary offence by failing to comply with instruction which she was given in June 2007 in respect of working in the Chairman's office?

(2) If so, would dismissal for that offence, in the circumstances of this case, have been within the range of reasonable responses, assuming (for present purposes only) that a fair procedure had been followed?

The sources of evidence

We received oral testimony from the claimant, who gave evidence on her own behalf.

We received oral testimony from the following witnesses, who gave evidence on behalf of the respondent:-

(1) Mr Martin Murdock, Director of Finance of the respondent company;

(2) Ms Louise Kirk (a personnel officer within the respondent company);

(3) Lord Ballyedmond;

(4) Ms Emilia Woskowiak;

(5) Mr Martin McKavanagh (an employee within the IT Department of the respondent); and

(6) Mr Gareth McConville (a personnel officer within the respondent company).

We saw an agreed bundle, consisting of over 400 pages in total, along with a variety of miscellaneous documents. We told the parties that we would have regard only to documents to which our attention was specifically drawn.

The arguments

We heard oral submissions from the parties on the afternoon of 22 February 2008. In the case of the respondent, those arguments were supplemented by a written note ('the Note') which was provided for us by Mr O'Donoghue. The Note provides a permanent record of the main thrust of the oral arguments which were made on behalf of the respondent. In the main, Mr Mulqueen's oral arguments on 22 February 2008 took the form of a response to the points which had been made on behalf of the respondent in the Note. In those circumstances, accordingly, there is no need for us to provide comprehensive details of those oral arguments.

During the 22 February 2008 hearing, we drew the attention of the parties to the discussion on the scope of gross misconduct which is contained in Neary v Dean of Westminster [1999] IRLR 288 and we encouraged each of the parties to provide subsequent written submissions ('Submissions') in respect of any relevant implications (if any) of that case. Subsequently, the parties were invited to expand the scope of any such Submissions, so as to cover, also, the implications for this case, if any, of the following:-

(1) the decision in Seaton v Ulster Timber Company Ltd [1979] NI 23; and

(2) the commentary in Stephen Anderman's 'The Law of Unfair Dismissal', 3^rd Edition, at pages 182 – 196 (which consists of commentary under the heading 'The sufficiency of the employee's conduct taken by itself').

The arrangements in respect of the Submissions were as follows. Each party was to send its Submission to the Secretary of the Tribunals by 7 March 2008. The sending party was responsible for simultaneously copying the opposing party with her/its Submission. Each party was free to provide written comments ('Comments') in respect of the other party's Submission, provided that any Comments were sent to the Secretary of the Tribunals, so as to arrive no later than seven days after the date of exchange of the Submissions. Again, any such Comments were to be simultaneously copied to the opposing party.

Each party did make a Submission. Neither party made Comments.

In essence, the oral arguments, Note and Submission of the respondent can be summarised as follows. First, it was reasonable of Lord Ballyedmond to require the claimant to turn up for work in his office on 25 June 2007, having regard to the nature and duration of his needs for her services, having regard to the surrounding circumstances and having regard to any effect that this requirement might have upon her. The claimant had deliberately refused to comply with a lawful instruction of her employer. That, by its very nature, was a very significant offence. The tribunal should be careful not to substitute its own judgment for the judgment of the employer. The employer's decision to dismiss the claimant was not outside the range of reasonable responses. The relevant offence was treated as an offence of gross misconduct within the categorisation of offences which was part of the respondent company's disciplinary procedure.

The general thrust of the arguments on behalf of the claimant (as presented in the course of oral arguments and in the course of the claimant's Submission) can be summarised as follows. Lord Ballyedmond's imposition of the relevant requirement (regarding the claimant working in his office) was outside the scope of the claimant's contract of employment, because it was not a reasonable requirement. In considering whether it was a reasonable requirement, it was appropriate to take account of the injustice suffered by the claimant by reason of the imposition of that requirement, and the extent of that injustice. In that connection, Mr Mulqueen referred us to Dobie v Burns International Security Services (UK) Ltd [1983] IRLR 278. In assessing the reasonableness of the imposition of the requirement, the tribunal should also have regard to the fact that the respondent did not consult the claimant before imposing at. In London Borough of Redbridge v Fishman [1978] IRLR 69, the Employment Appeal Tribunal had held that a headmaster was entitled to require teachers to do work other than that for which they had been engaged, provided that the request was reasonable; the EAT added that what is reasonable will depend on the circumstances, bearing in mind the particular duties which the teacher was engaged to undertake and the custom and practice of the teacher's profession. Mr Mulqueen argued that the decision to dismiss in this case was clearly outside the range of reasonable responses, having regard to the mitigating factors, including the claimant's clear record, the fact that she was hard-working, the fact that she was trustworthy and the fact that, prior to the relevant incident, there had been excellent working relations between the claimant and the respondent's Chairman.

We drew the attention of the parties to the industrial tribunal decision in Serplus v Belfast Institute of Further and Higher Education [Case Reference No: 1941/04, decision issued on 18 January 2008].

The facts

We now set out findings of fact which are relevant to the issues which we have determined at this stage of the case:-

(1) The respondent company, Norbrook Laboratories Ltd, is a pharmaceutical company. It is situated in Newry. The company employs thousands of workers. It is one of the biggest private sector employers in Northern Ireland.

(2) Lord Ballyedmond was the respondent's founder. He owns nearly all of the company's shares. He is its Chairman. In that role, he also carries out the tasks which are often entrusted by a company to a chief executive.

(3) Lord Ballyedmond also has a significant role in the public life of the United Kingdom and of the Republic of Ireland, not least because of his membership of the House of Lords.

(4) The claimant was employed by the company for 30 years. The word 'exemplary' is a word which is much over-used in connection with employment tribunals litigation. However, it is the adjective which suits the circumstances of this case. Throughout her 30 years of employment in the company, up to the time when the matters which have given rise to this case arose, the claimant provided an excellent standard of service to the company in her role as an employee of the company. That was fully recognised by Lord Ballyedmond.

(5) In his evidence to this tribunal, he accepted that the accuracy of the following report, in a Newry newspaper, of an event in April 2007, at which he paid tribute to the employment record of the claimant. The report was in the following terms:-

"Her 30 years of loyal service was celebrated when Cara Coleman was presented with a cheque for £1,000 at a recent function at Norbrook Laboratories Ltd.

Also attending the function were in excess of 100 employees who have given more than 15 years of continuous loyal service to the company.

Lord Ballyedmond … who presented the cheque to Cara on behalf of the company, paid tribute to her outstanding service to Norbrook Laboratories. 'You are being hosted here tonight by more than 100 of your colleagues who have worked alongside you for more than 15 years' he told her.

…

'We wish Cara well. She has a long and secure future with our company'."

(6) The claimant worked within the Finance Division of the respondent company. Her official job title was 'Credit Controller'. In practice, she did much work (mainly book-keeping and accounting duties) for subsidiary companies of the respondent company, while continuing to help with credit control within the respondent company.

(7) The schedule to the claimant's contract of employment identified the scope of her contract in the following terms:-

"Notwithstanding the statement of the Employee's job title and normal hours of work contained in clause 2 hereof:-

(a) The work which Employee is employed to perform shall include all work normally or properly done under the said job title and all such other work as it is reasonable in the circumstances from time to time for the Company to require the Employee to perform.

(b) The Employee's duties hereunder shall include acting in such capacity as is from time to time required for any subsidiary holding or other associated companies of the Company.

… ."

(8) The respondent's disciplinary procedure ('the Procedure') categorised various offences of misconduct as being 'Minor Misconduct', 'Serious Misconduct' or 'Gross Misconduct'.

(9) According to paragraph 6.3.2 of the Procedure, certain types of misconduct constituted 'Serious Misconduct':-

"Unruly behaviour not of a violent or threatening nature, insubordination or disobedience, but not to the extent where such disobedience leads to the inability of the instructing person to carry out their duties or put the Company, its products, or Employees at risk."

(10) Paragraph 6.3.3 of the Procedure sets out a list of 'Gross Misconduct' offences. That list includes 'Serious insubordination' and:-

"All deliberate refusals to carry out lawful reasonable requests from Management."

(11) Paragraph 6.3 makes it clear that the paragraphs 6.3.2 and 6.3.3 lists are non-exhaustive.

(12) The claimant was dismissed in July 2007. That was the outcome of a disciplinary process which began with a letter dated 26 June 2007. The subject-matter of that process was set out in the following terms in that letter:-

"As you are aware, the allegation is that, on Monday 25^th June 2007, you refused a request to work in the Chairman's Office."

(13) A disciplinary hearing had been scheduled for later that week. However, at the claimant's request, that hearing was postponed until 3 July 2007. The outcome of that hearing was that it was decided that the claimant should be dismissed. In a letter dated 4 July 2007, the respondent informed the claimant that the disciplinary panel's reasons for that decision were as follows:-

"The panel believes, upon consideration of the facts before it, that the deliberate refusal to carry out a lawful and reasonable request from Lord Ballyedmond to answer telephone calls in the Chairman's office constitutes an act of Gross Misconduct. You deliberately refused to comply with a reasonable request from Lord Ballyedmond to go to the Chairman's office on Friday 22^nd June 2007 and Monday 25^th June 2007. At disciplinary interview you confirmed that you would still refuse to go. This leads the panel to conclude that there are no mitigating factors in your case and that dismissal is merited."

(14) The claimant appealed against that dismissal decision, to an internal appeal panel. Her reasons for that appeal were set out in a letter dated 5 July 2007, in the following terms:-

"You indicate in your letter that I refused to comply with a reasonable request from Lord Ballyedmond. I strongly disagree with this decision. The request was not, as you have suggested, 'reasonable' as it was not simply a matter of answering telephone calls and the position clearly demanded a level of IT knowledge and secretarial experience which, after 30 years as a Credit Controller, I do not possess.

I believe the request was a significant and fundamental alteration to the terms and conditions of my employment contract particularly as I was informed by Lord Ballyedmond and the Human Resources Manager, that I would be required to continue in this role for an indefinite period, until a suitable replacement PA could be recruited. This was without consultation or agreement by me."

(15) In essence, the reasons set out in that internal appeal letter are also the reasons for the claimant's contentions (in these proceedings) that the relevant refusal was not an act of misconduct, and that the imposition of the penalty of dismissal was so disproportionate, in the circumstances of this case, as to bring the dismissal, on that account alone, outside the range of reasonable responses.

(16) The internal appeal was not successful. The appeal panel notified the claimant of its stated reasons for rejecting the appeal, in a letter dated 18 July 2007, in the following terms:-

"We have considered all the evidence and other matters of relevance and conclude that we uphold the decision of dismissal as the appropriate action for refusing to carry out a reasonable request from Lord Ballyedmond which remains to constitute as an act of Gross Misconduct. For sake of clarity I conclude that your appeal cannot be upheld."

(17) From May 2007 onwards, the respondent company had a difficulty in providing adequate staffing for its Chairman's office. Ideally, there should have been two trained and experienced Personal Assistants running that office. In practice, by May 2007, there was no trained and experienced PA available. So the company made temporary arrangements, so that some key PA functions would be carried out, on a continuous basis, by persons who were not trained and experienced PAs, while the company made strenuous and urgent efforts to obtain the services of an acceptable permanent PA.

(18) As part of those arrangements, the claimant was required to work in the Chairman's office on one date in May, and on Friday 22 June 2007, and she did so.

(19) It was Lord Ballyedmond's understanding that the claimant would be continuing to work in his office on the following Monday, 25 June 2007. When leaving his office on the Friday evening, in the company of his wife, he asked the claimant if she had the security code for opening the office on the Monday. In response, the claimant told him that she was not going to attend at his office on the Monday. In response, Lord Ballyedmond told her that he expected to see her on the Monday morning. He described her stance as being 'defiant'. Having considered all the evidence in this case, we do not consider that the term 'defiant' is appropriate. However, we do find that the claimant's attitude during the 22 June confrontation was unapologetic and uncompromising.

(20) On Monday 25 June, the claimant did not go to work in the Chairman's office. Instead, she went to her office in the Finance Division. Lord Ballyedmond telephoned the Claimant. He repeated his instruction. She still refused to comply with it.

(21) By 22 June, the respondent company had obtained the services of a suitably trained and experience PA, who would be available for work in the Chairman's office on a permanent basis, with effect from Monday 23 July 2007. So, by 22 June, the company's needs for persons to provide temporary PAs had become short-term needs.

(22) However, during the confrontations on 22 June and 25 June, the claimant was not informed that a permanent PA would become available from 23 July 2007.

(23) At that time, on the basis of the information available to the claimant, she had good reason to believe that, if she accepted the instruction to work in the Chairman's office on 25 June, she would probably be required to continue to work there for several weeks. We say that mainly for two reasons. First, the claimant knew that Lord Ballyedmond was very appreciative of her trustworthiness, discretion and efficiency. Secondly, she will have known that if she was performing temporary PA duties during the last week in June to the Chairman's reasonable satisfaction, he would probably want her to continue to do so, in the interest of continuity.

(24) So that is what would probably have happened, in reality, if the claimant had gone to work for Lord Ballyedmond on 25 June. But what, if anything, was she told, on 22 June or on 25 June, about the likely duration of her temporary posting in the Chairman's office? According to the claimant, company representatives (Ms Kirk and the Chairman) told her that she would be expected to work in the Chairman's office for several weeks. The company denies this. Which version of events is correct? We do not need to resolve that question for the purpose of determining the issues which have to be determined at this stage of the case.

(25) We accept that if the claimant had gone to work in the Chairman's office from 25 June onwards, she would not have been required to perform the full duties at a standard to be expected of a full-time permanent PA. The main priority was for her to take telephone calls.

(26) The company was in a difficult position. A Ms Pamela Nugent had recently been appointed to the post of PA in the Chairman's office. However, she had phoned in sick on Friday 22 June, which created the need to require another member of staff to 'fill in'. She then phoned back later that day to say that she had got another job and would not be coming back.

(27) The claimant had previously acted as a temporary PA in the Chairman's office on 28 May.

(28) Lord Ballyedmond had appointed the claimant as Director to the respondent's subsidiary companies during the course of her employment with the respondent company.

(29) The company did not engage in any prior consultation with the claimant in relation to her proposed role, as a temporary PA. Instead, she was merely informed that she would be carrying out that role.

(30) In June 2007, the claimant had no formal training, experience or qualifications to act as a PA. However, she was a mature and versatile individual who had acquired substantial and varied administrative skills during the course of her lengthy employment with the respondent company. At that time, there were significant and relevant gaps in the claimant's IT expertise. However, she had enough relevant expertise to be able to carry out a temporary PA role, especially because Lord Ballyedmond did not expect the full range of PA functions to be carried out by those who were temporarily carrying out the role.

(31) Apart from Lady Ballyedmond, there was only one other witness to the 22 June confrontation: Ms E Rodgers was in the room at the time.

(32) All the respondent company's employees have confidentiality clauses contained within their contracts of employment. Confidentiality clauses are all very well. However, human experience tells us that, in practice, some employees are much more discreet, and some employees are much less discreet, than other employees.

(33) In the interests of readability and in order to minimise avoidable repetition, we have set out some additional findings of fact below (in the context of our 'Conclusions').

The law and our conclusions (general)

Serplus contains a lengthy analysis of the principles of interpretation which have to be applied when construing 'commercial' documents of the type which were under consideration in that case. We adopt that analysis in the context of the present case.

In our view, there are no important differences (in the context of deciding the appropriate principles of interpretation) between the commercial documents which were under consideration in Serplus and the key documents (the contract of employment and the Procedure) which are under consideration in the present case. Therefore, in construing those key documents, we have applied the interpretative principles which were set out in Serplus.

The law (the disciplinary offence issue)

We wish to draw attention to the legal principles which, in our view, are relevant to the first of the issues which have to be determined at this stage of the case:-

(1) As a general rule, an employee commits a disciplinary offence if she fails to comply with an instruction to carry out work which is within the scope of her contract of employment. (See paragraph 1355 of Division DI of 'Harvey on Industrial Relations and Employment Law', referred to below as 'Harvey'.)

(2) There are some exceptions to that general rule. In some circumstances, an employee will not commit a disciplinary offence even if she disobeys an order which is within the scope of the contract, if that order is unlawful or unreasonable. (See paragraphs 1377 – 1394 of Division DI of Harvey.)

Conclusions (the disciplinary offence issue)

Our conclusions in relation to the 'disciplinary offence' issue are as follows:-

(1) We are satisfied that, by refusing to comply with the June instructions in respect of working in the Chairman's office, the claimant committed a disciplinary offence. We are so satisfied, in the following circumstances and against the following background.

(2) The relevant instruction was an instruction to carry out work which was within the scope of the claimant's contractual obligations, because it was work which, within the meaning of the claimant's contract of employment, constituted:-

"Such other work as it is reasonable in the circumstances from time to time for the Company to require [the claimant] to perform … ."

(3) It was reasonable in the circumstances for the respondent company to issue the June instruction in respect of working in the Chairman's office, because of the following factors and in the following circumstances:-

(a) The office of the Chairman is an important office. It is important that it should be manned at all time during working hours.

(b) On Friday 22 June, the Chairman's newly appointed Personal Assistant ('PA') had informed the Company that she was not intending to return to her work with the Company. A substitute had to be found at short notice.

(c) The number of persons within the existing workforce who would be reasonably satisfactory in occupying that position on a temporary basis was relatively small. The claimant was one of those persons.

(d) In reality, the claimant had the essential basic skills for carrying out the PA job on a temporary basis.

(e) The claimant was not being asked to perform the tasks of a fully trained PA.

(f) The company (by organising the claimant's telephone training, for some hours, in May 2007), had shown its commitment to providing the claimant with proportionate training in respect of this temporary role.

(g) The claimant would not have been expected to discharge the duties of her Finance role during the period when she was expected to act as a temporary PA.

(h) At the time of the June instruction, the claimant had good reason to believe that, if she went along and worked as a PA on Monday 25 June, she would probably be required to continue in that role for a relatively short period, not exceeding a maximum duration of five to six weeks.

(4) In refusing to carry out the relevant instructions, the claimant was not acting on foot of any legal advice and indeed never sought any relevant legal advice in respect of the legal appropriateness of that refusal.

(5) We are satisfied that the claimant knew that she was capable of doing the job but was uncomfortable about the extent of her expertise in that role. That discomfort was insufficient to prevent the relevant refusal from constituting a disciplinary offence.

(6) Paragraphs 6.3.2 of the Company's Disciplinary Procedure ('the Procedure') classifies disobedience, in certain specified circumstances, as 'serious misconduct' and paragraph 6.3.3 classifies 'all deliberate refusals to carry out lawful reasonable requests from Management' as 'gross misconduct'.

The law (the range of responses issue)

We now set out a statement of the legal principles which, in our view, are relevant in the context of the 'range of responses' issue:-

(1) Article 130(4) of the 1996 Order provides as follows:-

(4) … [T]he determination of the question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer) –

(a) depends on whether in the circumstances … 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."

(2) In considering the question of whether an employer acted reasonably or unreasonably (in the context of Article 130(4) of the 1996 Order) in deciding on dismissal as a sanction, a tribunal should generally follow the guidance which was set out in British Leyland UK Ltd v Swift [1981] IRLR 91. In that case, Denning MR set out the correct test in the following terms:-

"Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him."

(3) Article 118 of the 1996 Order is entitled "rights of employer and employee to minimum notice". As Article 118(6) recognises, an employer was entitled, at common law, to treat a contract of employment as terminable without notice, by reason of the conduct of the employee, if the employee had committed an offence of gross misconduct. We consider that Lord Jauncey of Tullichettle correctly stated the law, in Neary v Dean of Westminster [1999] IRLR 288, when he suggested (at paragraph 22 of the judgment) that conduct amounting to gross misconduct justifying dismissal:-

" … must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment."

(4) However, although the question of whether there has been gross misconduct justifying summary dismissal is a question which is of crucial importance in the context of a claim for pay in lieu of notice, it is not the central question in the context of an unfair dismissal claim. The judgment of MacDermott J in the Northern Ireland Court of Appeal decision in Seaton v Ulster Timber Ltd [1979] NI 23 makes that clear. (See Seaton, at pages 32 and 34.)

(5) Seaton is also authority for the proposition that staff rules (such as the Procedure in this case) are not determinative of the Article 130(4) question. (See Seaton at pages 31 and 32.)

(6) In considering the Article 130(4) question, we must consider the reasonableness of the relevant employer's conduct, not simply whether we (the members of this tribunal) ourselves consider the dismissal to be fair. Furthermore, in judging the reasonableness of the relevant employer's conduct, we must not substitute our own decision (as to what would be the right course to adopt) for that of the employer. Instead, the function of this tribunal, as an industrial jury, is to determine whether in the particular circumstances of this case the decision to dismiss (assuming that the dismissal was procedurally fair) fell within the band of reasonableness responses which a reasonable employer might have adopted. If the dismissal falls within that band the dismissal is fair and if the dismissal falls outside that band it is unfair. (See 'Harvey' at paragraph 973 of Division DI.)

(7) Harvey also makes the point that in looking at whether dismissal was an appropriate sanction:-

" … the question is not whether some lesser sanction would in [the tribunal's] view have been appropriate, but rather whether dismissal was within the band of reasonable responses that an employer could reasonably make in the circumstances."

(8) However, in considering whether a dismissal in the circumstances is inside or outside the band of reasonable responses, a tribunal is entitled to take account of the fact that, in deciding on the dismissal issue, a reasonable employer, acting within the range of reasonable responses, would take account of the availability, or non-availability, of any lesser sanctions.

Conclusions (the range of responses issue)

We now set out our conclusions in relation to the 'range of reasonable responses' issue:-

(1) We consider that the relevant offence did not amount to gross misconduct justifying summary dismissal at common law, because the commission by the claimant of that offence did not undermine the trust and confident which is inherent in the relevant contract of employment. The claimant had a track record of 30 years of harmonious working relations with the respondent's Chairman. The relevant incident occurred within the context of an unusual emergency.

(2) However, we have reminded ourselves that the question of whether or not the claimant's conduct amounted to gross misconduct at common law is not the real issue. (See Seaton, at 32.)

(3) We are satisfied that, in the circumstances of this case, the claimant's misconduct constituted 'Serious Misconduct' (within the meaning of the Procedure), as distinct from constituting 'Gross Misconduct' (within that meaning).

(4) It is true that, on the face of it, the Procedure's 'Gross Misconduct' category includes 'all' refusals 'to carry out lawful reasonable requests from Management'. However, paragraph 6.3.3 of the Procedure has to be read in conjunction with paragraph 6.3.2 of that document. Paragraph 6.3.2 makes it clear that disobedience will be within the scope of "Serious Misconduct" (and therefore, implicitly, will not be within the scope of "Gross Misconduct") if it consists of disobedience which does not … [lead] to the inability of the instructing person to carry out their duties … " or which does not " … [put] the Company, its products or Employees at risk".

(5) The relevant offence in this case did not lead to the inability of Lord Ballyedmond to carry out his duties. It did not put the respondent, its products or its employees at risk.

(6) In particular, although the claimant's disobedience was inconvenient and unjustified, it merely led to the inconvenience of having to find a replacement for her, in the temporary role of PA, at short notice; this was duly done.

(7) However, we have reminded ourselves that the proper procedural categorisation of the relevant offence is not the main issue which we have to determine. In our view, the procedural classification of a particular offence (within an employer's rules) can have significant implications, in relatively marginal cases, on the question of whether a dismissal was outside the range of reasonable responses on account of its severity. However, this is not a relatively marginal case.

(8) In considering whether or not the relevant dismissal (if procedurally fair) was inside or outside the 'range of reasonable responses', it is appropriate to have regard to factors which some reasonable employers may well have regarded as being aggravating factors:-

(a) The claimant's offence consisted of her refusal, on Friday 22 June 2007, to work in the Chairman's office on the following Monday. She did not resile from that position when pressurised to do so on the Monday. Subsequently, in the course of the July disciplinary proceedings, a hypothetical scenario was put to her: What would she do if she was asked again? In response she said that she would refuse again; but she was responding to a hypothetical scenario at that point. Nevertheless, many reasonable employers would have regarded her response to that hypothetical scenario as an aggravating factor in the context of the original offence.

(b) The claimant's stance in relation to her disobedience, in connection with the 22 June instruction, was uncompromising and unapologetic. Some reasonable employers would no doubt regard that as an aggravating factor.

(c) Some reasonable employers would regard the eminence of the person who was disobeyed as being an aggravating factor.

(9) We consider that all reasonable employers would regard the following as mitigating factors:-

(a) First, the claimant had very lengthy service without any previous disciplinary record. She had worked for the company for 30 years.

(b) Secondly, the claimant had provided truly outstanding service to the respondent company.

(10) Most, if not all, reasonable employers would be concerned to seek to ensure that any perceived weakness on the part of the employer, in the face of this particular act of disobedience, would not undermine the authority of the employer for the future, either in relation to the claimant specifically or in relation to its employees generally. However, such an employer would not be faced with a stark choice between taking no action and dismissing the claimant. Such an employer would know, or should have known, that there was a range of lesser disciplinary sanctions which could be imposed upon the claimant (including a final written warning) and that the imposition of such a lesser (but significant) sanction would probably prevent any undermining of the employer's authority.

(11) All reasonable employers would also have been aware of the fact that 30 years had elapsed without any previous confrontation about the scope of the claimant's duties; that the relevant confrontation on this occasion had arisen out of a temporary emergency which happened outside the Finance Division; and that there was no high probability that there would be any future confrontation between the claimant and the company on matters relating to the scope of her duties.

(12) We are satisfied that, against the background outlined above, and in light of the factors outlined at sub-paragraphs (8) above and (9) above, no reasonable employer would have decided to dismiss the claimant. Therefore, the decision is outside the range of reasonable responses.

(13) Our decision on that issue is unaffected by the conclusion which we have arrived at in respect of the proper procedural classification (under the company's Procedure) of the relevant act of misconduct. Our decision on the 'range of reasonable responses' issue would have been the same even if we had concluded that the relevant act of disobedience constituted 'Gross Misconduct' under the Procedure.

(14) Mr O'Donoghue has drawn our attention to the commentary in Harvey at DI/1550, where Harvey points out that dismissals for a first offence 'may be' justified in circumstances:-

" … where the employee has made it clear that he is not prepared to alter his attitude so that a warning would not lead to any improvement."

(15) That paragraph of the Harvey commentary is amplified at paragraph 1579 of Division DI, in the following terms:-

"Exceptionally the employee deliberately adopts a particular position or attitude which demonstrates that a warning would be futile. This occasionally arises where, for example, the employee makes it clear that he will not carry out the employer's instructions because he does not accept his methods."

(16) Two cases are cited at that paragraph in support of that proposition. The first of those cases, Retarded Children's Aid Society v Day [1978] IRLR 763, is a case in which the Court of Appeal decided that a tribunal had not erred in law when that tribunal had concluded, on the facts of that case, that the employer's decision to dismiss had not been outside the range of reasonable responses. So Day is not an authority for any proposition that, in any particular set of circumstances, a tribunal is obliged to find that dismissal is within the range of reasonable responses.

(17) The other case cited at paragraph 1579, Atkin v Enfield Group Hospital Management Committee [1975] IRLR 217, is another example of the Court of Appeal declining to interfere with a tribunal decision. According to Donaldson MR in that case, whether sufficient warning has been given to an employee before dismissal is essentially a question for the tribunal. According to Stamp LJ in the same case, the question of whether it is unfair to dismiss an employee without a previous warning is a matter for the tribunal to decide according to the particular circumstances of the case; in some circumstances it may be unfair and sometimes it will not be unfair.

Next steps

A Case Management Discussion ('CMD') has already been arranged for 30 May 2008 at 10.00 am. The purpose of that CMD is to consider the way forward in this case and, in particular, the procedural issues which arise in the context of the outstanding issues in this case (the issue which will continue to be unresolved after the promulgation of this Decision). Either party is free to ask for that CMD to be held at some earlier date.

Chairman:

Date and place of hearing: Belfast, 18-22 February 2008.

Date decision recorded in register and issued to parties: